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Federal Aviation Administration (FAA), DOT.
Final special conditions.
These final special conditions are issued for the General Electric Aviation (GE) CT7-2E1 engine model. This engine model will have a novel or unusual design feature, which is a combination of two existing ratings into a new rating called “flat 30-second and 2-minute OEI” rating. This rating is intended for the continuation of flight of a multi-engine rotorcraft after one engine becomes inoperative. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These final special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is April 11, 2013.
For technical questions concerning this rule, contact Dorina Mihail, ANE-111, Engine and Propeller Directorate, Aircraft Certification Service, 12 New England Executive Park, Burlington, Massachusetts 01803-5299; telephone (781) 238-7153; facsimile (781) 238-7199; email
On September 10, 2009, GE applied for an amendment to type certificate E8NE to add the new CT7-2E1 turboshaft engine model. The CT7-2E1 engine model is a derivative of the CT7 engine family certified between 1977 and 2010. It is a free turbine turboshaft designed for a transport category twin-engine helicopter. The CT7-2E1 engine model will incorporate a novel and unusual feature, which is the “flat 30-second and 2-minute OEI” rating. The applicant requested this rating to provide the increased power required for the rotorcraft performance. A special condition is necessary to apply additional requirements for the rating's definition, overspeed, controls system, and endurance test, because the applicable airworthiness standards do not contain adequate or appropriate airworthiness standards to address this design feature.
The “flat 30-second and 2-minute OEI” rating is equivalent in some regards with the 2
Similar to the “flat 30-second and 2-minute OEI” rating, the 30-second and 2-minute OEI ratings were introduced to provide multi-engine rotorcraft with high power for short periods of time when an engine becomes inoperative during critical flight conditions. Existing airworthiness standards for the 30-second OEI and 2-minute OEI ratings were established based on the assumption the two ratings will be selected together as a package, and that the 30-second OEI rating is higher than the 2-minute OEI rating. Because the 30-second OEI rating was assumed higher, specific requirements were established for only this rating and for the 30 second time period. When the 30-second and 2-minute OEI ratings are equal, these requirements must be extended to a total period of 2.5 minutes.
These final special conditions for the “flat 30-second and 2-minute OEI” rating are based on a combination of existing regulations for the 2
We determined that the type certification basis for the GE CT7-2E1 engine model is up to and including Amendment 20 of part 33; refer to the section below titled “Type Certification Basis.” We also determined that the part 33 standards, up to and including Amendment 25, contain part of the standards for the “flat 30-second and 2-minute OEI.” Therefore, we do not prescribe special conditions when the requirements exist in later amendments, instead we will apply these later amendments. These later requirements are:
(1) Section A33.4, Airworthiness Limitations Section, paragraphs (b)(1) and (b)(2) of Amendments 1-25, and
(2) Section 33.5, Instruction manual for installing and operating the engine, paragraph (b)(4) of Amendments 1-25.
These final special conditions are in addition to the requirements of the 30-second and 2-minute OEI ratings that remain applicable to the “flat 30-second and 2-minute OEI” rating, as follows:
(1) These final special conditions extend the standards applicable to the 30-second or 2-minute OEI ratings for the 2.5 minute time duration of the “flat 30-second and 2-minute OEI” rating. We developed these special conditions by revising the time dependent requirements of §§ 33.27, 33.87(a)(7), and 33.88(c). The 2.5 minute time duration for the rating would affect the structural and operational characteristics of the engine that are time dependent, such as the values for transients, time duration for stabilization to steady state, and part growth due to deformation. In addition, these special conditions are applied by extending the 30-second OEI rating requirements of § 33.67(d) for automatic availability and control of the engine power, from 30 seconds to 2.5 minutes.
(2) These final special conditions are required to account for the proposed rating of a 2.5 minute time duration during the endurance test. For the 30-second and 2-minute OEI ratings, the test schedule of § 33.87(f) is divided among the two ratings. We applied these special conditions by revising the requirements of § 33.87(f) to ensure the test will run for a 2.5 minute duration with no interruption.
Under the provisions of 14 CFR 21.101(a), GE must show the CT7-2E1 turboshaft engine model meets the provisions of the applicable regulations in effect on the date of application, except as detailed in § 21.101(b) and (c). We have determined the following certification basis for the CT7-2E1 turboshaft engine model.
(1) 14 CFR part 33, “Airworthiness Standards: Aircraft Engines,” dated February 1, 1965, with Amendments 1 through 20, except §§ 33.5(b)(4), A33.4(b)(1), and A33.4(b)(2), Amendments 1-25 applicable to the “flat 30-second and 2-minute OEI” rating. The applicant will voluntarily comply with § 33.28, Amendments 1-28 for the EECU, FMU, and AISBV.
(2) 14 CFR part 34, Amendments 1 through 4, § 34.11 “Standard for Fuel Venting Emissions.”
Under the provisions of 14 CFR 21.101(d), if we find the regulations in effect, on the date of the application for the change, do not provide adequate standards with respect to the proposed change because of a novel or unusual design feature, the applicant must also comply with special conditions, and amendments to those special conditions prescribed under the provisions of § 21.16 to provide a level of safety equal to that established by the regulations in effect on the date of the application for the change.
We issue special conditions, as defined by 14 CFR 11.19, under 14 CFR 11.38, which become part of the type certification basis as specified in §§ 21.17(a)(2) or 21.101(d).
Special conditions are initially applicable to the engine model for which they are issued. If the type certificate for that model is amended later, to include another related model that incorporates the same or similar novel or unusual design feature, or if any other model already included on the same type certificate is modified to incorporate the same or similar novel or unusual design feature, these special conditions may also apply to the other model.
The CT7-2E1 turboshaft engine model will incorporate a “flat 30-second and 2-minute OEI” rating for use after the failure or shutdown of one engine and for up to three periods of 2.5 minutes each on any one flight. These final special conditions, discussed below, for the “flat 30-second and 2-minute OEI” rating will address this novel and unusual design feature.
A notice of proposed special conditions, No. 33-12-01-SC, for the CT7-2E1 turboshaft engine model was published on July 20, 2012 (77 FR 42677). We received six comments from European Aviation Safety Agency (EASA) and two from Honeywell. One comment from EASA resulted in changes to the special conditions; the remaining comments resulted in clarifications.
The EASA commented that the special conditions for the overspeed test of § 33.27 should not be the same as the requirements applicable to the 2
We partially agree. We agree the requirements for the 30-second and 2-minute OEI ratings are more appropriate, except for the test time duration requirement. For the CT7 engine model, the overspeed requirements for the 30-second and 2-minute OEI ratings reside in the special conditions 33-002-SC, published on May 28, 1999 (64 FR 28900). We are therefore adopting these requirements, except that the time duration of paragraph (a) of 33-002-SC is increased from 2.5 minutes to 5 minutes in these final special conditions. The rationale is that the test time duration should be representative of the rating duration, which is 2.5 minutes at the flat 30-second and 2-minute OEI rating versus 30 seconds at the 30-second OEI. Also, the 5 minutes test time is the same as that applied to the 2
The EASA commented that amendments to §§ 33.67(d) and 33.28(k) are discussed, despite not being addressed under the part 33 requirements section of the proposed special conditions. The EASA found this section unclear and suggested that additional clarification be provided.
We agree. We eliminated the references to § 33.28(k) and assigned the special conditions to § 33.67(d), instead of § 33.28(k). This resulted in no change to the proposed special conditions themselves because § 33.28(k), Amendment 26 and § 33.67(d) Amendment 18, contain the same requirements.
Honeywell and EASA provided comments related to the “Note” in the proposed special conditions paragraph (e)(1). The note addressed the intent for temperature stabilization. Honeywell recommended revising the note for clarity. The EASA stated that the note is confusing.
We agree. We determined the note is not necessary and removed the note in the final special conditions.
The EASA commented that for the overtemperature tests of § 33.88, the existing requirements are for a 4 minute demonstration at 35 degrees F, hotter than the maximum temperature limit for the 30 second OEI rating. The proposed special conditions, however, amend this requirement by increasing this demonstration to 5 minutes duration. The EASA does not see the technical grounds for this increase in severity.
We do not agree. The 4 minute test duration applies to ratings of 2 minutes and shorter. The 5 minute test duration applies to ratings longer than 2 minutes. Since the flat 30-second and 2-minute OEI is a rating of 2.5 minutes length, the test time requirements should be a 5 minute duration; the same as that for the 2
The EASA commented on the applicability of Appendix A to part 33, A33.4 (b)(1) to the flat 30-second and 2-minute OEI rating. Specifically, that the flat 30-second and 2-minute OEI rating is a single rating, while the requirement of A33.4 (b)(1) applies to either 30-second OEI or 2-minute OEI ratings. EASA stated that the existing requirements are written for the existing ratings and not for the `new' rating introduced by these special conditions, therefore, is not clear whether these requirements are relevant to the `new' rating.
We do not agree. The airworthiness standards of Appendix A to part 33, A33.4(b)(1) for the 30-second OEI and 2-minute OEI ratings were established based on the assumption that the two ratings will be selected together as a package. Paragraph A33.4(b)(1) does not prescribe specific requirements for the 30-second OEI versus 2-minute OEI ratings and provides requirements for the use of both ratings. Therefore, A33.4(b)(1) requirements for maintenance actions associated with the use of the 30-second and 2-minute OEI ratings apply to the new rating.
Honeywell provided a comment related to the naming of the rating,
We do not agree. The applicant requested the new rating be named in closer relation with the 30-second and 2-minute OEI ratings for consistency across existing engine models and to align the new rating with the 30-second and 2-minute-OEI ratings at the rotorcraft level. We agree with the applicant's proposed name. We also do not agree with the commenter that the 30-second and 2-minute OEI ratings are “unlimited use.” These ratings are limited to a maximum use of 3 times per flight and require post-flight inspection, per 14 CFR 1.1, Definitions.
These special conditions are applicable to the GE CT7-2E1 turboshaft engine model. If GE applies later for a change to the type certificate, to include another closely related model incorporating the same novel or unusual design feature, these special conditions would apply to that model, as well. This is true, provided the certification basis is the same or contains later amendments that satisfy the certification basis discussed in the section titled, “Type Certification Basis.”
We reviewed the available data and determined that air safety and the public interest require adopting these special conditions. This action affects certain novel or unusual design features on the CT7-2E1 turboshaft engine model. It is not a rule of general applicability and applies only to GE, whom requested FAA approval for this engine feature.
Air transportation, Aircraft, Aviation safety, Safety.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the FAA issues the following special conditions as part of the type certification basis for the GE CT7-2E1 turboshaft engine model.
Unless otherwise approved by the Administrator and documented in the appropriate manuals and certification documents, the following definition applies: “Rated Flat 30-second and 2-minute One Engine Inoperative (OEI) Power,” with respect to rotorcraft turbine engines, means: (1) A rating for which the shaft horsepower and associated operating limitations of the 30-second OEI and 2-minute OEI ratings are equal, and (2) the shaft horsepower is that developed under static conditions at the altitude and temperature for the hot day, and within the operating limitations established under part 33. The rating is for continuation of one flight operation after the failure or shutdown of one engine in multiengine rotorcraft. The rating is for up to three periods of use no longer than 2.5 minutes each in any one flight, and followed by mandatory inspection and prescribed maintenance action.
(a) In addition to the airworthiness standards in the type certification basis applicable to the engine and the 30-second and 2-minute OEI ratings, the special conditions in this section apply.
(b) Section 33.7 Engine ratings and operating limitations. Flat 30-second and 2-minute OEI rating and operating limitations are established by power, torque, rotational speed, gas temperature, and time duration.
(c) Section 33.27 Turbine, compressor, fan, and turbosupercharger rotor overspeed. In addition to the requirements of § 33.27(b):
(1) The turbine and compressor rotors must have sufficient strength to withstand the test conditions specified in paragraph (2) below.
(2) The applicant must determine, by analysis or other acceptable means, the most critically stressed rotor component of each turbine and compressor, including integral drum rotors and centrifugal compressors. These components must be tested for the conditions in paragraphs (i) or (ii) below. The test selection from the following paragraphs (i) or (ii) below is determined by the speed defined in paragraph (i)(B) or (ii)(B), whichever is higher.
(i) Test for a period of 5 minutes:
(A) At its maximum operating temperature, except as provided in § 33.27(c)(2)(iv); and
(B) At the highest speed determined, in accordance with § 33.27(c)(2)(i) through (iv).
(C) This test may be performed using a separate test vehicle as desired.
(ii) Test for a period of 5 minutes:
(A) At its maximum operating temperature, except as provided in paragraph (ii)(C) below; and
(B) At 100 percent of the highest speed that would result from failure of the most critical component of each turbine and compressor, or system, in a representative installation of the engine when operating at the flat 30-second and 2-minute OEI rating conditions; and
(C) The test speed must take into account minimum material properties, maximum operating temperature, if not tested at that temperature, and the most adverse dimensional tolerances.
(D) This test may be performed using a separate test vehicle as desired. Following the test, rotor growth and distress beyond dimensional limits for an overspeed condition are permitted provided the structural integrity of the rotor is maintained, as shown by a procedure acceptable to the FAA.
(d) Section 33.67(d) Fuel system. Engines must incorporate a means, or a provision for a means, for automatic availability and automatic control of the flat 30-second and 2-minute OEI power for the duration of 2.5 minutes and within the declared operating limitations.
(e) Section 33.87 Endurance test. The requirements applicable to 30-second and 2-minute OEI ratings, except for:
(1) The test of § 33.87(a)(7) as applicable to the 2
(2) The tests in § 33.87(f)(2) and (3) must be run continuously for the duration of 2.5 minutes, and
(3) The tests in § 33.87(f)(6) and (7) must be run continuously for the duration of 2.5 minutes.
(f) Section 33.88 Engine overtemperature test. The requirements of § 33.88(c), except that the test time is 5 minutes instead of 4 minutes.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for Sikorsky Aircraft Corporation-manufactured Model S-64F helicopters, now under the Erickson Air-Crane Incorporated (Erickson) Model S-64F type certificate. This AD supersedes an existing AD which requires inspections, rework, and replacement, if necessary, of the main gearbox (MGB) second stage lower planetary plate (plate). Since we issued that AD, the manufacturer has conducted a configuration review and analysis, and a review of the service history of certain components. The actions of this AD are intended to establish life limits for certain components, remove various parts from service, and require consistency in the part numbers of certain four bladed tail rotor (T/R) assemblies to prevent fatigue cracking, failure from static overload, and subsequent loss of control of the helicopter.
This AD is effective April 16, 2013.
For service information identified in this AD, contact Erickson Air-Crane Incorporated, ATTN: Chris Erickson/Compliance Officer, 3100 Willow Springs Rd., P.O. Box 3247, Central Point, OR 97502, telephone (541) 664-5544, fax (541) 664-2312, email address
You may examine the AD docket on the Internet at
Michael Kohner, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Certification Office, Fort Worth, Texas 76137, telephone (817) 222-5170, email
On June 29, 2012, at 77 FR 38744, the
We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM (77 FR 38744, June 29, 2012).
We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of the same type design and that air safety and the public interest require adopting the AD requirements as proposed except for minor editorial changes to meet current publication requirements. These minor editorial changes are consistent with the intent of the proposals in the NPRM (77 FR 38744, June 29, 2012) and will not increase the economic burden on any operator nor increase the scope of the AD.
Erickson Service Bulletin No. 64F General-1, Rev. 17, contains the Airworthiness Limitations Schedule for the Model S-64F helicopter and lists the parts and assemblies with their specified retirement lives.
We estimate that this AD will affect 7 helicopters of U.S. Registry and estimate, at an average labor rate of $85 per hour, the following costs for removing from service the parts listed in Table 2 of this AD:
• Reviewing helicopter records to determine if an affected part is installed will require approximately 2 work-hours, for a cost per helicopter of $170 and a fleet cost of $1,190.
• Replacing the rotary rudder spindle assembly will require 10 work-hours and a parts cost of $2,787, for a cost per helicopter of $3,637 and a fleet cost of $25,459.
• Replacing the plate will require 40 work-hours and a parts cost of $43,750, for a cost per helicopter of $47,150 and a fleet cost of $330,050.
• Replacing the main servo bracket assembly will require 2 work-hours and a parts cost of $5,223, for a cost per helicopter of $5,393 and a fleet cost of $37,751.
• Replacing the primary servo link assembly of the M/R tandem servo will require 10 work-hours and a parts cost of $14,533, for a cost per helicopter of $15,383 and a fleet cost of $107,681.
• Replacing the T/R shoulder bolt will require 10 work-hours and a parts cost of $571, for a cost per helicopter of $1,421 and a fleet cost of $9,947.
• Replacing the T/R Blade Assembly will require 8 work-hours and a parts cost of $125,765 for a cost per helicopter of $126,445 and a fleet cost of $885,115.
• The total cost to replace the parts that are required to be removed from service is estimated to be $199,599 per helicopter and a fleet cost of $1,397,193.
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 to the extent that it justifies making a regulatory distinction; 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 an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
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 applies to Sikorsky Aircraft Corporation-manufactured Model S-64F helicopters, now under the Erickson Air-Crane Incorporated Model S-64F type certificate, certificated in any category.
This AD defines the unsafe condition as a fatigue crack in a flight critical component. This condition could result in component failure from static overload and subsequent loss of control of the helicopter.
This AD supersedes AD 97-10-15, Amendment 39-10028 (62 FR 28321, May 23, 1997).
This AD becomes effective April 16, 2013.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Before further flight:
(i) Remove from service any part with a number of hours time-in-service (TIS) equal to or greater than the part's retirement life as stated in Table 1 to Paragraph (f) of this AD.
The list of parts in Table 1 to Paragraph (f) of this AD contains only a portion of the life-limited parts for this model helicopter and is not an all-inclusive list.
(ii) Revise the retirement life of each part as shown in Table 1 to Paragraph (f) of this AD by making pen and ink changes or by inserting a copy of this AD into the Airworthiness Limitations section of the maintenance manual.
(iii) Record on the component history card or equivalent record the retirement life for each part as shown in Table 1 to Paragraph (f) of this AD.
(2) Before further flight, remove from service any part with a P/N listed in Table 2 to Paragraph (f) of this AD, regardless of the part's TIS. The P/Ns listed in Table 2 to Paragraph (f) of this AD are not eligible for installation on any helicopter.
(3) Before further flight, if a T/R blade assembly, P/N 65160-00001-048, is installed, remove any of the other three T/R blade assemblies that have a different P/N and replace it with a T/R blade assembly, P/N 65160-00001-048. The T/R blade assembly, P/N 65160-00001-048, must be installed in sets of four only.
(1) The Manager, Rotorcraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Michael Kohner, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Certification Office, Fort Worth, Texas 76137, telephone (817) 222-5170, email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
Erickson Service Bulletin No. 64F General-1, Revision 17, dated August 17, 2010, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Erickson Air-Crane Incorporated, ATTN: Chris Erickson/Compliance Officer, 3100 Willow Springs Rd, P.O. Box 3247, Central Point, OR 97502, telephone (541) 664-5544, fax (541) 664-2312, email address
Joint Aircraft Service Component (JASC) Code: 6300: Main Rotor Drive System and 6400: Tail Rotor System.
Federal Energy Regulatory Commission, DOE.
Final rule; annual update to fee schedule.
In accordance with the Commission's regulations, the Commission, by its designee, the Executive Director, issues this annual update to the fee schedule which lists per-acre rental fees by county (or other geographic area) for use of government lands by hydropower licensees.
This rule is effective March 12, 2013.
Norman Richardson, Financial Management Division, Office of the Executive Director, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6219,
Section 11.2 of the Commission's regulations provides a method for computing reasonable annual charges for recompensing the United States for the use, occupancy, and enjoyment of its lands by hydropower licensees.
This Final Rule is effective March 12, 2013. The provisions of 5 U.S.C. 804, regarding Congressional review of final rules, do not apply to this Final Rule because the rule concerns agency procedure and practice and will not substantially affect the rights or obligations of non-agency parties. This Final Rule merely updates the fee schedule published in the Code of Federal Regulations to reflect scheduled adjustments, as provided for in section 11.2 of the Commission's regulations.
Public lands.
By the Director.
In consideration of the foregoing, the Commission amends Chapter I, Title 18,
16 U.S.C. 792-828c; 42 U.S.C. 7101-7352.
Federal Communications Commission.
Final rule; announcement of effective date.
This document announces the approval by the Office of Management and Budget (OMB) on July 22, 1998 of the information collection requirements in an added section. These requirements were contained in the Commission's Report and Order in CS Docket No. 97-151 that was released on February 6, 1998 and published in the
Section 1.1417, added at 63 FR 12026, March 12, 1998, has been approved by OMB and is effective March 12, 2013.
On July 22, 1998, OMB approved the information collection requirements contained in § 1.1417 of title 47 of the United States Code as a revision to OMB Control Number 3060-0392.
These information collection requirements required OMB approval to become effective. The Commission publishes this document as an announcement of that approval. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Thomas Butler, Federal Communications Commission, Room 5-C458, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number 3060-0392 in your correspondence. The Commission will also accept your comments via the Internet if you send them to
An agency 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 that does not display a valid control number. The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) eliminates unnecessary information, streamlines the filing of annual international traffic and revenue and circuit status reports, and modernizes the types of information it collects. The Commission found that the burdens of filing this information outweigh any benefit from the information. To simplify the collection of data on international telecommunications services, the Commission consolidated the traffic and revenue and circuit status reports into one rule and mandated a consolidated Filing Manual that will ensure that future changes to the reports will be coordinated. These actions are part of the Commission's review of its reporting requirements and are intended to remove unnecessary information collections and tailor its information collections to the current state of the international telecommunications market.
Effective April 11, 2013, except for §§ 1.767(l)(2), 43.61, 43.62, 43.82, 63.10(c)(2) and (4), 63.21(d) and 63.22(e), which contain information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a document in the
John Copes or David Krech, Policy Division, International Bureau, FCC, (202) 418-1460 or via the Internet at
This is a summary of the Commission's Second Report and Order, IB Docket No. 04-112, FCC 13-6, adopted January 9, 2013, and released January 15, 2013. The full text of the Second Report and Order is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The document also is available for download over the Internet at
1. In the Second Report and Order, the Federal Communications Commission (Commission), continues its comprehensive review of its international reporting requirements for entities providing international telecommunications services. The Commission's international reporting requirements consist of the annual international traffic and revenue report (currently found in 47 CFR 43.61) and the annual international circuit status report (currently found in 47 CFR 43.82). The Commission adopted a number of changes that affect both such reports. The Commission also adopted a number of specific changes to the traffic and revenue report and changes to the circuit status report.
2. The Commission decided to consolidate both of the international reports into 47 CFR 43.62. The Commission also decided to consolidate the current separate filing manuals for each report into one consolidated Filing Manual. The Commission determined that having one consolidated rule and one consolidated filing manual for both reports would make it easier for entities required to file on or both of the reports to file their data. To this end, the Commission directed the International Bureau to issue and maintain a consolidated Filing Manual that would provide instructions to filing entities for preparing and submitting both reports. The Commission determined that having a single Filing Manual, with a single set of definitions would make it easier for the Bureau to keep the instructions for both reports consistent with each other. The Commission, however, did not adopt its proposal to consolidate the current separate filing dates for the two reports. Rather, it decided to retain the current separate filing dates.
3. The Commission decided to require each entity that files a traffic and revenue report or a circuit status report also to file each year a Registration Form that elicits basic information about the entity such as company name, address, contact information and a list of any authorizations under section 214 of the Communications Act that the entity may hold. Additionally, the Commission requires any entity that files a traffic and revenue report also to file a Services Checklist under which the entity would check a series of boxes to provide basic information about its operations during the previous year, such as whether the entity provided service in that year, and which would direct the entity as to which schedules it is required to file. The Commission determined that the Registration Form and Services Checklist would allow the Commission to determine which carriers are providing service and to keep its data base updated.
4. To simplify the filing of traffic and revenue and circuit status reports, the Commission will allow filing entities to employ statistical sampling and other estimation techniques where actual counts of data elements are not possible. Finally, the Commission streamlines the procedure for requesting confidential treatment of their traffic and revenue and circuit status reports under 47 CFR 0.459 by allowing them to check a box.
5. The Commission simplified the traffic and revenue report by eliminating several current requirements that filing entities must report. The traffic and revenue reports collect information on four classes of international telecommunications services: (1) International message telephone service (IMTS); (2) IMTS resale; (3) international private line service; and (4) international miscellaneous services. The Commission made changes to the reporting of each class of service.
6. IMTS. The Commission eliminated several requirements that will make it simpler for filling entities to prepare and submit the traffic and revenue report for IMTS. Additionally, the Commission modernized the IMTS information that filing entities must report to make such information more relevant to current conditions in the IMTS market. Finally, the Commission requires certain entities that provide an IMTS-like service, voice over internet protocol (VoIP), also to file the traffic and revenue report. First, the Commission eliminates the need for filing entities to report the number of IMTS messages they carry or regional totals for their IMTS traffic. The Commission also allows filing entities to include their country-beyond and country-direct traffic in their world total traffic, rather than report it for each route as they currently do. The Commission replaced the current detailed billing codes under which carriers now report their IMTS traffic and revenues with a set of simple filing schedules. Second, to modernize the information filing entities report, the Commission requires those entities to break down their world-total IMTS traffic and revenues by customer class and routing arrangements. That is, the Commission requires filing entities to break down their IMTS revenues into three customer classes: residential and mass market customers; business and government customers; and other carriers. The Commission requires filing entities to disaggregate their IMTS minutes and revenue payouts between traffic they terminate on foreign fixed landline networks and those terminated on foreign mobile networks. Finally, the Commission required providers of an IMTS-like service, called voice over internet protocol (VoIP) that is interconnected to the public switched telephone network, also to file the IMTS portion of the traffic and revenue report. The Commission noted that, while the providers of these services are not classified as common carriers, customers view the service as a substitute for IMTS. The Commission concluded that recent declines in IMTS traffic are attributable to customers' switching to interconnected VoIP and that, without information on such services, it would not have an adequate view of the international voice market.
7. IMTS Resale. The Commission a $5 million revenue threshold for the reporting of international resale IMTS traffic (the provision of IMTS by purchasing IMTS from another carrier and selling it to the reseller's customers). With respect to resale IMTS the threshold will eliminate the need for 1,000 small carriers to file a report.
8. International Private Line Service. The Commission eliminated the current requirement that filing entities disaggregate their private line services (the provision of channel of communications, usually on a monthly leased basis, into six categories based on speed, allowing them instead to report their private line traffic and services provided over resold private lines only on a world-total basis. The Commission also eliminated the requirement for facilities-based carriers to report those lines on a route-by-route basis, allowing them to report them only on a world-total basis.
9. International Data and Miscellaneous Services. The Commission adopted its proposal to allow carriers that provide certain classes of international data services to include those services in the category of international miscellaneous services, rather than with their private line
10. The Commission adopted a number of changes to simplify the circuit status report that common carriers, and some non-common carrier providers of international satellite transmission facilities, currently file each year. The circuit status report requires filing entities to provide information on the capacity and use of their international transmission circuits. The Commission simplified the circuit status report by eliminating the current requirement that carriers report their circuits on a route-by-route basis, allowing them to report them on a world-total basis, instead. The Commission also eliminated the requirement that carriers report the number of their idle circuits or the destination of the circuits. Rather, it will require filing entities to report only their total active 64 kilobit per second (KBpS) equivalent circuits. With respect to non-common carrier providers of international satellite networks, the Commission similarly will require such providers similarly to provide information only on their active 64 KBpS circuits. The Commission concluded that this would not be a burden on such entities, because they must file the same information when they pay their annual regulatory fees. With respect to submarine cable systems, the Commission will require both common carrier and non-common carriers providers of such circuits to report only the capacity of their cables. Such providers will no longer be required to report the number of 64 KBpS circuits on their facilities or the destination to which those circuits are sued. Rather, the Commission will require filing entities to report, as of December 31 of the previous year, the capacity of their cables in STM-1 (Synchronous Transport Module level 1) units, which is now the standard commercial unit for the sale or leasing of cable capacity. The Commission will also require filing entities to report their capacity in terms of the ownership interest (ownership, indefeasible right of use, or an inter-carrier lease). Additionally, the Commission will require filing entities to report the planned capacity of new cables in gigabit per second (GBpS) units.
11. This Second Report and Order adopts new or revised information collection requirements, subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. These information collection requirements will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. The Commission will publish a separate notice in the
12. As required by the Regulatory Flexibility Act, as amended (RFA),
13. The Commission initiated this comprehensive review of the reporting requirements imposed on U.S. carriers providing international telecommunications services. The Commission believes that the decisions in the Second Report and Order will make it easier for carriers, both small and large, to provide the information required by the rules, while providing the Commission with information it needs but does not receive on an annual basis. In addition, section 11 of the Telecommunications Act of 1996 directs the Commission to undertake, in every even-numbered year beginning in 1998, a review of certain regulations issued under the Communications Act of 1934, as amended.
14. The objective of the Second Report and Order in this proceeding is to improve the reporting requirements imposed on carriers providing international telecommunications services in the proposed § 43.62(a) and (b). Specifically, the Second Report and Order consolidates, simplifies, and revises the annual traffic and revenue reporting requirements and the circuit status reporting requirements. The rule also requires entities to file some additional information in the traffic and revenue report that they do not now file. Additionally, the rule relieves service providers with annual revenues less than $5 million from filing Traffic and Revenue Reports for IMTS resale and the provision of international miscellaneous services. Finally, the rule requires all providers of international telecommunications services to file an annual Services Report that updates their contact information and indicates whether or not they provided service
15. Section 43.61 requires all U.S. carriers providing international telecommunications services to file an annual report of their traffic and revenues. Under the consolidated § 43.62(b), those same carriers and some additional entities that provide international telecommunications services will file similar traffic and revenue information. Section 43.82 requires all U.S. facilities-based carriers providing international telecommunications services to file an annual report on the status of their circuits. Under the new § 43.62(a), those same carriers and some other providers of international telecommunications facilities will file similar circuit status information. The information derived from the international Traffic and Revenue Report and Circuit Status Report is critical in understanding the international telecommunications market. These reports are the only source of information of this nature.
16. No comments were received on the IRFA analysis.
17. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposals, if adopted.
18. The policies adopted in the Second Report and Order apply to entities providing international common carrier services pursuant to section 214 of the Communications Act; entities providing international wireless common carrier services under section 309 of the Act; entities providing common carrier satellite services under section 309 of the Act; and entities licensed to construct and operate submarine cables under the Cable Landing License Act. The Commission has not developed a small business size standard directed specifically toward these entities. As described below, such entities fit within larger categories for which the SBA has developed size standards.
19. The policies adopted in the Second Report and Order apply only to entities providing international common carrier services pursuant to section 214 of the Communications Act; entities that operate a telecommunications “spot market” that themselves carry international traffic; entities providing domestic or international wireless common carrier services under section 309 of the Act; entities providing common carrier satellite facilities under section 309 of the Act; entities licensed to construct and operate submarine cables under the Cable Landing License Act on a common carrier basis; and entities that provide international terrestrial telecommunications facilities on a common carrier basis (including incumbent local exchange carriers that offer such facilities). At present, carriers that provide international telecommunications services are required to file the annual traffic and revenue report. The requires entities providing VoIP service interconnected with the public switched telephone network also to file the Traffic and Revenue Report. The Second Report and Order also requires all filing entities file a Services Report with information about the filing entity—such as address, phone number, email address, and the international section 214 authorizations held by the carrier. Further, the Second Report and Order adopts a number of changes that would simplify the Traffic and Revenue Report, as well as requiring some new information.
20. The entities that the Second Report and Order proposes to require to file the Traffic and Revenue Report are a mixture of both large and small entities. The Commission has not developed a small business size standard directed specifically toward these entities. However, as described below, these entities fit into larger categories for which the SBA has developed size standards that provide these facilities or services.
21. Facilities-based Carriers. Facilities-based providers of international telecommunications services would fall into the larger category of interexchange carriers. Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
22. In the 2010 annual traffic and revenue report, 31 facilities-based and facilities-resale carriers reported approximately $4.0 billion in revenues from international message telephone service (IMTS). Of these, three reported IMTS revenues of more than $1 billion,
23. The 2010 traffic and revenue report also shows that 46 facilities-based and facilities-resale carriers (including 13 who also reported IMTS revenues) reported $515 million for international private line services; of which one reported private line revenues of more than $50 million, 11 reported private line revenues of more than $10 million, 31 reported revenues of more than $1 million, 33 reported private line revenues of more than $500,000; 39 reported revenues of more than $100,000, while one reported revenues of less than $10,000.
24. The 2010 traffic and revenue report also shows that eight carriers (including one that reported both IMTS and private line revenues, one that reported IMTS revenues and five that reported private line revenues) reported $19 million for international miscellaneous services, of which two reported miscellaneous services revenues of more than $1 million, three reported revenues of more than $500,000, four reported revenues of more than $200,000, six reported revenues of more than $50,000, while one reported revenues of less than $20,000. Based on its miscellaneous services revenue, this one carrier with revenues of less than $20,000 would be considered a small business under the SBA definition. Based on their private line revenues, most of these entities would be considered non-small entities under the SBA definition.
25. IMTS Resale Providers. Providers of IMTS resale services are common carriers that purchase IMTS from other carriers and resell it to their own customers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
26. Wireless Carriers and Service Providers. Included among the providers of IMTS resale are a number of wireless carriers that also provide wireless telephony services domestically. The Commission classifies these entities as providers of Commercial Mobile Radio Services (CMRS). At present, most, if not all, providers of CMRS that offer IMTS provide such service by purchasing IMTS from other carriers to resell it to their customers. The Commission has not developed a size standard specifically for CMRS providers that offer resale IMTS. Such entities would fall within the larger category of wireless carriers and service providers. Below, for those services subject to auctions, the Commission notes that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.
27. Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category.
28. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the Wireless Communications Services (WCS) auction as an entity with average gross revenues of $40
29. Providers of Interconnected VoIP services. In addition to the carriers that now file the annual traffic and revenue report, the Second Report and Order requires entities providing international calling service via Voice over Internet Protocol (VoIP) connected to the public switched telephone network (PSTN) to file data on their international voice traffic. The entities that provide such services are a mix of large and small entities. We do not have information on the size of such VoIP providers. The 2007 Economic Census includes VoIP providers in a larger class called “Internet Service Providers” (ISPs), and classes such ISPs in two categories, depending upon whether the service is provided over the provider's own facilities (
30. Spot Market operators. A “spot market” is a market where IMTS providers can buy or sell call completion services for calls, including IMTS calls. A customer of the spot market enters into a contract with the spot market owner to buy or sell call completion services by interconnecting at a spot market point of presence. The spot market owner acts as broker by facilitating the exchange of calls between spot market customers, who may not know each other's identity. The Commission has not developed a small business size standard specifically for operators of spot markets. As a result, for purposes of this IRFA, we shall consider all such entities to be small businesses.
31. The actions we take in the Second Report and Order apply only to entities that have international bearer circuits. The Second Report and Order makes changes to the information that filing entities must provide about international common carrier circuits.
32. Providers of International Telecommunications Transmission Facilities. According to the 2010 Circuit Status Report, 70 U.S. international facility-based carriers filed information pursuant to § 43.82.
33. Satellite Telecommunications Providers. Other providers of international transmission facilities are those that operate international common carrier and non-common carrier satellite systems. Such systems provide circuits to providers of international telecommunication services or provide circuits directly to end users. The Second Report and Order requires operators of international satellite services to report their aggregate world-wide active circuits in the Circuit Status Report. The Commission has not determined a size standard specifically for operators of international satellite systems that offer circuits directly to end users. However, two economic census categories address the satellite industry. Under SBA rules, the first category has a small business size standard of $15 million or less in average annual receipts.
34. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”
35. The second category,
36. Operators of Non-Common carrier Undersea Cable Systems. The Second Report and Order requires all submarine cable licensees to file data on their circuits on submarine cable facilities. Neither the Commission nor the SBA has developed a size standard specifically for operators of non-common carrier undersea cables. Such entities would fall within the large category of Wired Telecommunications Carriers. The size standard under SBA rules for that category is that such a business is small if it has 1,500 or fewer employees.
37. Incumbent Local Exchange Carriers. Because some of the international terrestrial facilities that are used to provide international telecommunications services may be owned by incumbent local exchange carriers, we have included small incumbent local exchange carriers in this present RFA analysis, to the extent that such local exchange carriers may operate such international facilities. (Local exchange carriers along the U.S.-border with Mexico or Canada may have local facilities that cross the border.) Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange carriers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
38. The Second Report and Order retains and revises the annual Traffic and Revenue Report and Circuit Status Report, and add the Service Report, because the collection and public reporting of this information continues to be necessary in the public interest. Because carriers currently are required to file the section 43.61 annual traffic and revenue report and the § 43.82 annual circuit-status report, the decision to retain those reports will not impose any additional significant economic burden on small carriers. The Service Report is a simple form whose compliance burden is de minimis. The decision to retain the reporting of IMTS and international private lines on a route-by-route basis similarly continues requirement of the current § 43.61. As a result, this conclusion will also not impose any significant additional burden on small carriers.
39. The revisions the Second Report and Order makes to the reporting requirements will reduce overall compliance requirements and burden. Particularly, the elimination of the use of billing codes in the Traffic and Revenue Report, the requirement that filers include only the terminating legs of their reoriginated traffic, the requirement that filers report traditional transit traffic only on a world total basis, the requirement that filers report international data services only on a world-total basis, and the elimination of the current requirements that filers disaggregate their private line service data into six categories based on the speed of the service will simplify and lessen compliance requirements.
40. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage or the rule, or any part thereof, for small entities.”
41. The Second Report and Order considered consolidating the Traffic and Revenue Report and the Circuit Status Report into a single, annual report. We did not, however, adopt this consolidation because the timing of the availability of data makes it impossible for these two reports to be consolidated while providing us with information we need to perform our duties in a timely manner.
42. The establishment of a $5 million revenue threshold below which a filing entity need not file annual traffic and revenue data for international resale services or miscellaneous services will considerably ease the reporting burden on small entities. The Second Report and Order also considered requiring a requirement to correct any errors in the reported data of over one percent in the Traffic and Revenue Report on an ongoing basis. We rejected this requirement, however, retaining the requirement that filers need only file a single correction 90 days after filing the report. This decision will simplify compliance for all filers.
43. The Commission will send a copy of this Second Report and Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional review Act.
44. None.
45. Accordingly,
46.
47.
48.
49.
Administrative practice and procedure, Communications common carriers, Reporting and recordkeeping requirements, Telecommunications, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 43 and 63 as follows:
15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), and 309, Cable Landing License Act of 1921, 47 U.S.C. 35-39, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96.
(l) * * *
(2) File quarterly, within 90 days from the end of each calendar quarter, a report of its active and idle 64 kbps or equivalent circuits by facility (terrestrial, satellite and submarine cable).
47 U.S.C. 154; Telecommunications Act of 1996; Pub. L. 104-104, sec. 402(b)(2)(B), (c), 110 Stat. 56 (1996) as amended unless otherwise noted. 47 U.S.C. 211, 219, 220, as amended; Cable Landing License Act of 1921, 47 U.S.C. 35-39.
(a)
(1)
(2)
(ii) Each cable landing licensee and common carrier shall file a report showing its capacity on submarine cables between the United States and any foreign point as of December 31 of the preceding calendar year.
(b)
(2) Not later than July 31 of each year, each common carrier engaged in providing international telecommunications service, and each person or entity engaged in providing Voice over Internet Protocol service connected to the public switched telephone network, between the United States and any foreign point shall file a report with the Commission showing revenues, payouts, and traffic for such international telecommunications service and Voice over Internet Protocol service connected to the public switched telephone network provided during the preceding calendar year.
(3) Entities filing such reports shall submit a revised report by October 31 identifying and correcting any inaccuracies included in the annual report exceeding one percent of the reported figure.
United States is defined in section 3 of the Communications Act of 1934, as amended, 47 U.S.C. 153.
(c)(1) A Registration Form, containing information about the filer, such as address, phone number, email address, etc., shall be filed with each report filed pursuant to paragraphs (a) and (b).
(2) The Registration Form shall include a certification enabling the filer to check a box to indicate that the filer requests that its circuit capacity data or traffic and revenue data be treated as confidential. If a filer checks that box, the Commission shall treat the data contained in the accompanying report as confidential. Upon receipt of a request for inspection of such information, the Commission shall notify the filer; at that point, the filer must justify continued confidentiality of the information consistent with section 0.459(b) of the Commission's rules.
(d)
The instructions and reporting requirements prepared by the Chief, International Bureau, shall be consistent with the terms of Reporting Requirements for U.S. Providers of International Telecommunications Services; Amendment of Part 43 of the Commission's Rules, IB Docket No. 04-112, Second Report and Order, FCC 13-6 (rel. January 15, 2013).
Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless otherwise noted.
(c) * * *
(2) File quarterly reports on traffic and revenue within 90 days from the end of each calendar quarter consistent with the format set out by the § 43.62 filing manual.
(4) In the case of an authorized facilities-based carrier, file quarterly, within 90 days from the end of each calendar quarter, a report of its active and idle 64 kbps or equivalent circuits by facility (terrestrial, satellite and submarine cable).
(d) Carriers must file annual international telecommunications traffic and revenue as required by § 43.62 of this chapter.
(e) The carrier shall file annual international circuit capacity reports as required by § 43.62 of this chapter.
Fish and Wildlife Service, Interior.
Final rule and correcting amendment.
We, the U.S. Fish and Wildlife Service, determine threatened status for the yellow-billed parrot
This rule becomes effective April 11, 2013.
This final rule is available on the Internet at
Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2171. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We are listing the yellow-billed parrot as threatened under the Endangered Species Act (Act) (16 U.S.C. 1531
We are also correcting the 2011 special rule for the salmon-crested cockatoo to incorporate the provision that certain acts in interstate commerce of salmon-crested cockatoos may proceed without a permit under the Act. This idea was discussed in detail in the 2009 proposed rule and 2011 final rule for this species, but the provision was inadvertently omitted from the language that we codified in the Code of Federal Regulations. This change clarifies the intent of the 2011 final special rule for the salmon-crested cockatoo.
This action lists the yellow-billed parrot as threatened on the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h), and allows the import into and export from the United States of certain captive-bred yellow-billed parrots, and allows certain acts in interstate commerce of yellow-billed parrots, without a permit under 50 CFR 17.32. This action is authorized by the Act.
We are also correcting the May 26, 2011 (76 FR 30758), special rule for the salmon-crested cockatoo, as discussed in this rule.
The Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
On January 31, 2008, the Service received a petition dated January 29, 2008, from Friends of Animals, as represented by the Environmental Law Clinic, University of Denver, Sturm College of Law, requesting that we list 14 parrot species under the Act. The petition clearly identified itself as a petition and included the requisite information required in the Code of Federal Regulations (50 CFR 424.14(a)). On July 14, 2009 (74 FR 33957), we published a 90-day finding in which we determined that the petition presented substantial scientific and commercial information to indicate that listing may be warranted for 12 of the 14 parrot species. In our 90-day finding on this petition, we announced the initiation of a status review to list as endangered or threatened under the Endangered Species Act of 1973, as amended (Act), the following 12 parrot species: Blue-headed macaw
On October 24, 2009, and December 2, 2009, the Service received a 60-day notice of intent to sue from Friends of Animals and WildEarth Guardians, for
On July 21, 2010, a settlement agreement was approved by the Court (CV-10-357, D. DC), in which the Service agreed to submit to the
We based this action on a review of the best scientific and commercial information available, including all information received during the public comment period. In the October 11, 2011, proposed rule, we requested that all interested parties submit information that might contribute to development of a final rule. We also contacted appropriate scientific experts and organizations and invited them to comment on the proposed listing and proposed special rule. We received comments from 5 individuals, one of which was from a peer reviewer.
We reviewed all comments we received from the public and peer reviewer for substantive issues and new information regarding the proposed listing of this species, and we address those comments below. Overall, the commenters and peer reviewer supported the proposed listing. Two comments included additional information for consideration; the remaining comments simply supported the proposed listing without providing scientific or commercial data.
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from four individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from one of the peer reviewers from whom we requested comments. The peer reviewer stated that the proposed rule adequately reviewed and analyzed existing information. Some new information was provided for the species, as well as technical clarifications, as described below. Technical corrections suggested by the peer reviewer have been incorporated into this final rule. In some cases, a technical correction is indicated in the citations by “personal communication” (pers. comm.), which could indicate either an email or telephone conversation; in other cases, the research citation is provided.
We fully considered comments from the public and the peer reviewer on the proposed rule to develop this final listing of the yellow-billed parrot. This final rule incorporates changes to our proposed listing based on the comments that we received that are discussed above and newly available scientific and commercial information. We made some technical corrections and reevaluated threats to the species from disease and competition with nonnative species based on new information. Although our analysis of these potential threats is different from that in our proposed rule, none of the information changed our determination that listing this species as threatened is warranted. In addition, in this final rule, we are publishing a correcting amendment to the 2011 special rule for the salmon-crested cockatoo (76 FR 30758, May 26, 2011), as described below under the heading Correction to the Salmon-crested Cockatoo Special Rule.
Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR Part 424) set forth procedures for adding species to, removing species from, or reclassifying species on 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 endangered or threatened 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 considering whether a species may warrant listing under any of the five factors, we look beyond the species' exposure to a potential threat or aggregation of threats under any of the factors, and evaluate whether the species responds to those potential threats in a way that causes actual impact to the species. The identification of threats that might impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence indicating that the threats are operative and, either singly or in aggregation, affect the status of the species. Threats are significant if they drive, or contribute to, the risk of extinction of the species, such that the species warrants listing as endangered or threatened, as those terms are defined in the Act.
The yellow-billed parrot belongs to the family Psittacidae and is one of only
This species primarily occurs in mid-level (up to 1,200 meters (m) (3,937 feet (ft)), wet limestone and lower montane, mature forests of Jamaica; however, it also occurs at lower densities, perhaps seasonally, based on availability of food sources, in low elevation (20-100 m (65.6-328 ft)) mesic forests near the coastline (Koenig 2011, personal communication (pers. comm.); TEMNL 2005, p. 128). The late successional forest canopy height ranges from 15-20 m (49-66 ft), with occasional emergence of
In the latter part of the 20th century, the overall range and population of the yellow-billed parrot decreased (Juniper and Parr 1998 in BLI 2011a, unpaginated). The range of the yellow-billed parrot is estimated to be 5,400 square kilometers (km
Like most parrot species, the yellow-billed parrot is a frugivore, and feeds on catkins, nuts, berries, fruits, blossoms, figs, and seeds (Jamaica Observer 2011b, unpaginated; World Parrot Trust, 2009, unpaginated). Parrots, including this species, generally fly considerable distances in search of food (Koenig 2011, pers. comm.; BLI 2011a, unpaginated; Lee 2010, p. 8). Because parrots feed primarily on fruits and flowers, they are linked to the fruiting and flowering patterns of trees; fluctuations in abundance and availability of these food sources may change diets, result in movements to areas with greater food availability, and influence local seasonal patterns of bird abundance (BLI 2011a, unpaginated; Lee 2010, p. 7; Tobias and Brightsmith 2007, p. 132; Brightsmith 2006, p. 2; Renton 2002, p. 17; Cowen n.d., pp. 5, 23).
The breeding season begins in March, with yellow-billed parrots looking for and defending nest sites, and ends in late July, the end of the fledgling period (BLI 2011a, unpaginated; Koenig 2001, p. 208). Mated pairs of yellow-billed parrots appear to be monogamous (Koenig 1998, unpaginated). Yellow-billed parrots are believed to require larger, mature trees for nesting; these parrots do not excavate holes, but make use of existing ones found in old growth forests. This may explain why this species is more common, especially when nesting, in interior forests, although they have been found in other habitat types, including disturbed plantations (NEPA 2010b, unpaginated; Snyder
The yellow-billed parrot is currently classified as “vulnerable,” which means this species is facing a high risk of extinction in the wild, by the International Union for Conservation of Nature due to the small, fragmented, and declining range of this species; a decline in extent, area, and quality of suitable habitat due to logging and mining; and trapping (BLI 2011a, unpaginated; Snyder
Historically, 97 percent of Jamaica was a closed-forest ecosystem. After centuries of improper land use and a high rate of deforestation, the island has lost much of its original forest (Berglund and Johansson 2004, pp. 2, 5; Evelyn and Camirand 2003, p. 354; Koenig 2001, p. 206; Koenig 1999, p. 9). Some of the most important parrot habitat was protected from human activities by its inaccessibility, but today, even these areas are being encroached upon and degraded. Conversion of forest land to agriculture and pasture has accounted for a majority of deforested land and has resulted in the removal of valuable timber species as a byproduct, with natural regrowth removed as soon as it approaches marketable size (Eyre 1987, p. 342).
Today, Jamaica's forested area is estimated at 337,000 hectares (ha) (832,745 acres (ac)), or 31 percent of the total land area (FAO 2011, p. 116). Only 8 percent of Jamaica's total land area is classified as minimally disturbed closed broadleaf forest, and this type of forest only occurs on the steepest or most remote, inaccessible parts of the island (Koenig 2011, pers. comm.; Levy and Koenig 2009, p. 262; Evelyn and
Cockpit Country is characterized by yellow and white limestone karst topography with rounded peaks and steep-sided, bowl-shaped depressions, known as cockpits (John and Newman 2006, p. 3; Tole 2006, p. 789). Historically, the edge forests of Cockpit Country experienced extensive clear-cutting for timber, but the rugged terrain and inaccessibility of Cockpit Country have prevented extensive resource exploitation in its interior forests (Koenig 2001, pp. 206-207; Wiley 1991, p. 201). This area has retained nearly all of its primary forest and is an important remaining tract of extensive primary forest in Jamaica; 81 percent of the region is under forest (John and Newman 2006, p. 3; Tole 2006, pp. 790, 795, 798). However, gaps indicate the beginning of a decline in contiguity and connectivity, and the periphery and surrounding plains are already badly degraded (Tole 2006, pp. 790, 797; Koenig 2001, pp. 201-207). The greatest threat to the wet limestone forest habitat of Cockpit Country is deforestation due to bauxite mining. Additional threats include deforestation from road construction, conversion of forests for agriculture, poor agricultural practices, and logging (BLI 2011b, unpaginated; Levy and Koenig 2009, p. 267; JEAN 2007, p. 4; BLI 2006, unpaginated; John and Newman 2006, p. 15; Wiley 1991, p. 201; Windsor Research Centre n.d., unpaginated).
The Blue Mountains and John Crow Mountains are located on the eastern side of Jamaica and are separated by the Rio Grande. Almost all of the two ranges were designated forest reserves and contain important remaining tracts of closed-canopy, broadleaf forest (TNC 2008b, unpaginated). In 1989, 78,200 ha (193,236 ac) were designated as the Blue and John Crow Mountains National Park (BLI 2011d, unpaginated; BLI 2011e, unpaginated; Dunkley and Barrett 2001, p. 1). The most significant threats to the Blue and John Crow Mountains are deforestation due to subsistence farming, commercial farming, and illegal logging, and the encroachment of invasive species (BLI 2011e, unpaginated; IUCN 2011, unpaginated; Chai
Mount Diablo is located in the center of Jamaica and makes up part of the “spinal forest,” the forests along the main mountain ridges that extend along the center of the island. Conversion of forest for agriculture land, forestry plantations, expanding settlements, and bauxite mining has left the spinal forest severely fragmented (BLI 2011c, unpaginated).
In the Cockpit Country Conservation Action Plan, threats to the limestone forests from conversion of forest, incompatible agriculture practices, and timber extraction are ranked high (John and Newman 2006, p. 15). The immediate vicinity of Cockpit Country has a population of around 10,000 people who exploit the area (Day 2004, p. 34). Illegal logging and farming have extended into the forest reserve within Cockpit Country (Day 2004, p. 34; Chenoweth
One of the greatest causes of deforestation and fragmentation in Cockpit Country is the illegal removal of wood for yam crops and yam sticks (JEAN 2007, p. 4; Tole 2006, p. 790; Chenoweth
Adjacent to the Blue and John Crow Mountains National Park are isolated communities that rely on the park's resources for various economic activities; with almost unchecked access to the park, encroachment of these communities across the park boundary is cause for concern (IUCN 2011, unpaginated; Dunkley and Barrett 2001, pp. 2-3). Much of the area has been altered from its natural state and is used for forestry, coffee production, or subsistence farming (BLI 2011d, unpaginated). The adjacent communities have a tradition of small farming, and, despite the steep slopes, hillsides are cleared and used by small subsistence farmers for carrots, peas, bananas, plantains, coconuts, pineapples, apples, cabbages, and tomatoes; coffee is also grown by small and large farmers for the well-known brand Blue Mountain Coffee (Dunkley and Barrett 2001, pp. 1, 3). Farmers use slash-and-burn techniques to clear forests for agricultural land; however, because of poor agricultural practices, the soil quality begins to deteriorate after one or two seasons, and farmers abandon their plots and clear additional land for new crops (Chai
The human population surrounding Mount Diablo is steadily growing. Native vegetation is removed for housing, crop cultivation, and lumber. In this area, farming is the main livelihood after bauxite mining. Slash-and-burn practices are used on hillsides to clear land for cash crops, such as banana, plantain, yam, cabbage, okra, pepper, and tomato. Various tree species are cut for lumber and add to the deforestation and poor condition of the soils (Global Environmental Facility, Small Grants Programme (GEF SGP) 2006, unpaginated). Native forests are also removed for forestry plantations, including pine
Bauxite is the raw material used to make aluminum and is Jamaica's principle export, accounting for over
Within the past 50 years, bauxite mining has severely fragmented the spinal forests of Jamaica (BLI 2011c, unpaginated). In the past 40 years, Mount Diablo has been subjected to bauxite mining, which has destroyed much of the area beyond repair and is presumed to have contributed to the decline of populations of forest-dependent species, such as the yellow-billed parrot (BLI 2008, unpaginated; Koenig 2008, p. 145; Varty 2007, pp. 34, 93). In 2009, several bauxite/alumina mining companies closed their refineries due to a drop in demand; however, in July 2010, an alumina plant in Ewarton, a town located at the foot of Mount Diablo, reopened due to a return in demand. Where mining has occurred, it has resulted in severe impacts to the environment. For example, mining sites within Mount Diablo that were completed 10-15 years ago typically have only herbaceous groundcover, including nonnative ferns, and no regeneration of native woody tree species (BLI 2011c, unpaginated).
Bauxite mining is currently the most significant threat to Cockpit Country. It is ranked high in threats to the limestone forests in Cockpit Country (John and Newman 2006, p. 15). Bauxite deposits can be found throughout 70 percent of Cockpit Country, and mining companies have already drilled for bauxite samples (BLI 2006, unpaginated; John and Newman 2006, p. 7; Walker 2006, unpaginated; Windsor Research Centre, n.d., unpaginated). In 2006, ALCOA Minerals of Jamaica and Clarendon Alumina Production were granted a renewal on two bauxite prospecting licenses, which encompassed more than 60 percent of the Cockpit Country Conservation Area and more than 42,000 ha (103,784 ac) of nearly contiguous primary forest. After public outcry, these licenses were suspended. In 2007, the former Prime Minister of Jamaica, Bruce Golding, declared that the government will not allow any mining activity in the Cockpit Country (Koenig 2011, pers. comm.). However, there is no official policy by the Government of Jamaica on mining in the Cockpit Country (Strong 2011, pers. comm.), and the area continues to be described by officials and ministers as an area of high-quality bauxite and limestone deposits. Thus, the area remains open to future prospecting, and mining interests are granted over other land uses, such as timber, agriculture, and conservation (Koenig 2011, pers. comm.; Koenig 2008, pp. 135-137; TNC 2008a, unpaginated; JEAN 2007, p. 4; Walker 2006, unpaginated).
Few lands are excluded from mining or prospecting under Jamaica's Mining Act, including 22,000 ha (54,363 ac) of Cockpit Country designated as forest reserves, which could be subject to prospecting or mining if a license or lease is obtained (JEAN 2007, p. 6). Additionally, in some, if not all, mining agreements, the Jamaican Government provides mining companies with entitlements to specific amounts of bauxite and guarantees them additional land for mining if the original land does not contain sufficient levels, further contributing to deforestation (JEAN 2007, p. 8). Although bauxite extraction is not currently occurring in Cockpit Country, mining remains a significant impending threat to the area. The amount of deposits found throughout the area, and the fact that the area remains open to future prospecting and that bauxite is Jamaica's principle export, leaves open the possibility that mining may occur in the future (JEAN 2007, p. 4; Windsor Research Centre n.d., unpaginated).
If mining were to occur in Cockpit Country, the impacts to the wet limestone forest habitat and wildlife would be irreversible (Varty 2007, p. 93; Windsor Research Centre n.d., unpaginated). During the prospecting phase, a company or individual is required to obtain a prospecting right from the Jamaican Government; however, this does not require an environmental permit, which requires an environmental impact assessment be conducted before being granted (Jamaica Ministry of Energy and Mining 2006a, unpaginated). Forests are cleared during this phase using heavy machinery to create roads for transporting drilling equipment. Once the area of interest has been identified and the existence of a commercially exploitable mineral exists, a mining lease must be obtained to mine and sell the product. Mining, quarrying, and mineral processing require an environmental permit under Jamaica's natural resources conservation (permits and license) regulations; however, an environmental impact assessment is not an automatic requirement during this phase either (Strong 2011, pers. comm.). Additionally, one of the problems with conservation in Jamaica is incomplete and improper environmental impact assessments when they are required (Levy and Koenig 2009, p. 263). The mining phase requires a more extensive road network, and all the vegetation covering bauxite deposits are removed. Mining in a karst region can lead to altered flow regimes and changes in drainage patterns, and can reduce the soil's water retention capability, making it impossible to restore the area to its original state (JEAN 2007, pp. 4-5; Berglund and Johansson 2004, p. 6). After mining is completed, companies are required to restore lands destroyed by mining. However, a typical restored site consists of a thin layer of topsoil bulldozed over densely packed limestone gravel and planted with nonnative grasses, preventing the regeneration of native forests (Koenig 2008, p. 141; BLI 2006, unpaginated). Penalties for failing to meet the reclamation requirements are often not enforced (BLI 2006, unpaginated).
Bauxite mining has been shown to significantly impact native species and their habitats. The forests of Mount Diablo have already suffered significant damage from bauxite mining, leading to the conclusion that mining cannot be allowed in Cockpit Country or it would destroy the area beyond repair (Varty 2007, p. 93). Because of the potential damage to the nesting environment, bauxite mining could drive the yellow-billed parrot population to critically low levels and potentially put it at risk of extinction (Koenig 2008, p. 147).
Access roads associated with bauxite mining are another significant cause of deforestation and a serious threat to the forest cover of Jamaica. Once established, either in the prospecting or mining phase, loggers use mining roads to gain access to additional forests and illegally remove trees in and around the mining area (BLI 2011a, unpaginated; JEAN 2007, pp. 4-5; Berglund and Johansson 2004, p. 6). If mining were to occur in Cockpit Country, roads established to access the cockpit bottoms would fragment the habitat, isolate forested hillsides, and increase the amount of edge habitat (Koenig 2008, pp. 141, 144). Improved human access via mining roads and the
In addition to mining access roads, road construction and extensive trail systems have the potential to contribute to further deforestation or alter environmental conditions. Roads provide access to previously undisturbed forests. In Cockpit Country, forest clearance has occurred along the edge where roads have provided easy access (JEAN 2007, p. 4). Interior forests were once inaccessible; however, continued road construction into these areas will lead to increased deforestation and logging (WWF 2001, unpaginated). Construction of Highway 2000 along the southern boundary of Cockpit Country may threaten the area through subsequent logging and the need for limestone fill, which could be quarried from Cockpit Country (Day 2004, p. 35; Windsor Research Centre no date, unpaginated). Roads and trails are ranked high in threats to the limestone forest of Cockpit Country (John and Newman 2006, p. 15). Additionally, roads and trails create openings in the forest, exposing it to new environmental conditions that alter the high-humidity conditions in which species of wet limestone habitat are adapted and that facilitates the spread of invasive species (JEAN 2007, p. 4; Windsor Research Centre no date, unpaginated).
Forest clearance, whether through mining, road/trail development, logging, or agriculture, not only reduces the size of continuous forests and opens them up to further deforestation, it also alters the natural environment and facilitates the spread of harmful nonnative plants and animals (JEAN 2007, p. 4; Windsor Research Centre n.d., unpaginated). Nonnative, invasive plant species have the ability to outcompete and dominate native plant communities and are ranked high in threats to the limestone forests of Cockpit Country (John and Newman, 2006, p. 15). The many years of land clearance experienced by the Blue and John Crow Mountains National Park has led to the expansion of invasive species, including wild coffee (
Deforestation through mining, road construction, logging, and agriculture contributes to the loss of Jamaica's remaining primary forest, habitat for the yellow-billed parrot, and essential resources for the life functions of the yellow-billed parrot. The removal of trees reduces food sources, shelter from inclement weather, and most importantly, nesting sites, which are reported to be limited (NEPA 2010b, unpaginated; Tole 2006, pp. 790-791; Koenig 2001, p. 206; Koenig 1999, p. 10; Wiley 1991, p. 190). The removal of saplings for yam sticks eliminates the source of regeneration for mature trees in which nesting cavities will form. Deforestation also changes the quality of remaining resources (Koenig 2001, p. 206; Koenig 1999, p. 10) and prevents the regeneration of native forests. The agricultural practices of farmers leave the land unfertile and unstable, especially on hillsides. Cash crops do not have a sufficient root system to hold soil, and the loss of the forest canopy leaves the soil vulnerable to impacts from rainfall, resulting in massive soil erosion (GEF SGP 2006, unpaginated). This decrease in the quality of the land prevents native forests from regenerating (Dunkley and Barrett 2001, p. 2; WWF 2001, unpaginated). Furthermore, deforestation also allows human disturbance to extend farther into the interior of the forest, contributing to further deforestation, altering the habitat, and affecting the predator/prey balance (see Factor C discussion, below) (Tole 2006, pp. 790-791; Koenig 1999, pp. 11-12). Threats to the limestone forest of Cockpit Country overall are considered very high (John and Newman 2006, p. 15).
Deforestation can also change the species composition and structure of a forest, rendering it unsuitable for the yellow-billed parrot. Openings in the forest expose the forest edge to new environmental conditions, such as increased sunlight and airflow, altering the microclimate from the highly humid conditions of the interior forest, to which species such as the yellow-billed parrot are adapted (JEAN 2007, p. 4; Tole 2006, p. 798; Windsor Research Centre no date, unpaginated). The new environmental conditions facilitate the establishment of nonnative species and prevent the regeneration of native forests; rare, late-successional species typical of old growth forests are replaced by common secondary species or nonnative species (Chai
Conservation International, Southern Trelawny Environmental Agency, the Windsor Research Centre, and Jamaica's Forestry Department are working together to produce a long-term protection strategy for Cockpit Country. Part of the strategy involves the use of plastic yam sticks, incentive programs to encourage farmers to set aside 40 ha (99 ac) of forest as a reserve, training members of the community as enforcement officers, and restoring abandoned land with native species (Tole 2006, p. 800). We do not know the status of this program or what goals have been achieved.
A conservation action plan (CAP) was developed for Cockpit Country/Martha Brae Watershed by The Nature Conservancy-Jamaica, Jamaica's Forestry Department, and other stakeholders in 2006. The CAP is based on the Martha Brae Watershed Unit, with the southern boundary extended to include sections of the Cockpit Country Forest Reserve that fall outside of the management unit. Fifteen actions were developed to mitigate threats to the Cockpit Country's biodiversity, which will also benefit the yellow-billed parrot and its habitat. Many actions have been at least partially implemented. Three local forest management communities have been created around Cockpit Country, and bi-monthly meetings are held for environmental outreach and to engage communities in identifying alternative
In October 2011, the Jamaican government, along with the Jamaica Environment Action Network, were asked to work together to determine the boundary of the Cockpit Country and develop a management plan for the area. To date, no decision has been made on the boundary, nor has a management plan been put forward (Strong 2011, pers. comm.).
Within the Blue and John Crow Mountains National Park, there are programs aimed at controlling nonnative species. Parks in Peril and the Jamaica Conservation and Development Trust established a nursery as a forest restoration project; timber and fruit trees are distributed to adjacent communities for planting (TNC 2008b, unpaginated). The success of this program is unknown.
The yellow-billed parrot is restricted to the island of Jamaica. Past deforestation has resulted in a small and fragmented range on the island, a decline in the extent and quality of suitable habitat, and a declining yellow-billed parrot population. The remaining populations of yellow-billed parrot continue to face impacts to their habitat from deforestation. Mining, road and trail construction, logging, agriculture, and encroachment of nonnative species remove natural forests and have irreversible effects that prevent the regeneration of native vegetation so that late-successional species typical of old growth forests are replaced by common secondary species or nonnative species. Removal of these forests without adequate regeneration permanently eliminates shelter and trees vital for foraging and nesting activities. Without these essential resources, the populations of the yellow-billed parrot will likely continue to decline. Additionally, deforestation fragments the remaining habitat and can increase the amount of edge habitat, altering predator-prey dynamics (see Factor C discussion, below). Increases in edge habitat can decrease the fecundity and recruitment of the yellow-billed parrot, accelerating the decline of the species.
Harvesting of parrot chicks for pets has seriously affected most of the parrot species in the West Indies (Wiley 1991, p. 191). In Jamaica, illegal poaching for the pet trade and farmers who shoot them to protect their crops have contributed to the decline of the yellow-billed parrot (BLI 2011a, unpaginated; Sylvester 2011, unpaginated; Jamaica Observer 2011b, unpaginated; Koenig 2008, p. 145; JEAN 2007, p. 4; Snyder
In 1981, the yellow-billed parrot was listed in Appendix II of CITES. CITES is an international agreement between governments to ensure that the international trade of CITES-listed plant and animal species does not threaten species' survival in the wild. There are currently 175 CITES Parties (member countries or signatories to the Convention). Under this treaty, CITES Parties regulate the import, export, and reexport of specimens, parts, and products of CITES-listed plant and animal species (also see discussion under Factor D, below). Trade must be authorized through a system of permits and certificates that are provided by the designated CITES Scientific and Management Authorities of each CITES Party (CITES 2010a, unpaginated).
For species listed in Appendix II of CITES, commercial trade is allowed. However, CITES requires that before an export of Appendix-II specimens can occur, a determination must be made that the specimens were legally obtained (in accordance with national laws) and that the export will not be detrimental to the survival of the species in the wild, and a CITES export document must be issued by the designated CITES Management Authority of the country of export and must accompany the export of the specimens.
According to worldwide trade data obtained from UNEP-WCMC CITES Trade Database, from 1981, when the species was listed in CITES, through 2009, 210 yellow-billed parrot specimens were reported in international trade, including 208 live birds, 1 scientific specimen, and 1 body. In analyzing these reported data, several records appear to be overcounts due to slight differences in the manner in which the importing and exporting countries reported their trade, and it is likely that the actual number of specimens of yellow-billed parrots reported to UNEP-WCMC in international trade from 1981 through 2009 was 195, including 193 live birds, 1 scientific specimen, and 1 body. Of these specimens, 11 (5.6 percent) were reportedly exported from Jamaica (UNEP-WCMC 2011, unpaginated). With the information given in the UNEP-WCMC database, from 1981 through 2009, only 1 wild specimen of yellow-billed parrot was reported in trade, and this was a nonliving body traded for scientific purposes. One live specimen with the source recorded as unknown was also reported in trade. All other specimens reported in trade were captive-bred or captive-born specimens.
The majority of the specimens of this species reported in international trade (99 percent) are captive-bred or captive-born. Although it is possible that wild parrots could have been taken to establish parental stock for captive breeding or laundered as captive-bred or captive-born specimens, we found no information indicating this is occurring. Furthermore, because the species is listed in Appendix II of CITES, the Management Authority of the Country of Export is required to ensure that the specimens were legally obtained, the export will not be detrimental to the survival of the species in the wild, and issue a CITES export document. The one wild specimen reported in trade was a scientific specimen traded for scientific purposes. Therefore, we believe that international trade controlled via valid CITES permits is not a threat to the species.
Until 2011, most yellow-billed parrot nestlings were poached for the local market and were not highly desirable in the international pet trade (Koenig 2011, pers. comm.; Koenig 2001, p. 206). They are popular on Jamaica as pets because of their colorful plumage and ability to mimic human sounds; the yellow-billed parrot appears to be in higher demand than black-billed parrots because of their brighter coloration (Snyder
As reported by several media outlets, in April 2011, 74 parrot eggs were smuggled out of Jamaica, but were detected at the Eisenstadt Airport in Vienna, Austria. The eggs were confiscated, and falsified documents claiming the parrots were of European origins were found. The seizure was the highest number of smuggled bird eggs in the history of the European Union. The eggs were taken to Vienna's Schönbrunn Zoo, where staff successfully hatched 54 of the 74 eggs. Nine chicks died, but 45 were reared successfully. Of the 45, 24 were yellow-billed parrots. On the international black market, the price for individual parrots range from $5,300 to $20,000 U.S. dollars (Neufville 2012, unpaginated; Ferguson 2011, unpaginated; Koenig 2011, pers. comm.; Stefan 2011, pp. 16-17; Vilikovská 2011, unpaginated).
Jamaica's National Environment and Planning Agency issued a press release in 2011 stating that steps were being taken to request the return of the endemic Jamaican parrots smuggled out of Jamaica in 2011 (Jamaica Observer 2011a, unpaginated). If they are not returned to Jamaica, the Schönbrunn Zoo plans to keep some of the parrots, while giving others to scientific zoos for research purposes. They also plan to develop a captive breeding program for these birds in Europe (Ferguson 2011, unpaginated; Koenig 2011, pers. comm.). We do not know if the purpose of the captive breeding program has been clarified, but if a breeding program is established in Europe without strict controls put in place, it could open an avenue for additional illegally exported birds to be laundered through legal trade (Koenig 2011, pers. comm.). If captive breeding is successful enough to produce enough birds to meet some, but not all, of the commercial demand, legal trade could mask the illegal trade. However, we do note that if a captive breeding program is highly successful such that it meets all of the commercial demand, it could preclude the need for wild-caught birds.
Poaching for use as caged birds places a strong pressure on the population of yellow-billed parrots and is a documented cause of nest failures and reduces the number of parrots in the wild (BLI 2011a, unpaginated; Snyder
As described under Factor A, parrot habitat is threatened by the conversion of forests to agriculture. As agriculture spreads into parrot habitat, farmers and birds come into conflict over crops (Wiley 1991, p. 191). Some persecution for crop and garden damage, especially citrus, has been reported for the yellow-billed parrot (Snyder
Since the CITES Appendix-II listing of the yellow-billed parrot, its legal international commercial trade has been very limited. However, the species appears to be popular in Jamaica's domestic market and has recently been documented in the international black market, contributing to the decline of the species. In addition to removing individuals from the wild population, poachers cut trees to trap nestlings, removing limited essential nesting cavities and reducing the availability of nesting cavities for future generations. Ongoing deforestation in Jamaica may increase the likelihood of birds and farmers coming into conflict and yellow-billed parrots being killed to protect crops. Combined with the ongoing deforestation in Jamaica, the removal of individuals from the population and the further loss of nesting trees due to poaching activities are significant concerns to the survival of this species.
Nonnative psittacines imported for the pet trade pose a high threat to the yellow-billed parrot through the introduction of disease, the potential for hybridization, and competitive exclusion of nesting activities (see also Factor E discussion, below) (Koenig 2009, p. 2; Levy and Koenig 2009, p. 264; Wiley 1991, p. 191). In 2006, a temporary ban on importation of nonnative parrot species was put in place based on concerns for the introduction of highly pathogenic strains of avian influenza (Koenig 2009, p. 3; Levy and Koenig 2009, p. 264). At that time, threats from introduced diseases in Cockpit Country were ranked low (John and Newman 2006, p. 15).
Currently, the ban on importation of nonnative parrot species is no longer in effect (Koenig 2011, pers. comm.), leaving the yellow-billed parrot vulnerable to disease transmission from escaped nonnative psittacines imported for the pet industry (Koenig 2009, p. 1). A wide variety of psittacines, including budgerigars (
Diseases that are of particular concern for psittacines include avian influenza, psittacine beak and feather disease, polyomavirus, Pacheco's disease, avian tuberculosis, and proventricular dilatation disease (Koenig 2009, pp. 2-3).
Avian influenza is an infection caused by flu viruses, which occur in birds worldwide, especially waterfowl and shorebirds. Most strains of the avian influenza virus have low pathogenicity and cause few clinical signs in infected birds, but are highly contagious among birds (CDC 2010, 2005, unpaginated). Pathogenicity is the ability of a pathogen to produce an infectious
Psittacine beak and feather disease (PBFD) is a common viral disease that has been documented in more than 60 psittacine species, but all psittacines should be regarded as potentially susceptible (Rahaus
Avian polyomavirus (APV) is one of the most significant viral pathogens of caged birds (Pesaro
Pacheco's parrot disease is a systemic disease caused by a psittacid herpesvirus (PsHV-1) (Tomaszewski
Avian tuberculosis (also known as avian mycobacteriosis) is caused by the bacillus bacteria
Proventricular dilatation disease (PDD), also known as avian bornavirus (ABV) or macaw wasting disease, is a fatal disease that poses a serious threat to all domesticated and wild parrots worldwide, particularly those with very small populations (Kistler
The extent to which these diseases occur in wild populations is unclear. However, given the resumption of importation of parrot species into Jamaica, rates of false negatives in testing of diseases, the inability to detect asymptomatic carriers when viruses are dormant and the host is not shedding live virus, known occurrences of escaped nonnative parrot species, and the vulnerability of island species to foreign microorganisms, it appears that the yellow-billed parrot may be at risk of disease transmission from nonnative parrot species imported into Jamaica (Koenig 2011, pers. comm.). Additionally, in 2011, Jamaica's National Environment and Planning Agency issued a press release stating that steps were being taken to request the return of the endemic Jamaican parrots smuggled out of Jamaica in 2011 (Jamaica Observer 2011a, unpaginated). Since being confiscated, the parrots have been housed at the Schönbrunn Zoo; if these parrots have not been maintained under strict quarantine conditions, they also present a disease risk if repatriated to Jamaica (Koenig 2011, pers. comm.).
The Jamaican boa, or yellow boa (
Red-tailed hawks (
Imported, nonnative psittacines were identified as a high threat to the yellow-billed parrot, in part, due to concerns for the introduction of highly pathogenic strains of avian influenza. Although we have no information that the yellow-billed parrot has been impacted by disease at a level which may affect the status of the species as a whole, the risk of disease transmission is now elevated, given the termination of the ban on importation of nonnative parrot species, past occurrences of escaped parrots, uncertainties in disease detection, the declining population of yellow-billed parrots in Jamaica, and the declining extent and quality of habitat. Because the yellow-billed parrot is an island endemic species, it may be particularly vulnerable to the effects of introduced diseases.
There is direct evidence of boas preying on yellow-billed parrot nestlings. Edge habitat provides an optimal habitat for the yellow boa. As primary forests diminish and edge habitat increases, predation by boas on parrots may also increase. We do not have any information on actual predation by red-tailed hawks on the yellow-billed parrot. However, if mining occurs in Cockpit Country, habitat may be altered to conditions suitable for the hawk and increase the risk of predation.
The yellow-billed parrot is listed under the Second Schedule of Jamaica's Endangered Species (Protection, Conservation and Regulation of Trade) Act (JESA). The Second Schedule includes those species that could become extinct or which have to be effectively controlled (JESA 2000, pp. 72, 80). It is illegal to buy and/or sell Jamaican parrots locally or trade them internationally (NEPA 2010b, unpaginated; JESA 2000, p. 14; Snyder
Parrots have full protection under section six of the Jamaican Wildlife Protection Act (1974) (WPA) (Wiley 1991, p. 202). The WPA was originally passed in 1945, to regulate sport hunting and fishing, but since that time has undergone changes to address protection of animals. It does not, however, address habitat protection or the conservation of flora (Levy and Koenig 2009, p. 263). Possession is regulated by the WPA (Koenig 1999, p. 10). Under this Act, it is illegal for any person to hunt or possess a protected bird, including the yellow-billed parrot; to take the nest or egg of any protected bird; or to have in possession the nest or egg of any protected bird (WPA 1945, pp. 4-5). Under section 20 of the legislation, anyone found in possession of a live Jamaican parrot or any of its parts can face a maximum fine of 100,000 Jamaican dollars ($1,200 U.S. dollars) or 12 months in prison (WPA 1945, p. 11). However, fines levied are often much less. For example, one offender was charged a fine of only 5,000 Jamaican dollars ($55 U.S. dollars) (Sylvester 2011, unpaginated).
As described above under Factor B, the poaching of adult and nestling yellow-billed parrots for the local pet bird trade has contributed to the decline of the species and remains a threat. Additionally, the yellow-billed parrot has recently been documented in the international black market, further contributing to the decline of the species. Therefore, the JESA and WPA do not appear to adequately protect this species.
Forestry Acts of 1937 and 1973 provide certain protections to some habitat (e.g., Cockpit Country Forestry Reserve), and other areas have been established as sanctuaries (Snyder
Under Jamaica's Natural Resources Conservation Authority Act, an environmental permit is required for the first-time introduction of species of flora and fauna and genetic material (Williams-Raynor 2010, unpaginated). Mining is also regulated by this act. Before any physical development or construction can take place, a permit must be obtained from the Natural Resources Conservation Authority (NRCA). If the activity is likely to be harmful to public health or natural resources, NRCA can refuse a permit or order the immediate cessation of the activity or even closure of the plant (Berglund and Johansson 2004, p. 8).
Under the Mining Act (1947), bauxite deposits are owned by the Jamaican Government, not by the owner of the land. The government may issue licenses to anyone to explore the land or mining leases to exploit it; therefore, in order to prospect and search for minerals, companies do not need to purchase the land. The Mining Act gives the lessee or the license holder the right to enter government land or privately owned land to search for minerals or to mine minerals. Compensation is payable to the landowner for damages to land and property. The Mining Act also stipulates that the mining companies must restore every mined area of land to the level of productivity that existed prior to the mining. Restoration must take place within 6 months following the end of mining activity. Failure to do so results in a penalty of $4,500 U.S. dollars per acre. The average cost for mined-out bauxite restoration is $4,000 U.S. dollars per acre; therefore, companies are more encouraged to restore. According to the Jamaican Bauxite Institute (the government agency responsible for monitoring the bauxite industry), it is unusual for companies to not take actions to restore (Berglund and Johansson 2004, p. 7). However, there are reports that penalties for failing to meet reclamation requirements are rarely enforced. Furthermore, when restoration is done, it is often planted with nonnative grasses and is not the same habitat that existed before mining (see “Bauxite Mining” section under Factor A discussion, above) (BLI 2011c, unpaginated; Koenig 2008, p. 141; BLI 2006, unpaginated). Given the resulting habitat following bauxite mining on Mount Diablo, it appears that this regulatory mechanism is not adequate to ameliorate threats to the forest resources of Jamaica.
An import permit is also required from Jamaica's Veterinary Services Division under the Animal Disease and Importation Act (Williams-Raynor 2010, unpaginated). Additionally, no caged bird may be imported into Jamaica from Trinidad and Tobago or any country of South America. However, Jamaica's importation and quarantine regulations are focused on protecting human health, agriculture, and commercial interests, rather than wildlife (Koenig 2011, pers. comm.). Based on an increase in illegal importation of animals into Jamaica (see Factor E discussion, below), it appears that this law may not adequately protect the yellow-billed parrots from potential disease, hybridization, or competition with nonnative species.
There are at least 34 pieces of Jamaican legislation that refer to the environment. However, there are problems with conservation in Jamaica that stem from poor communication between various government institutions, regulations insufficient at recognizing the value of biodiversity, insufficient funding, poor enforcement, and incomplete and improper environmental impact assessments (Levy and Koenig 2009, p. 263). In fact, due to the limitations of the Forestry Department and NRCA, management of the first national park was delegated to a nongovernmental organization, Jamaica Conservation and Development Trust (JCDT) (Levy and Koenig 2009, p. 263). The Forestry Department currently manages the entire Cockpit Country region as a forest reserve; however, they lack adequate technical and enforcement staff to respond to the increasing deforestation problem (Tole 2006, p. 799).
Policies have led to a greater awareness of the legal status of parrots; however, they continue to be illegally harvested for local and international trade (Snyder
Habitat in the Blue and John Crow Mountains was declared a national park in 1989, and is managed by the Jamaica Conservation and Development Trust, a local nongovernmental organization (NGO) (BLI 2011d, unpaginated; BLI 2011e, unpaginated; Dunkley and Barrett 2001, p. 1; Snyder
Enforcement and management of the national park are weak. Laws that prohibit forest clearance inside National Parks are largely not enforced as park rangers fear reprisals from farmers (Chai
Fifteen important bird areas (IBAs) cover approximately 3,113 km
The yellow-billed parrot is listed in Appendix II of CITES. CITES is an international treaty among 175 nations, including Jamaica and the United States, which entered into force in 1975. In the United States, CITES is implemented through the U.S. Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Through Resolution Conf. 8.4 (Rev. CoP15), the Parties to CITES adopted a process, termed the National Legislation Project, to evaluate whether Parties have adequate domestic legislation to successfully implement the Treaty (CITES 2010b, pp. 1-5). In reviewing a country's national legislation, the CITES Secretariat evaluates factors such as whether a Party's domestic laws designate the responsible Scientific and Management Authorities, prohibit trade contrary to the requirements of the Convention, have penalty provisions in place for illegal trade, and provide for seizure of specimens that are illegally traded or possessed. The Government of Jamaica was determined to be in Category 1, which means they meet all the requirements to implement CITES (
As discussed above under Factor B, we do not consider international trade controlled via valid CITES permits to be a threat impacting this species. Therefore, protection under this Treaty against unsustainable international trade is an adequate regulatory mechanism.
The import of yellow-billed parrots into the United States is also regulated by the Wild Bird Conservation Act (WBCA) (16 U.S.C. 4901
International trade of parrots was significantly reduced during the 1990s, as a result of tighter enforcement of CITES regulations, stricter measures under European Union legislation, and adoption of the WBCA, along with adoption of national legislation in various countries (Snyder
Although there are laws intended to protect the forests of Jamaica and the yellow-billed parrot, these laws are not adequate to ameliorate: Impacts to the habitat of the yellow-billed parrot from deforestation via mining, logging, and agriculture, even within protected areas such as the Blue and John Crow Mountains National Park; the risk of disease transmission; predation, which is exacerbated by habitat alteration; and poaching for the local and international pet bird market.
Hurricanes are a constant threat to island populations of wildlife and are a frequent occurrence in the Caribbean (Wiley and Wunderle 1993, p. 320). In 1988, Hurricane Gilbert hit Jamaica and caused widespread damage to the island's mid-level and montane forests; Cockpit Country, Blue Mountains, and John Crow Mountains all suffered severe and very extensive damage (Varty 1991, pp. 135, 138). Since 2004, Jamaica has been hit by five major storms, including two hurricanes and three tropical storms (Thompson 2011, unpaginated). Global climate change models predict increased hurricane frequency and intensity for the Caribbean (Koenig 2011, pers. comm.; Koenig 2009, p. 1). The most vulnerable birds are frugivorous and birds that require large trees for foraging or nesting; require a closed canopy forest; have special microclimate requirements; or live in a habitat in which vegetation is slow to recover, like the yellow-billed parrot (Wiley and Wunderle 1992, pp. 319, 337). Survival of small populations within a fragmented habitat becomes more uncertain if the destructive potential of catastrophic events increases, as predicted for hurricanes with increased climate change (Wiley and Wunderle 1993, p. 319).
Frequent hurricanes can have direct and indirect effects on bird populations. Direct effects include mortality from winds, rain, and storm surges, and geographic displacement of individuals by the wind. Wet plumage may cause hypothermia and death in birds, with chicks being at greater risk than adults. Additionally, birds may be killed by falling trees or flying debris, birds may be thrown against objects, or high winds may blow them out to sea where they die from exhaustion and drowning (Wiley and Wunderle 1993, pp. 319, 321-322). However, the greatest impacts to birds are the indirect effects that come after the storm has passed and stem from the destruction of vegetation. These effects include loss of food sources, loss of nests and nesting sites, increased vulnerability to predation, microclimate changes, and increased conflict with humans (Wiley and Wunderle 1993, pp. 319, 321, 326, 337; Varty 1991, p. 148).
Defoliation is the most common type of damage caused by hurricanes. High winds remove flowers, fruit, and seeds, impacting frugivores, like the yellow-billed parrot, the greatest. Larger trees, which are typically the best producers, are most affected by hurricanes. Certain sections of Jamaica following Hurricane Gilbert regenerated quickly, while the destruction in some areas was so complete it was estimated to take many years to recover. The majority of trees and shrubs were reported to have been mostly or totally defoliated; trees in flower or fruit lost their blooms (Varty 1991, pp. 139, 148). In some cases, the production of flowers and fruits are less than 50 percent of pre-hurricane levels after 1 year (Wiley and Wunderle 1993, pp. 324-325). Seven months after Hurricane Gilbert, some areas had little or no apparent regrowth; although most trees showed signs of refoliation, and after 10 months, some trees began to show signs of growth (Varty 1991, pp. 140-141). For frugivores, food supplies are likely to be reduced for several years following a destructive hurricane, and with limited resources, birds may experience greater competition for food, leading to a decline in populations (Wiley and Wunderle 1993, p. 332; Varty 1991, pp. 144, 148).
Nesting sites can also be damaged by high winds, rain, or flooding. The larger, taller trees, like those needed by the yellow-billed parrot for nesting activities, are the most susceptible to snapping or uprooting (Wiley and Wunderle 1993, p. 327). During Hurricane Gilbert, many trees were toppled or had crowns or major limbs
Defoliated habitat may increase the risk of yellow-billed parrots to predators, including humans. For example, because of competition for limited food resources, forest dwellers may be forced to forage closer to the ground or wander more widely, exposing them to predators. Birds may be weakened after a storm and serve as an easy source of protein for predators and humans in need of food. Additionally, while in search of food and cover, birds may come into conflict with humans in agricultural regions, making them more vulnerable to poaching; farmers may shoot birds to protect any remaining crops (Wiley and Wunderle 1993, pp. 330-332). Hurricanes also create additional edge habitat by increasing the number and size of forest openings; this may enable predators to invade forest tracts they would otherwise avoid (Wiley and Wunderle 1993, p. 336).
Furthermore, where trees have been blown down, subsistence farmers may move in to exploit the land. Governments may also make subsidies available for timber removal and development of the land, including the use of chainsaws and heavy equipment to clear away debris and dead trees. The equipment may not be recalled following cleanup and may be used to clear healthy forests (Wiley and Wunderle 1993, p. 331). Following Hurricane Gilbert, chainsaws brought in for cleanup were later used to clear forests for timber (Varty 1991, p. 146). Additionally, farmers lost most or all of their cultivated land, increasing the demand for new land and, therefore, resulting in additional deforestation (Varty 1991, p. 145).
Hurricanes are a natural occurrence in the Caribbean, and birds have adapted to periodic storms. Parrots should be able to adapt to changes following hurricanes, and healthy, wide-ranging populations should be able to, in the long term, survive hurricanes. However, hurricanes play a more important role in extinction when a species already has a restricted and fragmented range due to habitat loss and is reduced to fewer individuals (Wiley and Wunderle 1993, pp. 340-341; Varty 1991, p. 149; Wiley 1991, p. 191). After a population has declined due to deforestation activities, they may not be able to recover from the additional loss of forests from hurricanes (Varty 1991, p. 149). The yellow-billed parrot population has survived through hurricanes, but long-term survival is a concern, given the additional impact of hurricanes on food and nesting sources, combined with the continuing habitat destruction by humans (Wiley 1991, p. 203). If the large, contiguous forests of Cockpit Country remain intact, the yellow-billed parrot is predicted to be able to adapt to predicted hurricane frequency and intensity. However, if the forests are severely fragmented and dominated by edge habitats, reproductive performance is predicted to decrease, leading to population loss, and hurricanes to hasten the species' extinction (Koenig 2011, pers. comm.; Koenig 2009, pp. 1-2).
A temporary ban was placed on the importation of nonnative psittacines due to potential introduction of disease, hybridization, and competition with the two native parrot species. However, the ban is no longer in effect (Koenig 2011, pers. comm.), leaving the yellow-billed parrot vulnerable to hybridization and competitive exclusion with escaped nonnative psittacines imported for the pet industry (Koenig 2009, p. 1). Jamaica's National Environment and Planning Agency has noticed an increase in the illegal importation of monkeys, birds, and snakes into the country. Jamaica is now believed to be a trans-shipment point for illegal trade in animals from Central and South America (NEPA 2010a, p. 1). Nonnative species not only introduce diseases to native wildlife (see Factor C discussion, above), but escaped individuals also pose a threat through hybridization and competition for food and nesting sources (Levy and Koenig 2009, p. 264; Wiley 1991, p. 191).
In 2007, a yellow-naped Amazon (
Hurricanes frequently occur in the Caribbean. Healthy, widespread populations of birds should be able to adapt to changes following a hurricane. However, species like the yellow-billed parrot, which are frugivores and rely on cavities in old growth trees, are particularly vulnerable to the impacts of hurricanes on forests. Food sources may be reduced for years following a storm, and already limited nesting cavities may be further reduced; declines in these vital resources could result in competition with other species and a decline in the population. These impacts are further exacerbated due to deforestation activities that have already caused a decline in the extent and quality of yellow-billed parrot habitat and declines in the yellow-billed parrot population. Because of the ongoing loss of habitat, yellow-billed parrots may not be able to recover from the impacts of a destructive hurricane.
Although we have no information that the yellow-billed parrot has been impacted by hybridization or competition with nonnative parrot species, the risk of these occurrences is elevated given the termination of the ban on importation of nonnative parrot species, past occurrences of escaped parrots, the observed increase in the illegal importation of birds, the larger size of nonnative parrots, the declining population of yellow-billed parrots in Jamaica, and the declining extent and quality of habitat.
As required by the Act, we conducted a review of the status of the species and considered the five factors in assessing
The yellow-billed parrot is only found on the island of Jamaica and occurs in fragments across its range; at least 80 percent of the yellow-billed parrot population occurs in one area of the island. The entire population of this species is reported as declining, and the extent and quality of habitat is also declining. This species faces immediate and significant threats, primarily from deforestation through logging, conversion of land to agriculture, road construction, and mining and the subsequent encroachment of nonnative species. Ongoing deforestation activities threaten to remove more of the limited mature trees the yellow-billed parrot needs for nesting. Cockpit Country is also threatened by potential future mining. If mining were to occur, the damage would be irreversible. Additionally, habitat alteration creates an optimal habitat for the yellow boa, which has already been reported to prey on yellow-billed parrot nestlings; continuing deforestation increases this risk of predation. Adults and nestling yellow-billed parrots are captured for the local and international pet bird trade. Poaching of birds for the pet trade removes vital individuals from the population and essential nesting cavities. The risk of disease transmission and competition with nonnative parrot species is elevated now that the temporary ban on the importation of nonnative psittacine species has been lifted. There are regulatory mechanisms in place to protect the yellow-billed parrot and its habitat, but enforcement appears to be inadequate given the threats this species is currently facing. Hurricanes also pose a threat to the yellow-billed parrot because of the already ongoing deforestation and population decline. This species, in the long term, may not be able to recover from the additional impacts of hurricanes on foraging and nesting resources given the continuing loss of food and nesting resources by logging, agriculture, road development, and mining.
Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The magnitude of the threats the yellow-billed parrot is facing is high. Nesting success is reported to be low for this species. Given the declining population, limited habitat and range, the ongoing and future threats to the remaining habitat, the associated increased risk of predation, and the loss of individuals from poaching, long-term survival of this species is a concern. Impacts from hurricanes are likely to be exacerbated by the ongoing deforestation and declining population. Any loss of individuals from the population or loss of vital nesting cavities from current or future threats further reduces the population and loss of already limited habitat and is likely to affect the reproductive success of this species. Because the population of this species is estimated at 10,000 to 20,000 individuals and mining is not currently occurring in Cockpit Country, we do not believe that this species is currently in danger of extinction. However, given the ongoing deforestation of remaining suitable habitat for the yellow-billed parrot in Jamaica, the loss of individuals through poaching for the pet bird trade or predation, the exacerbated impacts of hurricanes, and no information to suggest that these threats will be ameliorated, we believe the species will continue to decline and fecundity and recruitment affected such that the species is at risk of extinction in the foreseeable future. Furthermore, given the value of bauxite to Jamaica, the amount of bauxite deposits in Cockpit Country (a stronghold for the species), that mining companies have already drilled for samples in the area, and the lack of an official policy against mining in the area, we believe that mining could occur in Cockpit Country in the foreseeable future with irreversible impacts to remaining suitable habitat and the yellow-billed parrot. Based on current threats and the impacts to the yellow-billed parrot and the potential impacts of future threats, we believe the species will continue to decline and will likely become in danger of extinction in the foreseeable future. Therefore on the basis of the best scientific and commercial information, we find that the yellow-billed parrot meets the definition of a “threatened” species under the Act, and we are listing the yellow-billed parrot as threatened throughout its range.
Having determined that the yellow-billed parrot meets the definition of threatened throughout its range, we must next consider whether the yellow-billed parrot is in danger of extinction within a significant portion of its range.
The Act defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “significant portion of its range” is not defined by the statute. For the purposes of this finding, a portion of a species' range is “significant” if it is part of the current range of the species and it provides a crucial contribution to the representation, resiliency, or redundancy of the species. For the contribution to be crucial it must be at a level such that, without that portion, the species would be in danger of extinction.
In determining whether a species is endangered or threatened 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 in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and 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 clearly would not meet the biologically based definition of “significant” (
If we identify portions that warrant further consideration, we then determine their status (
Applying the process described above for determining whether this species is endangered in a significant portion of its range, we considered status first to determine if any threats or future threats acting individually or collectively endanger the species in a portion of its range. We have analyzed the threats to the degree possible, and determined they are essentially uniform throughout the species' range and no portion is being impacted to a significant degree more than any other such that the species is currently endangered in any portion of its range.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and interest groups, and individuals.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species and 17.32 for threatened species. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. For threatened species, a permit may be issued for the same activities, as well as zoological exhibition, education, and special purposes consistent with the Act.
Section 4(d) of the Act states that the Secretary of the Interior (Secretary) may, by regulation, extend to threatened species prohibitions provided for endangered species under section 9 of the Act. Our implementing regulations for threatened wildlife (50 CFR 17.31) incorporate the section 9 prohibitions for endangered wildlife, except when a special rule is promulgated. For threatened species, section 4(d) of the Act gives the Secretary discretion to specify the prohibitions and any exceptions to those prohibitions that are appropriate for the species, and provisions that are necessary and advisable to provide for the conservation of the species. A special rule allows us to include provisions that are tailored to the specific conservation needs of the threatened species and which may be more or less restrictive than the general provisions at 50 CFR 17.31.
Under the special rule, all prohibitions and provisions of 50 CFR 17.31 and 17.32 apply to the yellow-billed parrot, except that import into and export from the United States of certain yellow-billed parrots, and certain acts in interstate commerce of yellow-billed parrots, will be allowed without a permit under the Act, as explained below.
The special rule applies to all commercial and noncommercial international shipments of live and dead yellow-billed parrots and parts and products, including the import and export of personal pets and research samples. In most instances, the special rule adopts the existing conservation regulatory requirements of CITES and the WBCA as the appropriate regulatory provisions for the import and export of certain yellow-billed parrots. The import into and export from the United States of birds taken from the wild after the date this species is listed under the Act (see
The special rule applies to birds captive-bred in the United States and abroad. The terms “captive-bred” and “captivity” used in the special rule are defined in the regulations at 50 CFR 17.3 and refer to wildlife produced in a controlled environment that is intensively manipulated by man from parents that mated or otherwise transferred gametes in captivity. Although the special rule requires a permit under the Act to “take” (including harm and harass) a yellow-billed parrot, “take” does not include generally accepted animal husbandry practices, breeding procedures, or provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury to the wildlife when applied to captive wildlife.
We assessed the conservation needs of the yellow-billed parrot in light of the broad protections provided to the species under CITES and the WBCA. The yellow-billed parrot is listed in Appendix II under CITES, a treaty which contributes to the conservation of the species by monitoring international trade and ensuring that trade in Appendix II species is not detrimental to the survival of the species (see
Under the special rule, a person may deliver, receive, carry, transport, or ship a yellow-billed parrot in interstate commerce in the course of a commercial activity, or sell or offer to sell in interstate commerce a yellow-billed parrot without a permit under the Act. At the same time, the prohibitions on take under 50 CFR 17.31 apply under this special rule, and any interstate commerce activities that could incidentally take yellow-billed parrots or otherwise prohibited acts in foreign commerce require a permit under 50 CFR 17.32.
Although we do not have current data, we believe there are few yellow-billed parrots in the United States. Current International Species Information System (ISIS) information shows no yellow-billed parrots held in U.S. zoos (ISIS 2011, p. 1). However, some zoos do not enter data into the ISIS database. Persons in the United States have imported and exported captive-bred yellow-billed parrots for commercial purposes and one body for scientific purposes, but trade has been very limited (UNEP-WCMC 2011, unpaginated). We have no information to suggest that interstate commerce activities are associated with threats to the yellow-billed parrot or will negatively affect any efforts aimed at the recovery of wild populations of the species. Therefore, because acts in interstate commerce within the United States have not been found to threaten the yellow-billed parrot, the species is otherwise protected in the course of interstate commercial activities under the incidental take provisions and foreign commerce provisions contained in 50 CFR 17.31, and international trade of this species is regulated under CITES, we find this special rule contains all the prohibitions and authorizations necessary and advisable for the conservation of the yellow-billed parrot.
On May 26, 2011, we published in the
We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the
A list of all references cited in this document is available at
The primary authors of this notice are staff members of the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
(h) * * *
(c) The following species in the parrot family: Salmon-crested cockatoo
(1) Except as noted in paragraphs (c)(2) and (3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to these species.
(2)
(i)
(ii)
(A)
(B)
(3)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; trip limit adjustments.
On February 18, 2013, NMFS reduced the commercial trip limit for golden tilefish in the South Atlantic exclusive economic zone (EEZ) from 4,000 lb (1,814 kg) to 300 lb (136 kg) per trip because NMFS projected that 75 percent of the fishing year quota would be met on that day. Recent information indicates, however, that 75 percent of the fishing year quota has not been reached at this time. Therefore, through this temporary rule, NMFS reinstates the 4,000-lb (1,814-kg) commercial trip limit for golden tilefish in the South Atlantic EEZ from March 13, 2013, through March 21, 2013, when NMFS projects that 75 percent of the fishing year quota would be met. On March 22, 2013, the commercial trip limit for golden tilefish in the South Atlantic EEZ will go back to 300 lb (136 kg). These trip limit adjustments are necessary to achieve optimum yield and better manage the South Atlantic golden tilefish resource.
The 4,000-lb (1,814-kg) commercial trip limit for golden tilefish in the South Atlantic EEZ is effective from 12:01 a.m., local time, March 13, 2013, until 12:01 a.m., local time, March 22, 2013. The 300-lb (136-kg) commercial trip limit for golden tilefish in the South Atlantic EEZ is effective from 12:01 a.m., local time, March 22, 2013, through December 31, 2013, unless changed by subsequent notification in the
Catherine Hayslip, telephone: 727-824-5305, or email:
The snapper-grouper fishery includes golden tilefish in the South Atlantic and is managed under the Fishery Management Plan for the Snapper-Grouper Resources of the South Atlantic (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
Under 50 CFR 622.44(c)(2), NMFS is required to reduce the trip limit in the commercial sector for golden tilefish from 4,000 lb (1,814 kg) to 300 lb (136 kg) per trip when 75 percent of the fishing year quota is met prior to September 1, by filing a notification to that effect with the Office of the Federal Register. The commercial quota for golden tilefish in the South Atlantic is 541,295 lb (245,527 kg), gutted weight, as specified in 50 CFR 622.42(e)(2). NMFS determined that 75 percent of the available commercial quota for golden tilefish would be reached on or before February 18, 2013. Accordingly, effective February 18, 2013, NMFS reduced the commercial golden tilefish trip limit to 300 lb (136 kg), gutted weight, in the South Atlantic EEZ (78 FR 10102, February 13, 2013).
Recent landings information indicate that the commercial sector for golden tilefish did not reach 75 percent of the fishing year quota on February 18, 2013, nor has 75 percent of the fishing year quota been reached at this time. Therefore, through this temporary rule, NMFS removes the commercial trip limit reduction for golden tilefish in the South Atlantic to reinstate the 4,000 lb (1,814 kg) trip limit from March 13, 2013, through March 21, 2013, when NMFS projects that 75 percent of the fishing year quota would be met. Effective March 22, 2013, the trip limit will be 300 lb (136 kg) per trip. The 300 lb (136 kg) trip limit will remain in effect until the quota is reached and the commercial sector closes, or through December 31, 2013, whichever occurs first.
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic golden tilefish and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.44(c)(2) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirements to provide prior notice and the opportunity for public comment on this temporary rule. Such procedures are unnecessary because the rule itself has already been subject to notice and comment, and all that remains is to notify the public of the trip limit adjustments.
Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to achieve optimum yield and better manage the South Atlantic golden tilefish resource.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; trip limit reduction.
NMFS reduces the trip limit in the hook-and-line component of the commercial sector for king mackerel in the southern Florida west coast subzone to 500 lb (227 kg) of king mackerel per day in or from the exclusive economic zone (EEZ). This trip limit reduction is necessary to protect the Gulf king mackerel resource.
This rule is effective 12:01 a.m., local time, March 12, 2013, through June 30, 2013, unless changed by further notice in the
Susan Gerhart, telephone: 727-824-5305, email:
The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, and cobia) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Florida west coast subzone of the Gulf of Mexico eastern zone into northern and southern subzones, and established their separate quotas. The 2012 to 2013 fishing year quota for the hook-and-line component of the commercial sector in the southern Florida west coast subzone is 607,614 lb (275,609 kg) (50 CFR 622.42(c)(1)(i)(A)(
In accordance with 50 CFR 622.44(a)(2)(ii)(B)(
NMFS has projected that 75 percent of the hook-and-line gear quota for Gulf group king mackerel from the southern Florida west coast subzone will be reached by March 12, 2013. Accordingly, a 500-lb (227-kg) trip limit applies to vessels in the hook-and-line component of the commercial sector for king mackerel in or from the EEZ in the southern Florida west coast subzone effective 12:01 a.m., local time, March 12, 2013. The 500-lb (227-kg) trip limit will remain in effect until the component closes or until the end of the current fishing year (June 30, 2013), whichever occurs first.
The Florida west coast subzone is that part of the eastern zone located south and west of 25°20.4′ N. lat. (a line directly east from the Miami-Dade/Monroe County, FL boundary) along the west coast of Florida to 87°31′06″ W. long. (a line directly south from the Alabama/Florida boundary). The Florida west coast subzone is further divided into northern and southern subzones. From November 1 through March 31, the southern subzone is designated as the area extending south and west from 25°20.4′ N. lat. to 26°19.8′ N. lat. (a line directly west from the Lee/Collier County, Florida, boundary),
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of the Gulf king mackerel resource and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds that the need to immediately implement this trip limit reduction for the hook-and-line component of the commercial sector constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself already has been subject to notice and comment, and all that remains is to notify the public of the trip limit reduction.
Allowing prior notice and opportunity for public comment is contrary to the public interest because the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment could result in a harvest well in excess of the established quota. Immediate implementation of this action is needed to protect the Gulf king mackerel resource.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the B season allowance of the 2013 total allowable catch of pollock for Statistical Area 630 in the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), March 10, 2013, through 1200 hours, A.l.t., August 25, 2013.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The B season allowance of the 2013 total allowable catch (TAC) of pollock in Statistical Area 630 of the GOA is 2,618 metric tons (mt) as established by the final 2013 and 2014 harvest specifications for groundfish of the GOA (78 FR 13162, February 26, 2013). In accordance with § 679.20(a)(5)(iv)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), hereby increases the B season pollock allowance by 39 mt to reflect the total underharvest of the A seasonal apportionment in Statistical Area 630. Therefore, the revised B season allowance of the pollock TAC in Statistical Area 630 is 2,657 mt (2,618 mt plus 39 mt).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the 2013 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,457 mt and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 6, 2013.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the A season apportionment of the 2013 Pacific cod total allowable catch allocated to trawl catcher vessels in the BSAI.
Effective 1200 hours, Alaska local time (A.l.t.), March 11, 2013, through 1200 hours, A.l.t., April 1, 2013.
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season apportionment of the 2013 Pacific cod total allowable catch (TAC) allocated to trawl catcher vessels in the BSAI is 37,971 metric tons (mt) as established by the final 2013 and 2014 harvest specifications for groundfish in the BSAI (78 FR 13813, March 1, 2013).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A season apportionment of the 2013 Pacific cod TAC allocated to trawl catcher vessels in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 7, 2013.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service (AMS), USDA.
Proposed rule.
This proposed rule would amend the Country of Origin Labeling (COOL) regulations to change the labeling provisions for muscle cut covered commodities to provide consumers with more specific information, and amend the definition for “retailer” to include any person subject to be licensed as a retailer under the Perishable Agricultural Commodities Act (PACA). The COOL regulations are issued pursuant to the Agricultural Marketing Act of 1996. The Agency is issuing this rule to propose changes to the labeling provisions for muscle cut covered commodities to provide consumers with more specific information and is proposing other modifications to enhance the overall operation of the program.
Comments must be submitted on or before April 11, 2013.
Interested persons may submit written comments on this proposed rule using the following address:
Submitted comments will be available for public inspection at
Erin Morris, Deputy Associate Administrator, AMS, USDA, by telephone on 202/690-4024, or via email at:
The Farm Security and Rural Investment Act of 2002 (2002 Farm Bill) (Pub. L. 107-171), the 2002 Supplemental Appropriations Act (2002 Appropriations) (Pub. L. 107-206), and the Food, Conservation and Energy Act of 2008 (2008 Farm Bill) (Pub. L. 110-234) amended the Agricultural Marketing Act of 1946 (Act) (7 U.S.C. 1621
In June 2012, in a WTO case brought by Mexico and Canada, the WTO Appellate Body (AB) affirmed a previous WTO Panel's finding that the COOL requirements for muscle cut meat commodities were inconsistent with U.S. obligations under the WTO Agreement on Technical Barriers to Trade (TBT Agreement). In particular, the AB affirmed the Panel's determination that the COOL requirements were inconsistent with the TBT Agreement's national treatment obligation to accord imported products treatment no less favorable than that accorded to domestic products. The WTO Dispute Settlement Body adopted its recommendations and rulings on July 23, 2012. The United States has until May 23, 2013, to comply with the WTO ruling.
As a result of this action, the Agency reviewed the overall regulatory program and is issuing this rule, under the authority of the Agricultural Marketing Act (7 U.S.C. 1621
Under this proposed rule, origin designations for muscle cut covered commodities derived from animals slaughtered in the United States would be required to specify the production steps of birth, raising, and slaughter of the animal from which the meat is derived that took place in each country listed on the origin designation. In addition, this proposed rule would eliminate the allowance for any commingling of muscle cut covered commodities of different origins. These changes will provide consumers with more specific information about muscle cut covered commodities.
The major cost of implementing the proposed amendments will be incurred at the packing or processing facility, in the case of pre-labeled products, or at the retail level, in the case of products labeled at retail. The estimated number of firms that would need to augment labels for muscle cut covered commodities is 2,808 livestock processing and slaughtering firms, 38 chicken processing firms, and 4,335 retailers. This totals 7,181 firms that
Based on 2009 data, the Food Safety and Inspection Service (FSIS) estimated there were approximately 121,350 raw meat and poultry unique labels submitted by official establishments (i.e., establishments regulated by FSIS) and approved by the Agency (76 FR 44862). Assuming the upper bound estimate of 121,350 unique labels, the Agency preliminarily estimates the midpoint cost of the proposed rule for this label change is $32,764,500 with a range of $16,989,000 to $47,326,500.
The Agency believes that the incremental economic benefits from the proposed labeling of production steps will be comparatively small relative to those that were discussed in the 2009 final rule.
A complete discussion of the cost and benefits can be found under the Executive Order 12866 section.
In the regulatory text for fish and shellfish (7 CFR part 60) and for all other covered commodities (7 CFR part 65), the definition for “retailer” is proposed to be amended to include any person subject to be licensed as a retailer under the Perishable Agricultural Commodities Act (PACA) of 1930 (7 U.S.C. 499a(b)). This change would more closely align with the language contained in the PACA regulation and would help clarify that all retailers that meet the PACA definition of a retailer, whether or not they actually have a PACA license, are also covered by COOL.
As a result of the Agency's review of the program regulations, the Agency is proposing to require that all origin designations for muscle cut covered commodities slaughtered in the United States specify the production steps of birth, raising, and slaughter of the animal from which the meat is derived that took place in each country listed on the origin designation. The requirement to include this information will apply equally to all muscle cut covered commodities derived from animals slaughtered in the United States. This requirement will provide consumers with more specific information on which to base their purchasing decisions without imposing additional recordkeeping requirements on industry. The Agency considers that these changes, which are discussed in detail below, are consistent with the provisions of the statute.
Under the current COOL regulations, for muscle cut covered commodities derived from animals that were born, raised, and slaughtered in the United States, the origin is allowed to be designated as “Product of the U.S.”
Under this proposed rule, the United States country of origin designation for muscle cut covered commodities would be required to include location information for each of the production steps (i.e., “Born, Raised, and Slaughtered in the United States”).
For muscle cut covered commodities of multiple countries of origin that include the United States, the current COOL regulations recognize two basic scenarios.
The first scenario deals with meat derived from animals that were born in another country (and thereby raised for a period of time) and were imported as feeder cattle that were further raised and slaughtered in the United States. For these products, current COOL regulations allow the origin to be designated as “Product of the U.S. and Country X.” Under this proposed rule, as with U.S.-only origin products, the origin designation for these products would be required to include location information for each of the production steps.
However, as discussed in the preamble of the January 15, 2009, final rule (74 FR 2658), if animals are raised in another country and the United States, the raising that occurs in the United States may take precedence over the minimal raising that occurred in the animal's country of birth. Accordingly, under this proposed rule, the production step related to any raising occurring outside the United States may be omitted from the origin designation of these products (e.g., “Born in Country X, Raised and Slaughtered in the United States” in lieu of “Born and Raised in Country X, Raised and Slaughtered in the United States”).
This omission is not permitted in the relatively rare situation where an animal was born in the United States, raised in another country (or countries) and then raised and slaughtered in the United States, which would result in the muscle cut covered commodity being designated as having a solely U.S. country of origin.
The second scenario relates to muscle cut covered commodities derived from animals that were imported for immediate slaughter as defined in § 65.180. In this scenario, under the current COOL regulations, these products are required to be designated as “Product of Country X and the United States.”
Under this proposed rule, the origin designation for meat derived from animals imported for immediate slaughter would be required to include information as to the production steps taking place in the countries listed on the origin designation. However, the country of raising for animals imported for immediate slaughter as defined in § 65.180 shall be designated as the country from which they were imported (e.g., “Born and Raised in Country X, Slaughtered in the United States”).
The current COOL regulations allow for commingling of different origins. For example, under the current COOL regulations, for muscle cut covered commodities derived from animals born, raised, and slaughtered in the United States that are commingled during a production day with muscle cut covered commodities derived from animals that were raised and slaughtered in the United States, and are not derived from animals imported for immediate slaughter as defined in § 65.180, the origin is allowed to be designated, for example, as Product of the United States, Country X, and (as applicable) Country Y. Similarly, under the current COOL regulations, for muscle cut covered commodities derived from animals that are born in Country X or Country Y, raised and slaughtered in the United States, that were commingled during a production day with muscle cut covered commodities that were derived from animals that are imported into the United States for immediate slaughter as defined in § 65.180, the origin is allowed to be designated as Product of the United States, Country X, and (as applicable) Country Y.
This proposed rule would eliminate the allowance for any commingling of muscle cut covered commodities of different origins. As discussed above, all origin designations would be required to include specific information as to the place of birth, raising, and slaughter of the animal from which the meat is derived. Removing the commingling allowance allows consumers to benefit from more specific labels.
Under the current COOL regulations, imported muscle cut covered commodities retain their origin as declared to the U.S. Customs and Border Protection at the time the products entered the United States (i.e., Product of Country X) through retail sale.
Under this proposed rule, these labeling requirements for imported muscle cut covered commodities remain unchanged, although the Agency has restructured the regulatory text of this provision for clarity. As is permitted under the current COOL regulations, the Agency will continue to allow the origin designation to include more specific information related to production steps, provided records to substantiate the claims are maintained and the claim is consistent with other applicable Federal legal requirements.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
Executive Orders 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated as a “significant regulatory action” under section 3(f) of Executive Order 12866, and, therefore, has been reviewed by the Office of Management and Budget (OMB). The Agency seeks comments and data on the estimated impacts of this rulemaking that may affect its designation under Executive Order 12866 and the Congressional Review Act.
Regulations must be designed in the most cost-effective manner possible to obtain the regulatory objective while imposing the least burden on society. This proposed rule would amend the COOL regulations (1) to change the labeling provisions for muscle cut covered commodities to provide consumers with more specific information and (2) to amend the definition for “retailer” to include any person subject to be licensed as a retailer under the Perishable Agricultural Commodities Act (PACA) to enhance the overall operation of the program.
The baseline for this analysis is the present state of the beef, chicken, goat, lamb and pork industries, which have been subject to the requirements of mandatory COOL (7 CFR parts 60 and 65) since the effective date of the final rule on March 16, 2009. Under this proposed rule, COOL requirements would remain essentially unchanged for imported muscle cut covered commodities. However, labeling requirements would change for muscle cut covered commodities derived from animals slaughtered in the United States—whether exclusively of United States origin, of multiple countries of origin that include the United States, or imported for immediate slaughter in the United States. For those products, covered retailers would need to inform their consumers of the country in which the relevant production steps—born, raised, and slaughtered—occurred.
As mentioned above in the summary of proposed changes to the COOL regulations, the definition for “retailer” would be amended to more closely align with the language contained in the PACA regulation and help clarify that all retailers that meet the PACA definition of a retailer, whether or not they actually have a PACA license, are covered by COOL. The Agency believes that this change in definition will not substantially alter the number of retailers subject to the COOL regulations. Therefore, the analysis of benefits and cost from this proposed rule focuses solely on the potential effects of the proposed amendments to the labeling provisions of the current COOL regulations.
Numerous comments received on previous COOL rulemaking actions indicate that there is interest by some consumers in the designation of the countries of birth, raising and slaughter on meat product labels. Specifying the production step occurring in each country listed on meat labels as proposed in this rule could provide additional benefits by providing more specific information on which consumers can base their purchasing decisions.
In addition, this proposed rule would eliminate the allowance for commingling of muscle cut covered commodities of different origins. As discussed in the preamble, removing the commingling allowance will allow the labels proposed under this rule to provide specific information as to the place of birth, raising, and slaughter of the animal from which the meat is derived.
The Agency has been unable to quantify incremental economic benefits from the proposed labeling of production steps and therefore requests detailed comment and data on this issue, most notably detailed data or studies on the value to consumers of having COOL information. The Agency concluded in the PRIA and FRIA that the economic benefits from the COOL requirements are positive, but difficult to quantify. The Agency believes that incremental economic benefits from the proposed labeling of production steps are difficult to quantify, and will be comparatively small relative to those that were discussed in the 2009 final rule.
As previously mentioned, no changes are being proposed to the existing country of origin labeling of imported muscle cuts derived from animals slaughtered in another country. Those products would continue to retain their origin as declared to the U.S. Customs and Border Protection at the time the products entered the United States through retail sale. Thus, there are no incremental costs associated with that scenario.
However, in the situation in which the covered muscle cut commodities are derived from animals slaughtered in the United States, labeling of the location(s) in which the animal was born, raised, and slaughtered would now be required. Packers and processors that provide muscle cut covered commodities to covered retailers, however, already obtain this production step information needed either to pre-label retail case-ready products with production step information or to provide that information to their retail customers. In the latter scenario, the retailer would then complete the labeling of the production steps to provide notification to consumers.
Under current mandatory COOL requirements, packers and processors must inform their retail customers as to the country of origin of the meat cuts that they supply. In turn, that means that packers and processors must obtain the country of origin information from their supply chain. Thus, the information on production steps required by this proposal is already available due to the current mandatory COOL requirements. The additional costs attributable to the proposed amendments would be the costs associated with transferring production step information to the product label.
For animals exclusively born, raised, and slaughtered in the United States, current labeling requirements would be augmented from, for example, “Product of the U.S.” to “Born, Raised and Slaughtered in the U.S.” In this example, the required statement increases from 19 to 40 characters and spaces. For animals born in another country and raised and slaughtered in the United States, current labeling requirements would be augmented from, for example, “Product of U.S. and Country X” to “Born in Country X, Raised and Slaughtered in the U.S.” Finally, for an animal imported for immediate slaughter, current labeling requirements would be augmented from, for example, “Product of Country X and the U.S.” to “Born and Raised in Country X, Slaughtered in the U.S.” In these examples, the required statement increases by a net of 20 characters and spaces.
In addition, commingling currently allowed under the current mandatory COOL regulations would no longer be available under the proposed amendments. For example, the current regulations allow muscle cut covered commodities derived from animals born, raised, and slaughtered in the United States that are commingled during a production day with muscle cut covered commodities derived from animals born in one or more other countries to be designated as, for example, “Product of the United States, Country X, and Country Y” (§ 65.300(e)(2)). That type of commingling would not be allowed under the proposed amendments, as the labels must be specific as to where the animal was born, raised, and slaughtered.
The Agency's experience with the current program suggests that the majority of muscle cut covered commodities are not produced and labeled using the labeling scheme afforded by commingling. The Agency invites comment and data regarding the extent to which the flexibility afforded by commingling on a production day is used to designate the country of origin under the current COOL program and the potential costs, such as labor and capital costs, which may result from the loss of such flexibility.
Given that the information needed to label production steps is already available and that most packers already segregate animals of differing countries of origin in the slaughter and processing of those animals,
In the FRIA published in the earlier COOL rulemaking (74 FR 2681), first-year incremental implementation costs for mandatory COOL were estimated at $1,755 million for the beef, pork, lamb and goat, and chicken industries. Of that total, intermediary suppliers and retailers were estimated to incur costs of $618 million and $716 million respectively, for a total of $1,334 million. Applying a Consumer Price Index deflator of 1.07 to convert to 2012 dollar values, first-year implementation costs for startup of mandatory COOL was estimated at $661 million for intermediaries, $766 million for retailers, and $1,427 million for both industry segments. AMS believes that packer and processor intermediary suppliers and retailers would be able to add the proposed specific production step information to currently required COOL designations at considerably lower cost than required for initial implementation of the current COOL regulations.
In a 2010 survey of retail meat cases, 31 percent of beef, 58 percent of pork, 60 percent of lamb, and 94 percent of chicken packages were case ready packages.
The estimated number of firms that would need to augment labels for muscle cut covered commodities is 2,808 livestock processing and slaughtering firms, 38 chicken
Cost estimates provided in a March 2011, Food and Drug Administration (FDA) report
Importantly, the FDA model was developed for all products subject to FDA regulation, which includes not only food, but cosmetics, dietary supplements, over-the-counter medications, pet foods, retail medical devices, and tobacco products and accessories. Most of the products covered by these categories are sold in fixed-volume or fixed-quantity packages that are labeled by the manufacturer, processor, or distributor, with no additional labeling added by the retailer.
However, this proposed rule covers muscle cut covered commodities, which notably fall outside of FDA's jurisdiction (and are not included within the model). As noted previously, unlike the FDA covered commodities, a significant percentage of muscle cut covered commodities are sold in random-weight packages, with the final weight and price label applied by the retailer. Typically, retailers use a label printing scale with a thermal dot printer to apply the unit price, weight, total price, and other information such as the product name, sell by date, and so forth on pressure-sensitive paper labels that are applied to packages prior to sale. This important difference between the products covered by this rule and the products contemplated by FDA in creating its model indicates to the AMS that it would be inappropriate to rigidly adhere to the model for purposes of this analysis, as such an application of the model will overestimate the label change costs of this rule.
Nevertheless, despite these important limitations, the Agency does consider that the FDA model, with some qualifications can contribute to an assessment of the potential impacts of the proposed requirements. In the context of the FDA model, the proposed labeling change is assumed to be a minor change in which only one color is affected and the label does not need to be redesigned. Examples of a minor label change include the addition of a toll-free number, or more pertinent in this case, minimal changes to a claim on the back or side of a package affecting one color.
Based on 2009 data, the Food Safety and Inspection Service (FSIS) estimated there were approximately 121,350 raw meat and poultry unique labels submitted by official establishments and approved by the Agency (76 FR 44862). This number would represent an upper bound on the number of unique labels that would be affected by this proposed rule, as there are raw meat and poultry products that are exempt from COOL requirements, (such as a teriyaki flavored pork loin and other processed food items as defined by § 65.220) or that are not affected by this proposed rule (such as turkey), and that are not sold at retail establishments (such as products sold to hotels, restaurants, and institutional customers). The Agency welcomes data that would account for such products and thus allow for refinement of the estimate of the number of labels affected by the proposed rule.
Label changes in the FDA model fall on a spectrum from being uncoordinated, in which the label change does not correspond to a planned change, or coordinated, in which the label change corresponds with a planned change. The model predicts that coordinated label changes incur lower costs compared to uncoordinated changes. The Agency recognizes that costs estimates under the FDA model are greatly affected by the time over which required labeling changes are phased in. In the case of food products under the FDA model, any compliance period of less than 12 months is assumed to be an uncoordinated change, with 100 percent coordinated changes assumed to require at least 24 months for branded foods and 42 months for private label foods. The model predicts that coordinated label changes incur significantly lower costs compared to uncoordinated changes.
For the reasons explained above, the Agency does not believe that the rigid application of the FDA model will accurately predict the costs of this rule. In particular, the Agency does not consider that the distinction between coordinated and uncoordinated label changes as applied in the FDA label cost model is predictive of the costs of this rule. Rather, the Agency preliminarily estimates that label changes proposed in this rule will create costs that correspond to a coordinated change, even if the Agency ultimately decides to require a phase in that is considerably shorter than 12 months, which the FDA model assumes is a 100 percent uncoordinated label change.
Under the FDA model, one-time costs for a coordinated label change are assumed to involve only administrative labor costs and recordkeeping. However, as previously discussed, no additional recordkeeping costs are anticipated from this proposed rule. The midpoint estimate of administrative labor cost for a coordinated label change is $270, with a range of $140-$390. For an uncoordinated label change, the model includes administrative labor costs, non-administrative labor costs, materials costs that vary with the type of material and printing method, and recordkeeping costs. Again, no additional recordkeeping costs are anticipated from this proposed rule, and therefore the Agency considers that the model's predictions regarding uncoordinated label changes would significantly overstate the costs of the label change proposed here. As a point of reference, depending on the printing method, low estimates for coordinated change under the FDA model range from $1,990 to $2,940; midpoint estimates range from $3,690 to $4,980; and high estimates range from $6,500 to $7,890.
There are additional distinctions between the FDA model and the COOL regime to support the conclusion that the model's assumptions regarding coordinated versus uncoordinated label changes have limited applicability in this situation. As previously mentioned, COOL information already is made available to consumers under current regulations, and that information can be provided through a variety of means, including placards, signs, labels, stickers, or other formats. Thus, the Agency believes that the label changes contemplated in this proposed rule could be phased in with similar costs as predicted for a coordinated label change under the model. For instance, placards could be used to convey the augmented production step information pending synchronization with a coordinated label change cycle. Also, many, if not most, of the muscle cut covered commodities are sold as random-weight items with price, weight, and other information (including COOL information) printed for each individual package, thus allowing production step information to be provided in a similar manner. Assuming the upper bound estimate of 121,350 unique labels, the
Note that the number of unique labels affected by this proposed rule is expected to be lower than the upper-bound estimate of 121,350, thus lowering the total estimated costs commensurately. Conversely, coordinating the proposed label changes with the current COOL requirements may involve additional costs that have not been included, which would result in higher overall costs than are estimated here.
Furthermore, compared to the current COOL program, the changes contemplated by the proposed amendments may involve ongoing activities beyond label redesign. For example, without the commingling possible under the current program, there may be a more frequent need to switch labels at processing plants that may currently commingle meat or enter different information into a label machine at a retail store when production step information changes. A given lot of carcasses or a box of meat from a production day may be of one origin, while the next lot or box may be of another origin. As previously explained, under some scenarios, under current COOL regulations, the same COOL designation can be applied to the entire day's production. Under the proposed amendments, however, the COOL designation would need to reflect the appropriate birth and raising country of origin information along with the United States location of slaughtering for individual muscle cuts of meat.
The Agency invites public comment and associated quantitative data that would improve the Agency's estimate of the cost of the changes in the labeling and commingling requirements being proposed in this rulemaking, including any additional costs that have not been included in the estimates discussed above. The Agency also invites public comment on how the length of time for compliance will affect the cost of the changes being proposed in this rule.
This rule has been reviewed under the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The purpose of the RFA is to consider the economic impact of a rule on small businesses and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the marketplace. The Agency believes that this rule will have a relatively small economic impact on a substantial number of small entities. As such, the Agency has prepared the following initial regulatory flexibility analysis of the rule's likely economic impact on small businesses pursuant to section 603 of the RFA.
As mentioned in the summary above, this rulemaking was contemplated after the Agency reviewed the overall regulatory program in light of the WTO's finding that the current mandatory COOL measure is inconsistent with the United States' WTO obligations. The objective of this proposed rulemaking is to amend current mandatory COOL requirements to provide consumers with information on the country in which productions steps occurred for muscle cut covered
Under preexisting Federal laws and regulations, origin designations for muscle cut covered commodities need not specify the production steps of birth, raising, and slaughter of the animals from which the cuts are derived. Thus, the Agency has not identified any Federal rules that would duplicate or overlap with this rule.
We do not anticipate that additional recordkeeping will be required or that new systems will need to be developed to transfer information from one level of the production and marketing channel to the next. However, information available to consumers at retail will need to be augmented to include information on the location in which the three major production steps occurred. Therefore, the companies most likely to be affected are packers and processors that produce case-ready products, and retailers.
There are two measures used by the Small Business Administration (SBA) to identify businesses as small: sales receipts or number of employees.
While there are many potential retail outlets for the covered commodities, food stores, warehouse clubs, and superstores are the primary retail outlets for food consumed at home. In fact, food stores, warehouse clubs, and superstores account for 75.6 percent of all food consumed at home.
The 2007 Economic Census data provide information on the number of food store firms by sales categories. Of the 4,335 food store, warehouse club, and superstore firms with annual sales of at least $5,000,000, an estimated 4,106 firms had annual sales of less than $50,000,000, which is higher than the threshold for the SBA definition of a small firm. The Economic Census data do not provide a breakout at the $30,000,000 SBA threshold, which means that the estimated number of small businesses likely is an overestimate.
We estimate that 33,350 establishments owned by 7,181 firms will be either directly or indirectly affected by this rule (Table 1). Of these establishments/firms, we estimate that 6,849 qualify as small businesses. The mid-point total direct incremental costs are estimated for the proposed rule at approximately $32.8 million. The direct incremental costs of the proposed rule are the result of revisions in labeling of muscle cut covered commodities. Of the total labeling costs of $32.8 million, $8.6 million is estimated to be costs borne by small businesses.
Small retailers' portion of these costs is estimated at $5.9 million. Mid-point estimated costs are $982 per retail establishment.
Any manufacturer that supplies retailers or wholesalers with a covered commodity will be required to provide revised country of origin information to retailers so that the information can be accurately supplied to consumers. Of the manufacturers potentially affected by the rule, SBA defines those having less than 500 employees as small.
The 2007 Economic Census
Small packer and processor labeling costs under the proposed rule are estimated at $2.7 million. As with retailers, labeling costs are estimated at $982 per establishment.
The Agency seeks comment on the accuracy of these estimates and the impacts on small businesses that may not be captured using the label cost model discussed above.
The proposed change in the definition of a retailer is not expected to have a substantial effect on the number of retailers subject to COOL requirements. The PACA program continually monitors the retail industry for firms that may meet the threshold for PACA licensing and seeks to enforce compliance with those requirements. Thus, those retailers that are required to hold a PACA license should, in fact, be licensed separate and apart from any COOL program requirements.
The Agency considered other alternatives including taking no action or providing less information than is currently required under the COOL regulations. These alternatives would not achieve the purpose of this rulemaking.
As with the current mandatory COOL program, the proposed rule has no requirements for firms to report to USDA. Compliance audits will be conducted at firms' places of business. There are no recordkeeping requirements beyond those currently in place, and we believe that the information necessary to transmit production step information largely is already in place within the affected industries. As stated in the RFA of the COOL final rule, the current COOL
Pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C 3501-3520) the information collection provisions contained in this rule were previously approved by OMB and assigned OMB Control Number 0581-0250. On December 4, 2012, AMS published a notice and request for comment seeking OMB approval to revise this information collection. The comment period closed on February 4, 2013. This proposed rule does not change these provisions.
The contents of this rule were reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect. States and local jurisdictions are preempted from creating or operating country of origin labeling programs for the commodities specified in the Act and these regulations. With regard to other Federal statutes, all labeling claims made in conjunction with this regulation must be consistent with other applicable Federal requirements. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.
AMS considered the potential civil rights implications of this rule on minorities, women, or persons with disabilities to ensure that no person or group shall be discriminated against on the basis of race, color, national origin, gender, religion, age, disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information. This review included persons that are employees of the entities that are subject to these regulations. This proposed rule does not require affected entities to relocate or alter their operations in ways that could adversely affect such persons or groups. Further, this rule will not deny any persons or groups the benefits of the program or subject any persons or groups to discrimination.
This rule has been reviewed under Executive Order 13132, Federalism. This Order directs agencies to construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence to conclude that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute. This program is required by the 2002 Farm Bill, as amended by the 2008 Farm Bill.
In the January 15, 2009, final rule, the Federalism analysis stated that to the extent that State country of origin labeling programs encompass commodities that are not governed by the COOL program, the States may continue to operate them. It also contained a preemption for those State country of origin labeling programs that encompass commodities that are governed by the COOL program. This proposed rule does not change the preemption. With regard to consultation with States, as directed by the Executive Order 13132, AMS previously consulted with the States that have country of origin labeling programs. AMS has cooperative agreements with all 50 States to assist in the enforcement of the COOL program and has communications with the States on a regular basis.
Because the United States wants to provide more specific information to the consumer at the earliest possible date, and consequently to bring COOL into compliance with the WTO ruling by May 23, 2013, the Agency has determined that a 30-day comment period is appropriate.
For the reasons set forth in the preamble, 7 CFR part 60 is proposed to be amended as follows:
7 U.S.C. 1621
For the reasons set forth in the preamble, 7 CFR part 65 is proposed to be amended as follows:
7 U.S.C. 1621
(d)
A covered commodity may bear a declaration that identifies the United States as the sole country of origin at retail only if it meets the definition of United States country of origin as defined in § 65.260. The United States country of origin designation for muscle cut covered commodities shall include all of the production steps (i.e., “Born, Raised, and Slaughtered in the United States”).
(e)
If an animal was born and/or raised in Country X and/or (as applicable) Country Y, and slaughtered in the United States, the resulting muscle cut covered commodities shall be labeled to specifically identify the production steps occurring in each country (e.g., “Born and Raised in Country X, Slaughtered in the United States”). If an animal is raised in the United States as well as another country (or multiple countries), the raising occurring in the other country (or countries) may be omitted from the origin designation except if the animal was imported for immediate slaughter as defined in § 65.180 or where by doing so the muscle cut covered commodity would be designated as having a United States country of origin (e.g., “Born in Country X, Raised and Slaughtered in the United States” in lieu of “Born and Raised in Country X, Raised in Country Y, Raised and Slaughtered in the United States”).
(f)
(1) Perishable agricultural commodities, peanuts, pecans, ginseng, macadamia nuts and ground meat covered commodities that have been
(2) Muscle cut covered commodities derived from an animal that was slaughtered in another country shall retain their origin, as declared to U.S. Customs and Border Protection at the time the product entered the United States, through retail sale (e.g., “Product of Country X”), including muscle cut covered commodities derived from an animal that was born and/or raised in the United States and slaughtered in another country. In addition, the origin declaration may include more specific location information related to production steps (i.e., born, raised, and slaughtered) provided records to substantiate the claims are maintained and the claim is consistent with other applicable Federal legal requirements.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice of intent.
The U.S. Department of Energy (DOE or the Department) is giving notice that the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) intends to establish a working group in accordance with the Federal Advisory Committee Act (FACA) and the Negotiated Rulemaking Act (NRA) to negotiate certification requirements of commercial heating, ventilation, and air-conditioning (HVAC), water heating (WH), and refrigeration equipment. The purpose of the working group will be to discuss and, if possible, reach consensus on proposed certification requirements for commercial HVAC, WH, and refrigeration equipment, as authorized by the Energy Policy and Conservation Act of 1975, as amended. The working group members will be representatives of parties having a defined stake in the outcome of the proposed certification requirements, and will consult with a range of experts on technical issues.
Nominations of membership must be received on or before March 26, 2013. DOE will not consider any nominations received via mail or after midnight on March 26, 2013 to be valid.
The nominee's name, resume, biography, and any letters of support must be submitted in electronic format via email to
John Cymbalsky, ASRAC Designated Federal Officer, U.S. Department of Energy (DOE), Office of Energy Efficiency and Renewable Energy, 950 L'Enfant Plaza, SW., Washington, DC 20024. Email:
Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or “the Act”) sets forth a variety of provisions designed to improve energy efficiency. Part A of Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation Program for Consumer Products Other Than Automobiles. The National Energy Conservation Policy Act (NECPA), Public Law 95-619, amended EPCA to add Part A-1 of Title III, which established an energy conservation program for certain industrial equipment. (42 U.S.C. 6311-6317) Sections 6299-6305, and 6316 of EPCA authorize DOE to enforce compliance with the energy and water conservation standards (all non-product specific references herein referring to energy use and consumption include water use and consumption; all references to energy efficiency include water efficiency) established for certain consumer products and commercial equipment. (42 U.S.C. 6299-6305 (consumer products), 6316 (commercial equipment)) DOE has promulgated enforcement regulations that include specific certification and compliance requirements. See 10 CFR part 429; 10 CFR part 431, subparts B, U, and V.
This notice announces DOE's and the ASRAC's intent to negotiate certification requirements of commercial heating, ventilation, and air-conditioning (HVAC), water heating (WH), and refrigeration equipment under the authority of sections 563 and 564 of the NRA (5 U.S.C. 561-570, Pub. L. 104-320).
On March 7, 2011, DOE published a final rule in the
In response to the initial deadline for certifying compliance imposed on commercial HVAC, WH, and refrigeration equipment manufacturers by the March 2011 Final Rule, certain manufacturers of particular types of commercial and industrial equipment stated that, for a variety of reasons, they would be unable to meet that deadline. DOE initially extended the deadline for certifications for commercial HVAC, WH, and refrigeration equipment in a final rule published June 30, 2011 (June 30 Final Rule). 76 FR 38287 (June 30, 2011). DOE subsequently extended the compliance date for certification an additional 12 months to December 31, 2013, for these types of equipment (December 2012 final rule) to allow, among other things, the Department to explore the negotiated rulemaking process for this equipment. 77 FR 72763.
In the summer of 2012, DOE had an independent convenor evaluate the likelihood of success, analyzing the feasibility of developing certification requirements for commercial HVAC, WH, and refrigeration equipment (not including walk-in coolers and freezers) through consensus-based negotiations among affected parties. October 2012, the convenor issued his report based on a confidential interview process involving forty (40) parties. from a wide range of commercial HVAC, WH, and CRE interests. Ultimately, the convener recommended that with the proper scope of issues on the table surrounding
DOE has identified the following substantive issues that will underlie the work of the Commercial HVAC, WH, and Refrigeration Certification Working Group:
• Strategies for grouping models for purposes of certification;
• Identification of non-efficiency attributes, which do not impact the measured consumption of the equipment as tested by DOE's test procedure;
• The information that is certified to the Department;
• The timing of when the certification should be made relative to distribution in commerce; and
• Alterations to a basic model that would impact the certification.
The formed working group will examine the underlying issues outlined above, and possibly others not yet articulated as determined through the negotiated rulemaking process. As voted on by ASRAC, the working group will be required to provide a progress report to ASRAC on its efforts by Wednesday, June 26, 2013, and report back to the Committee with final recommendations by Friday, August 30, 2013.
A working group will be formed and operated in full compliance with the requirements of FACA and in a manner consistent with the requirements of the NRA. In accordance with NRA, DOE has determined that the working group not exceed 25 members. DOE is aware that there are many more potential participants than there are membership slots on the working group. The Department does not believe, nor does the NRA contemplate, that each potentially affected group must participate directly in the negotiations; nevertheless, each affected interest can be adequately represented. To have a successful negotiation, it is important for interested parties to identify and form coalitions that adequately represent significantly affected interests. To provide adequate representation, those coalitions must agree to support, both financially and technically, a member of the working group whom they choose to represent their interests. FACA also requires that members of the public have the opportunity to attend meetings of the full committee and speak or otherwise address the committee during the public comment period. In addition, any member of the public is permitted to file a written statement with the advisory committee. DOE plans to follow these same procedures in conducting meetings of the working group.
DOE anticipates that the working group will comprise no more than 25 members who represent affected and interested stakeholder groups, two of whom will be members of ASRAC—John Mandyck and Kent Peterson. Additionally, in accordance with NRA, one seat on the working group will be reserved for a DOE representative to represent the views of the Department. As required by FACA, the Department will conduct the negotiated rulemaking with particular attention to ensuring full and balanced representation of those interests that may be significantly affected by certification requirements of commercial HVAC, WH, and refrigeration equipment.
Members may be individuals or organizations. If the effort is to be fruitful, participants on the working group should be able to fully and adequately represent the viewpoints of their respective interests. This document gives notice of DOE's process to other potential participants and affords them the opportunity to request representation in the negotiations. Those who wish to be appointed as members of the working group, including those that have been tentatively identified by DOE in this notice of intent, should submit a request to DOE, in accordance with the public participation procedures outlined in the
• Attendance of multiple, one (1) to two (2) day meetings;
• Travel costs to those meetings; and
• Preparation time for those meetings.
Members serving on the working group will not receive compensation for their services. Interested parties who are not selected for membership on the working group may make valuable contributions to this negotiated rulemaking effort in any of several ways:
• The person may request to be placed on the working group mailing list and submit written comments as appropriate.
• The person may attend working group meetings, which are open to the public; caucus with his or her interest's member on the working group; or even address the working group during the public comment portion of the working group meeting.
• The person could assist the efforts of a task force that the working group might establish.
A working group may establish informal task forces, which usually are asked to facilitate committee deliberations by assisting with various technical matters (e.g., researching or preparing summaries of the technical literature or comments on specific matters such as economic issues). Task forces also might assist in estimating costs or drafting regulatory text on issues associated with the analysis of the costs and benefits addressed, or formulating drafts of the various provisions and their justifications as previously developed by the working group. Given their support function, task forces usually consist of participants who have expertise or particular interest in the technical matter(s) being studied. Because it recognizes the importance of this support work for the working group, DOE will provide appropriate technical expertise for such task forces.
Every working group member must be willing to negotiate in good faith and have the authority, granted by his or her constituency, to do so. The first step is to ensure that each member has good communications with his or her constituencies. An intra-interest network of communication should be established to bring information from the support organization to the member at the table, and to take information from the table back to the support organization. Second, each organization or coalition therefore should designate as its representative a person having the credibility and authority to ensure that needed information is provided and decisions are made in a timely fashion. Negotiated rulemaking can require the appointed members to give a significant amount of time, which must be sustained for as long as the duration of the negotiated rulemaking. Other qualities of members that can be helpful are negotiating experience and skills, and sufficient technical knowledge to participate in substantive negotiations.
Certain concepts are central to negotiating in good faith. One is the
The facilitator will act as a neutral in the substantive development of the proposed standard. The facilitator's role generally includes:
• Impartially assisting the members of the working group in conducting discussions and negotiations; and
• Impartially assisting in performing the duties of the Designated Federal Official under FACA.
The DOE representative will be a full and active participant in the consensus-building negotiations. The Department's representative will meet regularly with senior Department officials, briefing them on the negotiations and receiving their suggestions and advice so that he or she can effectively represent the Department's views regarding the issues before the working group. DOE's representative also will ensure that the entire spectrum of governmental interests affected by the rulemaking, including the Office of Management and Budget, the Attorney General, and other Departmental offices, are kept informed of the negotiations and encouraged to make their concerns known in a timely fashion.
After evaluating the comments submitted in response to this notice of intent and the requests for nominations, DOE will inform the members of the working group that they have been selected. DOE and ASRAC plan for the working group to have its first meeting in April 2013 and have determined a need for an update from the working group on negotiation efforts by Wednesday, June 26, 2013, and final recommendations to ASRAC by Friday, August 30, 2013.
At the initial working group meeting, DOE and ASRAC representatives on the working group will advise working group members of administrative matters related to the functions of the working group, lay out the working group's scope, and confirm deadlines. Given the outlined scope and established deadlines, the working group will develop a work plan to accomplish the proposed objectives. While the negotiated rulemaking process is underway, DOE is committed to performing much of the same analysis as it would during a normal process and to providing information and technical support to the working group.
DOE requests nominations of which parties should be included in a negotiation efforts of certification requirements of commercial HVAC, WH, and refrigeration equipment and suggestions of additional interests and/or stakeholders that should be represented on the working group. Please include the nominee's name, contact information, resume, biography, and any letters of support. Nominations must be submitted in electronic format via email to
The Secretary of Energy has approved publication of today's notice of proposed rulemaking.
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes. That NPRM proposed to require an inspection to determine if certain rudder feel trim units (RFTUs) are installed, an operational check for signs of seizure of affected parts, repetitive lubrication for certain RFTUs, and replacement of the RFTU if necessary. Installing replaced RFTUs with conformal bushings would terminate the repetitive lubrication requirements. That NPRM was prompted by reports of movement of the rudder pedals being impeded due to corrosion of the trunnion shaft of the RFTU. This action revises that NPRM by reducing compliance times, increasing compliance costs, expanding affected parts to include additional serial numbers and include those parts with a suffix `A,' and adding the condition of rough movement to the operational check. We are proposing this AD to detect and correct any sign of rough movement or seizure of the trunnion shaft and its bushing, which could cause a rudder control jam or a large and rapid alternating rudder input leading to a structural failure of the vertical fin. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this proposed AD by April 26, 2013.
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
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7318; 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
We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the
Since that NPRM (77 FR 34874, June 12, 2012) was issued, we have determined that a reduction to the compliance times is needed in order to address the identified specified unsafe condition. We are reducing the compliance times for the inspection in paragraph (g) of this supplemental NPRM from within 600 flight hours or six months, whichever occurs first, to within 200 flight hours or two months, whichever occurs first after the effective date of this AD. We are reducing the compliance time for the replacement specified in paragraph (h) of this supplemental NPRM from within 6,000 flight hours to within 5,000 flight hours or 3 years, whichever occurs first. We have also determined that it is necessary to increase the costs of compliance, expand the affected parts, and revise the operational check specified in the NPRM. The affected parts for the action specified in paragraphs (g)(1) and (g)(2) have been expanded in this supplemental NPRM to include additional serial numbers (S/N) 0008 through 0509 inclusive, and to include those parts with suffix `A.' Also, the operational check specified in paragraph (g)(2) of this supplemental NPRM now includes an additional condition of “any sign of rough movement.”
Since the NPRM (77 FR 34874, June 12, 2012) was issued, Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2012-02R1, dated October 12, 2012 (referred to after this as Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI reduced compliance times, expanded the affected parts to include the new part serial numbers and parts with suffix `A,' and added the condition of “rough movement” to the operational check. You may obtain further information by examining the MCAI in the AD docket.
Bombardier has issued Service Bulletin 84-27-60, dated July 12, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
We gave the public the opportunity to comment on the NPRM (77 FR 34874, June 12, 2012). The following presents the comments received on the NPRM and the FAA's response to each comment.
Horizon Air (Horizon) requested that we add units with suffix `B,' in addition to units with suffix `A,' to the RFTUs allowed as replacement parts in paragraphs (g), (h), and (i) of the NPRM (77 FR 34874, June 12, 2012). Horizon stated that Parker Aerospace, which manufacturers RFTU part number (P/N) 399500-1007, has since issued Parker Aerospace Service Bulletin 399500-27-003, dated April 19, 2012, which introduced an additional modification for RFTU (S/Ns) 0009 through 0388 inclusive. Horizon noted RFTUs modified by that service bulletin are identified by a suffix `B' to the unit serial number. Horizon stated the addition of units with suffix `B” would allow operators that have taken actions to incorporate Parker Aerospace Service Bulletin 399500-27-003, dated April 19, 2012, suffix `B' units into their fleet, to be in compliance with the NPRM and to keep operators from having to request an alternative means of compliance (AMOC) to keep suffix `B' units in service once the final rule is issued.
We partially agree with the commenter. This supplemental NPRM does allow installation of units with suffix `B.' However, as stated previously, units with suffix `A,' are now affected parts and this supplemental NPRM would not allow installations of units with suffix `A.' We have changed paragraphs (g), (h), and (i) of this supplemental NPRM to include the addition of units with suffix `B.'
Horizon requested that we revise paragraph (g)(2)(i) of the NPRM (77 FR 34874, June 12, 2012) to allow installing serviceable RFTUs and RFTUs having suffix `B.' Horizon added that paragraph (g)(2)(i) of the NPRM requires “replacing the RFTU with a new RFTU.” Horizon stated that the word `new' implies a zero-time unit that is new from the manufacturer, and that operators should not be required to purchase a new unit to meet the requirements of paragraph (g)(2)(i) of the NPRM when a serviceable RFTU outside the serial number range, or that has a serial number with a suffix `A,' would address the unsafe condition. Horizon pointed out that requiring use of a new unit since it adds an additional financial cost that is unnecessary to address the unsafe condition.
We agree. We have revised paragraph (g)(2)(i) of this supplemental NPRM to specify replacing RFTUs with new or serviceable RFTUs, which includes those with suffix `B.'
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
Certain changes described above expand the scope of the earlier NPRM (77 FR 34874, June 12, 2012). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 83 products of U.S. registry. We also estimate that it would take about 5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $35,275, or $425 per product.
In addition, we estimate that any necessary follow-on actions would take about 17 work-hours and require parts costing $0, for a cost of $1,445 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
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:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by April 26, 2013.
None.
This AD applies to Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes; certificated in any category; serial numbers (S/N) 4001, 4003 and subsequent, equipped with rudder feel trim unit (RFTU) part number (P/N) 399500-1007.
Air Transport Association (ATA) of America Code 27: Flight Controls.
This AD was prompted by reports of movement of the rudder pedals being impeded due to corrosion of the trunnion shaft of the RFTU. We are issuing this AD to detect and correct any sign of rough movement or seizure of the trunnion shaft and its bushing, which could cause a rudder control jam or a large and rapid alternating rudder input leading to a structural failure of the vertical fin.
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 200 flight hours or two months after the effective date of this AD whichever occurs first: Inspect the RTFU to determine whether the serial number is in the range from S/N 0008 through 0509 inclusive without a suffix `B,' in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-27-60, dated July 12, 2012. A review of airplane maintenance records is acceptable in lieu of this inspection if the serial number of the RFTU can be conclusively determined from that review.
(1) If the RFTU's serial number is not in the range from S/N 0008 through 0509 inclusive, or if the serial number has a suffix `B,' no further action is required for this paragraph.
(2) If the RFTU's serial number is in the range from (S/N) 0008 through 0509 inclusive, including those with a suffix `A,' but not including those with suffix `B': Before further flight, perform an operational check of the RFTU for any sign of rough movement or seizure of the trunnion or center shaft, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-27-60, dated July 12, 2012.
(i) If rough movement or seizure of the RFTU trunnion or center shaft is found: Before further flight, replace the RFTU with a new or serviceable RFTU, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-27-60, dated July 12, 2012.
(ii) If no rough movement or seizure of the RFTU trunnion or center shaft is found: Before further flight, lubricate the RFTU, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-27-60, dated July 12, 2012. Repeat the lubrication of the RFTU at intervals not to exceed 600 flight hours or 3 months, whichever occurs first, until the RFTU is replaced with a unit that has a serial number outside the affected range or a serial number with a suffix `B.'
For airplanes having an RFTU identified in paragraph (g)(2) of this AD: Except as required by paragraph (g)(2)(i) of this AD, within 5,000 flight hours or 3 years after the effective date of this AD, whichever occurs first, replace all affected RFTUs with units that have a serial number outside the range from S/Ns 0008 through 0509 inclusive, or
As of the effective date of this AD, no person may install an RFTU P/N 399500-1007 with a serial number from (S/N) 0008 through 0509 inclusive, including serial numbers with suffix `A,' on any airplane, except RFTUs that have a serial number with suffix `B,' may be installed.
The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(1) Refer to MCAI Canadian Airworthiness Directive CF-2012-02R1, dated October 12, 2012; and Bombardier Service Bulletin 84-27-60, dated July 12, 2012; for related information.
(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.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 727 airplanes. This proposed AD was prompted by reports of spanwise cracks and corrosion in the wing center box upper skin and rear spar upper chord between left buttock line (LBL) 70.50 and right buttock line (RBL) 70.50 at body station (STA) 870. This proposed AD would require repetitive inspections of the wing center box for cracking around certain fastener rows on the rear spar upper chord horizontal flange; for certain airplanes, repetitive inspections for cracking of the rear spar upper chord radius; for certain other airplanes, repetitive inspections for damage, cracking, and corrosion of the pressure seal; and repair if necessary. We are proposing this AD to detect and correct cracking and corrosion of the upper skin and rear spar upper chord of the wing center box, which could result in loss of the airplane wing and consequent loss of control of the airplane.
We must receive comments on this proposed AD by April 26, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: (425) 917-6577; fax: (425) 917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received reports of spanwise cracks and corrosion in the wing center box upper skin and rear spar upper chord between LBL 70.50 and RBL 70.50 at STA 870. The crack sizes ranged from 0.125 inches to 12 inches. The airplanes had accumulated between 31,679 and 61,359 total flight hours and between 17,754 and 58,796 total flight
We reviewed Boeing Special Attention Service Bulletin 727-57-0187, dated March 8, 2012. For information on the procedures and compliance times, see this service information at
AD 2005-05-19, Amendment 39-14008 (70 FR 12120, March 11, 2005; corrected March 17, 2005 (70 FR 13074)), requires repetitive detailed inspections to detect cracking, corrosion, minor surface defects, and existing stop-drilled repairs of cracks in the upper and lower chords of the front and rear spars of the wing; and repair if necessary. Those required actions are for locations between buttock line 70.5 and the wing tip (i.e., left and right wings). This proposed AD would require actions between the LBL 70.5 and RBL 70.5 of the rear spar upper chord and upper skin at STA 870 (i.e., center wing).
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Information.”
The phrase “related investigative actions” might be used in this proposed AD. “Related investigative actions” are follow-on actions that: (1) Are related to the primary actions, and (2) are actions that further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
In addition, the phrase “corrective actions” might be used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
Boeing Special Attention Service Bulletin 727-57-0187, dated March 8, 2012, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
We estimate that this proposed AD affects 98 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by April 26, 2013.
None.
This AD applies to all The Boeing Company Model 727, 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of spanwise cracks and corrosion in the wing center box upper skin and rear spar upper chord between left buttock line (LBL) 70.50 and right buttock line (RBL) 70.50 at body station (STA) 870. We are issuing this AD to detect and correct cracking and corrosion of the upper skin and rear spar upper chord of the wing center box, which could result in loss of the airplane wing and consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 727-57-0187, dated March 8, 2012: Inspect the wing center box between LBL 70.50 and RBL 70.50, at STA 870, as specified in paragraphs (g)(1), (g)(2), (g)(3), (g)(4), and (g)(5) of this AD, as applicable, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 727-57-0187, dated March 8, 2012. Repeat the inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 727-57-0187, dated March 8, 2012. If any crack, corrosion, or damage is found during any inspection required by this AD, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
(1) Do a high frequency eddy current (HFEC) or detailed inspection for cracking around the forward fastener row in the rear spar upper chord horizontal flange.
(2) Do a low frequency eddy current inspection for cracking around the aft fastener row in the rear spar upper chord horizontal flange.
(3) Do a detailed or HFEC inspection for cracking in the rear spar upper chord radius.
(4) Do a detailed or HFEC inspection for cracking in the upper skin around the forward fastener row common to the rear spar upper chord horizontal flange.
(5) Do a detailed inspection for damage, cracking, and corrosion in the pressure seal.
Boeing Special Attention Service Bulletin 727-57-0187, dated March 8, 2012, specifies compliance times “after the original issue date of this service bulletin.” However, this AD requires compliance within the specified compliance times “after the effective date of this AD.”
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: (425) 917-6577; fax: (425) 917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The U.S. Consumer Product Safety Commission (CPSC or Commission) proposes to update the supplemental definition of “strong sensitizer” under the Federal Hazardous Substances Act (FHSA). The proposed amendment clarifies or adds language to eliminate redundancy, remove certain subjective factors, incorporate new and anticipated technology, rank the criteria for classification of strong sensitizers in order of importance, define criteria for “severity of reaction,” and indicate that a weight-of-evidence approach will be used to determine the strength of the sensitizer.
Written comments must be received by May 28, 2013.
You may submit comments identified by Docket No. CPSC-2013-0010, by any of the following methods:
• Electronic Submissions
Submit electronic comments in the following way:
To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (email) except through
• Written Submissions
Submit written submissions in the following way:
Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.
Joanna Matheson, Ph.D., Project Manager, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone (301) 987-2564;
The FHSA, 15 U.S.C. 1261-1278, requires appropriate cautionary labeling on certain hazardous household products to alert consumers to the potential hazards that a product may present. Among the hazards addressed by the FHSA are products that are toxic, corrosive, irritants, flammable, combustible, or strong sensitizers.
Included within the FHSA's definition of “hazardous substance” is “any substance or mixture of substances” that “is a strong sensitizer,” 15 U.S.C. 1261(f)(1)(iv). Section 2(k) of the FHSA, 15 U.S.C. 1261(k), defines “strong sensitizer” as:
A substance which will cause on normal living tissue through an allergic or photodynamic process a hypersensitivity which becomes evident on reapplication of the same substance and which is designated as such by the Commission. Before designating any substance a strong sensitizer, the Commission, upon consideration of the frequency of occurrence and severity of the reaction, shall find that the substance has a significant potential for causing hypersensitivity.
On August 12, 1961, the Food and Drug Administration (FDA) (which at that time administered the FHSA), issued regulations under the FHSA that supplemented the statutory definition of “strong sensitizer.” The regulations also provided a list of substances that the FDA had determined met the statutory definition for “strong sensitizer.” The five substances identified were: (1) Paraphenylenediamine and products containing it; (2) powdered orris root and products containing it; (3) epoxy resins systems containing in any concentration ethylenediamine, diethylenetriamine, and diglycidyl ethers of molecular weight less than 200; (4) formaldehyde and products containing 1 percent or more of formaldehyde; and (5) oil of bergamot and products containing 2 percent or more of oil of bergamot. No additional substances have been determined to be “strong sensitizers” by the FDA or the Commission since promulgation of this regulation.
In 1973, the responsibility for the administration of the FHSA was transferred to the Commission, and the supplemental definition of “strong sensitizer” was published in title 16 of the Code of Federal Regulations. On May 30, 1984, the Commission revoked the above supplemental definition of “strong sensitizer.” 49 FR 22464. The Commission concluded at that time that the statutory definition of “strong sensitizer” was adequate for any future regulatory determination that a substance is a strong sensitizer.
On August 14, 1986, the Commission issued a rule supplementing the definition of “strong sensitizer” in the FHSA, 51 FR 29094, which currently is in effect. 16 CFR 1500.3(c)(5). As recommended by a Technical Advisory Panel on Allergic Sensitization (TAPAS), the supplemental definition clarifies how the statutory definition should be interpreted and explains the factors the Commission will consider in determining whether a substance is a “strong sensitizer.” The supplemental definition states that an “allergic” response is one that is directed by the immune system, such that a sensitization reaction could not be caused by an irritant or other nonallergenic qualities of the substance. The supplemental definition also clarifies that active sensitizers—substances that produce a sensitivity reaction solely as the result of a person's first exposure to the substance as opposed to after reapplication of the same substance—are included within the class of substances that can be determined to be strong sensitizers. The supplemental definition did not address strong sensitizers that cause hypersensitivity by a photodynamic process, principally because Commission staff was unaware of any household product subject to the FHSA that would cause significant exposure of consumers to a photodynamic chemical.
The current supplemental definition makes clear that a sensitivity reaction could occur after the sensitizer is applied to the body's tissues by contact, ingestion, or inhalation; that relevant exposure is not limited to skin contact; and that targets for hypersensitivity reactions include the skin and other organ systems, such as the respiratory or gastrointestinal tracts, either alone or in combination. The supplemental definition states that the minimal severity of the reaction caused by the substance for purposes of determining whether the substance is a strong sensitizer is a clinically important allergic reaction and provides examples of such clinically important reactions. Whether a substance has a significant potential for causing hypersensitivity is a relative determination that must be made separately for each substance under consideration by the Commission. The supplemental definition sets forth the criteria to be considered in making this determination. Finally, the supplemental definition provides the quantitative and qualitative factors that the Commission should consider in determining that a substance is a “strong” sensitizer, such as the frequency of occurrence and range of severity in normal and susceptible populations and the results of experimental assays in humans and animals.
Recognizing that the science on sensitization has changed since promulgation of the supplemental definition in 1986, the CPSC convened a panel of scientific experts from academia, industry, and the federal government to examine the available scientific and medical information concerning sensitizers, and if appropriate, propose revisions to the supplemental definition of strong sensitizer.
The Commission is proposing to revise its supplemental definition of strong sensitizer. Additional Commission action would be needed for any substance to be designated a strong sensitizer. In order for the Commission to issue a rule declaring any particular substance (or product containing that substance) to be a strong sensitizer, it must engage in notice and comment rulemaking, separate from this rulemaking, and make the findings specified in 15 U.S.C. 1261(k),
Such cautionary labeling would be insufficient, however, if a toy or other article intended for the use of children is, bears, or contains a hazardous substance (as that term is defined in section 2(f) of the FHSA), and the hazardous substance is accessible to a child to whom the article is entrusted. Under that scenario, the toy or children's article would be considered a “banned hazardous substance” under section 2(q)(1)(A) of the FHSA unless a particular exemption applies. 15 U.S.C. 1261(q)(1)(A).
The proposed amendment to 16 CFR part 1500 clarifies or adds language to the supplemental definition of “strong sensitizer” to eliminate redundancy, remove certain subjective factors, incorporate new and anticipated technology, rank the criteria for classification of strong sensitizers in order of importance, define criteria for “severity of reaction,” and indicate that a weight-of-evidence approach will be used to determine the strength of the sensitizer.
1.
The proposed amendment reflects the traditional definition for sensitization; sensitization is a multi-stage immune mediated process which occurs over a period of time. Under the proposed amendment, those substances that sensitize through atypical mechanisms, rather than by inducing an obvious “immunologically-mediated response” will be captured by the assessment process. The proposed amendment also eliminates the last sentence of the current definition based on concerns that it may be misinterpreted such that substances that cause an irritant response only
2.
The proposed revision to this section reiterates the statutory requirement that before designating any substance a “strong” sensitizer, the Commission must find that the substance has significant potential for causing hypersensitivity. The proposed revision adds qualifiers for susceptibility profiles—genetics, age, gender, and atopic status— to the list of information or data that may be considered in determining whether a substance has a significant potential for causing hypersensitivity; and the proposed revision also replaces the term “normal” with “non-sensitized.” These characteristics are well-known modifiers in the development and exacerbation of allergic responses to chemical sensitizers; and replacing the term “normal” with “non-sensitized” reflects more accurately what would be considered the general control population.
The proposed revision of this section also incorporates a discussion of the factors to be considered in determining whether a substance is a “strong” sensitizer. The current supplemental definition of “strong sensitizer” contains a separate subsection that sets forth factors that should be considered in determining the strength of a sensitizer. (16 CFR 1500.3(c)(5)(ii)). The current section includes several factors that are subjective rather than quantitative (
The current definition of
In determining that a substance is a “strong” sensitizer, the Commission shall consider the available data for a number of factors. These factors include any and or all of the following (if available): Quantitative or qualitative risk assessment, frequency of occurrence and range of severity of reactions in healthy or susceptible populations, the result of experimental assays in animals or humans (considering dose-response factors), with human data taking precedence over animal data, other data on potency or bioavailability of sensitizers, data on reactions to a cross-reacting substance or to a chemical that metabolizes or degrades to form the same or a cross-reacting substance, the threshold of human sensitivity, epidemiological studies, and other appropriate
The proposed amendment eliminates the “quantitative or qualitative risk assessment factor” because the Commission believes this terminology is a source of confusion in that it places a risk assessment step within the hazard identification step of the overall process of determining whether a product containing a strong sensitizer requires labeling. The proposed amendment makes clear that a weight-of-the-evidence approach is to be used in determining the strength of a sensitizer because of the imprecise nature of some of the current factors and the potential lack of information or data available to permit useful consideration of certain factors. Rather than allowing an “any or all” approach to what factors would be considered by the Commission in determining whether a sensitizer is strong, the amendment ranks data sources in order of importance, following the FHSA preference for human data over animal data; and the amendment takes into consideration the value and relevance that certain data would provide in evaluating the potential of a substance to cause hypersensitivity. For example, the proposed amendment expresses a preference for general population epidemiological studies over occupational studies because the degree of sensitization in the workplace is likely to be greater than that of the general population, due to greater
The proposed amendment provides that for a substance to be considered a “strong” sensitizer the substance must be found to produce a “clinically important reaction,” which is defined as a reaction with a significant impact on the quality of life. Examples of such reactions included in the proposed revision to this section are substantial physical discomfort or distress, substantial hardship, functional or structural impairment, or chronic morbidity. The proposed revision to this section also directs the Commission to consider the location of the hypersensitivity response, such as the face, hands, and feet, and the persistence of clinical manifestations in determining whether the substance produces a “clinically important reaction.”
The proposed revision to this section adds several factors the Commission can consider in determining a substance's sensitizing potential, for which validated methods currently do not exist but are in development, such as: Quantitative Structure-Activity Relationships (QSARs), and
3.
The proposed revision adds a specific reference to mucous membranes, such as ocular and oral systems, as types of normal living tissue upon which a substance can cause a hypersensitivity that warrants a determination that a substance is a “strong sensitizer.”
4.
The proposed amendment eliminates this subsection and incorporates the factors to be considered in determining whether a substance is a “strong” sensitizer into the proposed revised section
Commission staff has developed a guidance document that is intended to clarify the “strong sensitizer” definition and assist manufacturers in understanding how CPSC staff would assess whether a substance and/or product containing that substance should be considered a “strong sensitizer.” A Notice of Availability is published elsewhere in this issue of the
Under the Regulatory Flexibility Act (RFA), when an agency issues a proposed rule, it generally must prepare an initial regulatory flexibility analysis describing the impact the proposed rule is expected to have on small entities. 5 U.S.C. 603. The RFA does not require a regulatory flexibility analysis if the head of the agency certifies that the rule will not have a significant effect on a substantial number of small entities.
The Commission's Directorate for Economic Analysis prepared a preliminary assessment of the impact of revising the supplemental definition of “strong sensitizer.” That assessment found that there would be little or no effect on small businesses and other entities because the proposed amendment, which simply modifies the existing supplemental definition of “strong sensitizer,” will not result in product modifications to comply; nor will the revised supplemental definition impose any additional testing or recordkeeping burdens. The obligation to label a product as a “strong sensitizer” and any costs associated with that obligation will not arise until the Commission has designated a substance contained in the product as a “strong sensitizer,” which would occur only in connection with a separate notice and comment rulemaking proceeding. Thereafter, we would assess the potential small business impact of designating the particular substance as a strong sensitizer. Moreover, the proposed amendment is not expected to impose any indirect burden on small businesses or other entities because it is not expected to lead to any additional substances being designated as strong sensitizers that would not be so designated in the absence of the amendment. Based upon the foregoing assessment, the Commission finds preliminarily that the proposed rule would not have a significant impact on a substantial number of small entities.
Generally, CPSC rules are considered to “have little or no potential for affecting the human environment,” and environmental assessments and environmental impact statements are not usually prepared for these rules (see 16 CFR 1021.5(c)(1)). The Commission does not expect the proposed rule to have any adverse impact on the environment under this categorical exclusion.
According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. Section 18 of the FHSA addresses the preemptive effect of certain rules issued under the FHSA. 15 U.S.C. 1261n. Because this rulemaking would revise a regulatory definition rather than issue a labeling or banning requirement, section 18 of the FHSA does not provide for the proposed rule to have preemptive effect.
This rule would not impose any information collection requirements. Accordingly, this rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501-3520.
The Administrative Procedure Act generally requires that a substantive rule be published not less than 30 days before its effective date, unless the agency finds, for good cause shown, that a lesser time period is required. 5 U.S.C. 553(d)(3). We propose that the rule would take effect 30 days after
Consumer protection, Hazardous substances, Imports, Infants and children, Labeling, Law enforcement, Reporting and recordkeeping requirements, and Toys.
Accordingly, 16 CFR part 1500 is proposed to be amended as follows:
15 U.S.C. 1261-1278.
(c) * * *
(5) The definition of
(i)
(ii)
(A) In determining whether a substance is a “strong” sensitizer, the Commission shall consider the available data for a number of factors, following a weight-of-evidence approach. The following factors (if available), ranked in descending order of importance, should be considered: well-conducted clinical and diagnostic studies, epidemiological studies, with a preference for general population studies over occupational studies, well-conducted animal studies, well-conducted
(B) Before the Commission designates any substance a “strong” sensitizer, frequency of occurrence and range of severity of reactions in exposed subpopulations having average or high susceptibility will be considered. The minimal severity of a reaction for the purpose of designating a material a “strong sensitizer” is a clinically important reaction. A clinically important reaction would be considered one with loss of function and significant impact on quality of life. Consideration should be given to the location of the hypersensitivity response, such as the face, hands, and feet and persistence of clinical manifestations. For example, strong sensitizers may produce substantial illness, including any or all of the following: substantial physical discomfort and distress, substantial hardship, functional or structural impairment, chronic morbidity.
(C) Additional consideration may be given to Quantitative Structure-Activity Relationships (QSARs),
(iii)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a portion of a State Implementation Plan (SIP) submittal from the State of New Mexico to address Clean Air Act (CAA or Act) requirements in section 110(a)(2)(D)(i)(I) that prohibit air emissions which will contribute significantly to nonattainment or interfere with maintenance in any other state for the 2006 fine particulate matter (PM
Comments must be received on or before April 11, 2013.
Submit your comments, identified by Docket No. EPA-R06-OAR-2009-0710, by one of the following methods:
•
•
•
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Mr. Carl Young, Air Planning Section (6PD-L), U.S. EPA Region 6, 214-665-6645,
Throughout this document, “we,” “us,” and “our” means EPA.
Section 110(a)(2)(D)(i) of the CAA identifies four distinct elements related to the evaluation of impacts of interstate transport of air pollutants. In this action for the state of New Mexico, EPA is addressing the first two elements of section 110(a)(2)(D)(i)(I) with respect to the 2006 PM
On June 12, 2009, the Governor of New Mexico submitted a letter and supporting documentation certifying that the New Mexico Environment Department (NMED) has evaluated the New Mexico SIP, and found that the existing SIP does satisfy all the requirements of section 110(a)(2)(D)(i) for the 2006 PM
EPA has previously addressed the requirements of section 110(a)(2)(D)(i)(I) in past regulatory actions.
On September 25, 2009, EPA issued a guidance memorandum that provides recommendations to states for making SIP submissions to meet the requirements of CAA section 110(a)(2)(D)(i) for the 2006 PM
In this action, EPA is maintaining the conceptual approach to evaluating interstate pollution transport under CAA section 110(a)(2)(D)(i)(I) that the Agency provided in the 2006 PM
To determine whether the CAA section 110(a)(2)(D)(i)(I) requirement is satisfied, EPA must determine whether a state's emissions contribute significantly to nonattainment or interfere with maintenance in downwind areas. If this factual finding is in the negative, then section 110(a)(2)(D)(i)(I) does not require any changes to a state's SIP. Consistent with EPA's approach in the 1998 NO
This proposed approval addresses the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 PM
Our Technical Support Document (TSD) contains a more detailed evaluation and is available in the public docket for this rulemaking, which may be accessed online at
EPA evaluated data from existing monitors over three overlapping 3-year periods (
The western United States were not included in the CAIR and the Transport Rule analyses. The approach described above is similar to the approach utilized by EPA in promulgating the CAIR and the Transport Rule by identifying the areas/receptors of concern for use in evaluating interstate transport. By this method, EPA has identified those areas with monitors to be considered “nonattainment receptors” or “maintenance receptors” for evaluating whether the emissions from sources in another state could significantly contribute to nonattainment in, or interfere with maintenance in, that particular area.
EPA reviewed the portion of the State of New Mexico's June 12, 2009 submission addressing 110(a)(2)(D)(i)(I) and corresponding technical analysis for the 2006 PM
EPA also evaluated potential PM
Based on evaluation of New Mexico's technical analysis for the 2006 PM
EPA reviewed the portion of the State of New Mexico's June 12, 2009 submission addressing 110(a)(2)(D)(i)(I) and corresponding technical analysis for the 2006 PM
Based on this evaluation of New Mexico's corresponding technical analysis for the 2006 PM
Section 110(l) of the Act prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the Act. The June 12, 2009 SIP submittal from the State of New Mexico contains no new regulatory provisions and does not affect any requirement in New Mexico's applicable implementation plan. Therefore, the submission does not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the Act. EPA has concluded, based on New Mexico's technical analysis for the 2006 PM
We are proposing to approve a portion of a SIP submittal for the State of New Mexico submitted by the Governor on June 12, 2009, to address interstate transport for the 2006 PM
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Advance notice of proposed rulemaking; request for comments.
NMFS is considering whether to propose regulations to protect glacially-associated harbor seal habitats in Alaska used for pupping, nursing, resting, and molting and limit vessel disturbance to harbor seals in those habitats. The scope of this advance notice of proposed rulemaking (ANPR) encompasses the activities of any person or vessel that may diminish the value of glacial habitats for harbor seals, result in the unauthorized taking of harbor seals, or cause detrimental individual- or population-level impacts. NMFS requests information and comments on whether regulations are needed, and if so, what type of measures would be appropriate to protect harbor seals from the effects of vessel activity in glacial habitats. Any comments or information received in response to this ANPR will be considered prior to any proposed rulemaking.
Written comments must be received on or before May 13, 2013.
You may submit comments on this document, identified by FDMS Docket Number [NOAA-NMFS-2011-0284] by any one of the following methods:
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Alicia Bishop, Marine Mammal Specialist, Protected Resources Division, NMFS Alaska Region, at (907) 586-7224 or
This notice is issued under the authority of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361
The Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361
NMFS regulations implementing the MMPA further describe the term “take” to include: “the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal” (50 CFR 216.3). The MMPA provides limited exceptions to the prohibition on take for activities such as scientific research, public display, and incidental take in commercial fisheries or incidental take by persons engaged in other specified activities. Such activities require a permit or authorization, which may be issued only after a thorough agency review. NMFS has developed regulations for vessel approaches to marine mammals, pursuant sections 112(a) of the MMPA and 11(f) of the ESA. If NMFS develops proposed regulations to protect harbor seals from the effects of vessel activity in glacial habitats, the agency would rely on its authority under section 112(a) of the MMPA to promulgate the regulations.
To date, NMFS has regulated close vessel approaches to marine mammals in Hawaii, Alaska, and the North Atlantic. In 1995, NMFS published a final rule to establish a 100-yard (91-m) approach limit for humpback whales (
Vessel speed is also restricted to protect North Atlantic right whales in key port entrances along the U.S. Atlantic seaboard during periods that correspond to right whale occurrence. These regulations implement speed restrictions of 10 knots or less for certain vessels (65 ft or greater) to reduce the likelihood and severity of ship collisions with right whales. Other measures to protect right whales include reconfiguration of certain traffic separation schemes, voluntary dynamic management areas, and Mandatory Ship Reporting systems.
In addition to specific regulations that apply to the viewing of marine wildlife,
In Alaska, harbor seals range from southeast Alaska, west through the Gulf of Alaska and Aleutian Islands, in the Bering Sea north to Cape Newenham, and the Pribilof Islands. However, tidewater glacial habitats are only available to seals in south-central and southeast Alaska. Tidewater glacier areas serve as important habitats for harbor seals supporting some of the largest aggregations of this species in the world. Consolidated areas of floating glacial ice serve as important substrate for harbor seals to rest, give birth, nurse, and molt. In total, fewer than two dozen ice-filled inlets in Alaska provide this unique form of seal habitat. An estimated 10-15% of the harbor seals in Alaska depend seasonally on these glacial habitats (Bengtson
Over the last few decades, harbor seal abundance has significantly declined in two glacial fjords: Glacier Bay in southeast Alaska and Aialik Bay in south-central Alaska (Hoover-Miller 1994; Mathews and Pendleton 2006; Womble
Vessel-based tourism in Alaska has been increasing rapidly over the last few decades. In particular, there has been a dramatic increase in the number of larger cruise ships (i.e., carrying ≥250 passengers) visiting tidewater glacial fjords. The number of cruise ship passengers visiting Alaska per year now exceeds 1 million (Alaska Department of Commerce 2012). Currently about 500 ship visits per year occur in fjords that do not have specific rules regarding approaches to seals, and a recent study indicates that there are high levels of seal disturbance despite existing voluntary guidelines for approach distances to seals (Jansen
Small (i.e., charter boats ≤45 passengers) and mid-size (i.e., tour boats 45-250 passengers) vessel traffic in Alaska has also increased substantially in recent years. At least three small- and mid-size ships added Endicott Arm to their weekly summer itineraries in recent years, and two more mid-size commercial tour vessels regularly visited Endicott Arm in 2011 (USFS 2010). The potential for disturbance to harbor seals is magnified by numerous small boats (zodiacs, kayaks) regularly dispatched by mid-size vessels, which spend prolonged time in the area for glacier and seal viewing opportunities. U.S. Forest Service Visitor Encounters Monitoring Data indicate that visitors in 2010 had nearly twice the motorized encounters at the end of Endicott Arm as visitors had in 2001 (USFS 2010).
In light of these compounding factors, disturbance from vessel traffic becomes a more significant threat to seal survival and reproduction, and thus the long-term stability of seal populations. Recent estimates by NMFS scientists suggest that a single ship can flush up to 16% of the seals present; these estimates do not factor in multiple ships visiting within a day and often times concurrently (Brady
A number of recent studies have evaluated the effects of vessels on harbor seals in various parts of Alaska:
• In 2001, the Yakutat Tlingit Tribe expressed concern about a gradual seal population decline in Disenchantment Bay occurring in conjunction with, and believed to be caused by, dramatic increases in visitation by cruise ships over the previous 20 years. In 2002, a study by NMFS in collaboration with the Yakutat Tlingit Tribe and Northwest Cruise Ship Association examined the effects of cruise ships on the behavior, abundance, and distribution of harbor seals in Disenchantment Bay. Results from the study indicated that the likelihood of harbor seals vacating the ice and entering the water increased significantly when ships approached closer than 547 yds (500 m) (Jansen
• A study evaluating and characterizing the exposure of harbor seals to vessel traffic in Johns Hopkins Inlet, Glacier Bay, found that vessel presence altered seal haulout patterns by increasing the rate of flushing (Young 2009). Vessel presence also caused increased seal vigilance and decreased resting. Both the rate and frequency of seal flushing resulting from motorized vessel presence were greater than from kayaks; cruise ships were found to be the most disruptive vessel type. In general, likelihood of seal disturbance was found to increase with vessel size and proximity. Although the overall proportion of seals impacted by vessel disturbance in Johns Hopkins Inlet was relatively low, the author concluded that repeated disturbance may induce the relocation of seals to other areas, and direct energetic impacts may decrease the individual fitness levels of pups. These findings indicate that vessel disturbance could be playing both a direct and indirect role in the decrease of harbor seal abundance in Johns Hopkins Inlet (Young 2009).
• A study in Endicott Arm investigated whether there was a specific change in harbor seal behavior as a result of vessel presence (Smith
• Disturbance to wildlife is typically measured by examining behavioral responses to anthropogenic stressors. In addition, physiological responses of seals to vessels are currently being examined in Tracy and Endicott Arms (Karpovich and Blundell 2009). The objective of the study is to measure harbor seal heart rates in response to vessel disturbance, describe associated behaviors, and estimate the increased energetic cost. Researchers' preliminary conclusions question whether classifying disturbance as a seal entering the water is sufficient, given that an increase in heart rate (and associated metabolic/energetic cost) occurs several minutes before a seal enters the water.
Currently, all cruise ships visiting Alaska enter one or more tidewater glacial fjords (Jansen
LeConte Glacier Fjord, though currently not experiencing the same level of ship traffic as those described above, also supports a large seasonal population of harbor seals, as last measured at 1,980 individuals in August 2010 (NMML, unpublished data). Icy Bay in south-central Alaska hosts the largest aggregation of harbor seals in the state, and perhaps the world, at an estimated 6,465 seals (in 2007). Icy Bay reportedly receives only a few visits annually from smaller tour vessels (NMML, unpublished data; Jansen
The NPS has established time-area closures by regulation to protect harbor seals in Glacier Bay National Park and Preserve (GBNPP), which has many tidewater glaciers (36 CFR, subpart C, 13.65). Recognizing that harbor seals react to human activities by flushing into the water, the NPS designated “harbor seal critical areas” within GBNPP where vessel and foot traffic are prohibited to protect pupping and molting harbor seals (36 CFR, subpart N, 13.1178). This includes a prohibition on the operation of vessels or seaplanes in Johns Hopkins Inlet waters from May 1-June 30 during harbor seal pupping season. From July 1-August 31, “all vessels (including kayaks) must remain further than
The Alaska Native Harbor Seal Commission, which has a co-management agreement with NMFS under section 119 of the MMPA to assist the agency with harbor seal research and management, has expressed concern about the effects of vessel traffic on harbor seals and requested that NMFS exercise its discretionary authority to promulgate protective regulations.
In summary, populations of glacial-fjord harbor seals exposed to chronic and potentially disruptive levels of vessel traffic have documented and suspected declines in abundance, as well as documented frequent flushing (with projected energetic consequences). This indicates that further management measures are needed beyond the existing 100-yd (91-m) guideline for vessel approach. This is further supported by preliminary information suggesting that even seals that do not flush into the water experience physiological responses to vessel traffic (with energetic consequences).
Section 2 of the MMPA (16 U.S.C. 1361, “Findings and Declaration of Policy”) states “in particular, efforts should be made to protect essential habitats, including the rookeries, mating grounds, and areas of similar significance for each species of marine mammal from the adverse effect of man's actions.” Glacial sites in Alaska are indeed essential habitat for harbor seals to give birth, nurse, rest, and molt. Currently, these sites receive no protection other than general guidelines to give seals reprieve from human activities during sensitive periods of their life cycle. Further, because takes
NMFS is requesting information and comments on whether conservation measures, regulations, or other management action would be appropriate to protect harbor seals in Alaska from human activities that diminish the value of important habitat, result in unauthorized take, and/or may cause detrimental individual- and population-level impacts. NMFS is also requesting information and comments on what type of measures may provide appropriate protection for harbor seals while minimizing impacts on ocean users. Based on the best available science and input received in response to the publication of this notice, NMFS may propose management measures for public comment. The following list includes examples of potential management measures that NMFS may consider:
• Specific corridors for vessel movement.
• Vessel movement parameters relative to ice.
• Vessel speed limits.
• Required minimum approach distance and use of observers to keep a designated ship-to-seal separation distance. Similar to the minimum approach rules established for humpback whales in Hawaii and Alaska, and right whales in the North Atlantic, a limit could be established by regulation to accommodate harbor seal viewing opportunities while minimizing the potential detrimental impacts from human activity; and
• Time-area closures. Similar to seasonal measures used by the NPS to protect seals in Johns Hopkins Inlet, NMFS could establish a regulation limiting human access to certain harbor seal ice-associated habitats, or to zones within these areas. These measures could limit all human entry to the area past a particular demarcation line; measures could be specific to only certain acts within an area; measures could be full-time or limited to certain seasonally important times (e.g., excluding entrance during pupping and/or molting). A closure could also consist of any combination of the above.
NMFS invites information and comment from the public on management measures such as those options listed above, or on other possible measures, to help the agency decide what type of regulations, if any, would be appropriate to consider for protecting harbor seal populations in habiting glacial fjords in Alaska. In particular, we are seeking information and comments concerning:
(1) The advisability of and need for regulations;
(2) The geographic scope and time horizon of regulations;
(3) Management options for regulating vessel interactions with harbor seals, including but not limited to the options listed in this notice;
(4) Scientific and commercial information regarding the effects of vessels on harbor seals and their habitat;
(5) Information regarding potential economic effects of regulating vessel interactions;
(6) The feasibility of any management measure or regulation (for example, navigational safety or security concerns); and
(7) Any additional relevant information that NMFS should consider should it undertake rulemaking.
You may submit information and comments by any one of several methods (see
A complete list of all references cited in this advanced notice of proposed rulemaking is available upon request from the NMFS office in Juneau, Alaska (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; request for comments.
The South Atlantic Fishery Management Council (Council) has submitted Amendment 28 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP) for review, approval, and implementation by NMFS. Amendment 28 proposes actions to establish a process for determining whether the limited harvest and possession of red snapper in or from the South Atlantic exclusive economic zone (EEZ) could occur during a given fishing year. Amendment 28 specifies the process and formula for setting commercial and recreational annual catch limits (ACLs) for red snapper if a limited fishing season may occur and specifies accountability measures (AMs). Amendment 28 also proposes during a limited fishing season to eliminate the current red snapper minimum size limit, establish a recreational bag limit and a commercial trip limit for red snapper, and establish a process for setting commercial and recreational fishing seasons for red snapper beginning in 2013. The intent of Amendment 28 is to continue the rebuilding of the red snapper stock and to provide socio-economic benefits to snapper-grouper fishermen and communities that utilize the red snapper resource.
Written comments must be received on or before May 13, 2013.
You may submit comments on Amendment 28 identified by “NOAA-NMFS-2013-0040” by any of the following methods:
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Electronic copies of Amendment 28, which includes an environmental assessment, a regulatory flexibility analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at
Rick DeVictor, Southeast Regional Office, telephone: 727-824-5305, or email:
The snapper-grouper fishery of the South Atlantic, which includes red snapper, is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of Magnuson-Stevens Act. The Magnuson-Stevens Act also requires that NMFS, upon receiving a plan or amendment, publish an announcement in the
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 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 from NMFS regarding discard estimates for red snapper. Using these data, the Council and NMFS determined that a limited season for red snapper was possible in 2012. At the Council's request, NMFS implemented emergency rulemaking to allow for the limited harvest and possession of red snapper in or from the South Atlantic EEZ in 2012 (77 FR 51939, August 28, 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 assessment for red snapper is scheduled for 2014.
Amendment 28 would implement several management measures to allow for the limited harvest and possession of red snapper in or from the South Atlantic EEZ. When the Council approved, and NMFS implemented, the temporary rule through emergency action in 2012, they determined that retention of a limited number of red snapper (13,097 fish) would not jeopardize the rebuilding of the red snapper stock if the acceptable biological catch (ABC) was not exceeded in the previous year. In Amendment 28, the Council has made a similar determination depending on certain conditions, beginning in 2013.
Amendment 28 describes the annual process developed by the Council for determining whether a limited fishing season for red snapper will occur and how much red snapper may be harvested. The ABC is determined through the Council's ABC control rule and the rebuilding projections from the most recent stock assessment. Estimated landings and dead discards of red snapper from the previous year should be available around March of each year, and NMFS would use that information in formulas approved by the Council in Amendment 28. If NMFS determines that the estimated landings and dead discards that occurred in the previous year are equal to or greater than the ABC for the current year, no harvest would be allowed and the ACL would remain equal to zero. However, if NMFS determines that the previous year's estimated landings and dead discards are less than the ABC, then the ACL would be set to the amount of harvest that may be allowed for the current year.
If NMFS determines commercial and recreational fishing seasons are allowed for that fishing year, NMFS would announce the commercial and recreational fishing season start dates in the
If the NMFS Regional Administrator (RA) determines tropical storm or hurricane conditions exist, or are projected to exist, in the South Atlantic during the commercial or recreational fishing season, Amendment 28 would allow the RA to modify the opening and closing dates by filing a notification to that effect with the Office of the Federal Register, and announcing via NOAA Weather Radio and Fishery Bulletin any change in the red snapper commercial or recreational fishing seasons. If the projected commercial and/or recreational fishing seasons are determined by NMFS to be 3 days or
Amendment 28 includes a formula for determining the commercial and recreational ACLs on an annual basis. The formula is based on total removals (landings plus discards) from prior fishing years. The formula would provide the total ACL for a limited fishing season. Then using the current allocation ratio for red snapper (28.07 percent commercial and 71.93 percent recreational), NMFS would determine the commercial and recreational ACLs. When finalized data from the prior fishing years are available, NMFS would publish a notification with the Office of the Federal Register to announce the commercial and recreational ACLs for a limited fishing season for that fishing year.
The Council and NMFS would establish in-season AMs during a limited fishing season to prevent these ACLs from being exceeded. If red snapper harvest is allowed in a given fishing year, the commercial in-season AM requires that if commercial landings reach or are projected to reach the commercial ACL, then NMFS would close the commercial sector for red snapper for the remainder of the fishing year. After the commercial sector closes, sale and purchase of red snapper is prohibited and harvest and possession of red snapper is limited to the bag and possession limit. The recreational in-season AM is the length of the recreational fishing season as determined by NMFS and announced in the
In order to reduce the probability of an overage of the commercial and recreational ACLs during the limited open seasons, Amendment 28 would implement a 75-lb (34-kg) commercial trip limit and a 1-fish per person recreational bag limit. Amendment 28 would also remove the 20-inch (51-cm), total length (TL), minimum size limit for both the commercial and recreational sectors to decrease regulatory discards of red snapper (fish returned to the water because they are below the minimum size limit).
A proposed rule that would implement measures outlined in Amendment 28 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating Amendment 28 to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If the determination is affirmative, NMFS will publish the proposed rule in the
The Councils submitted Amendment 28 for Secretarial review, approval, and implementation. NMFS' decision to approve, partially approve, or disapprove Amendment 28 will be based, in part, on consideration of comments, recommendations, and information received during the comment period on this notice of availability.
Public comments received by 5 p.m. eastern time, on May 13, 2013, will be considered by NMFS in the approval/disapproval decision regarding Amendment 28.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This rule proposes catch limits, commercial quotas, and possession limits for the spiny dogfish fishery for the 2013-2015 fishing years. The proposed action was developed by the Mid-Atlantic and New England Fishery Management Councils pursuant to the fishery specification requirements of the Spiny Dogfish Fishery Management Plan. The proposed management measures are supported by the best available scientific information and reflect recent increases in spiny dogfish biomass. The proposed action is expected to result in positive economic impacts for the spiny dogfish fishery while maintaining the conservation objectives of the Spiny Dogfish Fishery Management Plan.
Comments must be received on or before March 27, 2013.
You may submit comments, identified by NOAA-NMFS-2013-0044, by any one of the following methods:
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Copies of the specifications document, including the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the specifications, are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The specifications document is also accessible via the Internet at:
Tobey Curtis, Fishery Policy Analyst, (978) 281-9273; fax: (978) 281-9135.
In 1998, NMFS declared Spiny dogfish (
The regulations implementing the FMP at 50 CFR part 648, subpart L, outline the process for specifying an annual catch limit (ACL), commercial quota, possession limit, and other management measures for a period of 1-5 years. The MAFMC's Scientific and Statistical Committee (SSC) reviews the best available information on the status of the spiny dogfish population and recommends acceptable biological catch (ABC) levels. This recommendation is then used as the basis for catch limits and other management measures developed by the MAFMC's Spiny Dogfish Monitoring Committee and Joint Spiny Dogfish Committee (which includes members of the NEFMC). The MAFMC and NEFMC then review the recommendations of the committees and make their specification recommendations to NMFS. NMFS reviews those recommendations, and may modify them if necessary to ensure that they are consistent with the FMP and other applicable law. NMFS then publishes proposed measures for public comment.
In September 2012, the NMFS Northeast Fisheries Science Center updated the spiny dogfish stock status, using the most recent catch and biomass estimates from the 2012 spring trawl survey. Updated estimates indicate that the female spawning stock biomass (SSB) for 2012 was 475.634 million lb (215,744 mt), about 35 percent above the target maximum sustainable yield (MSY) biomass proxy (SSB
The MAFMC's SSC subsequently recommended new acceptable biological catch (ABC) levels for spiny dogfish for the 2013-2015 fishing years. The ABC recommendations were based on an overfishing level of median catch at the F
The Spiny Dogfish Monitoring Committee and the Atlantic State Marine Fisheries Commission's (Commission) Spiny Dogfish Technical Committee met in September 2012 to determine the resulting specifications following the FMP's process. To calculate the commercial quota for each year, deductions were made from the ABCs to account for projected Canadian landings (179,000 lb (81 mt)), management uncertainty (3.99 percent of the ACL), U.S. discards (11.698 million lb (5,306 mt)), and U.S. recreational harvest (58,000 lb (26 mt)). The final recommended ACLs and commercial quotas are shown in Table 1. The proposed commercial quotas represent 14-17-percent increases from the status quo commercial quota (35.694 million lb (16,191 mt)).
The Councils also recommended an increase in the spiny dogfish possession limit from 3,000 lb (1,361 kg) to 4,000 lb (1,814 kg) per trip in each year (Table 1). The possession limit increase is projected to help increase trip level revenues, and reduce the potential for under-harvesting the available quota. The Commission has adopted identical management measures in state waters for 2013.
As currently specified in the FMP, quota period 1 (May 1 through October 31) would be allocated 57.9 percent of the commercial quota, and quota period 2 (November 1 through April 30) would be allocated 42.1 percent of the commercial quota. However, the Councils have approved Amendment 3 to the FMP, which would eliminate the seasonal allocation of the commercial quota. Upon implementation of Amendment 3 (which has not yet been submitted to NMFS, but is expected early in the 2013 fishing year), if approved, the commercial quota would only be monitored on an annual, coastwide basis, thereby reducing potential conflicts with the Commission's management of spiny dogfish.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Spiny Dogfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
The comment period for this proposed rule (15 days) is shorter than that normally reserved for specifications in order to ensure that the final rule can become effective for the beginning of the fishing year on May 1, 2013.
This proposed rule has been determined to be not significant for the purpose of E.O. 12866.
The MAFMC prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the
This rule will impact fishing vessels, including commercial fishing entities. For the purposes of analyses under the Regulatory Flexibility Act, the Small Business Administration (SBA) considers commercial fishing entities (NAICS code 114111) to be small entities if they have no more than $4 million in annual sales, while the size standard for charter/party operators (part of NAICS code 487210) is $7 million in sales. All of the entities (fishing vessels) affected by this action are considered small entities under the SBA size standards for small fishing businesses. Although multiple vessels may be owned by a single owner, ownership tracking is not readily available to reliably ascertain affiliated entities. Therefore, for the purposes of this analysis, each permitted vessel is treated as a single small entity and is determined to be a small entity under the RFA. Accordingly, there are no differential impacts between large and small entities under this rule. Information on costs in the fishery is not readily available, and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability.
This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
The proposed increase in the spiny dogfish commercial quota would impact vessels that hold Federal open access commercial spiny dogfish permits, and participate in the spiny dogfish fishery. According to MAFMC's analysis, 2,743 vessels were issued spiny dogfish permits in 2011. However, only 326 vessels landed any amount of spiny dogfish. While the fishery extends from Maine to North Carolina, most active vessels were from Massachusetts (31.6 percent), New Jersey (14.7 percent), New Hampshire (11.4 percent), Rhode Island (9.8 percent), New York (8.0 percent), North Carolina (6.7 percent), and Virginia (5.8 percent).
Four management alternatives were analyzed for each year, 2013-2015. Alternative 1 represents the preferred alternative proposed in this rule (Table 1). Alternative 2 would include the same commercial quotas as Alternative 1, but would maintain the status quo possession limit of 3,000 lb (1,361 kg), rather than increasing it to 4,000 lb (1,814 kg). Alternative 3 would increase the possession limit to 4,000 lb (1,814 kg), and include the highest possible commercial quotas by not making a deduction from the ACL accounting for management uncertainty (estimated to be 3.99 percent of the ACL). Under Alternative 3, the commercial quotas would be 42.539 million lb (19,295 mt) in 2013, 43.520 million lb (19,740 mt) in 2014, and 43.307 million lb (19,644 mt) in 2015. Alternative 4 represents the status quo alternative, which would maintain fishing year 2012 specifications through 2015 (35.694 million-lb (16,191-mt) commercial quota; 3,000-lb (1,361-kg) possession limit).
The proposed action is likely to result in greater revenue from spiny dogfish landings, which could be 14-17 percent higher than the status quo commercial quota. Based on recent landings information, the spiny dogfish fishery is able to land close to the full amount of fish allowable under the quotas. Total spiny dogfish revenue from the 2011 fishing year was approximately $4.456 million, when the commercial quota was 20 million lb (9,072 mt). Fishing year 2012 (status quo) spiny dogfish revenue is estimated to be $7.5 million under a commercial quota of 35.694 million lb (16,191 mt). Assuming the 2011 average price ($0.21 per lb), landing the proposed commercial quotas (Table 1) would result in gross spiny dogfish revenues of approximately $8.577 million in 2013, $8.775 million in 2014, and $8.731 million in 2015. Additionally, with the proposed possession limit increase from 3,000 lb (1,361 kg) to 4,000 lb (1,814 kg), trip-level spiny dogfish revenues would increase from approximately $630 per trip to $840 per trip. The expected increases in spiny dogfish revenue should benefit those ports that are more heavily dependent on spiny dogfish revenue than other communities, including Virginia Beach/Lynnhaven, VA; Rye and Seabrook, NH; and Scituate, MA.
The purpose of the proposed action is to increase spiny dogfish catch limits and landings, consistent with the best available science and the FMP, thereby extending the duration of the fishing season and increasing annual and trip-level spiny dogfish revenues relative to the status quo. The proposed action is expected to maximize the profitability for the spiny dogfish fishery during the 2013-2015 fishing years, without jeopardizing the long-term sustainability of the stock. Therefore, the economic impacts resulting from the proposed action as compared to alternatives with lower quotas or possession limits are positive.
The proposed action is expected to result in the most positive economic impacts among the alternatives, except for Alternative 3, which could result in slightly higher gross spiny dogfish revenues. However, Alternative 3 does not account for management uncertainty, which would result in a higher risk of exceeding the ACL, and would be inconsistent with the requirements of the FMP. Alternative 3 would also be inconsistent with the Commission's management of the spiny dogfish fishery in state waters; the Commission selected Alternative 1 commercial quotas.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
16 U.S.C. 1801
(a)
(1) Possess up to 4,000 lb (1.814 mt) of spiny dogfish per trip; and
(b)
(1) Possess up to 4,000 lb (1.814 mt) of spiny dogfish per trip; and
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of fishery management plan amendment; request for comments.
NMFS announces that the North Pacific Fishery Management Council (Council) has submitted Amendment 42 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (FMP) for review by the Secretary of Commerce (Secretary). Amendment 42 would revise the annual economic data reports (EDRs) currently required of participants in the Crab Rationalization Program (CR Program) fisheries. The EDRs include cost, revenue, ownership, and employment data the North Pacific Fishery Management Council (Council) and NMFS use to study the economic impacts of the CR Program on harvesters, processors, and affected communities. Amendment 42 is necessary to eliminate redundant reporting requirements, standardize reporting across participants, and reduce costs associated with the data collection. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the FMP, and other applicable laws.
Comments on the amendment must be submitted on or before May 13, 2013.
Send comments to Glenn Merrill, Assistant Regional Administrator for Sustainable Fisheries, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by NMFS docket number NOAA-NMFS-2012-0111, by any one of the following methods:
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Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on
Electronic copies of Amendment 42, the Regulatory Impact Review/Initial Regulatory Flexibility Analysis, the categorical exclusion prepared for this action, and the Environmental Impact Statement prepared for the Crab Rationalization Program may be obtained from
Karen Palmigiano, 907-586-7228 or
The Magnuson-Stevens Act requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the
The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act as amended by the Consolidated Appropriations Act of 2004 (Pub. L. 108-199, section 801). The Secretary of Commerce approved Amendments 18 and 19 to the FMP on November 19, 2004. NMFS published final regulations implementing the Crab Rationalization Program (CR Program) in 2005 (70 FR 10174, March 2, 2005). Regulations implementing the FMP, including the CR Program, are located at 50 CFR part 680.
The CR Program is a limited-access system that allocates crab managed under the FMP among harvesters, processors, and coastal communities. Each year, the quota share (QS) issued to a person yields an amount of individual fishing quota (IFQ), which is a permit providing an exclusive harvesting privilege for a specific amount of raw crab pounds, in a specific crab fishery, in a given season. The size of each annual IFQ allocation is based on the amount of QS held by a person in relation to the total QS pool in a crab fishery. For example, a person holding QS equaling 1 percent of the QS pool in a crab fishery would receive IFQ to harvest 1 percent of the annual total allowable catch (TAC) in that crab fishery.
As part of the CR Program, the Council recommended and NMFS implemented a comprehensive economic data collection program. The CR Program requires participants to complete an annual economic data report (EDR) based on harvesting and processing activities for that fishing season. The Council and NMFS use the EDR to assess the success of the CR Program and develop amendments to the FMP necessary to mitigate any unintended consequences of the CR Program. An annual EDR is currently required for four categories of participants in the CR Program fisheries: catcher vessels, catcher/processors, shoreside processors, and stationary floating crab processors.
The information collected in the EDR is intended to provide comprehensive data to assist the Council and analysts in understanding the costs and benefits of the CR Program on harvesters' and processors' crab operations. Specifically, the Council and analysts use the data to examine changes in usage of the crab, excess harvesting and processing capacity, economic returns, variable costs and revenues, economic efficiency, and the stability of harvesters, processors and coastal communities. Data submission is mandatory (see regulations at § 680.6(a)). The EDR Program is administered by NMFS through contracts with the Pacific States Marine Fisheries Commission (PSMFC). NMFS collects fees from CR Program participants to recover the costs of administering the EDR (see regulations at § 680.44 for cost recovery fee collection under the CR Program). Section 304(d)(2) of the Magnuson-Stevens Act requires that NMFS collect fees necessary to recover the actual costs directly related to data collection of limited access privilege programs, such as the CR Program.
Since the beginning of the CR Program, EDRs containing cost, revenue, ownership, and employment data have been collected by NMFS annually from the harvesting and processing sectors. This comprehensive approach to collecting data was implemented because the data collection programs in place at the time the CR Program began did not collect employment, cost, and sales information necessary to adequately examine how processing plants and vessels were being affected by the implementation of the CR Program. Collection of these data could help the Council understand the economic performance of crab fishermen, determine how this performance has changed after rationalization, and assess what aspects of these changes are specifically attributable to crab rationalization.
In 2010, the Council initiated an analysis to modify the EDR based on the results of its data quality review process and public comment received during the Council's 5-year review of the CR Program. As part of this analysis, the Council considered input from a Center for Independent Experts review of the data collection program that was completed in October 2011 (see Section 2.4.3 of the analysis for additional detail). In February 2012, the Council recommended Amendment 42 to the FMP to modify the EDR. This proposed rule would implement the Council's recommended changes to the EDR under Amendment 42. The proposed modifications to the current EDRs are presented in the analysis for this action (see Section 2.2. of the analysis) and summarized below.
Amendment 42 to the FMP is the Council's solution to these issues that would increase the quality of data collected, as well as reduce the burden on the submitters. If approved, this action would also reduce the amount of data collected from each of the three sectors: catcher vessels, shoreside and stationary floating crab processors, and catcher/processors. The Council's objective is to collect data that can be accurately and reliably reported, and to only collect data that is unavailable through other data collection programs.
Much of the data requested on the current annual catcher vessel Crab EDR is available through other sources (e.g., eLandings data collected by NMFS contains information on the specific quota accounts debited during a landing). Further, the quality of some data currently collected is poor and results in limited usefulness of the data for analyses (e.g., estimates of bait used are known to be inaccurate and unreliable). The Council recommended scaling back the data collection in the EDR, including eliminating the data collected in some categories so that only data that could be accurately and reliably collected would be required.
The proposed catcher vessel EDR would continue the collection of revenue data, including landings by share type by crab fishery (pounds and revenue), and market-value or negotiated-price transfers of IFQ and community development quota (CDQ) received for harvest on the vessel during the calendar year, by fishery and harvest quota permit type (pounds and revenue). Data on payments to captains and crew would still be collected by fishery. Crew license and Commercial Fisheries Entry Commission (CFEC) permit numbers would also continue to be collected to facilitate analysis of demographic distribution of crew benefits. The proposed EDR would also require the reporting of vessel costs such as bait, food, and provisions purchased by crab fishery. This is slightly different from the current forms, which require submitters to include the quantity of these items used versus what is purchased. This new data on the quantity of items purchased would provide some understanding of expenditures and would be more easily reported by submitters than the quantity of items used.
Amendment 42 proposes an Annual Shoreside Processor/Stationary Floating Processor Crab EDR (processor EDR), which combines the Annual Shoreside Processor Crab EDR and the Annual Stationary Floating Processor Crab EDR into a processor EDR. The proposed processor EDR would eliminate several elements from the current data collections. Most of the deleted elements represent production data, which are similar to data found within the State of Alaska's Commercial Operators Annual Report (COAR). Crab processors must submit the COAR annually and report processing and plant costs in it. The production data that is not available through other sources could be estimated by NMFS based on landings data. Therefore, the proposed exclusion of these data from the processor EDR would not affect the analysis of EDR data and may decrease the submitter's time burden required to fill in the form.
Revenue data collected under the proposed processor EDR would remain essentially the same. However, the proposed processor EDR would not require sales data by crab size or grade. Packing box sizes would continue to be reported by categories. Revenues from custom processing (an arrangement under which a person processes crab on behalf of another) would be added. Reporting of labor data (i.e., man-hours, total processing labor payments, and crab processing employees by residence) would not change from the status quo. Custom processing services purchased would be reported with some differences from the status quo (i.e., excluding crab size and grade and box size). Crab purchases by share type would still be collected.
Catcher/processors participate in both harvesting and processing. Therefore, the proposed catcher/processor EDR includes elements for the collection of harvesting and processing information.
Amendment 42 would eliminate some of the current reporting requirements for catcher/processors, which have been deemed to be inaccurately reported. Several elements would remain, including sales by species by packing box size to affiliated entities and unaffiliated entities, custom processing revenue and production, payments to captains and crews, crew license, CFEC permit numbers and residence information, custom processing services purchased, and crab purchases by share type. All this information provides data
Public comments are being solicited on proposed Amendment 42 through the end of the comment period (see
16 U.S.C. 1801
Agricultural Research Service, USDA.
Notice of intent.
Notice is hereby given that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to VHN Enterprises, LLC of San Francisco, California, an exclusive license to U.S. Patent No. 7,858,125, “MULTI-COMPONENT BIOCIDE COMPOSITION FOR WOOD PROTECTION”, issued on December 28, 2010.
Comments must be received on or before April 11, 2013.
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Rm. 4-1174, Beltsville, Maryland 20705-5131.
June Blalock of the Office of Technology Transfer at the Beltsville address given above; telephone: 301-504-5989.
The Federal Government's patent rights in this invention are assigned to the United States of America, as represented by the Secretary of Agriculture. It is in the public interest to so license this invention as VHN Enterprises, LLC of San Francisco, California has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Animal and Plant Health Inspection Service.
Request for information and notice of public meeting.
We are informing the public that the Animal and Plant Health Inspection Service (APHIS) is soliciting feedback from our stakeholders regarding cross-Agency strategic priorities. We are also announcing that APHIS is hosting a public meeting to share information about the Agency's budget and program restructuring, as well as to provide an opportunity for stakeholders to ask questions and share their perspective.
The meeting will be held on April 11, 2013, from 10 a.m. to noon. We will accept stakeholder feedback on the specific topics raised in this notice until May 13, 2013.
The meeting will be held in room 107A at the USDA Whitten Building, 1400 Independence Avenue SW., Washington, DC. You may submit feedback on the topics covered in this notice to the person listed under
Ms. Hallie Zimmers, Adviser for State and Stakeholder Relations, APHIS, Room 1153, 1400 Independence Avenue SW., Washington, DC 20250; phone (202) 799-7029.
As part of its ongoing efforts to enhance stakeholder communication and information sharing, the U.S. Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS) is hosting an open meeting with all interested stakeholders to discuss the Agency's budget, pending program restructuring and potential impacts, and several cross-Agency strategic priorities.
Like all Federal agencies, APHIS is facing a number of new and evolving challenges, including decreasing budgets, fewer available resources, and the continued need to successfully balance science, policy, and public opinion. As we plan for how to position APHIS to meet these and other challenges, our commitment to our animal and plant health mission remains firm. In keeping with this commitment, we want to continue to improve our business strategies and program delivery methods to enhance our overall effectiveness. As we begin to consider new opportunities and rethink current business practices, we want to engage our stakeholders in a dialog early in the process to ensure we're in alignment with our customers' needs. In particular, we are interested in your perspective regarding:
• Public and private partnerships, such as disease management and eradication programs that benefit from State and industry contributions.
• Non-regulatory solutions, such as compliance and education programs that can be used, when appropriate, to achieve results without the need for rulemaking.
• New technology that encourages commerce or enhances APHIS' ability to protect American agriculture.
• Customer service improvements that make it easier for stakeholders to do business with APHIS.
These are just a few examples; we believe many additional opportunities exist under the broad priorities of public and private partnerships, non-regulatory solutions, new technology and customer service. APHIS will speak to how the Agency is considering and already using these cross-Agency strategic priorities in greater depth at the public meeting. Ultimately, we believe stakeholders are in a unique position to provide insight and offer up new approaches that will enable APHIS to more effectively carry out our animal and plant mission and better serve our many customers.
You may submit your thoughts and feedback by responding to this notice (see
Persons attending the April 11, 2013, meeting in Washington, DC, are required to register in advance at
If you are unable to attend the meeting in person, it will be streamed on the Internet as a live Webcast. An audio conference line will also be made available for remote participants to ask questions. Information about how to join the live Webcast and conference line will be made available at
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Birch, Willow, Lost Project proposes to treat vegetation communities in the four sub-watersheds that cover the project area. The scope of the project is limited to those portions of the four sub-watersheds covered by the project area boundary. This project is not a general management plan for the watersheds, nor is it a programmatic environmental analysis for vegetation communities.
Comments concerning the scope of the analysis will be most helpful if received by April 11, 2013. The draft environmental impact statement is expected October of 2013 and the final environmental impact statement is expected March of 2014.
Send written comments to: Attention Alex Dunn, Beaverhead-Deerlodge National Forest, 420 Barrett St., Dillon, MT 59725, and weekdays 7:30 a.m. to 4:30 p.m. for hand delivery. Comments may also be sent via email to:
Mr. Alex Dunn, Forest Environmental Coordinator at (406) 683-3864 or via email at
This action is being undertaken to contribute to the achievement of the following Beaverhead-Deerlodge Land and Resource Management Plan (Forest Plan) Objectives for vegetation within the project area:
The responsible official proposes to:
1—
The Dillon District Ranger will be the responsible official.
The decision to be made is whether to implement the proposed action, another alternative, or a combination of the alternatives.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The project scoping map, as well as other project documents, can be viewed on the BDNF Web site at the following address:
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Texas Advisory Committee (Committee) will convene on Wednesday, April 3, 2013, at 1:30 p.m. and adjourn at approximately 3:30 p.m. The meeting will be held at the Looscan Neighborhood Library, 2510 Willowick road, Houston, TX 77027.
The purpose of the meeting is for the Committee to receive orientation and ethic training and plan future activities. Orientation and ethics training is the first item on the agenda. After those two items are completed, the next item on the agenda is the Committee's consideration of future issues for study and alternate reporting formats.
The meeting is open to the public. Members of the public are also entitled to submit written comments. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 N. Los Angeles St., Suite 1020 Los Angeles, CA 90012. They may also be emailed to the Commission at
Records generated from this meeting may be inspected and reproduced at the Western Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's Web site,
The meeting will be conducted pursuant to the rules and regulations of the Commission and FACA.
On November 2, 2012, the Port of Houston Authority, grantee of FTZ 84, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board on behalf of Mitsubishi Caterpillar Forklift America Inc., in Houston, Texas.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
TTI, Inc. (TTI), operator of Subzone 196A, submitted a notification of proposed production activity for its facilities located in Fort Worth, Texas. The notification conforming to the requirements of the regulations of the
The TTI facilities are located within Subzone 196A at 2601 Sylvania Cross Drive and 2441 Northeast Parkway, Fort Worth (Tarrant County), Texas. The facilities are used for electromechanical and circuit protection device production/kitting for a variety of commercial, aerospace and military applications. Pursuant to 15 CFR 400.14(b) of the regulations, FTZ activity would be limited to the specific foreign-status materials and components and specific finished products included in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt TTI from customs duty payments on the foreign status components used in export production. On its domestic sales, TTI would be able to choose the duty rates during customs entry procedures that apply to resistors, capacitors, connectors, discretes, potentiometers, trimmers, magnetic and circuit protection components, wire and cable, wire and cable identification markers, application tools for crimping, insertion/extraction, and terminal removal, and electromechanical devices (duty rates range from free to 3.5%) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
The components and materials sourced from abroad include: Rubber and plastic gaskets, washers, and seals; circuit protection devices (including connectors); molded parts for connector assemblies; metal contacts; plastic fittings; insulators (including, quartz, Teflon, silicon and ceramic); base metal insulating materials (including electrical conduit tubing); electrical circuit switching and protection components; and iron and steel wire components (duty rates range from free to 5.3%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 22, 2013.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Diane Finver at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize and expand FTZ 171 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the zone, and to a five-year ASF sunset provision for magnet sites that would terminate authority for Sites 4, 5, 6, 7, 8 and 10 if not activated by March 30, 2018.
On January 7, 2013, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the City of El Paso, grantee of FTZ 68, requesting subzone status subject to the existing activation limit of FTZ 68, on behalf of Expeditors International of Washington, Inc., in El Paso, Texas.
The application was processed in accordance with the FTZ Act and Regulations, including notice in the
Pursuant to the authority delegated to the FTZ Board's Executive Secretary (15 CFR Sec. 400.36(f)), the application to establish Subzone 68A is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13 and further subject to FTZ 68's 2,000-acre activation limit.
Import Administration, International Trade Administration, Department of Commerce.
Effective March 12, 2013.
The Department of Commerce (the Department) is currently conducting an administrative review of the antidumping duty order on certain preserved mushrooms (mushrooms) from the People's Republic of China (PRC) covering the period of review (POR) February 1, 2011, through January 31, 2012. We preliminarily determine that sales made by Blue Field (Sichuan) Food Industrial Co. (Blue Field) were below normal value (NV). With respect to Dujiangyan Xingda Foodstuff Co., Ltd. (Xingda) and Zhejiang Iceman Group Co., Ltd./Zhejiang Iceman Food Co., Ltd. (Iceman),
Michael J. Heaney, or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4475 or (202) 482-0649, respectively.
The products covered by this antidumping order are certain preserved mushrooms, whether imported whole, sliced, diced, or as stems and pieces. The preserved mushrooms covered under this order are the species
For those companies named in the
We have received withdrawal of review requests for the following companies that remain a part of the PRC-wide entity, which is currently under review: (1) China National Cereals, Oils & Foodstuffs Import & Export Corp. (China National), (2) China Processed Food Import & Export Co. (China Processed), (3) Fujian Pinghe Baofeng Canned Foods (Fujian Pinghe), (4) Fujian Yuxing Fruits and Vegetables Foodstuffs Development Co., Ltd. (Fujian Yuxing), (5) Fujian Zishan Group Co., Ltd. (Fujian Zishan), (6) Guangxi Eastwing Trading Co., Ltd. (Guangxi Eastwing), (7) Inter-Foods (Dongshan) Co., Ltd. (Inter-Foods), (8) Longhai Guangfa Food Co., Ltd.(Longhai Guangfa), (9) Primera Harvest (Xiangfan) Co., Ltd. (Primera Harvest), (10) Shandong Fengyu Edible Fungus Corporation Ltd. (Shandong Fengyu), (11) Sun Wave Trading Co., Ltd. (Sun Wave Trading), (12) Xiamen Greenland Import & Export Co., Ltd. (Xiamen Greenland), (13) Xiamen Gulong Import & Export Co., Ltd. (Xiamen Gulong), (14) Xiamen Jiahua Import & Export Trading Co., Ltd. (Xiamen Jiahua), (15) Xiamen Longhuai Import & Export Co., Ltd. (Xiamen Longhuai), and (16) Zhangzhou Long Mountain Food Co., Ltd. (Zhangzhou Long Mountain) and (17) Zhangzhou Golden Banyan Foodstuffs Industrial Co., Ltd. (Zhangzhou Golden Banyan).
For those companies named in the
The following companies submitted timely certifications of no shipments during the POR: (1) Guangxi Hengyong Industrial & Commercial Dev., Ltd. (Guangxi Hengyong), (2) Zhangzhou Tongfa Foods Industry Co., Ltd (Zhangzhou Tongfa), (3) Zhangzhou Hongda Import & Export Trading Co., Ltd. (Zhangzhou Hongda), and (4) Golden Banyan. Based on the no-shipment certifications and our analysis of the CBP information, we preliminary determine that Guangxi Hengyong, Zhangzhou Tongfa, Zhangzhou Hongda, and Golden Banyan did not have any reviewable transactions during the POR. In addition, the Department finds that consistent with its recently announced refinement to its assessment practice in
The Department has conducted this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act). Export price is calculated in accordance with section 772 of the Act. Because the PRC is an NME within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act. Specifically, the respondent's factors of production have been valued using Colombian prices (when available); Colombia is economically comparable to the PRC and a significant producer of comparable merchandise. For a full description of these surrogate values and the methodology underlying our conclusions, please see the memoranda entitled “Memorandum for the Preliminary Results in the Administrative Review: Certain Preserved Mushrooms from the People's Republic of China” (Preliminary Results Decision Memorandum) and “Certain Preserved Mushrooms from the People's Republic of China: Surrogate-Value Memorandum” both of which are dated concurrently with this notice and incorporated herein by reference. The Preliminary Results Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
The Department has determined that the following preliminary dumping margins exist for the period February 1, 2011, through January 31, 2012:
The Department
Any interested party may request a hearing within 30 days of publication of this notice. Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the case briefs. If a request for a hearing is made, parties will be notified of the date and time for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
The Department intends to issue the final results of this administrative review, including the results of our analysis of the issues raised in any such comments, within 120 days after the publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
In accordance with 19 CFR 351.301(c)(3)(ii), the deadline for submission of publicly available information to value factors of production (FOPs) under 19 CFR 351.408(c) is 20 days after the date of publication of these preliminary results. In accordance with 19 CFR 351.301(c)(1), if an interested party submits factual information less than ten days before, on, or after (if the Department has extended the deadline), the applicable deadline for submission of such factual information, an interested party may submit factual information to rebut, clarify, or correct the factual information no later than ten days after such factual information is served on the interested party. However, the Department generally will not accept in the rebuttal submission additional or alternative surrogate value information not previously on the record, if the deadline for submission of surrogate value information has passed.
Upon issuing the final results of the review, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. For any individually examined respondents whose weighted-average dumping margin is above
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific assessment rate calculated in the final results of this review is above
The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
The following cash deposit requirements, when imposed, will apply to all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Blue Field, will be that established in the final results of this review (except, if the rate is zero or
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp from Thailand with respect to 150
We have preliminarily determined that sales to the United States have been made at prices below normal value. We have also preliminarily determined to revoke the antidumping duty order with respect to shrimp from Thailand produced and exported by Marine Gold. Finally, the Department also preliminarily determines that 11 additional exporters made no shipments of subject merchandise during the POR. If these preliminary results are adopted in the final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries.
Blaine Wiltse or Dennis McClure, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6345 or (202) 482-5973, respectively.
The merchandise subject to the order is certain frozen warmwater shrimp.
The Department has conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export price/constructed export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
In accordance with section 773(b) of the Act, we disregarded the below-cost sales of Marine Gold and Thai Union in the most recent administrative reviews completed for these companies before the initiation of this review. Therefore, we have reasonable grounds to believe or suspect that Marine Gold's and Thai Union's sales of the foreign like product under consideration for the determination of normal value in this review may have been made at prices below the cost of production (COP) as provided by section 773(b)(2)(A)(ii) of the Act. Accordingly, pursuant to section 773(b)(1) of the Act, we have conducted a COP analysis of Marine Gold's and Thai Union's sales in Thailand in this review. Based on this test, we disregarded certain sales made by Marine Gold and Thai Union in the home market which were made at below-cost prices.
For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum, which is hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). Access to IA ACCESS is available in the Central Records Unit (CRU), room 7046 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the Internet at
Among the companies under review, 13 companies
(1) Anglo-Siam.
(2) Daedong.
(3) Leo Transport.
(4) Grobest.
(5) Lucky Union.
(6) Namprick.
(7) S&P.
(8) S.K. Foods.
(9) Siamchai.
(10) Thai Union Manufacturing.
(11) V. Thai.
Finally, the Department received no shipment certifications from two additional companies, C Y Frozen Food Co., Ltd. (C Y Frozen Food) and Kosamut Frozen Foods Co., Ltd. (Kosamut). We preliminarily find that there is insufficient evidence on the record of this review to conclude that these companies made no shipments of subject merchandise to the United States during the POR because: (1) C Y Frozen Foods failed to certify its statement of no shipments in accordance with 19 CFR 351.303(g)(1), despite the Department's request that it do so; and (2) Kosamut's no shipment statement related only to its own exports and not those of another affiliated exporter which has to date been treated as the same entity as Kosamut for cash deposit purposes.
On February 1, 2012, Marine Gold requested revocation of the order on shrimp from Thailand as it pertains to its sales. Pursuant to 19 CFR 351.222(b)(2),
With regard to the criteria of 19 CFR 351.222(b)(2), based on our examination of the sales data submitted by Marine Gold, we preliminarily determine that it sold the subject merchandise in the United States in commercial quantities in each of the consecutive years cited by Marine Gold to support its request for revocation.
On February 29, 2012, the petitioner requested that the Department review entries of Tanaya International Co., Ltd. and Tanaya Intl. (collectively, Tanaya). On April 27, 2012, we received a letter from Tanaya stating that it does not produce or export shrimp, nor has it ever produced or exported the subject merchandise. On February 14, 2013, Tanaya properly certified this submission, in accordance with 19 CFR 351.303(g)(1), at the Department's request.
According to 19 CFR 351.213(b), the Department conducts administrative reviews on exporters or producers covered by an order. In this particular situation, Tanaya is neither an exporter nor manufacturer of the subject merchandise. Furthermore, Tanaya has made no entries, exports, or sales of the subject merchandise during the POR. Therefore, pursuant to 19 CFR 351.213(d)(3), the Department is preliminarily rescinding the review with respect to Tanaya.
As a result of this review, we preliminarily determine that the weighted-average dumping margins for Marine Gold and Thai Union for the period February 1, 2011, through January 31, 2012, are as follows:
Review-Specific Average Rate Applicable to the Following Companies:
The Department intends to disclose to
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, filed electronically via IA ACCESS. An electronically-filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Standard Time within 30 days after the date of publication of this notice.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212(b)(1).
For Marine Gold and Thai Union, we will calculate importer-specific
For the companies which were not selected for individual review, we will calculate an assessment rate based on the weighted-average of the cash deposit rates calculated for the companies selected for mandatory review (
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above
The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the POR produced by Marine Gold and Thai Union for which these companies did not know that the merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from India. The review covers 195 producers/exporters of the subject merchandise. The Department selected two mandatory respondents for individual examination, Apex Frozen Foods Private Limited
Henry Almond or Elizabeth Eastwood, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0049, or (202) 482-3874, respectively.
The merchandise subject to the order is certain frozen warmwater shrimp.
The Department has conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export price/constructed export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
In accordance with section 773(b) of the Act, we disregarded the below-cost sales of Apex and Falcon to their respective comparison markets (
For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum, which is hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
Among the companies under review, two companies (
Based on the certifications of these companies and our analysis of CBP information, we preliminarily determine that Baby Marine International and Baby Marine Sarass did not have any reviewable transactions during the POR. In addition, the Department finds that it is not appropriate to rescind the review with respect to these two companies but, rather, to complete the review with respect to them and issue appropriate instructions to CBP based on the final results of this review.
As a result of this review, we preliminarily determine that weighted-average dumping margins exist for the respondents for the period February 1, 2011, through January 31, 2012, as follows:
Review-Specific Average Rate Applicable to the Following Companies:
The Department
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, filed electronically via IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Standard Time within 30 days after the date of publication of this notice.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212(b)(1).
For Apex, Falcon, and Devi Fisheries, we will calculate importer-specific
For the companies which were not selected for individual review, we will calculate an assessment rate based on the weighted-average of the cash deposit rates calculated for the companies
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above
The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which these companies did not know that the merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification,
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce
In response to requests from interested parties, the Department of Commerce (“Department”) is conducting the administrative review of the antidumping duty order on certain frozen warmwater shrimp (“shrimp”) from the People's Republic of China (“PRC”), covering the period of review (“POR”) from February 1, 2011, through January 31, 2012. As discussed below, the Department preliminarily determines that Zhanjiang Regal Integrated Marine Resources Co., Ltd. (“Regal”) did not make sales in the United States at prices below normal value (“NV”) during the POR. Additionally, the Department preliminarily determines that Hilltop International (“Hilltop”) failed to cooperate to the best of its ability in this review. The Department is finding Hilltop to be part of the PRC-wide entity to which we are applying adverse facts available (“AFA”) as discussed below.
Katie Marksberry or Josh Startup, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-7906 or (202) 482-5260 respectively.
The merchandise subject to the order is certain frozen warmwater shrimp.
During the review, Hilltop notified the Department that it declined to answer further requests for information in this proceeding.
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Act. Export prices have been calculated in accordance with section 772 of the Act. Because the PRC is a nonmarket economy within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act. For a full description of the methodology underlying our conclusions, please see the Preliminary Decision Memorandum, dated concurrently with these results and hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users at
On April 18, 2012, the Department received a “no shipment certification”
On April 20, 2012, the Department sent inquiries to U.S. Customs and Border Protection (“CBP”) to determine whether CBP entry data is consistent with SYEC's and Allied Pacific Group's no shipments certifications and received no information contrary to that statement. On February 5, 2013, the Department sent an inquiry to CBP to determine whether CBP entry data consistent with Smart Foods no shipment certification and received no information contrary to that statement. As CBP only responds to the Department's inquiry when there are records of shipments from the company in question
Based on SYEC's, Allied Pacific Group's and Smart Foods' certifications and our analysis of CBP information, we preliminarily determine that SYEC, Allied Pacific Group, and Smart Foods did not have any reviewable transactions during the POR. In addition, the Department finds that consistent with its recently announced refinement to its assessment practice in NME cases, it is appropriate not to rescind the review in part in this circumstance but, rather, to complete the review with respect to SYEC, Allied Pacific Group, and Smart Food and issue appropriate instructions to CBP based on the final results of the review.
The Department preliminarily determines that the following weighted-average dumping margins exist.
The
Because, as noted below, the Department may verify the information upon which we will rely in making our final determination, the Department will establish the briefing schedule at a later time, and will notify parties of the schedule in accordance with 19 CFR 351.309. Interested parties may file rebuttal briefs, limited to issues raised in the case briefs.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication of the final results of this review. For any individually examined respondent whose weighted average dumping margin is above
The Department recently announced a refinement to its assessment practice in NME antidumping duty cases. Pursuant to this refinement in practice, for merchandise that was not reported in the U.S. sales databases submitted by an exporter individually examined during this review, but that entered under the case number of that exporter (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For the companies listed above, which has a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
As further explained in the Preliminary Decision Memorandum, Regal has requested a company-specific revocation pursuant to 19 CFR 351.222.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This determination is being issued and published in accordance with
Aside from Hilltop, the companies that are not eligible for a separate rate and are part of the PRC-wide entity include:
1. Aqua Foods (Qingdao) Co., Ltd.
2. Asian Seafoods (Zhanjiang) Co., Ltd.
3. Beihai Evergreen Aquatic Product Science And Technology Co Ltd
4. Dalian Hualian Foods Co., Ltd.
5. Dalian Shanhai Seafood Co., Ltd.
6. Dalian Taiyang Aquatic Products Co., Ltd.
7. Dalian Z&H Seafood Co., Ltd.
8. Fujian Chaohui International Trading
9. Fujian Dongshan County Shunfa Aquatic Product Co., Ltd.
10. Fujian Rongjiang Import and Export Corp.
11. Fuqing Minhua Trade Co., Ltd
12. Fuqing Yihua Aquatic Food Co., Ltd.
13. Fuqing Yiyuan Trading Co., Ltd.
14. Guangdong Jiahuang Foods Co., Ltd.
15. Guangdong Jinhang Foods Co., Ltd.
16. Guangdong Shunxin Sea Fishery Co. Ltd.
17. Guangdong Wanya Foods Fty. Co., Ltd.
18. Hai Li Aquatic Co., Ltd.
19. Hainan Brich Aquatic Products Co., Ltd.
20. Hainan Hailisheng Food Co., Ltd.
21. Hainan Xiangtai Fishery Co., Ltd.
22. Haizhou Aquatic Products Co., Ltd.
23. Hua Yang (Dalian) International Transportation Service Co.
24. Kingston Foods Corporation
25. Maoming Xinzhou Seafood Co., Ltd.
26. Ocean Duke Corporation
27. Olanya (Germany) Ltd.
28. Qingdao Yuanqiang Foods Co., Ltd.
29. Rizhao Xinghe Foodstuff Co., Ltd.
30. Rui'an Huasheng Aquatic Products Processing Factory
31. Savvy Seafood Inc.
32. Sea Trade International Inc.
33. Shandong Meijia Group Co., Ltd.
34. Shanghai Linghai Fisheries Trading Co. Ltd.
35. Shanghai Lingpu Aquatic Products Co.
36. Shanghai Smiling Food Co., Ltd.
37. Shanghai Zhoulian Foods Co., Ltd.
38. Shantou Jiazhou Foods Industry
39. Shantou Jin Cheng Food Co., Ltd.
40. Shantou Longsheng Aquatic Product Foodstuff Co., Ltd.
41. Shantou Ruiyuan Industry Company Ltd.
42. Shantou Wanya Foods Fty. Co., Ltd.
43. Shenzen Allied Aquatic Produce Development Ltd.
44. Shenzhen Yudayuan Trade Ltd.
45. Thai Royal Frozen Food Zhanjiang Co., Ltd.
46. Xiamen Granda Import & Export Co., Ltd.
47. Yancheng Hi-king Agriculture Developing Co., Ltd.
48. Yanfeng Aquatic Product Foodstuff
49. Yangjiang Anyang Food Co., Ltd.
50. Yangjiang City Yelin Hoi Tat Quick Frozen Seafood Co., Ltd.
51. Yangjiang Wanshida Seafood Co., Ltd.
52. Yelin Enterprise Co., Ltd.
53. Zhangzhou Xinwanya Aquatic Product
54. Zhangzhou Yanfeng Aquatic Product
55. Zhanjiang Evergreen Aquatic Product Science and Technology Co., Ltd.
56. Zhanjiang Fuchang Aquatic Products Co., Ltd.
57. Zhanjiang Go Harvest Aquatic Products Co., Ltd.
58. Zhanjiang Haizhou Aquatic Product Co. Ltd.
59. Zhanjiang Hengrun Aquatic Co, Ltd.
60. Zhanjiang Jinguo Marine Foods Co., Ltd.
61. Zhanjiang Join Wealth Aquatic Products Co., Ltd.
62. Zhanjiang Longwei Aquatic Products Industry Co., Ltd.
63. Zhanjiang Newpro Foods Co., Ltd.
64. Zhanjiang Rainbow Aquatic Development
65. Zhanjiang Universal Seafood Corp.
66. Zhejiang Daishan Baofa Aquatic Products Co., Ltd.
67. Zhejiang Xinwang Foodstuffs Ltd.
68. Zhejiang Zhoufu Food Co., Ltd.
69. Zhoushan Corporation
70. Zhoushan Haiwang Seafood Co., Ltd.
1. Background.
2. Respondent Selection.
3. Questionnaires.
4. Scope of the Order.
5. Separate Rates.
6. PRC-Wide Entity.
7. Use of Facts Available and AFA.
8. Application of Total AFA to the PRC-Wide Entity.
9. Selection of AFA Rate.
10. Corroboration of Secondary Information.
11. Rate for Non-Selected Companies.
12. Preliminary Determination of No Shipments.
13. Non-Market Economy Country.
14. Surrogate Country and Surrogate Value Data.
15. Surrogate Country.
16. Economic Comparability.
17. Significant Producers of Comparable Merchandise.
18. Data Availability.
19. Date of Sale.
20. Targeted Dumping.
21. Results of Targeted Dumping Analysis.
22. Fair Value Comparisons.
23. Export Price.
24. Normal Value.
25. Factor Valuations.
26. Currency Conversion.
27. Regal Revocation Request.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (“Department”) is conducting the administrative review of the antidumping duty order on certain frozen warmwater shrimp from the Socialist Republic of Vietnam (“Vietnam”) for the period of review (“POR”) February 1, 2011, through January 31, 2012. The Department has preliminarily determined that sales by the Minh Phu Group,
Bob Palmer, Irene Gorelik, and Alan Ray, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-9068, (202) 482-6905, and (202) 482-5403, respectively.
The merchandise subject to the order is certain frozen warmwater shrimp. The product is currently classified under the following Harmonized Tariff
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). Constructed export prices and export prices have been calculated in accordance with section 772 of the Act. Because Vietnam is a nonmarket economy within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c). Specifically, the mandatory and voluntary respondent's factors of production have been valued with prices from Indonesia, which is economically comparable to Vietnam and is a significant producer of comparable merchandise.
For a full description of the methodology underlying our conclusions, please see Preliminary Decision Memorandum, dated concurrently with these results and hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users at
We preliminarily determine
As provided in sections 782(i)(3)(A)-(B) of the Act, we intend to verify the information upon which we will rely in determining our final results of review with respect to the Minh Phu Group.
The Department
The Department will disclose the calculations used in our analysis to parties in this review within five days of the date of publication of this notice. Interested parties, who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, filed electronically using IA ACCESS. An electronically filed
Because, as noted above, the Department intends to verify the information upon which we will rely in making our final determination with respect to the Minh Phu Group, the Department will establish the briefing schedule at a later time, and will notify parties of the schedule in accordance with 19 CFR 351.309. Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
The Department intends to issue the final results of this administrative review, including the results of our analysis of issues raised in the written comments, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.
Additionally, pursuant to a recently announced refinement to its assessment practice in NME cases, if the Department continues to determine that an exporter under review had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from Vietnam entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For the companies listed above, which have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
1. Background
2. Respondent Selection
3. Scope of the Order
4. Request for Revocation, in Part
5. Preliminary Determination of No Shipments
6. Non-Market Economy Country
7. Separate Rates
8. Separate Rate Calculation
9. Vietnam-Wide Entity
10. Surrogate Country and Surrogate Value Data
11. Surrogate Country
12. Economic Comparability
13. Significant Producers of Comparable Merchandise
14. Data Availability
15. Date of Sale
16. Fair Value Comparisons
17. Targeted Dumping
18. Results of Targeted Dumping Analysis
19. U.S. Price
20. Factor Valuations
21. Currency Conversion
Import Administration, International Trade Administration, Department of Commerce.
On November 5, 2012, the Department of Commerce (the Department) initiated the second sunset reviews of the antidumping duty orders on certain hot-rolled carbon steel flat products from India, Indonesia, the People's Republic of China (PRC), Taiwan, Thailand, and Ukraine. The Department finds that revocation of these antidumping duty orders would be likely to lead to continuation or recurrence of dumping at the margins identified in the “Final Results of Sunset Reviews” section of this notice.
Effective March 12, 2013.
Deborah Scott or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2657 or (202) 482-0649, respectively.
On November 5, 2012, the Department initiated the second sunset reviews of the antidumping duty orders on certain hot-rolled carbon steel flat products from India, Indonesia, the PRC, Taiwan, Thailand, and Ukraine, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).
On December 5, 2012, the Department received adequate substantive responses from the domestic interested parties identified above within the deadline specified in 19 CFR 351.218(d)(3)(i). The Department received no responses from respondent interested parties with respect to any of the antidumping duty orders covered by these sunset reviews. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department has conducted expedited (120-day) sunset reviews of the antidumping duty orders on certain hot-rolled carbon steel flat products from India, Indonesia, the PRC, Taiwan, Thailand, and Ukraine.
The products covered by the antidumping duty orders are certain hot-rolled carbon steel flat products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. The full scope language of each of the antidumping duty orders is listed in the Issues and Decision Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, dated March 5, 2013 (Issues and Decision Memorandum), which is hereby adopted by this notice. The merchandise is currently classified under the item numbers of the Harmonized Tariff Schedule of the United States (HTSUS) listed in the scope of each order. Although the HTSUS item numbers are provided for convenience and customs purposes, the written descriptions of the scope of the antidumping duty orders remain dispositive.
All issues raised in these sunset reviews are addressed in the Issues and Decision Memorandum. The issues discussed in the Issues and Decision Memorandum are the likelihood of continuation or recurrence of dumping and the magnitude of the dumping margins likely to prevail if the orders were revoked. Parties can find a complete discussion of these issues and the corresponding recommendations in this public document, which is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
Pursuant to sections 752(c)(1) and (3) of the Act, we determine that revocation of the antidumping duty orders on certain hot-rolled carbon steel flat products from India, Indonesia, the PRC, Taiwan, Thailand, and Ukraine would be likely to lead to continuation or recurrence of dumping at the following weighted-average percent margins:
This notice also serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the final results of these reviews in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before May 13, 2013.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Patsy A. Bearden, (907) 586-7008 or
This request is for extension of a currently approved information collection.
In response to the American Fisheries Act (AFA), NMFS developed a management program for Bering Sea and Aleutian Islands Management Area (BSAI) pollock to include a set of AFA permanent permits for AFA catcher/processors, AFA catcher vessels, AFA inshore processors, and AFA motherships. All vessels and processors participating in the non-Community Development Quota (CDQ) BSAI pollock fishery are required to have valid AFA permits on board the vessel or on site at the processing plant.
With the exceptions of the inshore vessel cooperatives, replacement vessel, and inshore vessel contract fishing applications, the AFA permit program had a one-time application deadline of December 1, 2000. All permitted participants in the AFA pollock fishery are already established and are issued with an indefinite expiration date.
This information collection was previously revised to include a new program, the Chinook Salmon Prohibited Species Catch Program (Chinook PSC Program). The Chinook PSC Program was established to promote reduction of Chinook salmon PSC in the Bering Sea pollock fishery to the extent practicable while achieving optimum yield in the pollock fishery. A PSC limit of Chinook salmon was established for the pollock industry participants in an industry-developed contractual arrangement, called an incentive plan agreement (IPA) that establishes an incentive program to minimize bycatch at all levels of Chinook salmon abundance. NMFS issues transferable Chinook salmon PSC allocations to eligible entities representing the catcher/processor sector, the mothership sector, inshore cooperatives, and Community Development Quota (CDQ) groups. Transferable allocations provide the pollock fleet the flexibility to maximize the harvest of pollock while maintaining Chinook salmon bycatch at or below the PSC limit.
It is also proposed that the title of this collection will be changed from American Fisheries Act: Vessel and Processor Permit Applications to American Fisheries Act (AFA): Permits.
Respondents have a choice of either electronic or paper forms. Methods of submittal include online data entry, email of electronic forms, and mail and facsimile transmission of paper forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that George Burgess, Ph.D., Florida Museum of Natural History, Dickinson Hall, University of Gainesville, Gainesville, FL 32611, has been issued a permit to take smalltooth sawfish (
The permit and related documents are available for review upon written request or by appointment in the following offices:
Colette Cairns or Jennifer Skidmore, (301) 427-8401.
On September 24, 2012, notice was published in the
The permit holder is authorized to gather life history information on smalltooth sawfish populations of Florida, primarily in Florida Bay and the upper Keys area. The purpose of the research is to investigate the movements and habitat use of smalltooth sawfish in Florida waters. Annually, up to 80 sawfish may be captured by gillnet, longline, or angling gear, measured, passive integrated transponder, roto, dart, and external satellite tagged, tissue, muscle, and blood sampled, and released. Dead sawfish acquired through strandings or from law enforcement confiscations may be sampled for scientific purposes. The permit is authorized for a duration of 5 years.
Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) Was applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 31 Gulf of Mexico Red Snapper Assessment Workshop Webinar #6.
The SEDAR 31 assessment of the Gulf of Mexico Red Snapper fishery will consist of a series of workshops and supplemental webinars. This notice is for a webinar in the Assessment Workshop portion of the SEDAR process. See
The SEDAR 31 Assessment Workshop Webinar #6 will be held on April 4th, 2013. The workshop will begin at 1 p.m. and conclude no later than 5 p.m. EDT.
Ryan Rindone, SEDAR Coordinator; telephone: (813) 348-1630; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process including a workshop and webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Consensus Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment
The items of discussion in the SEDAR 31 Assessment Workshop Webinar #6 are as follows:
Panelists will continue reviewing the progress of modeling efforts for Gulf of Mexico Red Snapper.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SEDAR office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Council to convene a public meeting.
The Gulf of Mexico Fishery Management Council will convene a meeting of the Standing, Special Mackerel and Ecosystem Scientific and Statistical Committees.
The meeting will convene at 8:30 a.m. on Wednesday, March 27, 2013 and conclude by 5 p.m. Thursday, March 28, 2013.
The meeting will be held at the Grand Hyatt Tampa Bay Hotel, 2900 Bayport Drive, Tampa, FL 33607; telephone: (813) 874-1234.
Steven Atran, Population Dynamics Statistician; Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The Standing and Special Mackerel SSC will meet jointly on Wednesday, March 27, 2013 to review benchmark stock assessments and recommend acceptable biological catch (ABC) for cobia and Spanish mackerel. On Thursday, March 28, 2013, the Standing and Ecosystem SSC meeting will meet jointly to receive a presentation on a multidisciplinary, multi-year Integrated Ecosystems Assessment (IEA) project being conducted by the Southeast Fisheries Science Center. The presentation will review (1) the Gulf of Mexico IEA Program in general, (2) the Gulf of Mexico Ecosystem Status Report, and (3) aspects of the ecosystem modeling effort. The Standing SSC will then meet on Thursday afternoon to discuss ABC Control Rule revisions and review the SEDAR assessment schedule and priorities.
Copies of the agenda and other related materials can be obtained by calling (813) 348-1630 or can be downloaded from the Council's ftp site,
Although other non-emergency issues not on the agenda may come before the Scientific and Statistical Committees for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Scientific and Statistical Committees will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 34 pre-workshop webinar for Highly Migratory Species (HMS) Atlantic sharpnose and bonnethead sharks.
The SEDAR assessment of the HMS stocks of Atlantic sharpnose and bonnethead sharks will consist of one in-person workshop and a series of webinars. See
The SEDAR 34 pre-workshop Webinar will be held on Wednesday, April 30, 2013, from 10 a.m. until 12 p.m. central standard time (CST).
The meeting will be held via webinar. The webinar is open to members of the public. Those interested in participating should contact Julie A. Neer at SEDAR (see
Julie Neer, SEDAR Coordinator; telephone: (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and
The items of discussion in the pre-workshop webinar are as follows:
Participants will present summary data and will discuss data needs and treatments.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SEDAR office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 28 Gulf of Mexico Spanish mackerel and cobia Review Workshop.
The SEDAR 28 assessment of the Gulf of Mexico Spanish mackerel and cobia fisheries will consist of a series of workshops and supplemental webinars. This notice is for the Review Workshop portion of the SEDAR process. See
The SEDAR 28 Review Workshop will be held on March 25-26, 2013. The workshop will begin at 8 a.m. and conclude no later than 6 p.m. EDT on each day.
The Review Workshop will be held in the office of the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607. The Review Workshop is open to members of the public. Those interested in participating should contact Ryan Rindone at SEDAR (see Contact Information below) to request an invitation providing webinar access information. Please request meeting information at least 24 hours in advance.
Ryan Rindone, SEDAR Coordinator; phone (813) 348-1630; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process including a workshop and webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Consensus Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the Review Workshop are as follows:
Panelists will review the proceedings of the SEDAR 28 Data and Assessment Workshops, and make recommendations with respect to the stock assessments of Gulf of Mexico Spanish mackerel and cobia.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SEDAR office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in April, May, and June of 2013. Certain fishermen and shark dealers are required to attend a workshop to meet regulatory requirements and to maintain valid permits. Specifically, the Atlantic Shark Identification Workshop is mandatory for all federally permitted Atlantic shark dealers. The Protected Species Safe Handling, Release, and Identification Workshop is mandatory for vessel owners and operators who use bottom longline, pelagic longline, or gillnet gear, and who have also been issued shark or swordfish limited access permits. Additional free workshops will be conducted during 2013 and will be announced in a future notice.
The Atlantic Shark Identification Workshops will be held April 11, May 9, and June 6, 2013.
The Protected Species Safe Handling, Release, and Identification Workshops will be held on April 10, April 12, May 1, May 8, June 5, and June 12, 2013.
See
The Atlantic Shark Identification Workshops will be held in Wilmington, NC; Bohemia, NY; and Panama City, FL.
The Protected Species Safe Handling, Release, and Identification Workshops will be held in Port St. Lucie, FL; Atlantic City, NJ; Ocean City, MD; Warwick, RI; Kitty Hawk, NC; and Gulfport, MS.
See
Richard A. Pearson by phone: (727) 824-5399, or by fax: (727) 824-5398.
The workshop schedules, registration information, and a list of frequently asked questions regarding these workshops are posted on the Internet at:
Since January 1, 2008, Atlantic shark dealers have been prohibited from receiving, purchasing, trading, or bartering for Atlantic sharks unless a valid Atlantic Shark Identification Workshop certificate is on the premises of each business listed under the shark dealer permit which first receives Atlantic sharks (71 FR 58057; October 2, 2006). Dealers who attend and successfully complete a workshop are issued a certificate for each place of business that is permitted to receive sharks. These certificate(s) are valid for 3 years. Approximately 83 free Atlantic Shark Identification Workshops have been conducted since January 2007.
Currently, permitted dealers may send a proxy to an Atlantic Shark Identification Workshop. However, if a dealer opts to send a proxy, the dealer must designate a proxy for each place of business covered by the dealer's permit which first receives Atlantic sharks. Only one certificate will be issued to each proxy. A proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and who fills out dealer reports. Atlantic shark dealers are prohibited from renewing a Federal shark dealer permit unless a valid Atlantic Shark Identification Workshop certificate for each business location which first receives Atlantic sharks has been submitted with the permit renewal application. Additionally, trucks or other conveyances that are extensions of a dealer's place of business must possess a copy of a valid dealer or proxy Atlantic Shark Identification Workshop certificate.
1. April 11, 2013, 12 p.m.-4 p.m., Hampton Inn, 124 Old Eastwood Road, Wilmington, NC 28403.
2. May 9, 2013, 12 p.m.-4 p.m., LaQuinta Inn & Suites, 10 Aero Road, Bohemia, NY 11716.
3. June 6, 2013, 12 p.m.-4 p.m., LaQuinta Inn & Suites, 7115 Coastal Palms Boulevard, Panama City, FL 32408.
To register for a scheduled Atlantic Shark Identification Workshop, please contact Eric Sander at
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items to the workshop:
• Atlantic shark dealer permit holders must bring proof that the attendee is an owner or agent of the business (such as articles of incorporation), a copy of the applicable permit, and proof of identification.
• Atlantic shark dealer proxies must bring documentation from the permitted dealer acknowledging that the proxy is attending the workshop on behalf of the permitted Atlantic shark dealer for a specific business location, a copy of the appropriate valid permit, and proof of identification.
The Atlantic Shark Identification Workshops are designed to reduce the number of unknown and improperly identified sharks reported in the dealer reporting form and increase the accuracy of species-specific dealer-reported information. Reducing the number of unknown and improperly identified sharks will improve quota monitoring and the data used in stock assessments. These workshops will train shark dealer permit holders or their proxies to properly identify Atlantic shark carcasses.
Since January 1, 2007, shark limited-access and swordfish limited-access permit holders who fish with longline or gillnet gear have been required to submit a copy of their Protected Species Safe Handling, Release, and Identification Workshop certificate in order to renew either permit (71 FR 58057; October 2, 2006). These certificate(s) are valid for 3 years. As such, vessel owners who have not already attended a workshop and received a NMFS certificate, or vessel owners whose certificate(s) will expire prior to the next permit renewal, must attend a workshop to fish with, or renew, their swordfish and shark limited-access permits. Additionally,
In addition to certifying vessel owners, at least one operator on board vessels issued a limited-access swordfish or shark permit that uses longline or gillnet gear is required to attend a Protected Species Safe Handling, Release, and Identification Workshop and receive a certificate. Vessels that have been issued a limited-access swordfish or shark permit and that use longline or gillnet gear may not fish unless both the vessel owner and operator have valid workshop certificates onboard at all times. Vessel operators who have not already attended a workshop and received a NMFS certificate, or vessel operators whose certificate(s) will expire prior to their next fishing trip, must attend a workshop to operate a vessel with swordfish and shark limited-access permits that uses longline or gillnet gear.
1. April 10, 2013, 9 a.m.-5 p.m., Holiday Inn, 10120 Northwest Federal Highway, Port St. Lucie, FL 34952.
2. April 12, 2013, 9 a.m.-5 p.m., Caesar's Palace, 2100 Pacific Avenue, Atlantic City, NJ 08401.
3. May 1, 2013, 9 a.m.-5 p.m., Princess Royale Oceanside, 9100 Coastal Highway, Ocean City, MD 21842.
4. May 8, 2013, 9 a.m.-5 p.m., Hilton Garden Inn, One Thurber Street/Jefferson Boulevard, Warwick, RI 02886.
5. June 5, 2013, 9 a.m.-5 p.m., Hilton Garden Inn, 5353 North Virginia Dare Trail, Kitty Hawk, NC 27949.
6. June 12, 2013, 9 a.m.-5 p.m., Holiday Inn, 9515 Highway 49, Gulfport, MS 39503.
To register for a scheduled Protected Species Safe Handling, Release, and Identification Workshop, please contact Angler Conservation Education at (386) 682-0158.
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items with them to the workshop:
• Individual vessel owners must bring a copy of the appropriate swordfish and/or shark permit(s), a copy of the vessel registration or documentation, and proof of identification.
• Representatives of a business-owned or co-owned vessel must bring proof that the individual is an agent of the business (such as articles of incorporation), a copy of the applicable swordfish and/or shark permit(s), and proof of identification.
• Vessel operators must bring proof of identification.
The Protected Species Safe Handling, Release, and Identification Workshops are designed to teach longline and gillnet fishermen the required techniques for the safe handling and release of entangled and/or hooked protected species, such as sea turtles, marine mammals, and smalltooth sawfish. In an effort to improve reporting, the proper identification of protected species will also be taught at these workshops. Additionally, individuals attending these workshops will gain a better understanding of the requirements for participating in these fisheries. The overall goal of these workshops is to provide participants with the skills needed to reduce the mortality of protected species, which may prevent additional regulations on these fisheries in the future.
16 U.S.C. 1801
Consumer Product Safety Commission.
Notice.
The Consumer Product Safety Commission (Commission) is announcing that a collection of information entitled Third Party Testing of Children's Products has been approved by the Office of Management and budget (OMB) under the Paperwork Reduction Act of 1995.
Robert H. Squibb, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504-7815, or by email to:
The agency previously announced that a proposed information collection regarding third party testing of children's products had been submitted to OMB for review and clearance under 44 U.S.C. 3501-3520 in the
• May 20, 2010, 75 FR 28336, at 28360-61 (proposed rule on Testing and Labeling Pertaining to Product Certification (testing rule));
• May 20, 2010, 75 FR 28208, at 28217-18 (proposed rule on Conditions and Requirements for Testing Component Parts of Consumer Products);
• November 8, 2011, 76 FR 69586, at 69592-93 (proposed amendment to the testing rule on selecting representative samples for periodic testing).
Final rules for each were published in the
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. OMB has now approved the information collection and has assigned OMB control number 3041-0159. The approval expires on February 29, 2016. A copy of the supporting statement for this information collection is available on the Internet at
Consumer Product Safety Commission.
Notice of availability.
The U.S. Consumer Product Safety Commission (CPSC or Commission) is announcing the availability of a document prepared by CPSC staff titled, “Strong Sensitizer
The guidance document is available from the Commission's Web site at
Joanna Matheson, Ph.D., Project Manager, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone (301) 987-2564;
Elsewhere in this issue of the
Commission staff has prepared a document titled, “Strong Sensitizer Guidelines,” which explains and clarifies each section of the proposed “strong sensitizer” supplemental definition by explaining the current scientific rationale underlying the methodologies and analysis that staff will consider when assessing whether a substance is a strong sensitizer. The CPSC expects that the guidance document will assist manufacturers and other stakeholders in understanding how CPSC staff and the Commission would assess whether a substance or product containing a substance should be considered a “strong sensitizer.” The staff guidance document is available on the Commission's Web site and from the Commission's Office of the Secretary, both listed in the
_______________________________________
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by April 11, 2013.
a. The information required by DFARS subpart 242.11 is used by contract administration offices to monitor contract progress, identify factors that may delay contract performance, and to ascertain potential contract delinquencies.
b. The information required by DFARS 252.242-7004 is used by contracting officers use to determine if contractor material management and accounting systems conform to established DoD standards.
c. The information required by DFARS 252.247-7028, and submitted on DD Form 1659, is used by contract administration offices and transportation officers to provide bills of lading to contractors. This requirement was previously addressed at DFARS 242.1404-2-70, and the related clause at DFARS 252.242-7003. Since the last renewal of this public information collection requirement, DFARS 242.14 has been realigned under DFARS part 247; therefore, when the associated OMB Clearance (No. 0704-0245) for DFARS part 247 is renewed in 2014, the information required by DFARS 252.247-7028 will be included in that renewal request and will not be included in any future renewal requests for DFARS part 242, Contract Administration and Audit Services.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Energy Information Administration (EIA), Department of Energy (DOE).
Agency Information Collection Activities: Submission for OMB Review; Comment Request.
The EIA has submitted the Financial Reporting EIA-28 Survey package to the Office of Management and Budget (OMB) for clearance under the provisions of the Paperwork Reduction Act of 1995. The Financial Reporting System, Form EIA-28 collects data used to analyze the energy industry's competitive environment as well as energy industry resource development, supply distribution, and profitability issues. This is a request to conduct a comprehensive voluntary evaluation of an existing data collection to inform a future redesign of the EIA-28. This future redesign will measure upstream oil and gas costs for exploration and production for U.S. companies' foreign and domestic operations. In order to successfully inform this redesign, EIA will assess the feasibility of collecting and measuring upstream oil and gas costs for exploration and production for U.S. energy companies' foreign and domestic operations. EIA will work to identify the policy goals and data needs of its stakeholders with respect to the collection and measurement of upstream oil and gas costs. The goal of this evaluation is to collect enough data to successfully inform the future redesign of the EIA-28.
Comments must be filed by April 11, 2013. If you anticipate that you will be submitting comments but find it difficult to do so within that period, you should contact the OMB Desk Officer for DOE listed below as soon as possible. The Desk Officer may be telephoned at 202-395-4718 or contacted by email at
Send comments to DOE Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street NW., Washington, DC 20503. To ensure receipt of the comments by the due date, submission by FAX (202-395-7285) or email to
Requests for additional information should be directed to Neal Davis. To ensure receipt of the comments by the due date, submission by FAX (202-586-4420) or email (
This section contains the following information about the energy information collection submitted to OMB for review: (1)
Public Law 93-275 (Federal Energy Administration Act of 1974), 5(a) and 13(a).
Take notice that on February 26, 2013, Arlington Storage Company, LLC (Arlington), Two Brush Creek Boulevard, Kansas City, Missouri 64112, filed in the above referenced docket an application pursuant to section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations, requesting authorization to expand its Seneca Lake natural gas storage facility located in Schuyler County, New York, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The project, referred to as the “Gallery 2 Expansion Project,” will involve converting two existing interconnected bedded salt caverns (collectively known as “Gallery 2”), previously used for propane storage, and related facilities to natural gas storage. The addition of
Any questions concerning this application may be directed to James F. Bowe, Jr., King & Spalding LLP, 1700 Pennsylvania Avenue NW., Suite 200, Washington, DC 20006, by telephone at (202) 626-9601, by facsimile at (202) 626-3737, or by email at
Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Motions to intervene, protests and comments may be filed electronically via the internet in lieu of paper; see, 18 CFR 385.2001(a) (1) (iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following 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 5:00 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 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 on March 4, 2013, pursuant to section 210(h)(2)(A) 292.304 of the Public Utility Regulatory Policies Act of 1978 (PURPA) and Rule 206 of the Rules of Practice and Procedures of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206, Welch Motel, Inc., Welch Oil, Inc., Boondocks USA Truck Stop, and Bob Welch (collectively, Complainants) filed a complaint against Midland Power Cooperative (Midland) and Corn Belt Power Cooperative (collectively, Respondents) requesting that the Commission issue an order (1) Allowing the Complainants to enter into a contract to consume all of the electric energy and capacity generated by
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will discuss the environmental impacts of the Lavaca Bay LNG Project involving construction and operation of facilities by Excelerate Liquefaction Solutions I, LLC (ELS I) and Lavaca Bay Pipeline System, LLC (LBPS) (collectively referred to as ELS) in Calhoun and Jackson Counties, Texas. The Commission will use this EIS 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 EIS. Please note that the scoping period will close on April 4, 2013.
You may submit comments in written form or verbally. Further details on how to submit written comments are in the Public Participation section of this notice. In lieu of or in addition to sending written comments, the Commission invites you to attend the public scoping meeting scheduled as follows: FERC Public Scoping Meeting, Lavaca Bay LNG Project, March 21, 2013, 7:00 p.m. local time, Bauer Community Center, 2300 Texas 35, Port Lavaca, TX 77979, (361) 552-1234.
The project applicants will be available at the same location starting at 6:00 p.m. to answer questions.
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 planned 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 planned 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.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
The FERC is the lead federal agency in preparing the EIS to satisfy the requirements of the National Environmental Policy Act (NEPA). The U.S. Department of Energy (DOE), Office of Fossil Energy, has agreed to participate as a cooperating agency in the preparation of the EIS to satisfy its NEPA responsibilities.
Under section 3 of the Natural Gas Act of 1938, as amended (NGA), 15 U.S.C. 717b, DOE would authorize the export of natural gas, including liquefied natural gas (LNG), to countries with which the United States has not entered into a free trade agreement providing for national treatment for trade in natural gas, unless it finds that the proposed export will not be consistent with the public interest. For the Project, the purpose and need for DOE action is to respond to ELS I's application filed with DOE on October 5, 2012 (FE Docket No. 12-146-LNG), seeking authorization to export up to 10 million metric tons (equivalent to 1.33 billion standard cubic feet per day) of domestic natural gas as LNG for a 20-year period from the proposed ELS facilities in Calhoun County, Texas, commencing the earlier of the date of first export or seven years from the date that the requested authorization is issued. DOE authorization of ELS' application would allow the export of LNG to any country: (1) With which the United States does not have a free trade agreement requiring the national treatment for trade in natural gas; (2) that has, or in the future develops, the capacity to import LNG; and (3) with which trade is not prohibited by U.S. law or policy.
ELS plans to develop, construct, and operate liquefied natural gas terminal facilities that include two purpose-built floating liquefaction, storage, and offloading units (FLSOs) and a 29-mile-long pipeline header system to transport natural gas from existing pipeline systems to the LNG terminal facilities. The Project would be constructed in two phases: Phase 1 would include a single FLSO with a storage capacity of about 250,000 cubic meters (m
The Lavaca Bay LNG Project would consist of the following facilities:
In addition, ELS would deepen and widen the Matagorda Ship Channel to a depth of −44 feet mean low tide and a channel bottom width up to 300 feet.
• A 29-mile-long, 42-inch-diameter natural gas pipeline extending northward from the shoreside facilities to nine natural gas interconnects southwest of Edna, Texas.
The general location of the project facilities is shown in appendix 1.
The planned LNG terminal facilities (i.e., marine and shoreside facilities) would be constructed on about 85 acres of land. Of this amount, about 45 acres includes existing uplands and the remaining 40 acres would be created using dredge spoil from construction of the turning basin and two berthing pockets. Construction of the pipeline header system would require about 327 acres of land for construction and 164 acres for operation. The Project would also require approximately 150 additional acres for temporary use for construction laydown/staging areas and parking areas.
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 EIS we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• Water resources, fisheries, and wetlands;
• Vegetation and wildlife;
• Endangered and threatened species;
• Cultural resources;
• Land use;
• Socioeconomics;
• Air quality and noise;
• Reliability and safety;
• Engineering and design material; and
• Cumulative environmental impacts.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the FERC receives an application. As part of our pre-filing review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the EIS.
The EIS will present our independent analysis of the issues. We will publish and distribute the draft EIS for public comment. After the comment period, we will consider all timely comments and revise the document, as necessary, before issuing a final EIS. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section beginning on page 7.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate with us in the preparation of the EIS
In accordance with the Advisory Council on Historic Preservation's
We have already identified several issues that we think deserve attention based on a preliminary review of the planned facilities and the environmental information provided by ELS. This preliminary list of issues may change based on your comments and our analysis. Issued identified include:
• Potential impacts on recreational fishing and aquatic resources in the Matagorda Ship Channel;
• Potential impacts to fish and wildlife habitat, including potential impacts to federally and state-listed threatened and endangered species;
• Potential impacts and potential benefits of construction workforce on local housing, infrastructure, public services, and economy;
• Potential visual effects on surrounding areas; and
• Public safety and hazards associated with the liquefaction and transport of LNG.
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 April 4, 2013. This is not your only public input opportunity; please refer to the Environmental Review Process flowchart in appendix 2.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances, please reference the project docket number (PF13-1-000) 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 eComment feature located on the Commission's Web site (
(2) You can file your comments electronically using the eFiling feature located on the Commission's Web site (
(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 planned project.
Copies of the completed draft EIS will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 3).
Once ELS files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site. Please note that the Commission will not accept requests for intervenor status at this time. You must wait until the Commission receives a formal application for the project.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that on March 1, 2013, pursuant to section 211A of the Federal Power Act,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on March 1, 2013, the Bonneville Power Administration filed a proposed tariff amendment as a revision to the Open Access Transmission Tariff.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding, of Palmco Power CA, 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 March 25, 2013.
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 March 4, 2013, pursuant to section 210(h) of the Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. 824a-3(h)(2006), Interconnect Solar Development LLC filed a Petition for Enforcement, requesting the Federal Energy Regulatory Commission (Commission) to initiate enforcement action against the Idaho Public Utilities Commission and Idaho Power; find that their actions violated PURPA; and to take any action deemed necessary to enforce the requirements of PURPA.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Federal Energy Regulatory Commission (Commission) staff will hold a technical conference focused on natural gas and electric scheduling, and issues related to whether and how natural gas and electric industry schedules could be harmonized in order to achieve the most efficient scheduling systems for both industries. The technical conference will take place on April 25, 2013 beginning at 9:00 a.m. and ending at approximately 5:00 p.m. The conference will be held at the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. All interested persons are invited to attend the conference. Commission members may participate in the conference.
Following a series of regional technical conferences conducted in August 2012, the Commission issued an order directing further conferences and reports in the above captioned docket on November 15, 2012.
The conference will explore whether and how to achieve more efficient scheduling practices for the two industries. The conference will consider whether changes should be made to provide additional scheduling flexibility, including suggestions raised by stakeholders such as whether to increase the number of nomination opportunities, eliminate or change the interruptible “no-bump” rule, and/or provide enhanced ability for customers to schedule real-time gas transfers/sales or intraday capacity release transactions. The conference also will explore coordination of gas and electric scheduling, including: whether the establishment of a single “energy day” is desired and would be beneficial and how the scheduling leading up to that day could be efficiently sequenced; how to manage difficulties scheduling gas in the evenings and for weekends and holidays; whether it is preferable for electric scheduling to be done before or after gas and transportation scheduling; and whether technological advances permit a reduction in the time between the electric bid or pipeline nomination and when they are scheduled. Lastly, the conference also will explore whether these suggestions or any other options would allow for more efficient use of existing infrastructure by both gas generators and other customers.
Those interested in speaking at the technical conference should notify the Commission by March 15, 2013 by completing the online form at the following Web page:
The 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 technical conference, but not participate. Anyone with Internet access who wants to listen to the conference can do so by navigating to
Notice is also hereby given that the discussions at the conference may address matters at issue in the following Commission proceeding(s) that are either pending or within their rehearing period: ISO New England Inc., Docket No. ER13-895-000.
Information on the technical conference 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 the technical conference, please contact:
Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget (OMB) responses to Agency Clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et. seq.). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Rick Westlund (202) 566-1682, or email at
EPA ICR Number 1463.09; National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (Renewal); 40 CFR 300.430 and 300.435; was approved on 02/01/2013; OMB Number 2050-0096; expires on 02/29/2016; Approved without change. EPA ICR Number 1571.10; General Hazardous Waste Facility Standards (Renewal); 40 CFR 264.12, 264.13(a) and (c), 264.15(d), 264.16(d) and (e), 264.17(c), 264.37(b), 264.53, 264.54, 264.56(a), (d), (i), and (j), 264.73(a) and (b), 264.74, 264.96, 264.97(g), 264.101(b) and (c), 264.113(a), (b) and (d), 264.115, 264.116, 264.119(a) and (b), 264.120, 264.142(b) and (d), 264.143, 264.144(b), (c) and (d), 264.145, 264.147, 264.148, 264.151, 264.174, 264.193(i), 264.195, 264.226(a) and (b), 264.279, 264.303(a) and (b), 264.309, 264.347, 264.574, 265.12, 265.13(a), (b) and (c), 265.15(b) and (d), 265.16(d) and (e), 265.19(b) and (d), 265.51, 265.52, 265.53, 265.54, 265.56, 265.73(a) and (b), 265.74, 265.112, 265.113(a), (b) and (d), 265.115, 265.116, 265.118, 265.119, 265.120, 265.142, 265.143, 265.144, 265.145, 265.147, 265.148, 265.149, 265.150, 265.174, 265.193, 265.195, 265.197(c), 265.200, 265.225, 265.226, 265.260, 265.273, 265.279, 265.341, 265.347, 265.377, 265.403, 265.444, 265.445, 266.80(b), 268.4(a)(2), 270.30(i), (j), (k) and (l); was approved on 02/04/2013; OMB Number 2050-0120; expires on 02/29/2016; Approved without change.
EPA ICR Number 1128.10; NSPS for Secondary Lead Smelters; 40 CFR part 60 subparts A and L; was approved on 02/04/2013; OMB Number 2060-0080; expires on 02/29/2016; Approved without change.
EPA ICR Number 0976.16; 2013 Hazardous Waste Report, Notification of Regulated Waste Activity, and Part A Hazardous Waste Permit Application and Modification (Revision); 40 CFR 262.12, 262.40, 262.41, 262.75, 263.11, 264.1, 264.11, 264.75, 265.1, 265.22, 265.75, 266.21, 266.23, 266.70, 266.80, 266.100, 266.108, 270.1, 270.11, 270.13, 270.30, 270.70, 270.72, 273.32, 273.60, 279.42, 279.62, and 279.73; was approved on 02/08/2013; OMB Number 2050-0024; expires on 12/31/2014; Approved without change.
EPA ICR Number 2357.04; Regulations.gov Exchange Information Collection; was approved on 02/08/2013; OMB Number 2025-0008; expires on 02/29/2016; Approved without change.
EPA ICR Number 0277.16; Application for New and Amended Pesticide Registration (Renewal); 40 CFR part 158; was approved on 02/14/2013; OMB Number 2070-0060; expires on 02/29/2016; Approved with change.
EPA ICR Number 1130.10; NSPS for Grain Elevators; 40 CFR part 60 subparts A and DD; was approved on 02/15/2013; OMB Number 2060-0082; expires on 02/29/2016; Approved with change.
EPA ICR Number 1093.10; NSPS for Surface Coating of Plastic Parts for Business Machines; 40 CFR part 60 subparts A and TTT; was approved on 02/25/2013; OMB Number 2060-0162; expires on 02/29/2016; Approved without change.
EPA ICR Number 2177.05; NSPS for Stationary Combustion Turbines; 40 CFR part 60 subparts A and KKKK; was approved on 02/25/2013; OMB Number 2060-0582; expires on 02/29/2016; Approved without change.
EPA ICR Number 1900.05; NSPS for Small Municipal Waste Combustors; 40
EPA ICR Number 2078.05; EPA's ENERGY STAR Product Labeling (Renewal); was approved on 02/25/2013; OMB Number 2060-0528; expires on 02/29/2016; Approved with change.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before April 11, 2013.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2012-0659, to: (1) EPA online, using
Learia Williams, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 564-4113; fax number: (202) 564-0050; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On October 17, 2012 (77 FR 63813), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to both EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2012-0659, which is available for either public viewing online at
Use EPA's electronic docket and comment system at
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative.
There is an increase in respondent labor hours due to revisions in the
There is an increase in the total O&M costs for industry respondents. This increase is due to a mathematical error identified in the previous ICR and is not due to changes in the individual O&M costs or the number of corresponding respondents.
Federal Communications Commission.
Notice of public meeting cancellation and reschedule.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) meeting that was scheduled for March 6, 2013 is rescheduled for March 14, 2013 from 1:00-5:00 p.m. EDT due to a snowstorm predicted for the Mid-Atlantic region on March 6, 2013. The agenda for the meeting remains the same; Working Groups on Next Generation Alerting, E9-1-1 Location Accuracy, Network Security Best Practices, DNSSEC Implementation Practices for ISPs, Secure BGP Deployment, Botnet Remediation, Alerting Issues Associated with CAP Migration, 9-1-1 Prioritization, and Consensus Cybersecurity Controls will be presenting final reports for a vote by the Council.
The meeting that was scheduled for March 6, 2013 is rescheduled for March 14, 2013.
Federal Communications Commission, Room TW-C305 (Commission Meeting Room), 445 12th Street SW., Washington, DC 20554.
Jeffery Goldthorp, Designated Federal Officer, (202) 418-1096 (voice) or
The meeting on March 6, 2013, is cancelled due to weather and rescheduled for March 14, 2013, in the Commission Meeting Room of the Federal Communications Commission, Room TW-C305, 445 12th Street SW., Washington, DC 20554. The start time for the rescheduled meeting will be posted on the CSRIC Web site at
The CSRIC is a federal advisory committee that will provide recommendations to the FCC regarding best practices and actions the FCC can take to ensure the security, reliability, and interoperability of communications systems. On March 19, 2011, the FCC, pursuant to the Federal Advisory Committee Act, renewed the charter for the CSRIC for a period of two years through March 18, 2013. Working Groups are described in more detail at
The FCC will attempt to accommodate as many attendees as possible; however, admittance will be limited to seating availability. The Commission will provide audio and/or video coverage of the meeting over the Internet from the FCC's Web page at
Federal Communications Commission.
Notice.
In this document, the Commission seeks public comment on state applications for renewal of the certification of their state TRS programs pursuant to Title IV of the Americans with Disabilities Act (ADA).
Comments are due on or before March 15, 2013, and reply comments are on or before March 29, 2013.
You may submit comments, identified by CG Docket No. 03-123 and the relevant state identification number of the state application that is being comment upon, by any of the following methods: Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS), through the Commission's Web site
• Paper filers: Parties who choose to file by paper must file an original and one copy of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand
• Commercial Mail sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th St. SW., Washington, DC 20554.
Dana Wilson, Consumer and Governmental Affairs Bureau, Disability Rights Office, at (202) 418-2247, or email
This is a summary of the Commission's document DA 13-275. Pursuant to 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the dates indicated in the Dates section. The full text of document DA 13-275, copies of applications for certification, and subsequently filed documents in this matter are available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th St. SW., Room CY-A257, Washington, DC 20554. Document DA 13-275 also is available on the Commission's Web site at:
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
Notice is hereby given that the states listed below have applied to the Commission for renewal of the certification of their state telecommunications relay service (TRS) programs pursuant to Title IV of the ADA, 47 U.S.C. 225, and the Commission's rules, 47 CFR 64.601-605. Current state certifications expire July 25, 2013. A state's applications for certification, covering the five year period from July 26, 2013 to July 25, 2018, must demonstrate that the state TRS program complies with section 225 and the Commission's rules governing the provision of TRS. This notice seeks public comment on the following state applications for certification:
Federal Trade Commission.
Notice and request for comment.
The Federal Trade Commission (FTC or Commission) plans to conduct an online survey of parents and (with parental permission) their children from the ages of 8-16 years old who watch movies, listen to music, and/or play game applications (apps) on smartphones, Internet-accessible handheld devices, or tablet computers (collectively app-capable mobile devices) that run either the Apple's iOS or Google's Android operating system. This is the second of two notices required under the Paperwork Reduction Act (PRA), and the Commission seeks additional public comments and requests Office of Management and Budget (OMB) review of, and clearance for, the proposed collection of information.
Comments must be received by April 11, 2013.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Requests for additional information or copies of the proposed information requirements should be addressed to Keith Fentonmiller, (202) 326-2775, Attorney, Federal Trade Commission, Bureau of Consumer Protection, Division of Advertising Practices, 600 Pennsylvania Ave. NW., Washington, DC 20580.
On September 24, 2012, the Commission sought comment on the information collection requirements for the proposed consumer research. 77 FR 58834. No comments were received. Staff, however, did have a telephone discussion about the proposed survey with representatives from the Entertainment Software Rating Board (ESRB). The ESRB expressed concern that the Commission was planning to survey only children, in contrast to prior surveys, which asked questions of both children and their parents. After further consideration, the Commission has decided to expand the online survey to include the parents of children who watch movies, listen to music, and/or play game apps on mobile devices. As required by OMB regulations, 5 CFR part 1320, the FTC is providing this second opportunity for public comment.
This online survey will build upon the body of consumer research that the Commission has conducted in the media violence area since 2000, which includes seven undercover shops by children of music, movie, and video game retailers and movie theaters; two telephone surveys of parents and children about their awareness and use of the entertainment rating and labeling systems;
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•
The cost per respondent should be negligible. Participation is voluntary, and will not require any labor expenditures by respondents. There are no capital, start-up, operation, maintenance, or other similar costs to the respondents.
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information * * * which is privileged or confidential.”
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online, or to send them to the Commission by courier or overnight service. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Entertainment Industry Study: FTC File No. P994511” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex J), 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
Comments on the information collection requirements subject to review under the PRA should also be submitted to OMB. If sent by U.S. mail, address comments to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395-5167.
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary(OS), Department of Health and Human Services, announces plans to submit a new Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting that ICR to OMB, OS seeks comments from the
Comments on the ICR must be received on or before May 13, 2013.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS-OS-19060-60D for reference.
OS specifically requests comments on (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). At least one portion of the meeting will be closed to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Gail Dapolito at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the National Institute of Mental Health Special Emphasis Panel, March 28, 2013 from 01:00 p.m. to—04:30 p.m., National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 which was published in the
This meeting is being rescheduled due to pending deadlines. The meeting will be held one day earlier, March 27th from 1:00 p.m.-4:30 p.m. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Institute of Mental Health Special Emphasis Panel, March 28, 2013, 08:00 a.m. to March 28, 2013, 06:00 p.m., Hotel Palomar, 2121 P Street NW., Washington, DC, 20037 which was published in the
This meeting is being rescheduled due to pending deadlines. The meeting will be held one day earlier, March 27th 8 a.m.-6 p.m., at the Hotel Palomar. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
This document provides notice of the existence of a computer matching program between the Department of Homeland Security, U.S. Citizenship and Immigration Services and the New York Department of Labor.
The Department of Homeland Security/U.S. Citizenship and Immigration Services provides this notice in accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) and the Computer Matching and Privacy Protection Amendments of 1990 (Pub. L. 101-508) (Privacy Act); Office of Management and Budget (OMB) Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988, 54 FR 25818 (June 19, 1989); and OMB Circular A-130, Appendix I, 65 FR 77677 (December 12, 2000).
NY-DOL seeks access to the information contained in the DHS/USCIS VIS database, for the purpose of confirming the immigration status of alien applicants for, or recipients of, the benefits it administers, in order to discharge its obligation to conduct such verifications pursuant to Section 1137 of the Social Security Act, 42 U.S.C. 1320b-7 and to New York Unemployment Insurance Law, Article 18, Title 7, Section 590.
NY-DOL will provide the following to DHS/USCIS: NY-DOL records pertaining to alien applicants for, or recipients of entitlement benefit programs administered by the State.
NY-DOL will match the following records with DHS/USCIS records:
DHS/USCIS will match the following records with NY-DOL records:
For general questions please contact: Janice M. Jackson (202-443-0109), Acting Privacy Branch Chief, U.S. Citizenship and Immigration Services, Department of Homeland Security, 131 M Street NE., Suite 200, Washington, DC 20529.
For privacy questions please contact: Jonathan R. Cantor (202-343-1717), Acting Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
Department of Homeland Security/U.S. Citizenship and Immigration Services.
Notice.
This document provides notice of the existence of a computer matching program between the Department of Homeland Security/U.S. Citizenship and Immigration Services and the Texas Workforce Commission.
The Department of Homeland Security/U.S. Citizenship and Immigration Services provides this notice in accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) and the Computer Matching and Privacy Protection Amendments of 1990 (Pub. L. 101-508) (Privacy Act); Office of Management and Budget (OMB) Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy
TWC seeks access to the information contained in DHS-USCIS VIS database for the purpose of confirming the immigration status of alien applicants for, or recipients of, the benefits it administers, in order to discharge its obligation to conduct such verifications pursuant to Section 1137 of the Social Security Act, 42 U.S.C. 1320b-7 and to Texas Labor Code Section 207.043.
TWC will provide the following to DHS-USCIS: TWC records pertaining to alien applicants for, or recipients of entitlement benefit programs administered by the State.
TWC will match the following records with DHS/USCIS records:
• Alien Registration Number
• I-94 Number
• Last Name
• First Name
• Middle Name
• Date of Birth
• Nationality
• Social Security Number
DHS/USCIS will match the following records with TWC records:
• Alien Registration Number
• Last Name
• First Name
• Middle Name
• Date of Birth
• Country of Birth (not nationality)
• Social Security Number (if available)
• Date of Entry
• Immigration Status Data
• Employment Eligibility Data
For general questions please contact:
For privacy questions please contact:
Department of Homeland Security/U.S. Citizenship and Immigration Services.
Notice.
This document provides notice of the existence of a computer matching program between the Department of Homeland Security/U.S. Citizenship and Immigration Services and the California Department of Health Care Services.
The Department of Homeland Security/U.S. Citizenship and Immigration Services provides this notice in accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) and the Computer Matching and Privacy Protection Amendments of 1990 (Pub. L. 101-508) (Privacy Act); Office of Management and Budget (OMB) Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988, 54 FR 25818 (June 19, 1989); and OMB Circular A-130, Appendix I, 65 FR 77677 (December 12, 2000).
CA-DHCS seeks access to the information contained in the DHS/USCIS VIS database for the purpose of confirming the immigration status of alien applicants for, or recipients of, the benefits it administers, in order to discharge its obligation to conduct such verifications pursuant to Section 1137 of the Social Security Act, 42 U.S.C. 1320b-7, and California Welfare and Institutions Code §§ 1104.1, 14007.5, and 14011.2.
CA-DHCS will provide the following to DHS/USCIS: CA-DHCS records pertaining to alien applicants for, or recipients of, entitlement benefit programs administered by the State.
CA-DHCS will match the following records with DHS/USCIS records:
DHS/USCIS will match the following records with CA-DHCS records:
For general questions please contact:
For privacy questions please contact:
Department of Homeland Security/U.S. Citizenship and Immigration Services.
Notice.
This document provides notice of the existence of a computer matching program between the Department of Homeland Security/U.S. Citizenship and Immigration Services and the New Jersey Department of Labor and Workforce Development.
The Department of Homeland Security/U.S. Citizenship and Immigration Services provides this notice in accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) and the Computer Matching and Privacy Protection Amendments of 1990 (Pub. L. 101-508) (Privacy Act); Office of Management and Budget (OMB) Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988, 54 FR 25818 (June 19, 1989); and OMB Circular A-130, Appendix I, 65 FR 77677 (December 12, 2000).
NJ-LWD seeks access to the information contained in the DHS/USCIS VIS database for the purpose of confirming the immigration status of alien applicants for, or recipients of, the benefits it administers, in order to discharge its obligation to conduct such verifications pursuant to Section 1137 of the Social Security Act, 42 U.S.C. 1320b-7, and to New Jersey Statute 43:2.
NJ-LWD will provide the following to DHS/USCIS: NJ-LWD records pertaining to alien applicants for, or recipients of, entitlement benefit programs administered by the State.
NJ-LWD will match the following records with DHS/USCIS records:
• Alien Registration Number
• I-94 Number
• Last Name
• First Name
• Middle Name
• Date of Birth
• Nationality
• Social Security Number
DHS/USCIS will match the following records with NJ-LWD records:
• Alien Registration Number
• Last Name
• First Name
• Middle Name
• Date of Birth
• Country of Birth (not nationality)
• Social Security Number (if available)
• Date of Entry
• Immigration Status Data
• Employment Eligibility Data
For general questions please contact:
For privacy questions please contact:
Department of Homeland Security/U.S. Citizenship and Immigration Services.
Notice.
This document provides notice of the existence of a computer matching program between the Department of Homeland Security/U.S. Citizenship and Immigration Services and the Massachusetts Division of Unemployment Assistance.
The Department of Homeland Security/U.S. Citizenship and Immigration Services provides this notice in accordance with The Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) and the Computer Matching and Privacy Protection Amendments of 1990 (Pub. L. 101-508) (Privacy Act); Office of Management and Budget (OMB) Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988, 54 FR 25818 (June 19, 1989); and OMB Circular A-130, Appendix I, 65 FR 77677 (December 12, 2000).
MA-DUA seeks access to the information contained in DHS/USCIS VIS database for the purpose of confirming the immigration status of alien applicants for, or recipients of, the benefits it administers, in order to discharge its obligation to conduct such verifications pursuant to Section 1137 of the Social Security Act, 42 U.S.C. 1320b-7, and to Mass. Gen. Laws ch. 151A, § 25(h).
MA-DUA will provide the following to DHS/USCIS: MA-DUA records pertaining to alien applicants for, or recipients of entitlement benefit programs administered by the State.
MA-DUA will match the following records with DHS-USCIS records:
• Alien Registration Number
• 1-94 Number
• Last Name
• First Name
• Middle Name
• Date of Birth
• Nationality
• Social Security Number
DHS-USCIS will match the following records with MA-DUA records:
• Alien Registration Number
• Last Name
• First Name
• Middle Name
• Date of Birth
• Country of Birth (not nationality)
• Social Security Number (if available)
• Date of Entry
• Immigration Status Data
• Employment Eligibility Data
For general questions please contact:
For privacy questions please contact:
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on an extension, without change, of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the Hazard Mitigation Grant Program application and reporting requirements.
Comments must be submitted on or before May 13, 2013.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Cecelia Rosenberg, Chief, Grants Policy Branch, Mitigation Division, (202) 646-3321. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 646-3347 or email address:
Section 404 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5170c, established the Hazard Mitigation Grant Program. Grant requirements and grants management procedures of the program are outlined in 44 C.F.R. Part 13 and 206 Subpart N. Grantees administer the HMGP, which is a post-disaster program that contributes funds toward the cost of hazard mitigation activities in order to reduce the risk of future damage, hardship, loss or suffering in any area affected by a major disaster. Grantees are defined as any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands, or an Indian tribal government that chooses to act as a grantee.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Mississippi (FEMA-4101-DR), dated February 13, 2013, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Mississippi is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of February 13, 2013.
Greene and Perry Counties for Individual Assistance.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered or threatened species. With some exceptions, the Endangered Species Act of 1973, as amended (Act), prohibits activities with endangered and threatened species unless a Federal permit allows such activity. The Act requires that we invite public comment before issuing these permits.
To ensure consideration, please send your written comments by April 11, 2013.
You may submit comments or requests for copies or more information by any of the following methods. Alternatively, you may use one of the following methods to request hard copies or a CD-ROM of the documents. Please specify the permit you are interested in by number (e.g., Permit No. TE-052582).
•
•
•
Kathy Konishi, Permit Coordinator Ecological Services, (303) 236-4212 (phone);
The Act (16 U.S.C. 1531
A permit granted by us under section 10(a)(1)(A) of the Act authorizes you to conduct activities with United States endangered or threatened species for scientific purposes, enhancement of propagation or survival, or interstate commerce (the latter only in the event that it facilitates scientific purposes or enhancement of propagation or survival). Our regulations implementing section 10(a)(1)(A) for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
We invite local, State, and Federal agencies, and the public to comment on the following applications. Documents and other information the applicant has submitted are available for review, subject to the requirements of the Privacy Act (5 U.S.C. 552a) and Freedom of Information Act (5 U.S.C. 552).
The applicant requests a permit to take (harass by survey) Indiana bat (
The applicant requests a permit to take (harass by survey) black-footed ferret (
The applicant requests renewal of an existing permit and an amendment to take black-footed ferret (
The applicant requests a permit to take (capture, handle, release) pallid sturgeon (
The applicant requests renewal of a permit to take Southwestern willow flycatcher (
In compliance with the National Environmental Policy Act (42 U.S.C. 4321
All comments and materials we receive in response to this request will be available for public inspection, by appointment, during normal business hours at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice.
Under the Endangered Species Act (Act), we, the U.S. Fish and Wildlife Service, announce the receipt and availability of a revised habitat conservation plan (revised HCP) and accompanying documents for wind energy development by San Francisco Wind Farm LLC (formerly WindMar R.E.) (Permittee). The revised HCP analyzes take of Puerto Rican crested toad (
We must receive any written comments at our Regional Office (see
Documents are available for public inspection by appointment during normal business hours at the Fish and Wildlife Service's Regional Office, 1875 Century Boulevard, Suite 200, Atlanta, GA 30345; or at the Caribbean Ecological Services Field Office, Fish and Wildlife Service, Road 301, Km. 5.1, Boquerón, PR 00622.
Mr. David Dell, Regional HCP Coordinator (see
We announce the availability of the revised HCP and supplemental environmental assessment (Supplemental EA), which analyzes the take of the threatened Puerto Rican crested toad. The Service previously advertised (71 FR 951), and issued in September 2006, TE104073 as a 40-year ITP authorizing incidental take of Puerto Rican nightjar (
The Permittee requests an amendment for the remaining term of the ITP under section 10(a)(1)(B) of the Act (16 U.S.C. 1531 et seq.), as amended. The Permittee's revised HCP describes the mitigation and minimization measures proposed to address the impacts to the Puerto Rican crested toad within the Punta Ventana section of the covered area.
We specifically request information, views, and opinions from the public via this notice on our proposed Federal action, including identification of any other aspects of the human environment not already identified in the supplemental EA pursuant to National Environmental Policy Act (NEPA) regulations in the Code of Federal Regulations (CFR) at 40 CFR 1506.6. Further, we specifically solicit information regarding the adequacy of the revised HCP per 50 CFR parts 13 and 17.
The supplemental EA assesses the likely environmental impacts associated with the implementation of the activities and proposed amendments, including the environmental consequences of the no-action alternative and the proposed action. The proposed action alternative is amendment of the ITP and implementation of the revised HCP as submitted by the Permittee. The revised HCP evaluates potential take of the Puerto Rican crested toad and presents conservation measures needed to add incidental take authority for this species to previously authorized incidental take associated with wind energy development.
Avoidance, minimization and mitigation measures include, but are not limited to: monitor Puerto Rican crested toad breeding events in order to adapt work plans and timing of covered activities while implementing measures to avoid and minimize take of dispersing toads and toadlets; install
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If you wish to comment, you may submit comments by any one of several methods. Please reference TE104073 in such comments. You may mail comments to the Fish and Wildlife Service's Regional Office (see
Finally, you may hand-deliver comments to either of our offices listed under
The ITP covers a 290-ha (725-acre) wind generation facility including up to 25 turbines in Guayanilla, Puerto Rico. Puerto Rican crested toads have been observed in the Punta Ventana portion of the project. The Permittee proposes installation and operation of eight wind turbines in Punta Ventana over 79 ha (195 acres) that would affect about 5.1 ha (12.6 acres) of dry forest habitat. The revised HCP includes the site plan for the project and detailed information on the areas within Punta Ventana that would be affected by the construction and operation turbine sites, connecting roads, staging areas and connection to a substation.
We will evaluate the ITP amendment application, including the revised HCP and any comments we receive, to determine whether the amendment application meets the requirements of section 10(a)(1)(B) of the Act. We will also evaluate whether amendment of the section 10(a)(1)(B) ITP complies with section 7 of the Act by conducting an intra-Service section 7 consultation. We will use the results of this consultation, in combination with the above findings, in our final analysis to determine whether or not to amend the ITP. If we determine that the requirements are met, we will amend the ITP to include the Puerto Rican crested toad as a covered species for incidental take.
We provide this notice under section 10 of the Act (16 U.S.C. 1531 et seq.) and NEPA regulations (40 CFR 1506.6).
Bureau of Indian Affairs, Interior.
Notice of Approved Tribal—State Class III Gaming Compact.
This notice publishes an extension of the gaming compact between the Rosebud Sioux Tribe and the State of South Dakota.
Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under Section 11 of the Indian Gaming Regulatory Act of 1988, 25 U.S.C. 2710(d)(3)(B), the Secretary of the Interior shall publish in the
National Park Service, Interior.
Notice of Availability.
The National Park Service (NPS) announces the availability of the Final General Management Plan/Environmental Impact Statement (GMP/EIS) for Effigy Mounds National Monument (EFMO), Iowa.
The Final GMP/EIS will remain available for public review for 30 days following the publishing of the Notice of Availability in the
Copies of the Final GMP/EIS are available to the public by request by writing to the Superintendent, Effigy Mounds National Monument, 151 Highway 76, Harpers Ferry, Iowa 52146. The document is available on the internet at the NPS Planning, Environment, and Public Comment Web site at
Superintendent Jim Nepstad, Effigy Mounds National Monument, 151 Highway 76, Harpers Ferry, Iowa, at (563) 873-3491.
We, the NPS, have developed this GMP/EIS to guide the management of EFMO for the next 25 years. The Draft GMP/EIS considered three draft conceptual alternatives—a no-action and two action alternatives, including the NPS preferred alternative. The Draft GMP/EIS assessed impacts to cultural resources (archeological, landscapes, ethnographic resources, and museum collections), to natural resources (soils, wild and scenic rivers, vegetation, fish and wildlife, special status species, and visual resources/viewsheds), to visitor use and experience, to the socioeconomic environment, and to EFMO operations and facilities.
The preferred alternative in both the Draft GMP/EIS and Final GMP/EIS focuses on providing an enhanced visitor experience with increased understanding of EFMO while protecting and preserving natural and cultural resources. The desired visitor experience would be to make personal connections to EFMO's tangible resources through understanding of the
New construction of facilities and trails at EFMO would be minimal under the preferred alternative. Using the direction provided in this plan, specific locations of trails in the Heritage Addition would be identified in a subsequent trail development plan. This plan envisions a small visitor contact station at the Sny Magill unit within an expanded boundary area. Once this land is acquired, subsequent site development planning would determine location and design of the station as well as of redesigned trails for Sny Magill.
This document was received by the Office of the Federal Register on March 7, 2013.
60-Day Notice.
The Department of Justice (DOJ), Justice Management Division, Office of Attorney Recruitment and Management (OARM), 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. Comments are encouraged and will be accepted for 60 days until May 13, 2013. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the U.S. Department of Justice, Office of Attorney Recruitment and Management, 450 5th Street NW., Suite 10200, Attn: Deana Willis, 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) 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 agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(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, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6) An estimate of the total public burden (in hours) associated with the collection: The estimated revised total annual public burden associated with this application is 5167 hours.
If additional information is required, please contact Jerri Murray, Department Clearance Officer, U.S. Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3W-1407B, Washington, DC 20530.
On February 22, 2013, the Department of Justice lodged a proposed third modification to a consent decree with the United States District Court for the Southern District of Ohio in the lawsuit entitled
Under a 2007 consent decree, American Electric Power Service Corp., et al. (“AEP”) agreed to substantially reduce sulfur dioxide (SO
Under the third modification that was lodged on February 22, 2013, in exchange for providing AEP an extension of time for the installation of FGD technology on Units 1 and 2 at the Rockport Plant, AEP agrees to the following: (1) To install interim emission controls that will begin to reduce SO
The publication of this notice opens a period of public comment on the third modification. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the third modification may be examined and downloaded at this Department of Justice Web site:
Please enclose a check in the amount of $7.50 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) titled, “Occupational Code Assignment,” 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 April 11, 2013.
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, http://www.reginfo.gov/public/do/PRAMain, on the day following publication of this notice or by contacting Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or sending an email to
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503, Fax: 202-395-6881 (this is not a toll-free number), 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).
Information collected on the Occupational Code Assignment Form (Form ETA-741) is necessary to help occupational information users relate an occupational specialty or job title to an occupational code and title within the framework of the Occupational Information Network. The form helps provide occupational codes for jobs where duties have changed to the extent that the published information is no longer appropriate or the user is unable to classify the job on his or her own.
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 that 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,
Employment and Training Administration, Department of Labor.
Notice.
The Employment and Training Administration (ETA) of the Department of Labor (Department) is issuing this Notice to announce (1) the allowable charges for 2013 that employers seeking H-2A workers may charge their workers when the employer provides three meals a day, and (2) the maximum travel subsistence meal reimbursement that a worker with receipts may claim in 2013. The Notice also includes a reminder regarding employers' obligations with respect to overnight lodging costs as part of required subsistence.
William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification (OFLC), U.S. Department of Labor, Room C-4312, 200 Constitution Avenue NW., Washington, DC 20210. Telephone: 202-693-3010 (this is not a toll-free number).
The United States (U.S.) Citizenship and Immigration Services of the Department of Homeland Security will not approve an employer's petition for the admission of H-2A nonimmigrant temporary agricultural workers in the U.S. unless the petitioner has received from the Department an H-2A labor certification. The H-2A labor certification provides that: (1) there are not sufficient U.S. workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the foreign worker(s) in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5).
Among the minimum benefits and working conditions that the Department requires employers to offer their U.S. and H-2A workers are three meals a day or free and convenient cooking and kitchen facilities. 20 CFR 655.122(g). Where the employer provides the meals, the job offer must state the charge, if any, to the worker for such meals.
The Department provides, at 20 CFR 655.173(a), the methodology for determining the maximum amounts that H-2A agricultural employers may charge their U.S. and foreign workers for providing them with three meals per day during employment. This methodology provides for annual adjustments of the previous year's maximum allowable charge based upon updated Consumer Price Index (CPI) data. The maximum charge allowed by 20 CFR 655.122(g) is adjusted by the same percentage as the 12-month percent change in the CPI for all Urban Consumers for Food (CPI-U for Food)
The Department has determined that the percentage change between December of 2011 and December of 2012 for the CPI-U for Food was 2.6 percent. Accordingly, the maximum allowable charge under 20 CFR 655.122(g) shall be no more than $11.42 per day, unless the OFLC Certifying Officer approves a higher charge as authorized under 20 CFR 655.173(b).
The regulations at 20 CFR 655.122(h) establish that the minimum daily travel subsistence expense for meals, for which a worker is entitled to reimbursement, must be at least as much as the employer would charge for providing the worker with three meals a day during employment (if applicable), but in no event less than the amount permitted under § 655.173(a), i.e. the charge annually adjusted by the 12-month percentage change in CPI for all Urban Consumers for food. The regulation is silent about the maximum amount to which a qualifying worker is entitled.
The Department bases the maximum meals component of the daily travel subsistence expense on the standard minimum Continental United States (CONUS) per diem rate as established by the General Services Administration (GSA) at 41 CFR part 301, formerly published in Appendix A, and now found at
The term “subsistence” includes both meals and lodging during travel to and from the worksite. Therefore, an employer is responsible for providing, paying in advance, or reimbursing a worker for the reasonable costs of transportation and daily subsistence between the employer's worksite and the place from which the worker comes to work for the employer, if the worker completes 50 percent of the work contract period, and upon the worker completing the contract, return costs. In those instances where a worker must travel to obtain a visa so that the worker may enter the U.S. to come to work for the employer, the employer must pay for the transportation and daily subsistence costs of that part of the travel as well.
The Department interprets the regulation to require the employer to assume responsibility for the reasonable costs associated with the worker's travel, including transportation, food, and, in those instances where it is necessary, lodging. The minimum and maximum daily travel meal reimbursement amounts are established above. If transportation and lodging are not provided by the employer, the amount an employer must pay for transportation and, where required, lodging, must be no less than (and is not required to be more than) the most economical and reasonable costs. The employer is responsible for those costs necessary for the worker to travel to the worksite if the worker completes 50 percent of the work contract period, but is not responsible for unauthorized detours, and if the worker completes the contract, return transportation and subsistence costs, including lodging costs where necessary. This policy applies equally to instances where the worker is traveling within the U.S. to the employer's worksite.
For further information on when the employer is responsible for lodging costs, please see the Department's H-2A Frequently Asked Questions on Travel and Daily Subsistence, which may found on the OFLC Web site:
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection:
Written comments must be submitted to the office listed in the addresses section below on or before May 13, 2013.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S-3233, Washington, DC 20210, telephone (202) 693-0701, fax (202) 693-1447, Email
The forms included in this package are forms used by Federal employees and their dependents to claim benefits, to prove continued eligibility for benefits, to show entitlement to remaining compensation payments of a deceased employee and to show dependency under the Federal Employees' Compensation Act. There are six forms in this information collection request. The information collected by Forms CA-5, is used by dependents for claiming compensation for the work related death of a Federal Employee and CA-5b is used by other survivors. Form CA-1031 is used in disability cases and provides information to determine whether a claimant is actually supporting a dependent and is entitled to additional compensation. Form CA-1074 is a follow up to CA-5b to request clarification of any information that is unclear and incomplete in the CA-5b. The letter of “Compensation Due at Death” is used to request information necessary to distribute compensation due when an employee dies who was receiving or who was entitled to compensation at the time of death for either disability benefits or a scheduled award. The letter of “Student/Dependency” is used to obtain information regarding the student status of a dependent. When a child reaches 18 years of age, they are no longer considered an eligible dependent unless they are a full time student or incapable of self-support. This information collection is currently approved for use through July 31, 2013.
The Department of Labor is particularly interested in comments which:
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* Enhance the quality, utility and clarity of the information to be collected; and
* Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Department of Labor seeks extension of approval to collect this information in order to carry out its responsibility to meet the statutory requirements of the Federal Employees' Compensation Act. The information contained in these forms is used by the Division of Federal Employees' Compensation to determine entitlement to benefits under the Act, to verify dependent status, and to initiate, continue, adjust, or terminate benefits based on eligibility criteria.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposal to extend OMB approval of the information collection: Notice of Issuance of Insurance Policy (CM-921). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before May 13, 2013.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S-32331, Washington, DC 20210, telephone (202) 693-0701, fax (202) 693-1447, Email
Section 423 of the Black Lung Benefits Act, as amended, requires that a responsible coal mine operator be insured and outlines the items each contract of insurance must contain. It also enumerates the civil penalties to which a responsible coal mine operator is subject, should these procedures not be followed. Further, 20 CFR par V, subpart C, 726.208-213 requires that each insurance carrier shall report to the Division of Coal Mine Workers' Compensation (DCMWC) each policy and endorsement issued, cancelled, or renewed with respect to responsible operators. It states that this report will be made in such manner and on such a form as DCMWC may require. The CM-921 is the form completed by the insurance carrier and forwarded to DCMWC for review. It is also required that if a policy is issued or renewed for more than one operator, a separate report for each operator shall be submitted. This information collection is currently approved for use through May 31, 2013.
The Department of Labor is particularly interested in comments which:
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* Enhance the quality, utility and clarity of the information to be collected; and
* Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Department of Labor seeks the approval for the extension of this currently-approved information collection in order to identify operators who have secured insurance for payment of black lung benefits as required by the Act.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before April 11, 2013. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting Records Management Services (ACNR) using one of the following means:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Margaret Hawkins, Director, Records Management Services (ACNR), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-1799. Email:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless specified otherwise. An item in a schedule is media neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (See 36 CFR 1225.12(e).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Agriculture, Forest Service (N1-95-10-7, 9 items, 3 temporary items). Records related to geographic information systems and sign and poster guidelines. Proposed for permanent retention are fire dispatch logs, land transfer case files, records of high-level officials, historically significant accident investigations, special maps, and land surveys.
2. Department of Agriculture, Forest Service (N1-95-12-2, 4 items, 4 temporary items). Records related to the construction and administration of research facilities.
3. Department of the Army, Agency-wide (N1-AU-10-36, 1 item, 1 temporary item). Master files of an electronic information system used to track real property permits, leases, and licenses.
4. Department of the Army, Agency-wide (N1-AU-10-98, 3 items, 3 temporary items). Records related to reimbursements for medical treatment at military facilities.
5. Department of Health and Human Services, Centers for Medicare & Medicaid Services (DAA-0440-2012-0018, 2 items, 2 temporary items). Master files of electronic information systems related to the Medicaid Drug Rebate Program.
6. Department of Homeland Security, U.S. Citizenship and Immigration Services (N1-566-12-5, 2 items, 2 temporary items). User accounts and associated information in an electronic information system used to file immigration benefits.
7. Department of Homeland Security, U.S. Citizenship and Immigration Services (N1-566-12-6, 2 items, 2 temporary items). Master files of an electronic information system used to process immigration applications and petitions.
8. Department of the Interior, Bureau of Ocean Energy Management (N1-589-12-1, 23 items, 22 temporary items). Records documenting administrative
9. Department of the Interior, Bureau of Safety and Environmental Enforcement (N1-473-12-1, 23 items, 22 temporary items). Records documenting administrative activities including budget, human resources, facilities, audit, and litigation. Proposed for permanent retention is general correspondence of the director.
10. Department of Justice, Agency-wide (DAA-0060-2013-0002, 2 items, 2 temporary items). Original content and posting log for third-party social media sites.
11. Department of Justice, Drug Enforcement Administration (N1-170-12-4, 1 item, 1 temporary item). Freedom of Information Act and Privacy Act administrative and litigation records.
12. Department of Labor, Wage and Hour Division (N1-155-11-3, 16 items, 14 temporary items). Records documenting mission-related activities such as registrations, wage determinations, sanctions, penalties, and training materials. Proposed for permanent retention are significant enforcement intervention records and agreements.
13. Department of the Navy, Agency-wide. (DAA-0428-2012-0003, 6 items, 6 temporary items). Correspondence and related records regarding instructors and the administration of Reserve Officers Training Corps and similar programs in secondary schools.
14. Department of the Treasury, Financial Crimes Enforcement Network (N1-559-10-1, 4 items, 4 temporary items). Master files and inputs of an electronic information system used to collect information to investigate financial crimes.
15. Department of the Treasury, Internal Revenue Service (DAA-0058-2013-0003, 1 item, 1 temporary item). Records used to monitor content and communication on social networking sites where interaction between site users and the agency occurs.
16. Department of the Treasury, Internal Revenue Service (DAA-0058-2013-0004, 1 item, 1 temporary item). Master files of an electronic information system used to review electronic tax returns.
17. Administrative Office of the United States Courts, United States Court of Federal Claims (N1-502-11-1, 8 items, 2 temporary items). Vaccine and general jurisdiction case files not deemed to have historic value. Proposed for permanent retention are significant vaccine case files, Indian claims case files, files for general jurisdiction cases terminating during or after trial, and Congressional reference case files and final reports.
18. Federal Communications Commission, International Bureau (N1-173-11-7, 22 items, 22 temporary items). Master files, inputs, and outputs of an electronic information system used to track applications, final authorizations, and related documents for services regulated by the agency. Applications include information such as filer identification, verifying documentation, and forms.
19. Federal Communications Commission, Media Bureau (N1-173-11-3, 1 item, 1 temporary item). Master files of an electronic information system concerning commercial television broadcast licensees' reporting on children's television programming.
10:00 a.m., Thursday, March 14, 2013.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
Open.
1. NCUA's Rules and Regulations, Federal Credit Union Ownership of Fixed Assets.
2. Request from Cinfed Federal Credit Union to Convert to a Community Charter.
10:30 a.m.
10:45 a.m., Thursday, March 14, 2013.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed.
1. Purchase and Assumption Request provisions of NCUA's Rules and Regulations. Closed pursuant to exemption (8).
2. Merger Request provisions of NCUA's Rules and Regulations. Closed pursuant to exemption (8).
3. Requests under Section 205(d) of the Federal Credit Union Act (2). Closed pursuant to Exemption (6).
Mary Rupp, Secretary of the Board, Telephone: 703-518-6304.
All meetings are held at 2:00 p.m.
Board Agenda Room, No. 11820, 1099 14th St. NW., Washington, DC 20570.
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition * * * of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following Site Visit.
Nuclear Regulatory Commission.
Draft report for comment.
The U.S. Nuclear Regulatory Commission (NRC) has issued for public comment a document entitled: Compendium of Analyses to Investigate Select Level 1 Probabilistic Risk Assessment End-State Definition and Success Criteria Modeling Issues—Draft Report for Comment.
Please submit comments by May 15, 2013. Comments received after this date will be considered if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date.
You may access information and comment submissions related to this document, which the NRC possesses and is publically available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Please refer to Docket ID NRC-2013-0047 when contacting the NRC about the availability of information regarding this document. You may access information related to this document by any of the following methods:
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Please include Docket ID NRC-2013-0047 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
Donald Helton, Division of Risk Analysis, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone: 301-415-7000, email:
This report, “Compendium of Analyses to Investigate Select Level 1 Probabilistic Risk Assessment End-State Definition and Success Criteria Modeling Issues,” augments the existing collection of contemporary Level 1 PRA success criteria analyses for the purpose of (i) Maintaining and enhancing the Standardized Plant Analysis Risk (SPAR) models being developed by the NRC; (ii) supporting the NRC's risk analysts when addressing specific issues in the Accident Sequence Precursor (ASP) program and the Significance Determination Process (SDP); and (iii) informing other ongoing and planned initiatives.
For the Nuclear Regulatory Commission.
Pursuant to 10 CFR 2.313(c) and 2.321(b), the Atomic Safety and Licensing Board (Board) in the above-captioned
All correspondence, documents, and other materials shall continue to be filed in accordance with the NRC E-Filing rule.
Nuclear Regulatory Commission.
License amendment request; opportunity to comment, request a hearing, and petition for leave to intervene, order.
Comments must be filed by April 11, 2013. A request for a hearing must be filed by May 13, 2013. Any potential party as defined in section 2.4 of Title 10 of the
You may access information and comment submissions related to this document, which the NRC possesses and are publically available, by searching on
•
•
•
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Please refer to Docket ID NRC-2013-0039 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by the following methods:
•
•
•
Please include Docket ID NRC-2013-0039 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
Pursuant to section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This notice includes notices of amendments containing SUNSI.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in the 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's 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's 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, 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 NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the following three factors in 10 CFR 2.309(c)(1): (i) The information upon which the filing is based was not previously available; (ii) the information upon which the filing is based is materially different from information previously available; and (iii) the filing has been submitted in a timely fashion based on the availability of the subsequent information.
Relocation of the P-T limit curves to the PTLR is consistent with the guidance provided in NRC approved General Electric Hitachi Nuclear Engineering (GEH) Licensing Topical Report, NEDC-33178P-A, Revision 1, “General Electric Methodology for Development of Reactor Pressure Vessel Pressure-Temperature Curves.” This topical report uses the guidelines provided in NRC Generic Letter (GL) 96-03, “Relocation of the Pressure Temperature Limit Curves and Low Temperature Overpressure Protection System Limits.” The proposed TS changes are consistent with the guidance provided in GL 96-03 as supplemented by Technical Specification Task Force (TSTF) traveler TSTF-419-A, “Revise PTLR Definition and References in ISTS [Improved Standard Technical Specifications] 5.6.6, RCS PTLR.”
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment modifies the TS by replacing references to existing reactor vessel heatup and cooldown rate limits and P-T limit curves with references to the PTLR. The proposed amendment also adopts the NRC-approved methodology of NEDC-33178P-A for the preparation of NMP2 P-T limit curves. In 10 CFR Part 50, Appendix G, requirements are established to protect the integrity of the reactor coolant pressure boundary (RCPB) in nuclear power plants. Implementing the NRC-approved methodology for calculating P-T limit curves and relocating those curves to the PTLR provide an equivalent level of assurance that RCPB integrity will be maintained, as specified in 10 CFR Part 50, Appendix G.
The proposed amendment does not adversely affect accident initiators or precursors, and does not alter the design assumptions, conditions, or configuration of the plant or the manner in which the plant is operated and maintained. The ability of structures, systems, and components to perform their intended safety functions is not altered or prevented by the proposed changes, and the assumptions used in determining the radiological consequences of previously evaluated accidents are not affected.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The change in methodology for calculating P-T limits and the relocation of those limits to the PTLR do not alter or involve any design basis accident initiators. RCPB integrity will continue to be maintained in accordance with 10 CFR Part 50, Appendix G, and the accident performance of plant structures, systems and components will not be affected. These changes do not involve any physical alteration of the plant (i.e., no new or different type of equipment will be installed), and installed equipment is not being operated in a new or different manner. Thus, no new failure modes are introduced.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed amendment does not affect the function of the RCPB or its response during plant transients. By calculating the P-T limits using NRC-approved methodology, adequate margins of safety relating to RCPB integrity are maintained. The proposed changes do not alter the manner in which safety limits, limiting safety system settings, or limiting conditions for operation are determined, there are no changes to setpoints at which protective actions are initiated, and the operability requirements for equipment assumed to operate for accident mitigation are not affected.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the transition to NFPA 805 involve a significant increase in the probability or consequences of an accident previously evaluated?
Operation of Farley Nuclear Plant, Units 1 and 2, in accordance with the proposed amendment does not increase the probability or consequences of accidents previously evaluated. Engineering analyses, which may include engineering evaluations, probabilistic safety assessments, and fire modeling calculations, have been performed to demonstrate that the performance-based requirements of NFPA 805 have been satisfied. The Updated Final Safety Analysis Report (UFSAR) documents the analyses of design basis accidents at Farley Nuclear Plant, Units 1 and 2. The proposed amendment does not affect accident initiators, nor does it alter design assumptions, conditions, or configurations of the facility that would increase the probability of accidents previously evaluated. Further, the changes to be made for fire hazard protection and mitigation do not adversely affect the ability of structures, systems, or components (SSCs) to perform their design functions for accident mitigation, nor do they affect the postulated initiators or assumed failure modes for accidents described and evaluated in the UFSAR. Structures, systems, or components required to safely shutdown the reactor and to maintain it in a safe shutdown condition will remain capable of performing their design functions.
The purpose of the proposed amendment is to permit Farley Nuclear Plant, Units 1 and 2, to adopt a new fire protection licensing basis which complies with the requirements of 10 CFR 50.48(a) and (c) and the guidance in Regulatory Guide 1.205. The NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify fire protection requirements that are an acceptable alternative to the 10 CFR Part 50, Appendix R required fire protection features (69 FR 33536; June 16, 2004). Engineering analyses, which may include engineering evaluations, probabilistic safety assessments, and fire modeling calculations, have been performed to demonstrate that the performance-based requirements of NFPA 805 have been met.
NFPA taken as a whole, provides an acceptable alternative for satisfying General Design Criterion 3 (GDC 3) of Appendix A to 10 CFR Part 50, meets the underlying intent of the NRC's existing fire protection regulations and guidance, and provides for defense-in-depth. The goals, performance objectives, and performance criteria specified in Chapter 1 of the standard ensure that, if there are any increases in core damage frequency or risk, the increase will be small and consistent with the intent of the Commission's Safety Goal Policy. Based on this, the implementation of the proposed amendment does not increase the probability of any accident previously evaluated. Equipment required to mitigate an accident remains capable of performing the assumed function(s). The proposed amendment will not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of any accident previously evaluated. The applicable radiological dose criteria will continue to be met.
Therefore, the consequences of any accident previously evaluated are not increased with the implementation of the proposed amendment.
2. Does the transition to NFPA 805 create the possibility of a new or different kind of accident from any kind of accident previously evaluated?
Operation of Farley Nuclear Plant, Units 1 and 2, in accordance with the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed change does not alter the requirements or functions for systems required during accident conditions. Implementation of the new fire protection licensing basis which complies with the requirements of 10 CFR 50.48(a) and (c) and the guidance Regulatory Guide 1.205 will not result in new or different accidents.
The proposed amendment does not introduce new or different accident initiators, nor does it alter design assumptions, conditions, or configurations of the facility. The proposed amendment does not adversely affect the ability of SSCs to perform their design function. Structures, systems, or components required to safely shutdown the reactor and maintain it in a safe shutdown condition remain capable of performing their design functions.
The purpose of the proposed amendment is to permit Farley Nuclear Plant, Units 1 and 2, to adopt a new fire protection licensing basis which complies with the requirements of 10 CFR 50.48(a) and (c) and the guidance in Regulatory Guide 1.205. The NRC considers that NFPA 805 provides an acceptable methodology and appropriate performance criteria for licensees to identify fire protection systems and features that are an acceptable alternative to the 10 CFR Part 50, Appendix R required fire protection features (69 FR 33536; June 16, 2004).
The requirements of NFPA 805 address only fire protection and the impacts of fire on the plant that have previously been evaluated. Based on this, implementation of the proposed amendment would not create the possibility of a new or different kind of accident from any kind of accident previously evaluated. No new accident scenarios, transient precursors, failure mechanisms, or limiting single failures will be introduced as a result of this amendment. There will be no adverse effect or challenges imposed on any safety-related system as a result of this amendment.
Therefore, the possibility of a new or different kind of accident from any kind of accident previously evaluated is not created with the implementation of the proposed amendment.
3. Does the transition to NFPA 805 involve a significant reduction in the margin of safety?
Operation of Farley Nuclear Plant, Units 1 and 2, in accordance with the proposed amendment does not involve a significant reduction in the margin of safety. The proposed amendment does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed amendment does not adversely affect existing plant safety margins or the reliability of equipment assumed to mitigate accidents in the UFSAR. The proposed amendment does not adversely affect the ability of SSCs to perform their design function. Structures, systems, or components required to safely shut down the reactor and to maintain it in a safe shutdown condition remain capable of performing their design functions.
The purpose of the proposed amendment is to permit Farley Nuclear Plant, Units 1 and 2, to adopt a new fire protection licensing basis which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Regulatory Guide 1.205. The NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify fire protection systems and features that are an acceptable alternative to the 10 CFR Part 50, Appendix R required fire protection features (69 FR 33536; June 16, 2004). Engineering analyses, which may include engineering evaluations, probabilistic safety assessments, and fire modeling calculations, have been performed to demonstrate that the performance based requirements of NFPA 805 do not result in a significant reduction in the margin of safety.
The proposed changes are evaluated to ensure that risk and safety margins are kept within acceptable limits.
Therefore, the transition to NFPA 805 does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review; it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requestor shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requestor's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requestor may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) the presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
H. Review of Grants of Access. A party other than the requestor may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment Draft Regulatory Guide, DG-1269 “Maintenance, Testing, and Replacement of Vented Lead-Acid Storage Batteries for Nuclear Power Plants.” The draft guide describes methods that the NRC staff consider acceptable for use in complying with the agency's regulations with regard to the maintenance, testing, and replacement of vented lead-acid storage batteries in nuclear power plants.
Submit comments by May 13, 2013. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may access information and comment submissions related to this document, which the NRC possesses and is publicly available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Liliana Ramadan, telephone: 301-251-7642, email:
Please refer to Docket ID NRC-2013-0048 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by the following methods:
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Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
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Please include Docket ID NRC-2013-0048 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or
The NRC is issuing for public comment a draft guide in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public methods that are acceptable to the NRC staff for implementing specific parts of the NRC'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.
The draft regulatory guide (DG), entitled, “Maintenance, Testing, and Replacement of Vented Lead-Acid Storage Batteries for Nuclear Power Plants” is temporarily identified by its task number, DG-1269, which should be mentioned in all related correspondence. DG-1269 is proposed Revision 3 of Regulatory Guide (RG) 1.129, dated February 2007. The NRC developed this regulatory guide to describe a method that the NRC staff considers acceptable for use in complying with the agency's regulations with regard to the maintenance, testing, and replacement of vented lead-acid storage batteries in nuclear power plants. Specifically, the method described in this regulatory guide relates to General Design Criteria (GDC) 1, 17, and 18 as set forth in Appendix A, “General Design Criteria for Nuclear Power Plants,” to part 50 of Title 10 of the
DG-1269 endorses (with certain clarifying regulatory positions) the Institute of Electrical and Electronics Engineers IEEE Std 450-2010, “IEEE Recommended Practice for Maintenance, Testing, and Replacement of Vented Lead-Acid Batteries for Stationary Applications.” That standard is an update of IEEE Std 450-2002 upon which RG 1.129, Rev. 2 is based. The revised IEEE Std 450-2010 refines the condition monitoring guidance and the use of rate-adjusted test methods for acceptance testing to ensure consistent performance of vented lead-acid batteries. The revised guidance addresses (1) Evaluating the adequacy of the modified performance tests for batteries, (2) the use of charging current to assess the fully-charged condition of batteries, (3) determining the point at which a battery can be returned to service and be able to meet its capacity and capability requirements, and (4) consistency with standard technical specifications regarding battery monitoring criteria. The revised guide would be useful in support of new reactor license applications, design certifications, and applications for license amendments.
This draft regulatory guide, if finalized, does not constitute backfitting as defined in 10 CFR 50.109 (the Backfit Rule) and is not otherwise inconsistent with the issue finality provisions in 10 CFR part 52, “Licenses, Certifications and Approvals for Nuclear Power Plants.” This draft regulatory guide, if finalized, will provide guidance on one possible means for meeting NRC's regulatory requirements with regard to the maintenance, testing, and replacement of vented lead-acid storage batteries in nuclear power plants in GDCs 1, 17 and 18, and the qualification testing requirements of Criterion III of 10 CFR part 50, Appendix B. Existing licensees and applicants of final design certification rules will not be required to comply with the positions set forth in this draft regulatory guide, unless the licensee or design certification rule applicant seeks a voluntary change to its licensing basis with respect to maintenance, testing, or replacement of vented lead-acid storage batteries, and where the NRC determines that the safety review must include consideration of the maintenance, testing, or replacement of vented lead-acid storage batteries. Further information on the staff's use of the draft regulatory guide, if finalized, is contained in DG-1269 under section D.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of March 11, 18, 25, April 1, 8, 15, 2013.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of March 18, 2013.
There are no meetings scheduled for the week of March 25, 2013.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of April 8, 2013.
There are no meetings scheduled for the week of April 15, 2013.
* 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 Kimberly Meyer, NRC Disability Program Manager, at 301-287-0727, 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
Nuclear Regulatory Commission.
Standard review plan-draft section revision; request for comment and use; correction.
This document corrects a notice appearing in the
Ms. Amy E. Cubbage, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2875, email:
On page 13911, middle column under the header: NRC's Agencywide Documents Access and Management System (ADAMS), change sentence, Section 3.8.3, Proposed Revision 4 (ML12353A377), Current Revision 3 (ML100620981), Redline (ML12354A089). Also on the same page, third column, last but second line from the bottom change the date of the document to 14th day of February 2013.
For the Nuclear Regulatory Commission.
U.S. Office of Personnel Management.
60-Day notice and request for comments.
Federal Investigative Services (FIS), U.S. Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an information collection request (ICR), Office of Management and Budget (OMB) Control No. 3206-0005, for Questionnaire for National Security Positions, Standard Form 86 (SF 86). As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The Office of Management and Budget is particularly interested in comments that:
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, including the validity of the methodology and assumptions used;
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, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until May 13, 2013. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Federal Investigative Services, U.S. Office of Personnel Management, 1900 E. Street NW., Washington, DC 20415, Attention: Donna McLeod or sent via email to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Federal Investigative Services, U.S. Office of Personnel Management, 1900 E. Street NW., Washington, DC 20415, Attention: Donna McLeod or sent via email to
The Questionnaire for National Security Positions, SF 86, housed in a system named e-QIP (Electronic Questionnaires for Investigative Processing), is an information collection completed by applicants for, or incumbents of, Federal Government civilian or military positions, or positions in private entities performing work for the Federal Government under contract. The collection is used as the basis of information:
• By the Federal Government in conducting background investigations, reinvestigations, and continuous evaluations, as appropriate, of persons under consideration for or retention in national security sensitive positions as defined in Executive Order 10450 and 5 CFR part 732, and for positions requiring eligibility for access to classified information under Executive Order 12968;
• By agencies in determining whether a person performing work for or on behalf of the Federal Government under a contract should be deemed eligible for logical or physical access when the nature of the work is sensitive and could bring about a material adverse effect on national security.
The SF 86 is completed by civilian employees of the Federal Government, military personnel, and non-federal employees, including Federal contractors and individuals otherwise not directly employed by the Federal Government but who perform work for or on behalf of the Federal Government. For applicants for civilian Federal employment, the SF 86 is to be used only after a conditional offer of employment has been made. It is estimated that 263,566 non-federal individuals, will complete the SF 86 annually. The SF 86 takes approximately 150 minutes to complete. The estimated annual burden is 658,915 hours. e-QIP is a web-based system application that currently houses electronic versions of the SF 86. This electronic data collection tool provides
OPM proposes the following changes to instructions in the SF 86. The section, “Instructions for Completing This Form (Paper Form Only),” will be amended to delete the instruction “If additional space is required for an explanation or to list your residences, employment/self-employment, or education, you should use a continuation sheet, SF 86A.” The SF 86A is no longer useful as SF 86 requests are conducted entirely through e-QIP. The instructions in Section 11, “Where You Have Lived,” will provide clarifying instruction to not list a spouse, cohabitant, or relative as the verifier for periods of residence. The instructions in Section 12, “Where You Went to School,” will include the Department of Education Web site (
OPM proposes the following change to more accurately collect information regarding legally recognized relationships. Section 17, “Marital Status,” will be renamed “Marital/Relationship Status.” Where the form requires collection of information regarding civil marriages and divorces, the same collection of information will be required of legally recognized civil unions and legally recognized domestic partnerships, and dissolutions of these. Since information regarding legally recognized civil unions and domestic partnerships will be captured in the “Marital/Relationship Status” section, the definition of cohabitant will be amended to exclude legally recognized civil unions and legally recognized domestic partnerships. Changes will be made to the branching questions in Section 20a, “Foreign Activities,” to collect details regarding prior ownership of foreign real estate that has since been sold. This change will correct a deficit in the branching questions that do not currently account for this scenario.
OPM is proposing to make changes to Question 21, “Psychological and Emotional Health,” in connection with a comprehensive review being conducted by the Director of National Intelligence, in his role as Security Executive Agent, with the Department of Defense, OPM, and other Federal agencies, for the purpose of clarifying support for mental health treatment and encouraging pro-active management of mental health conditions to support wellness and recovery.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 19d-1 prescribes the form and content of notices to be filed with the Commission by self-regulatory organizations (“SROs”) for which the Commission is the appropriate regulatory agency concerning the following final SRO actions: (1) Disciplinary actions with respect to any person; (2) denial, bar, prohibition, or limitation of membership, participation or association with a member or of access to services offered by an SRO or member thereof; (3) summarily suspending a member, participant, or person associated with a member, or summarily limiting or prohibiting any persons with respect to access to or services offered by the SRO or a member thereof; and (4) delisting a security.
The Rule enables the Commission to obtain reports from the SROs containing information regarding SRO determinations to delist a security, discipline members or associated persons of members, deny membership or participation or association with a member, and similar adjudicated findings. The Rule requires that such actions be promptly reported to the Commission. The Rule also requires that the reports and notices supply sufficient information regarding the background, factual basis and issues involved in the proceeding to enable the Commission: (1) To determine whether the matter should be called up for review on the Commission's own motion; and (2) to ascertain generally whether the SRO has adequately carried out its responsibilities under the Exchange Act.
It is estimated that approximately eighteen respondents will utilize this application procedure annually, with a total burden of approximately 2,250 hours, based upon past submissions. This figure is based on eighteen respondents, spending approximately 125 hours each per year. It is estimated that each respondent will submit approximately 250 responses. The staff estimates that the average number of hours necessary to comply with the requirements of Rule 19d-1 for each submission is 0.5 hours. The average cost per hour, per each submission is approximately $101. Therefore, it is estimated that the internal labor cost of compliance for all respondents is approximately $227,250. (18 respondents × 250 responses per respondent × 0.5 hours per response × $101 per hour).
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 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 19d-3 prescribes the form and content of applications to the Commission by persons seeking Commission review of final disciplinary actions against them taken by self-regulatory organizations (“SROs”) for which the Commission is the appropriate regulatory agency. The Commission uses the information provided in the application filed pursuant to Rule 19d-3 to review final actions taken by SROs including: (1) Final disciplinary sanctions; (2) denial or conditioning of membership, participation or association; and (3) prohibitions or limitations of access to services offered by a SRO or member thereof.
It is estimated that approximately six respondents will utilize this application procedure annually, with a total burden of approximately 108 hours, for all respondents to complete all submissions. This figure is based upon past submissions. It is estimated that each respondent will submit approximately one response. The staff estimates that the average number of hours necessary to comply with the requirements of Rule 19d-3 will be approximately eighteen hours. The average cost per hour, to complete each submission, is approximately $101. Therefore, it is estimated the internal labor cost of compliance for all respondents is approximately $10,908 (6 submissions x 18 hours per response x $101 per hour).
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 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:
Pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”)
The Participants filed the Plan in order to create a market-wide limit up-limit down mechanism that is intended to address extraordinary market volatility in “NMS Stocks,” as defined in Rule 600(b)(47) of Regulation NMS under the Act.
As set forth in Section V of the Plan, the price bands would consist of a Lower Price Band and an Upper Price Band for each NMS Stock.
The Processors would also calculate a Pro-Forma Reference Price for each NMS Stock on a continuous basis during Regular Trading Hours. If a Pro-Forma Reference Price did not move by one percent or more from the Reference Price in effect, no new price bands would be disseminated, and the current Reference Price would remain the effective Reference Price. If the Pro-Forma Reference Price moved by one percent or more from the Reference Price in effect, the Pro-Forma Reference Price would become the Reference Price, and the Processors would disseminate new price bands based on the new Reference Price. Each new Reference Price would remain in effect for at least 30 seconds.
When one side of the market for an individual security is outside the applicable price band, the Processors would be required to disseminate such National Best Bid
These limit up-limit down requirements would be coupled with trading pauses
Under the Plan, all trading centers would be required to establish,
As stated by the Participants in the Plan, the limit up-limit down mechanism is intended to reduce the negative impacts of sudden, unanticipated price movements in NMS Stocks,
The following summarizes the Third Amendment to the Plan and the rationale behind those changes:
• Amending Section VI.A.1 of the Plan to clarify that odd-lot sized transactions are not exempt from the Plan. The Participants believe that odd-lot sized transactions should benefit from the protections of the Plan.
• Amending Section VIII.A.3 of the Plan to clarify that no Price Bands shall be calculated and disseminated and therefore trading shall not enter a Limit State less than 30 minutes before the end of Regular Trading Hours. The proposed change is designed to reduce confusion by correcting language in the Plan.
The governing documents of the Processor, as defined in Section I(P) of the Plan, will not be affected by the Plan, but once the Plan is implemented, the Processor's obligations will change, as set forth in detail in the Plan. In particular, as set forth in Section V of the Plan, the Processor will be responsible for calculating and disseminating Price Bands during Regular Trading Hours, as defined in Section I(R) of the Plan. Each Participant would take such actions as are necessary and appropriate as a party to the Market Data Plans, as defined in Section I(F) of the Plan, to cause and enable the Processor for each NMS Stock to fulfill the functions set forth in the Plan.
The initial date of the Plan operations will be April 8, 2013.
The Plan will be implemented as a one-year pilot program in two Phases, consistent with Section VIII of the Plan: Phase I of Plan implementation will begin on the initial date of Plan operations, in select symbols, with full Phase I of the Plan implementation completed three months after the initial date of Plan operations, or such earlier date as may be announced by the Processor with at least 30 days notice; Phase II of Plan will commence six months after the initial date of the Plan or such earlier date as may be announced by the Processor with at least 30 days notice. The Participants proposed that Phase II of the Plan will begin on the first Monday after the six months after the initial date of the Plan, or if an earlier date is determined, Phase II will begin on a Monday.
At the beginning of Phase I, the Plan shall apply to select symbols from the Tier 1 NMS Stocks identified in Appendix A of the Plan. During full Phase I implementation, the Plan shall apply to all Tier 1 NMS Stocks, as defined in Appendix A of the Plan, and the first price bands shall be calculated and disseminated as specified in Section V(A) of the Plan. In Phase II, the Plan shall fully apply to all NMS Stocks.
Phase I and Phase II of the Plan may each be rolled out to applicable NMS Stocks over a period not to exceed two weeks. Any such roll-out period will be made available in advance of the implementation dates for Phases I and II of the Plan via the Participants' Web sites and trader updates, as applicable.
The Participants do not believe that the Plan imposes any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Participants also do not believe that the Plan introduces terms that are unreasonably discriminatory for the purposes of Section 11A(c)(1)(D) of the Act.
The Participants state that they have no written understandings or agreements relating to interpretation of the Plan. Section II(C) of the Plan sets forth how any entity registered as a national securities exchange or national securities association may become a Participant.
Each of the Plan's Participants has executed a written amended Plan.
Section II(C) of the Plan provides that any entity registered as a national securities exchange or national securities association under the Act may become a Participant by: (1) Becoming a participant in the applicable Market Data Plans, as defined in Section I(F) of the Plan; (2) executing a copy of the Plan, as then in effect; (3) providing each then-current Participant with a copy of such executed Plan; and (4) effecting an amendment to the Plan as specified in Section III(B) of the Plan.
Not applicable.
Not applicable.
The Plan does not include specific provisions regarding resolution of disputes between or among Participants. Section III(C) of the Plan provides for each Participant to designate an individual to represent the Participant as a member of an Operating Committee.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the Third Amendment to the Plan is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
By the Commission.
Proposed new language is
The Participants submit to the SEC this Plan establishing procedures to address extraordinary volatility in NMS Stocks. The procedures provide for market-wide limit up-limit down requirements that prevent trades in individual NMS Stocks from occurring outside of the specified Price Bands. These limit up-limit down requirements are coupled with Trading Pauses to accommodate more fundamental price moves. The Plan procedures are designed, among other things, to protect investors and promote fair and orderly markets. The Participants developed this Plan pursuant to Rule 608(a)(3) of Regulation NMS under the Exchange Act, which authorizes the Participants to act jointly in preparing, filing, and implementing national market system plans.
(A) “Eligible Reported Transactions” shall have the meaning prescribed by the Operating Committee and shall generally mean transactions that are eligible to update the last sale price of an NMS Stock.
(B) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(C) “Limit State” shall have the meaning provided in Section VI of the Plan.
(D) “Limit State Quotation” shall have the meaning provided in Section VI of the Plan.
(E) “Lower Price Band” shall have the meaning provided in Section V of the Plan.
(F) “Market Data Plans” shall mean the effective national market system plans through which the Participants act jointly to disseminate consolidated information in compliance with Rule 603(b) of Regulation NMS under the Exchange Act.
(G) “National Best Bid” and “National Best Offer” shall have the meaning provided in Rule 600(b)(42) of Regulation NMS under the Exchange Act.
(H) “NMS Stock” shall have the meaning provided in Rule 600(b)(47) of Regulation NMS under the Exchange Act.
(I) “Opening Price” shall mean the price of a transaction that opens trading on the Primary Listing Exchange, or, if the Primary Listing Exchange opens with quotations, the midpoint of those quotations.
(J) “Operating Committee” shall have the meaning provided in Section III(C) of the Plan.
(K) “Participant” means a party to the Plan.
(L) “Plan” means the plan set forth in this instrument, as amended from time to time in accordance with its provisions.
(M) “Percentage Parameter” shall mean the percentages for each tier of NMS Stocks set forth in Appendix A of the Plan.
(N) “Price Bands” shall have the meaning provided in Section V of the Plan.
(O) “Primary Listing Exchange” shall mean the Participant on which an NMS Stock is listed. If an NMS Stock is listed on more than one Participant, the Participant on which the NMS Stock has been listed the longest shall be the Primary Listing Exchange.
(P) “Processor” shall mean the single plan processor responsible for the consolidation of information for an NMS Stock pursuant to Rule 603(b) of Regulation NMS under the Exchange Act.
(Q) “Pro-Forma Reference Price” shall have the meaning provided in Section V(A)(2) of the Plan.
(R) “Regular Trading Hours” shall have the meaning provided in Rule 600(b)(64) of Regulation NMS under the Exchange Act. For purposes of the Plan, Regular Trading Hours can end earlier
(S) “Regulatory Halt” shall have the meaning specified in the Market Data Plans.
(T) “Reference Price” shall have the meaning provided in Section V of the Plan.
(U) “Reopening Price” shall mean the price of a transaction that reopens trading on the Primary Listing Exchange following a Trading Pause or a Regulatory Halt, or, if the Primary Listing Exchange reopens with quotations, the midpoint of those quotations.
(V) “SEC” shall mean the United States Securities and Exchange Commission.
(W) “Straddle State” shall have the meaning provided in Section VII(A)(2) of the Plan.
(X) “Trading center” shall have the meaning provided in Rule 600(b)(78) of Regulation NMS under the Exchange Act.
(Y) “Trading Pause” shall have the meaning provided in Section VII of the Plan.
(Z) “Upper Price Band” shall have the meaning provided in Section V of the Plan.
The parties to the Plan are as follows:
By subscribing to and submitting the Plan for approval by the SEC, each Participant agrees to comply with and to enforce compliance, as required by Rule 608(c) of Regulation NMS under the Exchange Act, by its members with the provisions of the Plan. To this end, each Participant shall adopt a rule requiring compliance by its members with the provisions of the Plan, and each Participant shall take such actions as are necessary and appropriate as a participant of the Market Data Plans to cause and enable the Processor for each NMS Stock to fulfill the functions set forth in this Plan.
The Participants agree that any entity registered as a national securities exchange or national securities association under the Exchange Act may become a Participant by: (1) Becoming a participant in the applicable Market Data Plans; (2) executing a copy of the Plan, as then in effect; (3) providing each then-current Participant with a copy of such executed Plan; and (4) effecting an amendment to the Plan as specified in Section III(B) of the Plan.
(1)
(2)
(A)
(3)
(4)
Except with respect to the addition of new Participants to the Plan, any proposed change in, addition to, or deletion from the Plan shall be effected by means of a written amendment to the Plan that: (1) Sets forth the change, addition, or deletion; (2) is executed on behalf of each Participant; and, (3) is approved by the SEC pursuant to Rule 608 of Regulation NMS under the Exchange Act, or otherwise becomes effective under Rule 608 of Regulation NMS under the Exchange Act.
With respect to new Participants, an amendment to the Plan may be effected by the new national securities exchange or national securities association executing a copy of the Plan, as then in effect (with the only changes being the addition of the new Participant's name in Section II(A) of the Plan) and submitting such executed Plan to the SEC for approval. The amendment shall be effective when it is approved by the SEC in accordance with Rule 608 of Regulation NMS under the Exchange Act or otherwise becomes effective pursuant to Rule 608 of Regulation NMS under the Exchange Act.
(1) Each Participant shall select from its staff one individual to represent the Participant as a member of an Operating Committee, together with a substitute for such individual. The substitute may participate in deliberations of the Operating Committee and shall be considered a voting member thereof only in the absence of the primary representative. Each Participant shall have one vote on all matters considered by the Operating Committee. No later than the initial date of Plan operations, the Operating Committee shall designate one member of the Operating Committee to act as the Chair of the Operating Committee.
(2) The Operating Committee shall monitor the procedures established
(3) Any recommendation for an amendment to the Plan from the Operating Committee that receives an affirmative vote of at least two-thirds of the Participants, but is less than unanimous, shall be submitted to the SEC as a request for an amendment to the Plan initiated by the Commission under Rule 608 of Regulation NMS.
All trading centers in NMS Stocks, including both those operated by Participants and those operated by members of Participants, shall establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with the limit up-limit down requirements specified in Sections VI of the Plan, and to comply with the Trading Pauses specified in Section VII of the Plan.
(1) The Processor for each NMS stock shall calculate and disseminate to the public a Lower Price Band and an Upper Price Band during Regular Trading Hours for such NMS Stock. The Price Bands shall be based on a Reference Price for each NMS Stock that equals the arithmetic mean price of Eligible Reported Transactions for the NMS stock over the immediately preceding five-minute period (except for periods following openings and reopenings, which are addressed below). If no Eligible Reported Transactions for the NMS Stock have occurred over the immediately preceding five-minute period, the previous Reference Price shall remain in effect. The Price Bands for an NMS Stock shall be calculated by applying the Percentage Parameter for such NMS Stock to the Reference Price, with the Lower Price Band being a Percentage Parameter below the Reference Price, and the Upper Price Band being a Percentage Parameter above the Reference Price. The Price Bands shall be calculated during Regular Trading Hours. Between 9:30 a.m. and 9:45 a.m. ET, and 3:35 p.m. and 4:00 p.m. ET, or in the case of an early scheduled close, during the last 25 minutes of trading before the early scheduled close, the Price Bands shall be calculated by applying double the Percentage Parameters set forth in Appendix A. If a Reopening Price does not occur within ten minutes after the beginning of a Trading Pause, the Price Band, for the first 30 seconds following the reopening after that Trading Pause, shall be calculated by applying triple the Percentage Parameters set forth in Appendix A.
(2) The Processor shall calculate a Pro-Forma Reference Price on a continuous basis during Regular Trading Hours, as specified in Section V(A)(1) of the Plan. If a Pro-Forma Reference Price has not moved by 1% or more from the Reference Price currently in effect, no new Price Bands shall be disseminated, and the current Reference Price shall remain the effective Reference Price. When the Pro-Forma Reference Price has moved by 1% or more from the Reference Price currently in effect, the Pro-Forma Reference Price shall become the Reference Price, and the Processor shall disseminate new Price Bands based on the new Reference Price; provided, however, that each new Reference Price shall remain in effect for at least 30 seconds.
(1) Except when a Regulatory Halt is in effect at the start of Regular Trading Hours, the first Reference Price for a trading day shall be the Opening Price on the Primary Listing Exchange in an NMS Stock if such Opening Price occurs less than five minutes after the start of Regular Trading Hours. During the period less than five minutes after the Opening Price, a Pro-Forma Reference Price shall be updated on a continuous basis to be the arithmetic mean price of Eligible Reported Transactions for the NMS Stock during the period following the Opening Price (including the Opening Price), and if it differs from the current Reference Price by 1% or more shall become the new Reference Price, except that a new Reference Price shall remain in effect for at least 30 seconds. Subsequent Reference Prices shall be calculated as specified in Section V(A) of the Plan.
(2) If the Opening Price on the Primary Listing Exchange in an NMS Stock does not occur within five minutes after the start of Regular Trading Hours, the first Reference Price for a trading day shall be the arithmetic mean price of Eligible Reported Transactions for the NMS Stock over the preceding five minute time period, and subsequent Reference Prices shall be calculated as specified in Section V(A) of the Plan.
(1) Following a Trading Pause in an NMS Stock, and if the Primary Listing Exchange has not declared a Regulatory Halt, the next Reference Price shall be the Reopening Price on the Primary Listing Exchange if such Reopening Price occurs within ten minutes after the beginning of the Trading Pause, and subsequent Reference Prices shall be determined in the manner prescribed for normal openings, as specified in Section V(B)(1) of the Plan. If such Reopening Price does not occur within ten minutes after the beginning of the Trading Pause, the first Reference Price following the Trading Pause shall be equal to the last effective Reference Price before the Trading Pause. Subsequent Reference Prices shall be calculated as specified in Section V(A) of the Plan.
(2) Following a Regulatory Halt, the next Reference Price shall be the Opening or Reopening Price on the Primary Listing Exchange if such Opening or Reopening Price occurs within five minutes after the end of the Regulatory Halt, and subsequent Reference Prices shall be determined in the manner prescribed for normal openings, as specified in Section V(B)(1) of the Plan. If such Opening or Reopening Price has not occurred within five minutes after the end of the Regulatory Halt, the Reference Price shall be equal to the arithmetic mean price of Eligible Reported Transactions for the NMS Stock over the preceding five minute time period, and subsequent Reference Prices shall be calculated as specified in Section V(A) of the Plan.
(1) All trading centers in NMS Stocks, including both those operated by Participants and those operated by members of Participants, shall establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent trades at prices that are below the Lower Price Band or above the Upper Price Band for an NMS Stock. Single-priced opening, reopening, and closing transactions on the Primary Listing Exchange, however, shall be excluded from this limitation. In addition, any transaction that both (i) does not update the last sale price (except if solely because the transaction was reported late
(2) When a National Best Bid is below the Lower Price Band or a National Best Offer is above the Upper Price Band for an NMS Stock, the Processor shall disseminate such National Best Bid or National Best Offer with an appropriate flag identifying it as non-executable. When a National Best Offer is equal to the Lower Price Band or a National Best Bid is equal to the Upper Price Band for an NMS Stock, the Processor shall distribute such National Best Bid or National Best Offer with an appropriate flag identifying it as a “Limit State Quotation”.
(3) All trading centers in NMS Stocks, including both those operated by Participants and those operated by members of Participants, shall establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent the display of offers below the Lower Price Band and bids above the Upper Price Band for an NMS Stock. The Processor shall disseminate an offer below the Lower Price Band or bid above the Upper Price Band that may be submitted despite such reasonable policies and procedures, but with an appropriate flag identifying it as non-executable; provided, however, that any such bid or offer shall not be included in National Best Bid or National Best Offer calculations.
(1) All trading for an NMS Stock shall immediately enter a Limit State if the National Best Offer equals the Lower Price Band and does not cross the National Best Bid, or the National Best Bid equals the Upper Price Band and does not cross the National Best Offer.
(2) When trading for an NMS Stock enters a Limit State, the Processor shall disseminate this information by identifying the relevant quotation (
(3) Trading for an NMS Stock shall exit a Limit State if, within 15 seconds of entering the Limit State, the entire size of all Limit State Quotations are executed or cancelled.
(4) If trading for an NMS Stock exits a Limit State within 15 seconds of entry, the Processor shall immediately calculate and disseminate updated Price Bands based on a Reference Price that equals the arithmetic mean price of Eligible Reported Transactions for the NMS Stock over the immediately preceding five-minute period (including the period of the Limit State).
(5) If trading for an NMS Stock does not exit a Limit State within 15 seconds of entry, the Limit State will terminate when the Primary Listing Exchange declares a Trading Pause pursuant to Section VII of the Plan or at the end of Regular Trading Hours.
(1) If trading for an NMS Stock does not exit a Limit State within 15 seconds of entry during Regular Trading Hours, then the Primary Listing Exchange shall declare a Trading Pause for such NMS Stock and shall notify the Processor.
(2) The Primary Listing Exchange may also declare a Trading Pause for an NMS Stock when an NMS Stock is in a Straddle State, which is when National Best Bid (Offer) is below (above) the Lower (Upper) Price Band and the NMS Stock is not in a Limit State, and trading in that NMS Stock deviates from normal trading characteristics such that declaring a Trading Pause would support the Plan's goal to address extraordinary market volatility. The Primary Listing Exchange shall develop policies and procedures for determining when it would declare a Trading Pause in such circumstances. If a Trading Pause is declared for an NMS Stock under this provision, the Primary Listing Exchange shall notify the Processor.
(3) The Processor shall disseminate Trading Pause information to the public. No trades in an NMS Stock shall occur during a Trading Pause, but all bids and offers may be displayed.
(1) Five minutes after declaring a Trading Pause for an NMS Stock, and if the Primary Listing Exchange has not declared a Regulatory Halt, the Primary Listing Exchange shall attempt to reopen trading using its established reopening procedures. The Trading Pause shall end when the Primary Listing Exchange reports a Reopening Price.
(2) The Primary Listing Exchange shall notify the Processor if it is unable to reopen trading in an NMS Stock for any reason other than a significant order imbalance and if it has not declared a Regulatory Halt. The Processor shall disseminate this information to the public, and all trading centers may begin trading the NMS Stock at this time.
(3) If the Primary Listing Exchange does not report a Reopening Price within ten minutes after the declaration of a Trading Pause in an NMS Stock, and has not declared a Regulatory Halt, all trading centers may begin trading the NMS Stock.
(4) When trading begins after a Trading Pause, the Processor shall update the Price Bands as set forth in Section V(C)(1) of the Plan.
(1) If a Trading Pause for an NMS Stock is declared less than five minutes before the end of Regular Trading Hours, the Primary Listing Exchange shall attempt to execute a closing transaction using its established closing procedures. All trading centers may begin trading the NMS Stock when the Primary Listing Exchange executes a closing transaction.
(2) If the Primary Listing Exchange does not execute a closing transaction within five minutes after the end of Regular Trading Hours, all trading centers may begin trading the NMS Stock.
(1) On the initial date of Plan operations, Phase I of Plan implementation shall begin in select symbols from the Tier 1 NMS Stocks identified in Appendix A of the Plan.
(2) Three months after the initial date of Plan operations, or such earlier date as may be announced by the Processor with at least 30 days notice, the Plan shall fully apply to all Tier 1 NMS Stocks identified in Appendix A of the Plan.
(3) During Phase I, the first Price Bands for a trading day shall be calculated and disseminated 15 minutes after the start of Regular Trading Hours as specified in Section (V)(A) of the Plan. No Price Bands shall be calculated and disseminated
Six months after the initial date of Plan operations, or such earlier date as
The Plan shall be implemented on a one-year pilot basis.
If a Participant obtains SEC approval to withdraw from the Plan, such Participant may withdraw from the Plan at any time on not less than 30 days' prior written notice to each of the other Participants. At such time, the withdrawing Participant shall have no further rights or obligations under the Plan.
The Plan may be executed in any number of counterparts, no one of which need contain all signatures of all Participants, and as many of such counterparts as shall together contain all such signatures shall constitute one and the same instrument.
IN WITNESS THEREOF, this Plan has been executed as of the __ day of ____ 2013 by each of the parties hereto.
(1) Tier 1 NMS Stocks shall include all NMS Stocks included in the S&P 500 Index, the Russell 1000 Index, and the exchange-traded products (“ETP”) listed on Schedule 1 to this Appendix. Schedule 1 to the Appendix will be reviewed and updated semi-annually based on the fiscal year by the Primary Listing Exchange to add ETPs that meet the criteria, or delete ETPs that are no longer eligible. To determine eligibility for an ETP to be included as a Tier 1 NMS Stock, all ETPs across multiple asset classes and issuers, including domestic equity, international equity, fixed income, currency, and commodities and futures will be identified. Leveraged ETPs will be excluded and the list will be sorted by notional consolidated average daily volume (“CADV”). The period used to measure CADV will be from the first day of the previous fiscal half year up until one week before the beginning of the next fiscal half year. Daily volumes will be multiplied by closing prices and then averaged over the period. ETPs, including inverse ETPs, that trade over $2,000,000 CADV will be eligible to be included as a Tier 1 NMS Stock. To ensure that ETPs that track similar benchmarks but that do not meet this volume criterion do not become subject to pricing volatility when a component security is the subject of a trading pause, non-leveraged ETPs that have traded below this volume criterion, but that track the same benchmark as an ETP that does meet the volume criterion, will be deemed eligible to be included as a Tier 1 NMS Stock. The semi-annual updates to Schedule 1 do not require an amendment to the Plan. The Primary Listing Exchanges will maintain the updated Schedule 1 on their respective Web sites.
(2) The Percentage Parameters for Tier 1 NMS Stocks with a Reference Price more than $3.00 shall be 5%.
(3) The Percentage Parameters for Tier 1 NMS Stocks with a Reference Price equal to $0.75 and up to and including $3.00 shall be 20%.
(4) The Percentage Parameters for Tier 1 NMS Stocks with a Reference Price less than $0.75 shall be the lesser of (a) $0.15 or (b) 75%.
(5) The Reference Price used for determining which Percentage Parameter shall be applicable during a trading day shall be based on the closing price of the NMS Stock on the Primary Listing Exchange on the previous trading day, or if no closing price exists, the last sale on the Primary Listing Exchange reported by the Processor.
(1) Tier 2 NMS Stocks shall include all NMS Stocks other than those in Tier 1, provided, however, that all rights and warrants are excluded from the Plan.
(2) The Percentage Parameters for Tier 2 NMS Stocks with a Reference Price more than $3.00 shall be 10%.
(3) The Percentage Parameters for Tier 2 NMS Stocks with a Reference Price equal to $0.75 and up to and including $3.00 shall be 20%.
(4) The Percentage Parameters for Tier 2 NMS Stocks with a Reference Price less than $0.75 shall be the lesser of (a) $0.15 or (b) 75%.
(5) Notwithstanding the foregoing, the Percentage Parameters for a Tier 2 NMS Stock that is a leveraged ETP shall be the applicable Percentage Parameter set forth in clauses (2), (3), or (4) above, multiplied by the leverage ratio of such product.
(6) The Reference Price used for determining which Percentage Parameter shall be applicable during a trading day shall be based on the closing price of the NMS Stock on the Primary Listing Exchange on the previous trading day, or if no closing price exists, the last sale on the Primary Listing Exchange reported by the Processor.
Unless otherwise specified, the following data shall be collected and transmitted to the SEC in an agreed-upon format on a monthly basis, to be provided 30 calendar days following month end. Unless otherwise specified, the Primary Listing Exchanges shall be responsible for collecting and transmitting the data to the SEC. Data collected in connection with Sections II(E)—(G) below shall be transmitted to the SEC with a request for confidential treatment under the Freedom of Information Act. 5 U.S.C. 552, and the SEC's rules and regulations thereunder.
A. Frequency with which NMS Stocks enter a Limit State. Such summary data shall be broken down as follows:
B. Determine (1), (2) and (3) for when a Trading Pause has been declared for an NMS Stock pursuant to the Plan.
A. Assess the statistical and economic impact on liquidity of approaching Price Bands.
B. Assess the statistical and economic impact of the Price Bands on erroneous trades.
C. Assess the statistical and economic impact of the appropriateness of the Percentage Parameters used for the Price Bands.
D. Assess whether the Limit State is the appropriate length to allow for liquidity replenishment when a Limit State is reached because of a temporary liquidity gap.
E. Evaluate concerns from the options markets regarding the statistical and economic impact of Limit States on liquidity and market quality in the options markets. (Participants that operate options exchange should also prepare such assessment reports.)
F. Assess whether the process for entering a Limit State should be adjusted and whether Straddle States are problematic.
G. Assess whether the process for exiting a Limit State should be adjusted.
H. Assess whether the Trading Pauses are too long or short and whether the reopening procedures should be adjusted.
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, March 14, 2013 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 Paredes, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting will be:
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.
Rule 613(a)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
In the Request Letter, the SROs noted that Rule 613 requires that they include in the NMS plan “cost estimates for the proposed solution, and a discussion of the costs and benefits of alternative solutions considered but not proposed.”
In order to satisfy these requirements, the SROs believe that conducting a request for proposal (“RFP”) process is necessary prior to filing an NMS plan. The SROs believe that such a process will ensure that potential alternative solutions for creating the consolidated audit trail can be presented to the SROs for their consideration, and will provide the SROs with information necessary to prepare a detailed cost/benefit analysis as required by Rule 613. To ensure that the RFP process is effective, the SROs believe the concepts that will be contained in the RFP should be subject to public comment before the document is finalized and formally published. The SROs believe that public comment will ensure that the RFP addresses areas of concerns to the industry and the SROs, and will also provide potential bidders with information on the RFP prior to its formal publication. To this end, the SROs published an RFP concept document on December 5, 2012, and requested public feedback by January 18, 2013.
The SROs stated in their Request Letter that they do not believe that the 270-day time period provided for in Rule 613(a)(1) provides sufficient time for the development of the RFP, formulation and submission of bids, and review and evaluation of such bids. The SROs also stated that they believe additional time beyond the 270 days provided for in Rule 613(a)(1) is necessary in order to provide sufficient time for effective consultation with and input from the industry and the public on the proposed solution chosen by the SROs for the creation of the consolidated audit trail at the conclusion of the RFP process and the NMS plan itself. The SROs believe that such a comment process is necessary in order to gather information needed to perform an effective cost/benefit analysis, including the estimated costs to broker-dealers and other market participants of building the consolidated audit trail in accord with the proposed solution, as well as to meaningfully assess and respond to the comments and draft the final NMS plan for submission to the Commission.
In the Request Letter, the SROs provided the following estimated timeline, which is based on their current expectation for conducting the RFP process and drafting the NMS plan:
For the reasons set forth above, the SROs stated that a temporary exemption from the filing deadline until December 6, 2013 is “necessary to allow the SROs to conduct the thoughtful and comprehensive analysis this important regulatory initiative deserves.”
Section 36 of the Exchange Act
After considering the SROs' proposed process for developing the NMS plan, the Commission finds that it is appropriate in the public interest, and is consistent with the protection of investors, to grant the SROs a temporary exemption from the deadline for filing the NMS plan contained in Rule 613(a)(1)
Additionally, given that the planned RFP process as described in the Request Letter is expected to include multiple solicitations for public comment, the Commission believes that it is appropriate in the public interest and consistent with the protection of investors to provide the SROs with additional time. This additional time to complete the RFP process should allow the SROs to engage in a more thoughtful and comprehensive process for the development of an NMS plan. In this regard, the Commission notes that the additional time to solicit comment from the industry and the public at certain key points in the development of the NMS plan could identify issues that can be resolved earlier in the development of the consolidated audit trail and prior to filing the NMS plan with the Commission. In granting the SROs' request, the Commission expects the SROs to work diligently to adhere to the milestones specified by the SROs in the Request Letter. The Commission also expects the SROs to utilize the additional time to prepare a detailed and complete NMS plan for the Commission and the public to consider.
Accordingly,
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal for the BATS Options Market (“BATS Options”) to amend Rule 22.6(d) in connection with the upcoming operation of the Plan to Address Extraordinary Market Volatility Pursuant to Rule 608 of Regulation NMS under the Act (the “Limit Up-Limit Down Plan” or “Plan”).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange currently requires Market Makers to enter continuous bids and offers for the options series to which it is registered in at least 75% of the options series in which the Market Maker is registered. The purpose of this proposed rule change is to amend BATS Rule 22.6(d) to suspend a Market Maker's continuous quoting obligations when the underlying security is subject to a “Limit State” or “Straddle State” as defined Limit in the Up-Limit Down Plan and during a Trading Halt.
The Limit Up-Limit Down Plan is designed to prevent executions from occurring outside of dynamic price bands disseminated to the public by the single plan processor as defined in the Limit Up-Limit Down Plan. Under the Plan, a Limit State will be declared if the national best offer equals the lower price band and does not cross the national best bid, or the national best bid equals the upper price band and does not cross the national best offer. A Straddle State is when the national best bid (offer) is below (above) the lower (upper) price band and the security is not in a Limit State, and trading in that security deviates from normal trading characteristics such that declaring a trading pause would support the Plan's goal to address extraordinary market volatility. Accordingly, when the underlying security is in a Limit State or Straddle State, there will not be a reliable price for the security to serve as a benchmark for the price of the related option. While, in theory, the liquidity provided by requiring Market Makers to continue to quote during a Limit or Straddle State could help to stabilize a volatile market, without a reliable benchmark for pricing an option, Market Makers would likely respond to the uncertainty by entering very wide
The Exchange is also proposing to amend Rule 22.6(d) to provide an exception to the continuous quoting requirements for Market Makers during a Trading Halt. Currently, the Exchange does not provide an exemption for its requirement that a Market Maker enter continuous bids and offers for the options series to which it is registered. Much like when an underlying security is in a Limit State or a Straddle State, there is no reliable price during a Trading Halt to serve as a benchmark for the price of the related option because the only available price is the last trade prior to the Trading Halt. Based on this concern and for the same reasons discussed above, the Exchange is proposing to exempt Market Makers from existing continuous quoting requirements during a Trading Halt.
The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange believes that other options exchanges are proposing to suspend a market maker's quoting obligations when the underlying security is subject to a Limit State or Straddle State in connection with the Limit Up-Limit Down Plan consistent with the Exchange's handling proposed by this filing.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an 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”),
The purpose of the proposed rule change is to implement new Part 17 of ICE Clear Europe's Rules, new FX Procedures, and new OTC FX Product Guide and Published Terms to facilitate the clearing of foreign exchange (“foreign exchange” or “FX”) transactions, initially non-deliverable FX forward transactions.
In its filing with the Commission, ICE Clear Europe 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 III below. ICE Clear Europe has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
ICE Clear Europe submits new Part 17 of its Rules, new FX Procedures and new OTC FX Product Guide and Published Terms to facilitate the clearing of foreign exchange transactions, initially non-deliverable FX forward transactions. The other proposed changes in the Rules reflect conforming changes to definitions and related provisions and other drafting clarifications, and do not affect the substance of the Rules.
The amendments adopt a new Part 17 of the Rules, which provides for the basic terms and conditions on which foreign exchange transactions will be cleared. Initially, ICE Clear Europe proposes to clear a series of contracts that are non-deliverable forward (“NDF”) transactions in the following currency pairs: USD/Brazilian Real, USD/Korean Won, USD/China Yuan, USD/Indian Rupee, USD/Indonesian Rupiah, USD/Chilean Peso and USD/Russian Ruble. The contract specifications for the cleared NDF transactions are set forth in the new FX Procedures and related OTC FX Product Guide and Published Terms.
The amendments also provide for the establishment of a separate guaranty fund for FX transactions (including a separate assessment right applicable to Clearing Members that clear FX transactions (“FX Clearing Members”)), to be applied to losses resulting from the default of an FX Clearing Member. ICE Clear Europe will also have a limited right of assessment, as set forth in Part 11 of the ICE Clear Europe Rules, against non-defaulting FX Clearing Members in an amount up to two times their required FX guaranty fund contribution as in effect prior to the relevant default.
Specifically, Rule 1701 sets forth definitions related to the clearing of FX Contracts. Rule 1702 addresses the determination of settlement prices for FX Contracts. Rule 1703 provides for the payment of interest on mark-to-market margin for FX Contracts. Rule 1704 provides for the separate treatment of reference currency buyer and seller positions for each category of proprietary or customer account. New Rule 1705 addresses the settlement of FX contracts. Rules 1706 and 1707 establish an FX default committee to address defaults by FX Clearing Members and default related policies and procedures. Rule 1708 addresses permitted use of certain FX-related data. Rule 1709 establishes certain requirements for guarantors of FX Clearing Members. Rule 1710 sets out procedures for the termination of FX clearing membership.
Conforming and related amendments are also proposed to other parts of the ICE Clear Europe Rules, including changes to definitions in Part 1 of the ICE Clear Europe Rules. Part 2 of the Rules has been amended to address the inclusion of FX Clearing Members (including provisions relating to the termination of FX Clearing Member status). Proposed amendments to Parts 3 and 4 of the Rules contain various conforming and clarifying changes, and Rule 406 contains special rules relating to the netting of FX Contracts. Part 5 of the Rules has been amended to address margin for FX Contracts. Part 9 of the Rules has been revised to address defaults of FX Clearing Members and close-out of FX Contracts on default, in addition to various clarifying changes. Part 11 of the Rules has been amended to reflect the creation of a separate FX guaranty fund and to provide for contributions to and use of the FX guaranty fund in various default scenarios. Revised Part 11 also addresses ICE Clear Europe's power of assessment of additional FX guaranty fund contributions from FX Clearing Members.
ICE Clear Europe is also adopting a set of FX Procedures, which address certain additional issues for FX Contracts and FX Clearing Members, including (i) additional membership standards for FX Clearing Members (beyond those set out generally in the Rules), (ii) procedures for submission and acceptance of FX Contracts for clearing, (iii) provision of FX Contract pricing data by FX Clearing Members to ICE Clear Europe, (iv) settlement procedures for FX Contracts, (v) determination of market prices for FX Contracts and interest on mark-to-market margin and (vi) FX default committee procedures. The contract specifications and terms for FX Contracts are set out in the FX Procedures together with the OTC FX Product Guide and Published Terms for FX Contracts.
As part of the rule change, ICE Clear Europe will establish a separate FX Risk Committee with up to 15 members, including up to 10 representatives from clearing members of ICE Clear Europe.
ICE Clear Europe believes that the proposed rule change is consistent with the requirements of Section 17A of the
ICE Clear Europe does not believe the proposed rule change would have any impact, or impose any burden, on competition.
Written comments relating to the proposed change have been solicited, but no comments have been received to date. ICE Clear Europe will notify the Commission of any written comments received by ICE Clear Europe.
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 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-ICEEU-2013-03 and should be submitted on or before April 2, 2013.
Section 19(b) of the Act
In its filing, ICE Clear Europe requested that the Commission approve the proposed rule change on an accelerated basis for good cause shown. The Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange's default
The Exchange's fee schedule states that it assesses no charge as the default rate for Members' orders that add liquidity in securities priced below $1.00. The Exchange proposes to amend its fee schedule to list “Free” in the column “Fee/(Rebate) Securities below $1.00” for Flags B, V, Y, 3, 4, PA, and RP. The Exchange notes that this proposal does not modify the current rates it charges its Members for orders that yield Flags B, V, Y, 3, 4, PA, and RP for securities priced below $1.00 that add liquidity to the Exchange.
The Exchange's fee schedule states that it assesses no charge as the default rate for Members' orders that remove liquidity in securities priced below $1.00 provided the Member satisfies the volume tier requirements in Footnote 1 of the fee schedule.
The Exchange's fee schedule states that it charges Members the default rate of 0.30% of the dollar value of the transaction for orders that route to away trading destinations in securities priced below $1.00.
The Exchange's fee schedule does not clearly disclose its pricing for Members' orders that route to some away trading destinations
The Exchange's fee schedule states that it assesses no charge as the default rate for Members' orders that that yield Flag OO in securities priced below $1.00, which represents Members' orders that are matched at the “Direct Edge Opening” and either add or remove liquidity. The Exchange proposes to amend its fee schedule to list “Free” for Flag OO in the column “Fee/(Rebate) Securities below $1.00.” The Exchange notes that this proposal does not modify the current rate it charges its Members for orders that yield Flag OO for securities priced below $1.00 that are matched at the Direct Edge Opening.
The Exchange's fee schedule does not clearly disclose its pricing for Members' orders that yield Flag RC in securities priced below $1.00. The Exchange currently assesses no charge for Members' orders that yield Flag RC, which route to the National Stock Exchange, Inc. (the “NSX”) and add liquidity. The Exchange proposes to amend its fee schedule to assess no charge for Flag RC. The Exchange notes that its proposal conforms to an existing practice and does not modify the rate that the Exchange has been charging its Members for orders that yield Flag RC for securities priced below $1.00 that route to the NSX and add liquidity.
As provided in Footnote 3 of the fee schedule, the Exchange currently assesses a charge of 0.10% of the dollar value of the transaction for Members' orders that yield Flag C, which route to NASDAQ BX and remove liquidity in securities priced below $1.00. The Exchange proposes to amend its fee schedule to list a charge of 0.10% of the dollar value of the transaction in the column “Fee/(Rebate) Securities below $1.00” for Flag C. The Exchange notes that this proposal does not modify the current rate it charges its Members for orders that yield Flag C for securities priced below $1.00 that route to NASDAQ BX and add liquidity. In addition, the Exchange proposes to delete “removes liquidity” in Flag C's description because the Exchange's reference to “routed” implies that Flag C routes and removes liquidity. The Exchange proposes to delete the text of Footnote 3 and its associated annotations on the default rate for routing and removing liquidity at the top of the fee schedule in addition to Flags C, D, J, L, and 2 on the [sic] because the Exchange proposes to list these rates in the column “Fee/(Rebate) Securities below $1.00” on the Exchange's fee schedule. The Exchange proposes to insert “intentionally omitted” in Footnote 3 in place of the deleted text.
The Exchange notes that Footnote 12 on the fee schedule incorrectly lists a flat rate of $0.0010 per share for Members' orders that yield Flag BY in securities priced below $1.00. However, in practice, the Exchange charges Members 0.10% of the dollar value of the transaction for Members' orders that yield Flag BY, which routes to BATS BYX and removes liquidity using routing strategies ROUC, ROUE, ROBY, ROBB or ROCO.
Customer internalization generally occurs when one Member presents two orders to the Exchange from the same MPID separately, rather than in a paired manner, and the two orders inadvertently match with one another.
The Exchange's fee schedule displays “Free” as the default rates for Members orders that add or remove liquidity for securities priced below $1.00. However, in practice, the Exchange assesses a charge of 0.10% of the dollar value of the transaction for securities priced below $1.00 for Flag HA, for Non-displayed Orders that add liquidity, and Flag HR, for Non-displayed Orders that remove liquidity, where Members satisfy the volume tier requirements outlined in Footnote 2 of the fee schedule. The Exchange proposes to amend its fee schedule to assess a charge of 0.10% of the dollar value of the transaction in the column “Fee/(Rebate) Securities below $1.00” for Flags HA and HR. The Exchange notes that its proposal conforms to an existing practice and does not modify the rate that the Exchange has been charging its Members for orders that yield Flags HA and HR for securities priced below $1.00. In addition, the Exchange proposes to amend Footnote 2 of the fee
The Exchange's fee schedule displays “Free” as the default rates for Members' orders that add or remove liquidity for securities priced below $1.00. However, in practice, the Exchange assesses a charge of 0.05% of the dollar value of the transaction for securities priced below $1.00 for Flag DM, for Non-displayed Orders that add liquidity using the Mid Point Discretionary (“MDO”)
The Exchange proposes to implement these amendments to its fee schedule on March 1, 2013.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The Exchange believes that its proposal to revise its fee schedule to list the default rate that corresponds to each liquidity flag for securities priced below $1.00 that add liquidity on the Exchange's fee schedule represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Specifically, for Members' orders that add liquidity, the Exchange proposes to list the default rate of “Free” to Flags B, V, Y, 3, 4, PA, and RP. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. In addition, the Exchange believes it is equitable and reasonable to not charge Members for orders that add liquidity in securities priced below $1.00 because it will incentivize Members to add liquidity to the Exchange. The Exchange also believes its proposal to assess no charge is equitable and reasonable because the Exchange incurs only nominal administrative, clearing, and other operating costs in executing these trades because of the low volume generated by securities priced below $1.00. The Exchange notes that its proposal does not modify the current rates it charges its Members for orders that yield Flags B, V, Y, 3, 4, PA, and RP for securities priced below $1.00 that add liquidity from the Exchange. Lastly, the Exchange also believes that these proposed amendments are non-discriminatory because they apply uniformly to all Members.
The Exchange believes that its proposal to revise its fee schedule to list the default rate that corresponds to each liquidity flag for securities priced below $1.00 that remove liquidity on the Exchange's fee schedule represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Specifically, for Members' orders that remove liquidity, the Exchange proposes to list the default rate of “Free” next to Flags N, W, 6, BB, CR, PR, PT and XR. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. In addition, the Exchange believes it is equitable and reasonable to not charge Members for orders that remove liquidity in securities priced below $1.00 because it will incentivize Members to remove liquidity from the Exchange. The Exchange also believes its proposal to assess no charge is equitable and reasonable because the Exchange incurs only nominal administrative, clearing, and other operating costs in executing these trades because of the low volume generated by securities priced below $1.00. The Exchange notes that its proposal does not modify the current rates it charges its Members for orders that yield Flags N, W, 6, BB, CR, PR, PT, and XR for securities priced below $1.00 that remove liquidity from the Exchange. Lastly, the Exchange also believes that these proposed amendments are non-discriminatory because they apply uniformly to all Members.
The Exchange believes that its proposal to revise its fee schedule to list the default rate that corresponds to each liquidity flag for securities priced below $1.00 that route and remove liquidity on the Exchange's fee schedule represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Specifically, for Members' orders that route and remove liquidity, the Exchange proposes to list the default rate of 0.30% of the dollar value of the transaction next to Flags D, G, I, J, K, L, O, Q, R, S, T, U, X, Z, 2, 7, CL, MT, PX, RR, RT, RX, and SW. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. In addition, the Exchange believes it is equitable and reasonable to charge Members a default routing and removal rate of 0.30% of the dollar value of the transaction because these fees allow the Exchange to offset its administrative, clearing, and other operating costs incurred in executing such trades. The Exchange notes that routing through DE Route is voluntary. The Exchange also notes that its proposal does not modify the current rates it charges its Members for orders that yield Flags D, G, I, J, K, L, O, Q, R, S, T, U, X, Z, 2, 7, CL, MT, PX, RR, RT, RX, and SW for securities priced below $1.00 that route to away trading destinations and remove liquidity. Lastly, the Exchange also believes that these proposed amendments are non-discriminatory because they apply uniformly to all Members.
The Exchange believes that its proposal to pass through no charge for securities priced below $1.00 that route to some away trading destinations and add liquidity represents an equitable
The Exchange believes that its proposal to revise its fee schedule to list the default rate of “Free” for securities priced below $1.00 that yield Flag OO represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Members will yield Flag OO when their orders are matched at the Direct Edge Opening on EDGA, whether the Member's order adds or removes liquidity. Because the Exchange is not a primary listing market, Flag OO generates low volume; therefore, the Exchange believes its proposal to assess no charge is equitable and reasonable given that the Exchange incurs only nominal administrative, clearing, and other operating costs in executing trades. The Exchange notes that its proposal does not modify the current rate it charges its Members for orders that yield Flag OO for securities priced below $1.00 that are matched at the Direct Edge Opening. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange also believes that the proposed amendment is non-discriminatory because it applies uniformly to all Members.
The Exchange believes that its proposal to assess no charge for securities priced below $1.00 that yield Flag RC represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Members will yield Flag RC when their orders route to the NSX and add liquidity. The Exchange's fee schedule does not clearly disclose its pricing for Members' orders that yield Flag RC in securities priced below $1.00. The Exchange notes that the NSX offers a rebate to DE Route for Members' orders that yield Flag RC. The Exchange also notes that Flag RC generates low volume and nominal revenue to the Exchange. Therefore, the Exchange believes its proposal to assess no charge is equitable and reasonable because the rebate paid by NSX to DE Route and DE Route to the Exchange does not offset the administrative, clearing, and other operating costs associated with passing through the NSX rebate to Members. The Exchange notes that routing through DE Route is voluntary. The Exchange also notes that its proposal conforms to an existing practice and does not modify the rate that the Exchange has been charging its Members for orders that yield Flag RC for securities priced below $1.00. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange also believes that the proposed amendment is non-discriminatory because it applies uniformly to all Members.
The Exchange believes that its proposal to revise its fee schedule to list the rate of 0.10% of the dollar value of the transaction for Members' orders that yield Flag C for securities priced below $1.00 represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities because it is a pass-through rate and the Exchange does not levy additional fees or offer additional rebates for orders that it routes to NASDAQ BX through DE Route. Therefore, since DE Route is charged a fee by NASDAQ BX for routing orders that remove liquidity to its trading center in securities priced below $1.00, the Exchange believes it is equitable and reasonable to charge its Members for orders that yield Flag C. The Exchange's proposal allows the Exchange to continue to charge its Members a pass-through rate for orders that are routed to NASDAQ BX and remove liquidity through DE Route. The Exchange notes that routing through DE Route is voluntary. The Exchange notes that its proposal does not modify the current rate it charges its Members for orders that yield Flag C for securities priced below $1.00. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above and deleting the text of Footnote 3 and its associated annotations on Flags C, D, J, L, and 2, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange also believes that this proposed
The Exchange believes that its proposal to pass through 0.10% of the dollar value of the transaction for Members' orders that yield Flag BY for securities priced below $1.00 represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities because the Exchange does not levy additional fees or offer additional rebates for orders that it routes to BATS BYX through DE Route. The Exchange notes that Footnote 12 on the fee schedule incorrectly lists a flat rate of $0.0010 per share for Members' orders that yield Flag BY in securities priced below $1.00. In practice, the Exchange charges Members 0.10% of the dollar value of the transaction for Members' orders that yield Flag BY. Since DE Route is charged a fee by BATS BYX for routing orders that remove liquidity using routing strategies ROUC, ROUE, ROBY, ROBB or ROCO to its trading center in securities priced below $1.00, the Exchange believes it is equitable and reasonable to charge its Members for orders that yield Flag BY. The Exchange's proposal allows the Exchange to continue to charge its Members a pass-through rate for orders that are routed to BATS BYX and remove liquidity through DE Route. The Exchange notes that its proposal conforms to an existing practice and does not modify the rate that the Exchange has been charging its Members for orders that yield Flag BY for securities priced below $1.00. The Exchange notes that routing through DE Route is voluntary. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above and deleting the text of Footnote 12 and its associated annotation on Flag BY, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange also believes that this proposed amendment is non-discriminatory because it applies uniformly to all Members.
The Exchange believes that its proposal to revise its fee schedule to list the default rate of “Free” for securities priced below $1.00 that yield Flags 5, EA and ER, which are associated with customer internalization, represents an equitable allocation of reasonable dues, fees and other charges. The Exchange's proposed rate for customer internalization is equitable because the rate is consistent with the Exchange's proposed maker/taker spread for securities priced below $1.00, where the default rate for adding liquidity is “Free” and the default rate for removing liquidity is “Free.” Therefore, in each case, the proposed internalization fee of “Free” is no more favorable to the Member than the proposed maker/taker spread. Since the spread for customer internalization equals the Exchange's maker/taker spread, the Exchange's proposal continues to discourage Members from engaging in potential wash sales. The Exchange notes that its proposal does not modify the current rate it charges its Members for orders that yield Flags 5, EA or ER for securities priced below $1.00. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange believes that these proposed rates are non-discriminatory in that they apply uniformly to all Members.
The Exchange believes that its proposal to assess a charge of 0.10% of the dollar value of the transaction for Members' orders in securities priced below $1.00 that yield Flags HA and HR represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. The Exchange's fee schedule displays “Free” as the default rates for Members orders that add or remove liquidity for securities priced below $1.00. However, in practice, the Exchange assesses a charge of 0.10% of the dollar value of the transaction for securities priced below $1.00 for Flags HA and HR. Because the Exchange assesses no charge as the default rate for Members' displayed orders that add or remove liquidity in securities priced below $1.00, the Exchange encourages displayed liquidity over non-displayed liquidity. The Exchange rewards Members for displaying liquidity because displayed liquidity is regarded as a public good that benefits investors and traders by providing greater price transparency and enhancing public price discovery, which ultimately leads to substantial reductions in transaction costs.
The Exchange believes that its proposal to assess a rate of 0.05% of the dollar value of the transaction for Flags DM and DT in securities priced below $1.00 represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. The Exchange's fee schedule displays “Free” as the default rates for Members orders that add or remove liquidity for securities priced below $1.00. However, in practice, the Exchange assesses a charge of 0.05% of the dollar value of the transaction for securities priced below $1.00 for Flags DM and DT. As with the rates for Flag DM and DT for securities priced above $1.00, the Exchange believes the same pricing justifications continue to apply: when the MDO adds liquidity like a displayed Pegged Order, the Exchange will assess no charge and Member's order yields Flags B, V, Y, 3, or 4; and where the MDO adds or removes liquidity, including upon entry, within the Member's specified discretionary (hidden) range, then it behaves like a Non-Displayed or Discretionary Order, which the Exchange proposes to assess a rate of 0.10% of the dollar value of the transaction (Flags HA and HR).
As described in Section 3, the Exchange proposes to make conforming and non-substantive revisions to the fee schedule in general and the description of certain flags in particular in order to increase the level of transparency of the Exchange's fee schedule, promote consistent descriptions and applications, and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members.
The Exchange also notes that it operates in a highly-competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The proposed rule change reflects a competitive pricing structure designed to incent market participants to direct their order flow to the Exchange. The Exchange believes that the proposed rates are equitable and non-discriminatory in that they apply uniformly to all Members. The Exchange believes the fees and credits remain competitive with those charged by other venues and therefore continue to be reasonable and equitably allocated to Members.
These proposed rule changes do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that any of these changes represent a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. In addition, as described in Section 3, the Exchange proposes to make conforming and non-substantive revisions to the fee schedule in general and the description of certain flags in particular in order to increase the level of transparency of the Exchange's fee schedule, promote consistent descriptions and applications, and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members.
Regarding Flags B, V, Y, 3, 4, PA, and RP, the Exchange believes that its proposal to amend its fee schedule to list the default rebate as “Free” in the column “Fee/(Rebate) Securities below $1.00” will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rates for orders that add liquidity and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flags N, W, 6, BB, CR, PR, PT, and XR, the Exchange believes that its proposal to amend its fee schedule to list the default rate as “Free” in the column “Fee/(Rebate) Securities below $1.00” will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rates for orders that remove liquidity and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flags D, G, I, J, K, L, O, Q, R, S, T, U, X, Z, 2, 7, CL, MT, PX, RR, RT, RX, and SW, the Exchange believes that its proposal to amend its fee schedule to list the default rate of 0.30% of the dollar value of the transaction in the column “Fee/(Rebate) Securities below $1.00” will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rates for orders that route and remove liquidity and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flags A, F, M, P, 8, 9, 10, RB, RS, RW, RY, and RZ, the Exchange's fee schedule does not clearly disclose its pricing for Members' orders that route to these away trading destinations and add liquidity in securities priced below $1.00. The Exchange believes that its proposal to pass through no charge for securities priced below $1.00 that route to some away trading destinations and add liquidity will increase competition because it is comparable to the rates charged by the away trading destinations for adding liquidity. The Exchange believes its proposal will not burden intramarket competition or intermarket competition given that the Exchange's proposal conforms to an existing practice and does not modify the rates for orders that route and add liquidity and they apply uniformly to all Members that place orders in securities priced below $1.00. The Exchange believes that its proposal will increase competition for routing services because the market for order execution is competitive and the Exchange's proposal provides customers with another alternative to route their orders. The Exchange notes that routing through DE Route is voluntary.
Regarding Flag OO, the Exchange believes that its proposal to amend its fee schedule to list the default rate of “Free” in the column “Fee/(Rebate) Securities below $1.00” will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rate for Flag OO and it applies uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flag RC, the Exchange's fee schedule does not clearly disclose its pricing for Members' orders yield Flag RC in securities priced below $1.00. The Exchange believes that its proposal to assess no charge will not burden intramarket competition or intermarket competition given that the Exchange's proposal conforms to an existing practice and does not modify the rate for Flag RC and it applies uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flag C, the Exchange believes that its proposal to amend its fee schedule to list a charge of 0.10% of the dollar value of the transaction will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rate for Flag C and it applies uniformly to all Members that place orders in securities priced below $1.00. By charging a pass-through rate for securities priced below $1.00 that route to NASDAQ BX and remove liquidity, the Exchange will increase competition because it is comparable to the rates charged by NASDAQ BX for removing liquidity. The Exchange believes that its proposal will increase competition for routing services because the market for order execution is competitive and the Exchange's proposal provides customers with another alternative to route their orders. The Exchange notes that routing through DE Route is voluntary.
Regarding Flag BY, the Exchange notes that Footnote 12 on the fee schedule incorrectly lists a flat rate of $0.0010 per share for Members' orders that yield Flag BY in securities priced below $1.00. However, in practice, the Exchange charges Members 0.10% of the dollar value of the transaction for Members' orders that yield Flag BY. The Exchange believes that its proposal to pass through a charge of 0.10% of the dollar value of the transaction for securities priced below $1.00 that route
Regarding Flags 5, EA and ER, the Exchange believes that its proposal to amend its fee schedule to list the default rate of “Free” in the column “Fee/(Rebate) Securities below $1.00” for customer internalization will not burden intermarket or intramarket competition as the proposed rate is no more favorable than the Exchange's prevailing maker/taker spread. In addition, the Exchange believes that its proposal will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify the current rates for Flags 5, EA and ER and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flags HA and HR, the Exchange's fee schedule displays “Free” as the default rates for Members orders that add or remove liquidity for securities priced below $1.00. However, in practice, the Exchange assesses a charge of 0.10% of the dollar value of the transaction for securities priced below $1.00 for Flags HA and HR. The Exchange believes that its proposal to assess a charge of 0.10% of the dollar value of the transaction will not burden intramarket competition or intermarket competition given that the Exchange's proposal conforms to an existing practice and does not modify the rates for Flags HA and HR and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flags DM and DT, the Exchange's fee schedule displays “Free” as the default rates for Members orders that add or remove liquidity for securities priced below $1.00. However, in practice, the Exchange assesses a charge of 0.05% of the dollar value of the transaction for securities priced below $1.00 for Flags DM and DT. The Exchange believes that its proposal to assess a charge of 0.05% of the dollar value of the transaction will not burden intramarket competition or intermarket competition given that the Exchange's proposal conforms to an existing practice and does not modify the rate for Flags DM and DT and they apply uniformly to all Members that place orders in securities priced below $1.00.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(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 paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange's default
The Exchange's fee schedule states that it offers Members the default rebate of $0.00003 per share for orders that add liquidity in securities priced below $1.00. The Exchange proposes to amend its fee schedule to list the rebate of $0.00003 in the column “Fee/(Rebate) Securities below $1.00” for Flags B, V, Y, 3, 4, HA, MM, RP, and ZA. The Exchange notes that this proposal does not modify the current rates it charges its Members for orders that yield Flags B, V, Y, 3, 4, HA, MM, RP, and ZA for securities priced below $1.00 that add liquidity to the Exchange.
The Exchange's fee schedule states that it charges Members the default rate of 0.30% of the dollar value of the transaction for orders that remove liquidity in securities priced below $1.00.
The Exchange's fee schedule states that it charges Members the default rate of 0.30% of the dollar value of the transaction for orders that route to away trading destinations in securities priced below $1.00. The Exchange proposes to amend its fee schedule to list the rate of 0.30% of the dollar value of the transaction in the column “Fee/(Rebate) Securities below $1.00” for Flags D, G, I, J, K, L, O, Q, R, S, T, U, X, Z, 2, 7, CL, RQ, RR, RT, RX, and SW. The Exchange notes that this proposal does not modify the current rates it charges its Members for orders that yield Flags D, G, I, J, K, L, O, Q, R, S, T, U, X, Z, 2, 7, CL, RQ, RR, RT, RX, and SW for securities priced below $1.00 that route to away trading destinations and remove liquidity. In addition, the Exchange proposes to amend the title of the routing liquidity category to “Routing and Removing Liquidity” in order to increase the transparency of the Exchange's fee schedule. Regarding the flags' descriptions contained on the fee schedule, the Exchange proposes to delete references to removing liquidity for Flags D, G, J, L, U, 2, RR, RT and RX because the Exchange's references to “route” imply that the flags route and remove liquidity. In addition, the Exchange proposes to make conforming changes to the description of Flag U in order to make the descriptions for all flags that route and remove liquidity consistent.
The Exchange's fee schedule does not clearly disclose its pricing for Members' orders that route to some away trading destinations
The Exchange's fee schedule displays a rebate of $0.00003 per share as the default rate for Members, orders that add liquidity and a charge of 0.30% of the dollar value of the transaction as the
The Exchange's fee schedule does not clearly disclose its pricing for Members' orders that yield Flag RC in securities priced below $1.00. The Exchange currently assesses no charge for Members' orders that yield Flag RC, which route to the National Stock Exchange, Inc. (the “NSX”) and add liquidity. The Exchange proposes to amend its fee schedule to assess no charge for Flag RC. The Exchange notes that its proposal conforms to an existing practice and does not modify the rate that the Exchange has been charging its Members for orders that yield Flag RC for securities priced below $1.00 that route to the NSX and add liquidity.
As provided in Footnote 3 of the fee schedule, the Exchange currently assesses a charge of 0.10% of the dollar value of the transaction for Members' orders that yield Flag C, which route to NASDAQ BX and remove liquidity in securities priced below $1.00. The Exchange proposes to amend its fee schedule to list a charge of 0.10% of the dollar value of the transaction in the column “Fee/(Rebate) Securities below $1.00” for Flag C. The Exchange notes that this proposal does not modify the current rate it charges its Members for orders that yield Flag C for securities priced below $1.00 that route to NASDAQ BX and add liquidity. In addition, the Exchange proposes to delete “removes liquidity” in Flag C's description because the Exchange's reference to “routed” implies that Flag C routes and removes liquidity. The Exchange proposes to delete the text of Footnote 3 and its associated annotations on the default rate for routing and removing liquidity at the top of the fee schedule in addition to Flags C, D, J, L, and 2 on the Exchange's fee schedule because the Exchange proposes to list these rates in the column “Fee/(Rebate) Securities below $1.00” on the Exchange's fee schedule. The Exchange proposes to insert “intentionally omitted” in Footnote 3 in place of the deleted text.
The Exchange notes that Footnote 10 on the fee schedule incorrectly lists a flat rate of $0.0010 per share for Members' orders that yield Flag BY in securities priced below $1.00. However, in practice, the Exchange charges Members 0.10% of the dollar value of the transaction for Members' orders that yield Flag BY, which routes to BATS BYX and removes liquidity using routing strategies ROUC, ROUE or ROBY.
Customer internalization generally occurs when one Member presents two orders to the Exchange from the same Member Participant Identifier (“MPID”) separately, rather than in a paired manner, and the two orders inadvertently match with one another.
The Exchange currently assesses no charge for Members' orders that yield Flag AA for securities priced at or above $1.00 at this time. The Exchange proposes to increase the rate it charges for Flag AA in securities priced at or above $1.00 from no charge to $0.0012 per share per side for Members' orders that inadvertently match with themselves at the Midpoint Match
In conjunction with the Exchange's proposal to amend the rate for Members' orders that yield Flag AA in securities priced at or above $1.00 as described above, the Exchange proposes to amend the rate it charges Members for orders that yield Flag AA in securities priced below $1.00. The Exchange currently assesses no charge for Members' orders that inadvertently match with themselves at the Midpoint Match in the same MPID. The Exchange proposes to charge Members 0.15% of the dollar value of the transaction per side for securities priced below $1.00 so the internalization fee is no more favorable than the spread per side for Members' orders in securities priced below $1.00 that add liquidity at the Midpoint Match
The Exchange proposes to implement these amendments to its fee schedule on March 1, 2013.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The Exchange believes that its proposal to revise its fee schedule to list the default rate that corresponds to each liquidity flag for securities priced below $1.00 that add liquidity on the Exchange's fee schedule represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Specifically, for Members' orders that add liquidity, the Exchange proposes to list the default rebate of $0.00003 per share next to Flags B, V, Y, 3, 4, HA, MM, RP, and ZA. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. In addition, the Exchange believes it is equitable and reasonable to offer Members a default rebate of $0.00003 per share for orders that add liquidity in securities priced below $1.00 because it will incentivize Members to add liquidity to the Exchange by offering them a rebate and offering rebates to Members that add liquidity is consistent with the Exchange's maker/taker model. The Exchange notes that its proposal does not modify the current rates it charges its Members for orders that yield Flags B, V, Y, 3, 4, HA, MM, RP, and ZA for securities priced below $1.00 that add liquidity from the Exchange. Lastly, the Exchange also believes that these proposed amendments are non-discriminatory because they apply uniformly to all Members.
The Exchange believes that its proposal to revise its fee schedule to list the default rate that corresponds to each liquidity flag for securities priced below $1.00 that remove liquidity on the Exchange's fee schedule represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Specifically, for Members' orders that remove liquidity, the Exchange proposes to list the default removal rate of 0.30% of the dollar value of the transaction next to Flags N, W, 6, BB, MT, PI, PR, and ZR. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. In addition, the Exchange believes it is equitable and reasonable to charge Members a default removal rate of 0.30% of the dollar value of the transaction because these fees allow the Exchange to offset its administrative, clearing, and other operating costs incurred in executing such trades. The Exchange notes that its proposal does not modify the current rates it charges its Members for orders that yield Flags N, W, 6, BB, MT, PI, PR, and ZR for securities priced below $1.00 that remove liquidity from the Exchange. Lastly, the Exchange also believes that these proposed amendments are non-discriminatory because they apply uniformly to all Members.
The Exchange believes that its proposal to revise its fee schedule to list the default rate that corresponds to each liquidity flag for securities priced below $1.00 that route and remove liquidity on the Exchange's fee schedule represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Specifically, for Members' orders that route and remove liquidity, the Exchange proposes to list the default rate of 0.30% of the dollar value of the transaction next to Flags D, G, I, J, K, L, O, Q, R, S, T, U, X, Z, 2, 7, CL, RQ, RR, RT, RX, and SW. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. In addition, the Exchange believes it is equitable and reasonable to charge Members a default routing and removal rate of 0.30% of the dollar value of the transaction because these fees allow the Exchange to offset its administrative, clearing, and other operating costs incurred in executing such trades. The Exchange also notes that routing through DE Route is voluntary. The Exchange notes that its proposal does not modify the current rates it charges its Members for orders that yield Flags D, G, I, J, K, L, O, Q, R, S, T, U, X, Z, 2, 7, CL, RQ, RR, RT, RX, and SW for securities priced below $1.00 that route to away trading destinations and remove liquidity. Lastly, the Exchange also believes that these proposed amendments are non-discriminatory because they apply uniformly to all Members.
The Exchange believes that its proposal to pass through no charge for securities priced below $1.00 that route to some away trading destinations and add liquidity represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities because the Exchange does not levy additional fees or offer additional rebates for orders that it routes to these away trading destinations through DE Route. The Exchange's fee schedule does not clearly disclose its pricing for Members' orders that route to these away trading destinations and add liquidity in securities priced below $1.00. Currently, the away trading destinations assess no charge to DE Route for orders that route to those destinations and add liquidity, and DE Route passes through no charge to the Exchange and the Exchange passes through no charge to its Members.
The Exchange believes that its proposal to assess no charge for securities priced below $1.00 that yield Flag OO represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Members will yield Flag OO when their orders are matched at the Direct Edge Opening on EDGX, whether the Member's order adds or removes liquidity. The Exchange's fee schedule displays a rebate of $0.00003 per share as the default rate for Members' orders that add liquidity and a charge of 0.30% of the dollar value of the transaction as the default rate for Members' orders that remove liquidity for securities priced below $1.00. However, in practice, the Exchange assesses no charge for Members' orders that that yield Flag OO in securities priced below $1.00, which represents Members' orders that are matched at the “Direct Edge Opening” and either add or remove liquidity. Because the Exchange is not a primary listing market, Flag OO generates low volume; therefore, the Exchange believes its proposal to assess no charge is equitable and reasonable given that the Exchange incurs only nominal administrative, clearing, and other operating costs in executing trades. The Exchange notes that its proposal conforms an existing practice and does not modify the rate that the Exchange has been charging its Members for orders that yield Flag OO for securities priced below $1.00 that are matched at the Direct Edge Opening. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange also believes that the proposed amendment is non-discriminatory because it applies uniformly to all Members.
The Exchange believes that its proposal to assess no charge for securities priced below $1.00 that yield Flag RC represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. Members will yield Flag RC when their orders route to the NSX and add liquidity. The Exchange's fee schedule does not clearly disclose its pricing for Members' orders that yield Flag RC in securities priced below $1.00. The Exchange notes that the NSX offers a rebate to DE Route for Members' orders that yield Flag RC. The Exchange also notes that Flag RC generates low volume and nominal revenue to the Exchange. Therefore, the Exchange believes its proposal to assess no charge is equitable and reasonable because the rebate paid by NSX to DE Route and DE Route to the Exchange does not offset the administrative, clearing, and other operating costs associated with passing through the NSX rebate to Members. The Exchange notes that routing through DE Route is voluntary. The Exchange also notes that its proposal conforms to an existing practice and does not modify the rate that the Exchange has been charging its Members for orders that yield Flag RC for securities priced below $1.00. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange also believes that the proposed amendment is non-discriminatory because it applies uniformly to all Members.
The Exchange believes that its proposal to revise its fee schedule to list the rate of 0.10% of the dollar value of the transaction for Members' orders that yield Flag C for securities priced below $1.00 represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities because it is a pass-through rate and the Exchange does not levy additional fees or offer additional rebates for orders that it routes to NASDAQ BX through DE Route. Therefore, since DE Route is charged a fee by NASDAQ BX for routing orders that remove liquidity to its trading center in securities priced below $1.00, the Exchange believes it is equitable and reasonable to charge its Members for orders that yield Flag C. The Exchange's proposal allows the Exchange to continue to charge its Members a pass-through rate for orders that are routed to NASDAQ BX and remove liquidity through DE Route. The Exchange notes that routing through DE Route is voluntary. The Exchange notes that its proposal does not modify the current rate it charges its Members for orders that yield Flag C for securities priced below $1.00. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above and deleting the text of Footnote 3 and its associated annotations on Flags C, D, J, L, and 2, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange also believes that this proposed amendment is non-discriminatory because it applies uniformly to all Members.
The Exchange believes that its proposal to pass through 0.10% of the dollar value of the transaction for Members' orders that yield Flag BY for securities priced below $1.00 represents an equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities because the Exchange does not levy additional fees or offer additional rebates for orders that it routes to BATS BYX through DE Route. The Exchange notes that Footnote 10 on the fee schedule incorrectly lists a flat rate of $0.0010 per share for Members' orders that yield Flag BY in securities priced below $1.00. In practice, the Exchange charges Members 0.10% of the dollar value of the transaction for Members' orders that yield Flag BY. Since DE
The Exchange believes that its proposal revise its fee schedule to list a charge of 0.15% of the dollar value of the transaction per side for Members' orders in securities priced below $1.00 that yield Flags 5, EA and ER, which are associated with customer internalization, represents an equitable allocation of reasonable dues, fees and other charges. The Exchange's rate of 0.15% of the dollar value of the transaction per side for customer internalization is equitable because the rate is consistent with the Exchange's proposed maker/taker spread for securities priced below $1.00. Therefore, in each case, the internalization fee of 0.15% of the dollar value of the transaction per side is no more favorable to the Member than the proposed maker/taker spread. Since the spread for customer internalization equals the Exchange's maker/taker spread, the Exchange's proposal continues to discourage Members from engaging in potential wash sales. The Exchange notes that its proposal does not modify the current rates it charges its Members for orders that yield Flags 5, EA or ER for securities priced below $1.00. The Exchange's proposal to revise the corresponding text on the fee schedule, as described above and deleting the applicable text of Footnote 11, will increase the level of transparency of the Exchange's fee schedule and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members. Lastly, the Exchange believes that these proposed rates are non-discriminatory in that they apply uniformly to all Members.
As described in Section 3, the Exchange proposes to make conforming and non-substantive revisions to the fee schedule in general and the description of certain flags in particular in order to increase the level of transparency of the Exchange's fee schedule, promote consistent descriptions and applications, and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members.
The Exchange believes that its proposal to increase the rate it charges Members for customer internalization from no charge per share per side to $0.0012 per share per side for Members' orders that yield Flag AA in securities priced at or above $1.00 is an equitable allocation of reasonable dues, fees and other charges. The Exchange's proposed rate of $0.0012 per side per share for Members' orders that inadvertently match with themselves at the Midpoint Match in the same MPID is equitable because the rate is consistent with the Exchange's proposed maker/taker spread of $0.0012 per share, where the rate to add liquidity at the Midpoint Match and yield Flag MM is $0.0012 per share and the rate to remove liquidity at the Midpoint Match and yield Flag MT is $0.0012 per share. Therefore, in each case, the proposed internalization fee of $0.0012 per side per share, equaling a total cost of $0.0024 per share for Flag AA, is no more favorable to the Member than the proposed maker/taker spread for Midpoint Match. Since the spread for customer internalization and the Exchange's maker/taker spread for Midpoint Match will equal $0.0012 per share, the Exchange's proposal discourages Members from engaging in potential wash sales. Lastly, the Exchange believes that the proposed rate is non-discriminatory in that it applies uniformly to all Members.
The Exchange believes that its proposal to charge Members 0.15% of the dollar value of the transaction per side for customer internalization for orders that yield Flag AA in securities priced below $1.00 is an equitable allocation of reasonable dues, fees and other charges. The Exchange's proposed rate of 0.15% of the dollar value of the transaction per side for Members' orders that inadvertently match with themselves at the Midpoint Match in the same MPID is equitable because the rate is consistent with the Exchange's proposed maker/taker spread for Midpoint Match. Therefore, in each case, the proposed internalization fee of 0.15% of the dollar value of the transaction per side, equaling a total cost of 0.30% of the dollar value of the transaction, where the rebate to add to Midpoint Match (Flag MM) is $0.00003 per share and the fee to remove from Midpoint Match (Flag MT) is 0.30% of the dollar value of the transaction, is no more favorable to the Member than the proposed maker/taker spread for Midpoint Match. Since the spread for customer internalization will equal the Exchange's maker/taker spread for Midpoint Match, the Exchange's proposal discourages Members from engaging in potential wash sales. Lastly, the Exchange believes that the proposed rate is non-discriminatory in that it applies uniformly to all Members.
The Exchange also notes that it operates in a highly-competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The proposed rule change reflects a competitive pricing structure designed to incent market participants to direct their order flow to the Exchange. The Exchange believes that the proposed rates are equitable and non-discriminatory in that they apply uniformly to all Members. The Exchange believes the fees and credits remain competitive with those charged by other venues and therefore continue to be reasonable and equitably allocated to Members.
These proposed rule changes do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that any of these changes represent a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. As described in Section 3, the Exchange proposes to make conforming and non-substantive revisions to the fee schedule in general and the description of certain flags in particular in order to increase the level of transparency of the Exchange's fee schedule, promote consistent descriptions and applications, and improve the Exchange's ability to effectively convey the rates for securities priced below $1.00 to Members.
Regarding Flags B, V, Y, 3, 4, HA, MM, RP, and ZA, the Exchange believes that its proposal to amend its fee schedule to list the default rebate of $0.00003 in the column “Fee/(Rebate) Securities below $1.00” will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rates for orders that add liquidity and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flags N, W, 6, BB, MT, PI, PR, and ZR, the Exchange believes that its proposal to amend its fee schedule to list the default rate of 0.30% of the dollar value of the transaction in the column “Fee/(Rebate) Securities below $1.00” will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rates for orders that remove liquidity and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flags D, G, I, J, K, L, O, Q, R, S, T, U, X, Z, 2, 7, CL, RQ, RR, RT, RX, and SW, the Exchange believes that its proposal to amend its fee schedule to list the default rate of 0.30% of the dollar value of the transaction in the column “Fee/(Rebate) Securities below $1.00” will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rates for orders that route and remove liquidity and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flags A, F, M, 8, 9, 10, RA, RB, RS, RW, RY, and RZ, the Exchange's fee schedule does not clearly disclose its pricing for Members' orders that route to these away trading destinations and add liquidity in securities priced below $1.00. The Exchange believes that its proposal to pass through no charge for securities priced below $1.00 that route to some away trading destinations and add liquidity will increase competition because it is comparable to the rates charged by the away trading destinations for adding liquidity. The Exchange believes its proposal will not burden intramarket competition or intermarket competition given that the Exchange's proposal conforms to an existing practice and does not modify the rates for orders that route and add liquidity and they apply uniformly to all Members that place orders in securities priced below $1.00. The Exchange believes that its proposal will increase competition for routing services because the market for order execution is competitive and the Exchange's proposal provides customers with another alternative to route their orders. The Exchange notes that routing through DE Route is voluntary.
Regarding Flag OO, the Exchange's fee schedule displays a rebate of $0.00003 per share as the default rate for Members orders that add liquidity and a charge of 0.30% of the dollar value of the transaction as the default rate for Members orders that remove liquidity for securities priced below $1.00. However, in practice, the Exchange assesses no charge for Members' orders that that yield Flag OO in securities priced below $1.00, which represents Members' orders that are matched at the “Direct Edge Opening” and either add or remove liquidity. The Exchange believes that its proposal to assess no charge will not burden intramarket competition or intermarket competition given that the Exchange's proposal conforms to an existing practice and does not modify the rate for Flag OO and it applies uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flag RC, the Exchange's fee schedule does not clearly disclose its pricing for Members' orders yield Flag RC in securities priced below $1.00. The Exchange believes that its proposal to assess no charge will not burden intramarket competition or intermarket competition given that the Exchange's proposal conforms to an existing practice and does not modify the rate for Flag RC and it applies uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flag C, the Exchange believes that its proposal to amend its fee schedule to list a charge of 0.10% of the dollar value of the transaction will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rate for Flag C and it applies uniformly to all Members that place orders in securities priced below $1.00. By charging a pass-through rate for securities priced below $1.00 that route to NASDAQ BX and remove liquidity, the Exchange will increase competition because it is comparable to the rates charged by NASDAQ BX for removing liquidity. The Exchange believes that its proposal will increase competition for routing services because the market for order execution is competitive and the Exchange's proposal provides customers with another alternative to route their orders. The Exchange notes that routing through DE Route is voluntary.
Regarding Flag BY, the Exchange notes that Footnote 10 on the fee schedule incorrectly lists a flat rate of $0.0010 per share for Members' orders that yield Flag BY in securities priced below $1.00. However, in practice, the Exchange charges Members 0.10% of the dollar value of the transaction for Members' orders that yield Flag BY. The Exchange believes that its proposal to pass through a charge of 0.10% of the dollar value of the transaction for securities priced below $1.00 that route to BATS BYX and remove liquidity will increase competition because it is comparable to the rates charged by BATS BYX for removing liquidity. The Exchange believes its proposal will not burden intramarket competition or intermarket competition given that the Exchange's proposal conforms to an existing practice and does not modify the rate for Flag BY and it applies uniformly to all Members that place orders in securities priced below $1.00. The Exchange believes that its proposal will increase competition for routing services because the market for order execution is competitive and the Exchange's proposal provides customers with another alternative to route their orders. The Exchange notes that routing through DE Route is voluntary.
Regarding Flags 5, EA and ER, the Exchange believes that its proposal to amend its fee schedule to list the rate of 0.15% of the dollar value of the transaction per side in the column “Fee/(Rebate) Securities below $1.00” for customer internalization will not burden intermarket or intramarket competition as the proposed rate is no more favorable than the Exchange's prevailing maker/taker spread. In addition, the Exchange believes that its proposal will not burden intramarket competition or intermarket competition given that the Exchange's proposal does not modify its current rates for Flags 5, EA and ER and they apply uniformly to all Members that place orders in securities priced below $1.00.
Regarding Flag AA in securities priced at or above $1.00, the Exchange believes that its proposal to assess a charge of $0.0012 per share per side for Members' orders that inadvertently match with themselves at the Midpoint Match in the same MPID will not burden intermarket or intramarket competition as the proposed rate is no more favorable than the Exchange's prevailing maker/taker spread at the Midpoint Match. In addition, the Exchange believes that its proposal will not burden intramarket competition or intermarket competition because it applies uniformly to all Members.
Regarding Flag AA in securities priced below $1.00, the Exchange
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(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 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 November 29, 2012, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA utilizes TRACE to collect from its members and publicly disseminate information on secondary over-the-counter transactions in corporate debt securities and Agency Debt Securities
Specifically, FINRA has proposed to amend FINRA Rule 6730(d)(2) to require a member to report to TRACE the Factor in the limited instances when the member effects a transaction in an ABS (except a TBA transaction) as agent and charges a commission.
FINRA has also proposed technical amendments to reorganize the current size reporting requirements in FINRA Rule 6730(d)(2) and to make them consistent with proposed Rule 6730(d)(2)(B)(iv).
FINRA stated that it will announce the effective date of the proposed rule change in a
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
In approving the original TRACE rules, the Commission stated that price transparency plays a fundamental role in promoting fairness and efficiency of U.S. capital markets.
The commenter suggested that the proposed rule change would add an administrative burden to the industry.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The Exchange proposes add new BX Rule 7026 (Distribution Models) to establish a program for Managed Data Solutions (“MDS”).
While the fee changes pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on March 1, 2013.
The text of the proposed rule change is provided in
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.
BX is now proposing to create a new data distribution model known as MDS in new Rule 7026 to further the distribution of BX TotalView.
Proposed BX Rule 7026 is similar to The NASDAQ Stock Market LLC (“NASDAQ”) Rule 7026 in terms of offering MDS for a fee to members of the Exchange.
MDS is a pricing and administrative option that will assess a new fee schedule to Distributors of BX Depth Data that provide datafeed solutions such as an Application Programming Interface (API) or similar automated delivery solutions to recipients with limited entitlement controls (e.g., usernames and/or passwords) (“Managed Data Recipients”). However, the Distributor must first agree to reformat, redisplay and/or alter the BX Depth Data prior to retransmission, but not to affect the integrity of the BX Depth Data and not to render it inaccurate, unfair, uninformative, fictitious, misleading, or discriminatory. MDS is any retransmission datafeed product containing BX Depth Data offered by a Distributor where the Distributor manages and monitors, but does not necessarily control, the information. However, the Distributor does maintain contracts with the Managed Data Recipients and is liable for any unauthorized use by the Managed Data Recipients. The Managed Data Recipients may only use the information for internal, non-display purposes and may not distribute the information outside of their organization.
In the past, retransmissions were considered to be an uncontrolled data product if the Distributor did not control both the entitlements and the display of the information. Over the last ten years, however, Distributors have improved the technical delivery and monitoring of data, and the MDS offering responds to an industry need to offer new pricing and administrative options.
The Exchange notes that some Distributors believe that MDS is a better controlled datafeed product and as such should not be subject to the same rates as a datafeed. However, the Distributors may only have contractual control over the data and may not be able to verify how Managed Data Recipients are actually using the data at least without involvement of the Managed Data Recipient.
Finally, proposed Rule 7026 establishes a fee schedule for Distributors and Subscribers of MDS products containing BX Depth Data for non-display use only. Specifically, Distributors would be assessed $750/month per Distributor for the right to offer MDS to client organizations. Non-Professional Subscribers would be assessed $20/month per Subscriber for the right to obtain BX Depth Data (which includes TotalView) for internal non-display use only. And Professional Subscribers would be assessed $100/month per Subscriber for the right to receive BX Depth Data (TotalView) for internal non-display use only.
This new fee is meant to lower the fee for current and potential future recipients of datafeed products by offering a new pricing option. No recipients will have an increased fee due to this filing.
Accordingly, the Exchange believes that the proposed rule establishes a program that allows all BX Members and Distributors a practicable methodology to access and receive MDS, similarly to other options [sic] exchanges.
BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
By removing “unnecessary regulatory restrictions” on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history. If the free market should determine whether proprietary data is sold to broker-dealers at all, it follows that the price at which such data is sold should be set by the market as well.
On July 21, 2010, President Barack Obama signed into law H.R. 4173, the Dodd- Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), which amended Section 19 of the Act. Among other things, Section 916 of the Dodd-Frank Act amended paragraph (A) of Section 19(b)(3) of the Act by inserting the phrase “on any person, whether or not the person is a member of the self-regulatory organization” after “due, fee or other charge imposed by the self-regulatory organization.” As a result, all SRO rule proposals establishing or changing dues, fees, or other charges are immediately effective upon filing regardless of whether such dues, fees, or other charges are imposed on members of the SRO, non-members, or both. Section 916 further amended paragraph (C) of Section 19(b)(3) of the Exchange Act to read, in pertinent part, “At any time within the 60-day period beginning on the date of filing of such a proposed rule change in accordance with the provisions of paragraph (1) [of Section 19(b)], the Commission summarily may temporarily suspend the change in the rules of the self-regulatory organization made thereby, 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 this title. If the Commission takes such action, the Commission shall institute proceedings under paragraph (2)(B) [of Section 19(b)] to determine whether the proposed rule should be approved or disapproved.”
The decision of the United States Court of Appeals for the District of Columbia Circuit in
BX believes that the proposed fees are fair and equitable, and not unreasonably discriminatory. The proposed fees are based on pricing conventions and distinctions that currently exist in the fee schedules of another exchange, namely NASDAQ. These distinctions (e.g. Distributor versus Subscriber, Professional versus Non-Professional, internal versus external distribution, controlled versus uncontrolled datafeed) are each based on principles of fairness and equity that have helped for many years to maintain fair, equitable, and not unreasonably discriminatory fees, and that apply with equal or greater force to the current proposal. BX believes that the MDS offering promotes broader distribution of controlled data, while offering a fee reduction in the form of a pricing option resulting in lower fees for Subscribers. The MDS proposal is reasonable in that it offers a methodology to get MDS data for less. It is equitable in that it provides an opportunity for all Distributors and Subscribers, Professional and Non-Professional, to get MDS data without unfairly discriminating against any.
Thus, if BX has calculated improperly and the market deems the proposed fees to be unfair, inequitable, or unreasonably discriminatory, firms can diminish or discontinue the use of their data because the proposed fees are entirely optional to all parties. Firms are not required to choose to purchase MDS or to utilize any specific pricing alternative. BX is not required to make MDS available or to offer specific pricing alternatives for potential purchases. BX can discontinue offering a pricing alternative (as it has in the past) and firms can discontinue their use at any time and for any reason (as they often do), including due to their assessment of the reasonableness of fees charged. BX continues to establish and revise pricing policies aimed at increasing fairness and equitable allocation of fees among Subscribers.
BX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Notwithstanding its determination that the Commission may rely upon competition to establish fair and equitably allocated fees for market data, the
The proposal is, as described below pro-competitive. The proposal offers an overall fee reduction, which is, by its nature, pro-competitive. Moreover, there is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price and distribution of its data products. Without the prospect of a taking order seeing and reacting to a posted order on a particular platform, the posting of the order would accomplish little. Without orders entered and trades executed, exchange data products cannot exist. Data products are valuable to many end Subscribers insofar as they provide information that end Subscribers expect will assist them in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the broker-dealer chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the broker-dealer will choose not to buy it. Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to that broker-dealer decreases, for two reasons. First, the product will contain less information, because executions of the broker-dealer's orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that broker-dealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the broker-dealer is directing orders will become correspondingly more valuable.
“No one disputes that competition for order flow is fierce.”
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platform may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge) and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. This would be akin to strictly regulating the price that an automobile manufacturer can charge for car sound systems despite the existence of a highly competitive market for cars and the availability of after-market alternatives to the manufacturer-supplied system.
The market for market data products is competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
Broker-dealers currently have numerous alternative venues for their order flow, including more than ten SRO markets, as well as internalizing BDs and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two Financial Industry Regulatory Authority, Inc. (“FINRA”) regulated Trade Reporting Facilities (“TRFs”) compete to attract internalized transaction reports. Competitive markets for order flow, executions, and
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE Amex (now NYSE MKT), NYSEArca, DirectEdge and BATS.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple broker-dealers' production of proprietary data products. The potential sources of proprietary products are virtually limitless.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products as, for example, BATS and Arca did before registering as exchanges by publishing Depth-of-Book data on the Internet. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace.
Market data vendors provide another form of price discipline for proprietary data products because they control the primary means of access to end Subscribers. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Thomson Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end Subscribers will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail broker-dealers, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: they can simply refuse to purchase any proprietary data product that fails to provide sufficient value. BX and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While broker-dealers have previously published their proprietary data individually, Regulation NMS encourages market data vendors and broker-dealers to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg, and Thomson Reuters.
Competition among platforms has driven BX continually to improve its platform data offerings and to cater to customers' data needs. For example, BX has developed and maintained multiple delivery mechanisms (IP, multi-cast, and compression) that enable customers to receive data in the form and manner they prefer and at the lowest cost to them. BX has created new products like TotalView, because offering data in multiple formatting allows BX to better fit customer needs. BX offers data via multiple extranet and telecommunication providers such as Verizon, BT Radianz, and Savvis, among others, thereby helping to reduce network and total cost for its data products. BX has an online administrative system to provide customers transparency into their datafeed requests and streamline data usage reporting. BX has also implemented an Enterprise License option to reduce the administrative burden and costs to firms that purchase market data.
Despite these enhancements and ever increasing message traffic, BX's fees for market data have remained flat. The same holds true for execution services; despite numerous enhancements to BX's trading platform, absolute and relative trading costs have declined. Platform competition has intensified as new entrants have emerged, constraining prices for both executions and for data.
The vigor of competition for BX data is significant and the Exchange believes that this proposal itself clearly evidences such competition. BX is offering a new pricing model in order to keep pace with changes in the industry and evolving customer needs. This pricing option is entirely optional and is geared towards attracting new customers, as well as retaining existing customers.
The Exchange has witnessed competitors creating new products and innovative pricing in this space over the course of the past year. BX continues to see firms challenge its pricing on the basis of the Exchange's explicit fees being higher than the zero-priced fees from other competitors such as BATS. In all cases, firms make decisions on how much and what types of data to consume on the basis of the total cost of interacting with BX or other exchanges. Of course, the explicit data fees are but one factor in a total platform analysis. Some competitors have lower transactions fees and higher data fees, and others are vice versa. The market for the proposed data is highly competitive and continually evolves as products develop and change.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• 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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Endeavor Power Corp. (“Endeavor Power”), quoted under the ticker symbol EDVP, because of questions regarding the accuracy of assertions in Endeavor Power's public filings and press releases relating to, among other things, patents.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
By the Commission.
60-day notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new and/or currently approved information collection.
Submit comments on or before May 13, 2013.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collections, to Rachel Newman Karton, Program Analyst, Office of Entrepreneurial Development, Small Business Administration, 409 3rd Street, 6th Floor, Washington, DC 20416.
Rachel Newman Karton, Program Analyst, 202-619-1618
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of michigan dated 03/04/2013.
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 135116 and for economic injury is 135120.
The State which received an EIDL Declaration # is Michigan.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for the State of Mississippi (FEMA—4101—DR), dated 02/13/2013.
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.
The notice of the Presidential disaster declaration for the State of Mississippi, dated 02/13/2013 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the Eastern Band of Cherokee Indians (FEMA-4103-DR), dated 03/01/2013.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 03/01/2013, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications 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 135136 and for economic injury is 135146.
Social Security Administration (SSA).
Notice; request for comments.
We are requesting public input as we finalize our Service Delivery Plan (SDP). We designed our SDP as a roadmap for how we will serve the public over the next decade. The SDP explains how we will build on our achievements, accommodate our resource constraints, and achieve the goals and objectives laid out in our Agency Strategic Plan.
To ensure that we consider your comments, we must receive them no later than April 11, 2013.
You may submit comments by one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2012-0048 so that we associate
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Comments are available for public viewing on the Federal eRulemaking portal at
Karl W. Tomak, Social Security Administration, 900 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-3192. For information about our programs or about eligibility or filing for benefits, please visit our Internet site, Social Security Online at
Social Security's programs affect nearly every American and contribute significantly to the Nation's economy. Today, the challenge of service delivery is greater than at any other point in our history. Over the past few years, requests for our core services have risen dramatically as the population grew and baby boomers aged, passing through their most disability-prone years before retiring. In addition, we also have experienced huge increases in our workloads due to the economic downturn. These unprecedented workloads, combined with budget constraints, have placed serious strains on our service delivery. This means that we must work smarter to maintain the productivity gains of the past several years.
We intend to rely on technology-driven innovation, coupled with ongoing policy updates and streamlined business processes, to continue to transform our agency. We designed our SDP as part of our roadmap for continuing to provide excellent public service over the next decade, despite the challenges we expect to face.
When we initially developed the SDP, we sought suggestions from the public as to how we can continue to provide the best possible service. (77 FR 44306 (2012)). We have incorporated those suggestions into this version of the document. We invite you to review the document and send us any additional comments you have. Please see the information under
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to May 13, 2013.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Danika Walters, 2201 C St. NW., Room #1245, Washington, DC 20520, who may be reached on 202-647-1347 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to April 11, 2013.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to PPT Forms Officer, U.S. Department of State, 2100 Pennsylvania Avenue. NW., Room 3030, Washington, DC 20037, who may be reached on (202) 663-2457 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
The Secretary of State is authorized to issue U.S. passports under 22 U.S.C. 211a et seq, 8 U.S.C. 1104, and Executive Order 11295 (August 5, 1966). Department regulations provide that individuals whose valid or potentially valid U.S. passports were lost or stolen must make a report of the lost or stolen passport to the Department of State before they receive a new passport, so that the lost or stolen passport can be invalidated (22 CFR parts 50 and 51). The Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1737) requires the Department of State to collect accurate information on lost or stolen U.S. passports and to enter that information into a data system. Form DS-64 collects information identifying the person who held the lost or stolen passport and describing the circumstances under which the passport was lost or stolen. As required by the cited authorities, we use the information collected to accurately identify the passport that must be invalidated and to make a record of the circumstances surrounding the lost or stolen passport. False statements made knowingly or willfully on passport forms, in affidavits or other supporting documents are punishable by fine and/or imprisonment under U.S. law. (18 U.S.C. 1001, 1542-1544).
This form is used in conjunction with a DS-11, “Application for a U.S. Passport”, or submitted separately to report loss or theft of a U.S. passport. Passport Services collects the information when a U.S. citizen or non-citizen national applies for a new U.S. passport and has been issued a previous, still valid U.S. passport that has been lost or stolen, or when a passport holder independently reports it lost or stolen. Passport applicants can either download the form from the Internet or obtain the form at any Passport Agency, Acceptance Facility, Embassy, or Consulate.
In addition to general format changes, the following content changes have been made to the form:
• Section 1—the field “Driver's License or Military ID Number” was added to assist in the prevention of fraudulently submitted DS-64 forms.
• Section 2—was revised in its entirety breaking out the two main questions into items 2a through 2e to more efficiently organize the information we are requesting from the applicant.
• Section 3—A numbered, dark blue ribbon with instructions was added to clearly delineate the form sections and thereby assist the applicant to more efficiently review the information on the form.
• Section 3—the Department included a second signature and date line to allow for the signature of a second Parent/Guardian, if present, in keeping with the requirements of the DS-11 form.
• Section 3—at the bottom of this section, the Department added the
For a child under 16 “This form must be mailed in” and both parents or the child's legal guardians(s) must sign the form. In case of sole custody, include a copy of the supporting document (court order) with this form.
The Department estimates that these changes will not result in an increase in the current burden time of 5 minutes per respondent.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to May 13, 2013.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Marlene Menard, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Department of State, Washington, DC 20520-7818, who may be reached at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to April 11, 2013.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Andrej Kolaja, US Department of State, 2300 C St., Washington, DC 20037 who may be reached 202-632-9362 or
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• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
This collection of information is under the provisions of the Mutual Educational and Cultural Exchange Act, as amended, and the Exchange Visitor Program regulations (22 CFR Part 62), as applicable. The information collected will be used by the Department to ascertain whether there are any issues that would affect the safety and well-being of exchange program participants.
The survey will be sent electronically via the Survey Monkey tool and responses collected electronically. If a respondent requests a paper version of the survey it will be provided.
Dates: January 30, 2013.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to April 11, 2013.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, Michelle Hale, ECA/P/V, Department of State (SA-44), 301 4th St. SW., Washington, DC 20547, who may be reached on 202-203-7205 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
This request for a new information collection will allow ECA/P/V to conduct a survey to provide data not currently available in order to review the experiences of recipients of the Benjamin A. Gilman International
The survey will be entirely web-based to ease any burden on the participant. The survey will be distributed and responses received electronically using the survey application SurveyGizmo.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Ona M. Hahs, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6473). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Office of the United States Trade Representative.
Notice.
Under the United States-Israel Free Trade Area Implementation Act (IFTA Act), articles of qualifying industrial zones (QIZs) encompassing portions of Israel and Jordan or Israel and Egypt are eligible to receive duty-free treatment. Effective upon publication of this notice, the United States Trade Representative, pursuant to authority delegated by the President, is modifying the designation of the previously-designated Al Minya, Alexandria, Beni Suief, Central Delta, Greater Cairo, and Suez Canal zones in Egypt under the IFTA Act to provide that all present and future facilities in these zones are potentially able to export goods duty-free to the United States. This modification would also clarify and, in some cases, adjust the geographic boundaries of the QIZs.
Sonia Franceski, Director for Middle East Affairs, (202) 395-4987, Office of the United States Trade Representative, 600 17th Street NW., Washington, DC 20508.
Pursuant to authority granted under section 9 of the United States-Israel Free Trade Area Implementation Act of 1985 (IFTA Act), as amended (19 U.S.C. 2112 note), Presidential Proclamation 6955 of November 13, 1996 (61 FR 58761) proclaimed certain tariff treatment for articles of the West Bank, the Gaza Strip, and qualifying industrial zones. In particular, the Presidential Proclamation modified general notes 3 and 8 of the Harmonized Tariff Schedule of the United States: (a) To provide duty-free treatment to qualifying articles that are the product of the West Bank, the Gaza Strip, or a qualifying industrial zone and are entered in accordance with the provisions of section 9 of the IFTA Act; (b) to provide that articles of Israel may be treated as though they were articles directly shipped from Israel for purposes of the United States-Israel Free Trade Area Agreement (“the Agreement”) even if shipped to the United States from the West Bank, the Gaza Strip, or a qualifying industrial zone, if the articles otherwise meet the requirements of the Agreement; and (c) to provide that the cost or value of materials produced in the West Bank, the Gaza Strip, or a qualifying industrial zone may be included in the cost or value of materials produced in Israel under section 1(c)(i) of Annex 3 of the Agreement and that the direct costs of processing operations performed in the West Bank, the Gaza Strip, or a qualifying industrial zone may be included in the direct costs of processing operations performed in Israel under section 1(c)(ii) of Annex 3 of the Agreement.
Section 9(e) of the IFTA Act defines a “qualifying industrial zone” as an area that “(1) encompasses portions of the territory of Israel and Jordan or Israel and Egypt; (2) has been designated by local authorities as an enclave where merchandise may enter without payment of duty or excise taxes; and (3) has been specified by the President as a qualifying industrial zone.” Presidential Proclamation 6955 delegated to the United States Trade Representative the authority to designate qualifying industrial zones.
The United States Trade Representative has previously designated six qualifying industrial zones in Egypt under Section 9 of the IFTA Act, on March 13, 1998 (63 FR 12572), March 19, 1999 (64 FR 13623), October 15, 1999 (64 FR 56015), October 24, 2000 (65 FR 64472), and December 12, 2000 (65 FR 77688), June 15, 2001 (66 FR 32660) January 28, 2004 (69 FR 4199), December 29, 2004 (69 FR 78094), November 16, 2005 (70 FR 69622) and January 28, 2009 (74 FR 4482). In each of those designations, the USTR designated as qualifying industrial zones the areas occupied by
The governments of Israel and Egypt submitted a request for designation of additional factories in two zones, the Beni Suief and Al Minya zones, on December 5, 2012. Following this request, during consultations in Washington on January 7, 2013, USTR discussed with representatives of Egypt and Israel a proposal to modify the designation of the existing QIZs to provide that all present and future facilities in these zones are potentially able to export goods duty-free to the United States. This modification would also clarify and, in some cases, adjust the geographic boundaries of each of the six existing zones. The geographic boundaries of each the six zones being designated are specified on maps and materials on file with the Office of the U.S. Trade Representative. Israel and Egypt have each confirmed that merchandise may enter, without payment of duty or excise taxes, areas under their respective customs control that comprise the Greater Cairo zone, the Alexandria zone, the Suez Canal zone, the Central Delta zone, the Beni Suief zone and the Al Minya zone, as described in this notice. Further, the operation and administration of these zones are provided for in the previously agreed “Protocol between the Government of the State of Israel and the Government of the Arab Republic of Egypt On Qualifying Industrial Zones.” Accordingly, each of the six zones meet the criteria under sections 9(e)(1) and (2) of the IFTA Act.
Therefore, pursuant to the authority delegated to me by Presidential Proclamation 6955, I hereby re-designate the areas that comprise the Al Minya zone, the Alexandria zone, the Beni Suief zone, the Central Delta zone, the Greater Cairo zone, and the Suez Canal zone, as specified on maps and materials on file at the office of the United States Trade Representative, as qualifying industrial zones under section 9 of the IFTA Act, effective upon the date of publication of this notice, applicable to articles shipped from these qualifying industrial zones after such date. This re-designation supersedes any previous designation of these zones.
Office of the United States Trade Representative.
Notice of opportunity to file petitions requesting accelerated tariff elimination and changes to the non-textile and non-apparel products rules of origin under the United States-Colombia Trade Promotion Agreement (“the Agreement” or “USCTPA”).
This notice solicits proposals seeking accelerated tariff elimination under the USCTPA as well as proposals on appropriate changes that USTR should consider for modifying the USCTPA's rules of origin under Article 4.14 of the Agreement. This notice also describes the procedures for filing proposals.
Public comments are due at USTR by close of business, May 13, 2013.
Bennett Harman, Deputy Assistant USTR for Latin America, at (202) 395-9446.
Article 2.3.4 of the USCTPA provides that the United States and Colombia may agree to accelerate the elimination of customs duties set out in their respective tariff schedules. Section 201(b) of the United States-Colombia Trade Promotion Agreement Implementation Act (“the TPA Act” or “the Act”) authorizes the President to proclaim modifications in the staging of duty treatment set out in the Agreement, subject to the Act's consultation and layover requirements.
The USCTPA requires each government to provide preferential tariff treatment to goods that meet the Agreement's rules of origin. In the United States, those rules are implemented through the TPA Act. Under the Act, goods imported into the United States qualify for preferential treatment if they meet the requirements of the general USCTPA rules of origin set out in section 203 of the Act, and the USCTPA product-specific rules set out in the HTS. The Agreement allows the Parties to amend the Agreement's rules of origin. Section 203(o)(3) of the USCTPA Act authorizes the President to proclaim modifications to the USCTPA's product-specific origin rules, subject to the consultation and layover provisions of section 104 of the Act.
In order to ensure the timely receipt and consideration of comments, USTR strongly encourages commenters to make on-line submissions, using the
The
A person seeking to request that information contained in a submission from that person be treated as business confidential information must certify that such information is business confidential and would not customarily be released to the public by the submitter. For any comments submitted electronically containing business confidential information, the file name of business confidential version should begin with the characters “BC”. Confidential business information must be clearly designated as such. The submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page, and the submission should indicate, via brackets, the specific information that is confidential. Additionally, “BUSINESS CONFIDENTIAL” must be included in the “Type Comment” field. Filers of submissions containing business confidential information must also submit a public version of their comments indicating where confidential information has been redacted. The non-confidential summary will be placed in the docket and open to public inspection. The file name of the public version should begin with the character “P”. The “BC” and “P” should be followed by the name of the person or entity submitting the comments or reply comments. Filers submitting comments containing no business confidential information should name their file using the character “P”, followed by the name of the person or entity submitting the comments.
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the submission itself, not as separate files.
USTR strongly urges submitters to file comments through
Federal Aviation Administration (FAA), DOT.
Notice of Intent of Waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal from the City of Rolla (sponsor), Rolla, MO, to release a 10 acre parcel (Lot 1) of land from the federal obligation dedicating it to aeronautical use and to authorize this parcel to be used for revenue-producing, non-aeronautical purposes.
Comments must be received on or before April 11, 2013.
Comments on this application may be mailed or delivered to the FAA at the following address: Lynn D. Martin, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, ACE-610C, 901 Locust Room 364, Kansas City, MO 64106.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to: John Butz, City Administrator, City of Rolla, 901 N. Elm St., Rolla, MO 65401, (573) 426-6948.
Lynn D. Martin, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, ACE-610C, 901 Locust Room 364, Kansas City, MO 64106, Telephone number (816) 329-2644, Fax number (816) 329-2611, email address:
The FAA invites public comment on the request to change approximately 10 acres of airport property at the Rolla National Airport (VIH) from aeronautical use to non-aeronautical for revenue producing use. The parcel of land is located along the Southwest corner of the airport, near Missouri State Highway 28. This parcel will be used for construction and operation of The Brewer Science Building. Brewer Science is a high technology electronics firm that produces products such as anti-reflective coating, lift-off materials, protective coatings, temporary bondings, etc. which is headquartered in Rolla. The firm conducts business around the world with an emphasis in North America, Europe and China.
No airport landside or airside facilities are presently located on this parcel, nor are airport developments contemplated in the future. There is no current use of the surface of the parcel. The parcel will serve as a revenue producing lot with the proposed change from aeronautical to non-aeronautical. The request submitted by the Sponsor meets the procedural requirements of the Federal Aviation Administration and the change to non-aeronautical status of the property does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this Notice.
The Rolla National Airport (VIH) is proposing the release of one parcel, of 10 acres, more or less from aeronautical to non-aeronautical. The release of land is necessary to comply with Federal Aviation Administration Grant Assurances that do not allow federally acquired airport property to be used for non-aviation purposes. The rental of the subject property will result in the land at the Rolla National Airport (VIH) being changed from aeronautical to nonaeronautical use and release the
A fractional part of the Southwest Quarter of Section 2, Township 39 North, Range 8 West of the 5th P.M. described as follows: Commencing at the Southwest Corner of said Section 2; thence North 38°25′20″ East, 1062.05 feet to the southeasterly right of way of Missouri Highway 28, being a point left of Station 647+00; thence North 34°35′40″ East, 817.43 feet along said southeasterly right of way to the true point of beginning of the hereinafter described tract: Thence continuing North 34°35′40″ East, 612.29 feet along said southeasterly right of way; thence South 43°54′30″ East, 787.11 feet; thence South 46°06′30″ West, 600.00 feet; thence North 43°54′30″ West, 664.89 feet to the true point of beginning. Above described tract contains 10.00 acres, more or less, per plat of survey J-475, dated June 15, 2012, by Archer-Elgin Surveying and Engineering, LLC.
Any person may inspect, by appointment, the request in person at the FAA office listed above
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Supplemental notice of proposed rulemaking.
On January 19, 2012, the U.S. Department of Energy (DOE) issued a notice of proposed rulemaking (NOPR) in which DOE proposed a new test procedure for television sets (TVs). To address comments in response to the NOPR, DOE conducted additional research and analysis, which is incorporated in today's supplemental notice of proposed rulemaking (SNOPR). DOE also incorporated elements from the draft Consumer Electronics Association (CEA) standard “CEA-2037-A, Determination of Television Average Power Consumption” into the SNOPR. In today's SNOPR, DOE proposes to update the input power requirements in the TVs test procedure NOPR by referencing International Electrotechnical Commission (IEC) Standard 62301 Ed. 2.0, “Household electrical appliances—Measurement of standby power.” The SNOPR also proposes to include example accuracy tolerance calculations for light measuring devices (LMD). Additionally, DOE proposes to update the video source input cable hierarchy in the test procedure, as well as specify the TV input terminal for testing. Further, today's SNOPR clarifies TV warm-up and stabilization prior to testing, removes the standby-active, high mode test, includes a test for standby-active, low mode, updates the test order, and provides details for testing TVs shipped with Automatic Brightness Control (ABC) enabled. Finally, today's SNOPR adds rounding requirements to the TV test procedure NOPR that provide guidance for any calculated values used for representation in multiple metric outputs, including an annual energy consumption metric. The multiple metric outputs will also be subject to a sampling plan in today's SNOPR. DOE will hold a public meeting to receive and discuss comments on the proposal.
DOE will hold a public meeting on April 4, 2013, from 9 a.m. to 4 p.m., in Washington, DC. The meeting will also be broadcast as a webinar. See section V, “Public Participation,” for webinar registration information, participant instructions, and information about the capabilities available to webinar participants.
DOE will accept comments, data, and information regarding this supplemental notice of proposed rulemaking (SNOPR) submitted no later than April 26, 2013. See section V, “Public Participation,” for details.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW, Washington, DC 20585. To attend, please notify Ms. Brenda Edwards at (202) 586-2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the meeting should advise DOE as soon as possible by contacting Ms. Edwards to initiate the necessary procedures. Please also note that those wishing to bring laptops into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing laptops, or allow an extra 45 minutes. Persons can attend the public meeting via webinar. For more information, refer to the Public Participation section near the end of this notice.
Any comments submitted must identify the Television Set Test Procedure SNOPR, and provide docket number EERE-2010-BT-TP-0026 and/or Regulatory Information Number (RIN) 1904-AC29. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).
A link to the docket Web page can be found at:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Mr. Jeremy Dommu, 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) 586-9870. Email:
Ms. Celia Sher, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 287-6122. Email:
Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291,
Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures when testing to determine whether the products comply with any relevant standards promulgated under EPCA. For a further description of the basic nature of the program, see section I.A of the TVs test procedure NOPR that DOE published in this rulemaking. 77 FR 2830, 2831 (Jan. 19, 2012) (the January 2012 NOPR).
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides in relevant part that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
EISA 2007 amended EPCA to require DOE to integrate a standby and off mode energy consumption measurement into test procedures where no such measurement is already included, if technically feasible. Otherwise, DOE must prescribe a separate standby and off mode energy test procedure, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)) DOE recognizes that the standby and off mode conditions of operation apply to TVs.
In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)) Finally, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2))
DOE adopted a test procedure for TVs on June 29, 1979, codified at 10 CFR part 430, subpart B, Appendix H. 44 FR 37938. In May 2008, the California Energy Commission (CEC) and the Consumer Electronics Association (CEA) each petitioned DOE to repeal this test procedure. CEC's petition stated that the 1979 test procedure was not capable of accurately measuring the energy consumption of modern TVs because TV broadcasting is no longer transmitted via an analog signal. CEA petitioned for DOE's adoption of the International Electrotechnical Commission (IEC) test procedure IEC 62087 Ed. 2.0, “Method of measurement for the power consumption of audio, video and related equipment.” 74 FR 53641. DOE agreed that the 1979 test procedure was largely obsolete for today's products and repealed the test procedure on October 20, 2009. 74 FR 53640.
As the first step in establishing a new test procedure for TVs, DOE published a Request for Information on September 3, 2010 (the 2010 RFI) requesting information and views from stakeholders on a range of issues it had identified based on its review of various TV standards and test procedures, including: (1) IEC 62087 Ed. 2.0; (2) the ENERGY STAR Program Requirements for Televisions, Version 4.1 (ENERGY STAR v. 4.1); and (3) CEA's TV test procedure, “Determination of Television Average Power Consumption,” CEA-2037 (March 2010). 75 FR 54049. Using the information gathered in the 2010 RFI, DOE issued a TV test procedure NOPR on January 19, 2012, which proposed the adoption of a new TV test procedure to accurately measure the energy consumption of today's TVs. 77 FR 2830 (the January 2012 NOPR). The proposed test procedure was based on updated versions of the IEC, ENERGY STAR and CEA test procedures, namely, IEC 62087 Ed. 3.0, ENERGY STAR v. 5.3, and CEA-2037 (March 2010). In addition, the January 2012 NOPR incorporated by reference certain provisions of IEC 62087 Ed. 3.0
The January 2012 NOPR proposed test procedures for measuring screen luminance and determining power consumption for on mode, standby-passive mode, standby-active, low mode, and off mode. DOE requested written comments on the NOPR and held a public meeting on March 22, 2012.
Based on comments received from interested parties on the January 2012 NOPR, additional research and testing performed by DOE, the draft version of CEA 2037-A, Determination of Television Average Power Consumption,
(1) Method for measuring screen luminance,
(2) Testing multiple illuminance values,
(3) Method for generating illuminance,
(4) The best possible signal source and connection to that signal source,
(5) Stabilization time for luminance and power measurements,
(6) Measuring energy consumption in Download Acquisition mode (DAM),
(7) Measuring power consumption while connected to a network, and
(8) Measuring power consumption on TVs with power saving technologies, such as sensors, display power management systems (DPMS), and high-definition multimedia interface
For further details on the background of this rulemaking prior to issuance of the January 2012 NOPR, see section I.C of that document, 77 FR 2830, 2821-32.
In today's SNOPR, DOE proposes: (1) To amend the January 2012 NOPR based on comments received from interested parties and data collected by DOE during round robin and other additional testing; and (2) to adopt a metric to calculate the annual energy consumption (AEC) of a TV. DOE notes that comments previously made by stakeholders that are not addressed in today's SNOPR will be addressed by DOE in the final rule.
In the January 2012 NOPR, DOE proposed definitions for “retail picture setting” and “home picture setting.” In today's SNOPR, DOE proposes to replace these terms with “brightest-selectable preset picture setting” and “default picture setting”, respectively. DOE feels that these new terms will provide clarity for on mode and luminance testing. DOE also proposes to modify the definition of a television set to ensure the scope of coverage clearly differentiates between televisions and displays which are typically used with a computer. Additionally, DOE proposes to include definitions for the following terms, not included in the January 2012 NOPR: “component video”, “composite video”, “HDMI”, “S-video”, “special functions”, “preset picture settings”, and “dark room”. DOE believes these additional definitions will provide clarity to the test procedure.
In addition, DOE is proposing to modify the Accuracy and Precision of Measurement Equipment section as well as the Test Conditions section of the January 2012 NOPR. In the NOPR, DOE proposed using a 115 V, 60 Hz input power supply for testing TVs. In today's SNOPR, DOE is proposing to incorporate by reference the power supply requirements specified in section 4.3.1 of IEC 62301 Ed. 2.0 which would allow the DOE test procedure to be more easily adopted by international regulating bodies. DOE also proposes to clarify instrument accuracy requirements by providing examples for calculating light measuring device (LMD) tolerance.
In the January 2012 NOPR, DOE proposed a hierarchy for selecting the video source input cable used for testing TVs. Today, DOE proposes to update that hierarchy by removing Video Graphics Array (VGA) and Digital Visual Interface (DVI) cables. VGA and DVI are typically used as display input video sources, which do not meet the scope of coverage for the proposed test procedure, and are not appropriate for TV testing. DOE is also proposing to add a section to the test procedure which specifies the appropriate input terminal that should be used during testing. Specifying the input terminal connection will help ensure all TVs are connected in the same manner during testing.
Today's SNOPR also proposes to further clarify the TV test procedure by: (1) Updating the stabilization requirements outlined in the January 2012 NOPR; (2) incorporating by reference the stabilization section of IEC 62087 Ed. 3.0; (3) including a test for standby-active, low mode; (4) removing the test for standby-active, high mode; and (5) revising the test order outlined in the January 2012 NOPR.
In the January 2012 NOPR, DOE proposed including a separate test method for TVs with ABC enabled by default. In today's SNOPR, DOE is proposing to provide clarification to the testing of TVs with ABC enabled by default. This SNOPR updates the light source specifications to allow for new lamp
(1) Round Robin Test Report
(2) IR/ND Testing Filter Test Results
(3) Room Testing Conditions Test Results
(4) Analysis of Nielsen Data
(5) Input Terminal Test Results
Today's SNOPR also includes a proposed metric to calculate the AEC of a TV from the rated power consumption in the on, standby, and off modes of operation. The proposed metric combines the rated power consumption values of the TV in the different modes of operation into a single metric based on the expected time spent in each mode of operation such that it is representative of the TV's annual energy use. Providing an approach for calculating AEC will ensure harmonization of reported values across different voluntary, incentive, and State programs applicable to TVs.
Finally, today's SNOPR proposes sampling requirements that must be used to represent power consumption values for on mode, standby-active, low mode and standby-passive mode. DOE is also proposing rounding provisions for these metrics.
The specific amendments proposed in today's SNOPR represent the only changes to the January 2012 NOPR. For the reader's convenience, DOE has reproduced in this SNOPR the entire body of proposed regulatory text from the January 2012 NOPR, amended as appropriate to incorporate today's proposed changes. DOE's supporting analysis and discussion on the portions of the proposed regulatory text not affected by this SNOPR may be found in the January 2012 NOPR. 77 FR 2830.
DOE seeks comments from interested parties on the proposed TV test procedure amendments in today's notice. DOE will consider modifications that improve the accuracy, precision of language, or other elements of the procedure and/or decrease the testing burden. In submitting comments,
DOE primarily focused on the draft CEA-2037-A standard, Determination of Television Average Power Consumption, to develop the test procedure for TVs that is proposed in today's SNOPR. The draft CEA-2037-A standard specifies the test conditions and test setup at which power consumption of the TV should be measured. These include the modes of operation of the TV, test room and equipment requirements, and measurement tests for determining the power consumption in each mode of operation. CEA is a leading organization that connects consumer electronics manufacturers, retailers, and other interested parties to develop industry accepted electronics product test procedures. The CEA Technology & Standards program is CEA's standard making body that is accredited by ANSI (American Nation Standards Institute).
The CEA-2037-A standard is currently in a 30 day voting period, which is expected to end on March 4, 2013. Once the CEA-2037-A standard is published it will be available on CEA's Web site at
In the January 2012 NOPR, DOE proposed that a television set be defined as “A product designed to be powered primarily by mains power having a diagonal screen size of fifteen inches or larger that is manufactured with a TV tuner, * * *”. 77 FR 2864. However, in the January 2012 NOPR preamble, DOE uses both “
In addition, within the television set definition, DOE has modified the January 2012 NOPR language of “* * * and that is capable of displaying dynamic visual information * * *” to “* * * and that is capable of displaying dynamic visual content * * *”. DOE believes changing “information” to “content” provides a clearer description of a television set's primary function.
The revised definition of a television set, as proposed in today's SNOPR, is “a product designed to be powered primarily by mains power, having a diagonal screen size of fifteen inches or larger, that contains an internal TV tuner encased in a single housing, and that is capable of displaying dynamic visual content from wired or wireless sources including but not limited to: * * *”. DOE seeks comment from interested parties on DOE's proposed TV definition, and on whether the revised definition provides sufficient clarity on the TV test procedure scope of coverage (Section V.B.1).
DOE is proposing the following sampling plan and rounding requirements for TVs to enable manufacturers to make representations of power consumption in the on, standby-active, low, and standby-passive modes of operation. A sampling plan and rounding requirement were not proposed in the January 2012 NOPR, however, DOE believes they will improve consistency of results reported for regulatory and voluntary programs. The represented power consumption values shall be used to calculate the AEC metric, which shall be rounded according to the requirements proposed below. The sampling requirements are included in the proposed section 429.25 of subpart B of 10 CFR part 429.
For consistency with other consumer products regulated under EPCA, DOE is proposing that a minimum of two units of a TV basic model be tested to develop a representative rating, as prescribed in 10 CFR 429.11. However, manufacturers may test more units of a TV basic model, if desired. Additionally, DOE is proposing that any represented power consumption values of a TV basic model shall be greater than or equal to the higher of the mean of the sample or the 95 percent upper confidence limit (UCL) of the true mean divided by 1.05.
The mean of the sample is calculated as follows:
The UCL is calculated as follows:
DOE testing indicates that the on mode power consumption test procedure, for TVs without an ABC sensor or with ABC disabled by default, is repeatable to within one percent. Test procedure repeatability for TVs with ABC enabled by default varies from 0.4 to 3.6 percent, depending on the TV model tested, with an average repeatability of 1.1 percent and a median of 0.6 percent.
DOE is also proposing a 1.10 divisor for standby mode power consumption and for other power consumption measurements other than on mode. Due to the relatively small power consumption values for standby modes, a small change in tested values can
DOE is therefore proposing to incorporate this sampling plan into 10 CFR 429.25. DOE requests comment from interested parties regarding its proposed sampling plan for on mode power consumption, which specifies a divisor of 1.05, and for standby mode and other power consumption measurements other than on mode, which specifies a divisor of 1.10 (See Section V.B. 2).
Finally, DOE proposes that only the mean and the UCL of the samples tested shall be rounded, while all calculations to determine the mean and UCL shall be performed with unrounded values. The proposed rounding requirements for the rated power consumption values are included in section 5.3 (Calculation of Average and Rated Power Consumption) of the proposed Appendix H to subpart B of 10 CFR part 430.
Once the rated power consumption values for the on, standby mode, and other power consumption values that are not on mode are calculated and rounded, DOE proposes that these rated values shall be used to calculate the AEC metric. To round the AEC metric from the rated power consumption values, DOE proposes the following: if the AEC is 100 kWh or less, the value shall be rounded to the nearest tenth of a kWh. If the AEC is greater than 100 kWh, the value shall be rounded to the nearest kWh. DOE requests comment on the proposed rounding requirements for representing a TV's on mode, standby mode and other power consumption modes that are not on mode.
In the January 2012 NOPR, DOE proposed incorporating definitions for the TV test procedure from IEC 62087 Ed. 3.0 and ENERGY STAR v. 5.3. DOE also proposed new definitions for “home picture setting” and “retail picture setting” for on mode and luminance testing. 77 FR 2830, 2836, 2837. In response to the January 2012 NOPR, Mitsubishi Electric Visual Solutions America (MEVSA) and Sharp recommended including the following terms in the DOE test procedure: “special functions”, “preset picture setting”, and “dark room”. (MEVSA, No. 2 at p. 2; Sharp, No 45 at p. 2) MEVSA also recommended that DOE provide further clarification for dark room conditions. (MEVSA, No. 2 at p. 2) DOE believes that adding definitions for “special functions,” “preset picture setting” and “dark room” will provide added clarity to the luminance and on mode tests and DOE is therefore proposing to add such definitions to the test procedure.
Interested parties also indicated that the definition for “retail picture setting” was confusing due to the ambiguity over which modes could be interpreted as the “retail picture setting”. Specifically, Sharp, MEVSA, Pacific Gas and Electric Company (PG&E), Northwest Energy Efficiency Alliance (NEEA), and Panasonic noted confusion with the definition and recommended that it be modified. (Sharp, No. 45 at p. 2; MEVSA, No. 44 at p. 5; PG&E, No. 46 at p. 3; NEEA, No. 43 at p. 2; Panasonic, No. 50 at p. 2) Given interested party feedback, and to clarify the test procedure, DOE proposes to remove the “retail picture setting” term and definition from the test procedure and replace it with “brightest-selectable preset picture setting”. Similarly, DOE proposes to remove the “home picture setting” term and definition and replace it with “default picture setting”. The following sections discuss the modified and additional definitions proposed in today's SNOPR.
In response to the January 2012 NOPR, Sharp recommended that DOE include the IEC 62087 Ed. 3.0 definition for “special functions”. (Sharp, No. 45 at p. 2) Sharp also commented that additional functions should be disabled during testing while special functions should remain in their default configuration (Sharp No. 45 at p. 2). DOE notes that many TVs are now equipped with a variety of “special functions”, such as “quick start” power on, ABC, and other power saving features, which are not standard among different manufacturers and models. DOE proposes to define such “special functions” in the TV test procedure as functions that shall remain enabled during testing if they are enabled by default (i.e., if they are enabled as-shipped). This definition is in contrast to DOE's definition for “additional functions”, proposed in the January 2012 NOPR, which are to be disabled for testing regardless of their status as-shipped. Incorporating a definition for “special functions” helps to clearly define which functions shall be enabled during testing. DOE believes that the definition for “special functions” from IEC 62087 Ed. 3.0 is appropriate because it is a clear, concise and widely accepted definition. For these reasons, DOE is proposing to incorporate by reference this term, from section 3.1.18 of IEC 62087 Ed. 3.0, in section 2.12 (Special Functions) of Appendix H to subpart B of 10 CFR part 430. Specifically, DOE proposes to define “special functions” as “functions that are related to, but not required for, the basic operation of the device”. Additionally, DOE proposes to incorporate the definition for “additional funtions” from section 3.1.1 of IEC 62087 Ed. 3.0 in section 2.1 (Additional Functions) of Appendix H to subpart B of 10 CFR part 430. DOE notes that this definition has not changed from the definition proposed in the January 2012 NOPR, but is incorporated by reference to be consistent with existing industry test procedures. DOE requests comment from interested parties on incorporating by reference the IEC definitions for “additional functions” and “special functions” in today's SNOPR (Section V.B.4).
In response to the January 2012 NOPR, Sharp and MEVSA proposed adding definitions for “preset picture setting” and “dark room” respectively. (Sharp, No. 45 at p. 2; MEVSA, No. 44 at p. 3) Additionally, in written comments to the January 2012 NOPR, Sharp commented that an abbreviation for Blu-ray Disc
In order to further aid in defining the scope of coverage of this rulemaking DOE would like to harmonize its definitions for input connections with other DOE rules such as the set-top box rulemaking published on January 23, 2013. 78 FR 5076. Thus, DOE proposes to include definitions for component video, composite video, HDMI, and S-video in the test procedure. DOE proposes to incorporate by reference two industry standards that are used to
MEVSA agreed with the testing conditions outlined in the January 2012 NOPR but believes that dark room conditions are underspecified. (MEVSA, No. 44 at p. 2) MEVSA suggested the following dark room definition: “All luminance testing (with a non-contact meter) and on mode testing (with ABC enabled by default) shall be performed in dark room conditions, meaning the display screen illuminance measurement in off mode must be less than or equal to 1.0 lux, and in a room or an enclosure with dark, non-reflective walls.” (MEVSA, No. 44 at p. 3) DOE conducted on mode testing while varying room wall color (black, beige) and wall reflectance (fabric, matte paint, glossy paint and white-backed window), while ensuring room illuminance values were less than 1.0 lux at the sensor. DOE observed a difference in power consumption of less than 2 percent with these room variations.
Even though DOE testing indicated that room conditions have a minimal impact on test results, DOE proposes to specify that the ABC sensor remain at least 2 feet from any wall surface (i.e. wall, ceiling, and floor). Maintaining a distance of at least 2 feet away from all wall surfaces increases test set-up repeatability. DOE clarifies that this specification does not include surfaces on which the TV may be placed or the room surface closest to the back of the TV. Additionally, this requirement is only necessary for TV's with ABC sensors enabled by default. DOE requests comment from interested parties on requiring the ABC sensor to be at least 2 feet from any room surface (See Section V.B.5).
In the January 2012 NOPR, DOE proposed to define “retail picture setting” as the “preset picture setting” in which the TV produces the highest luminance in on mode. 77 FR 2830, 2837. Sharp, MEVSA, PG&E, NEEA, and Panasonic all stated that the term and definition were confusing and proposed alternative definitions or changes to the term.
NEEA stated that DOE should change the definition for “retail picture setting” and could define it as “the mode with the highest brightness level attainable by a factory defined menu option.” Otherwise, NEEA recommended changing the term to something other than “retail picture setting”. (NEEA, No. 43 at p. 2) MEVSA recommended the following definition: “Retail picture setting is the television configuration when the `retail' forced menu is selected (if available), or the preset picture setting in which the TV produces the highest luminance during the on mode conditions.” (MEVSA, No. 44 at p. 6) PG&E suggested an alternative term, “brightest picture setting, which is the picture setting in which the TV produces the highest luminance during on mode.” (PG&E, No. 46 at p. 2) Sharp urged DOE to define “retail picture setting” as “the picture setting which is recommended for retail use by the manufacturer from the initial set up menu.” (Sharp, No. 45 at p. 2) Further, Panasonic recommended changing the definition for “retail picture setting” to the following: “Retail picture setting (or the brightest-selectable preset picture setting) is the preset picture setting in which the TV produces the highest luminance during the on mode conditions.” (Panasonic, No. 50 at p. 3) Sharp also indicated that manufacturers may have brighter preset settings than the retail picture setting. (Public Meeting Transcript, No. 51 at p. 41)
In
Since most, if not all, power consumption will occur in the “home” menu for a given TV purchased by a consumer, DOE believes that on mode power consumption values should be representative of the viewing options available from the “home” menu rather than from the “retail” menu. DOE is therefore proposing to remove the definitions for “retail picture setting” and “home picture setting” proposed in the January 2012 NOPR and replace these definitions with the following new terms: “preset picture setting”, “brightest-selectable preset picture setting”, and “default picture setting”. DOE believes these changes clarify the picture settings for testing and provide a more representative power consumption value.
DOE received feedback from the January 2012 NOPR requesting clarification of the term “preset picture setting”, as it is used in the definition of “retail picture setting”. Neither IEC 62087 Ed. 3.0 nor ENERGY STAR v. 6.0 provide a definition for this term; therefore, DOE proposes to define “preset picture setting” in today's SNOPR. MEVSA and PG&E suggested that DOE clarify what is meant by the term “preset picture setting”. (MEVSA, No. 44 at p. 5; PG&E, No. 46 at p. 2) DOE believes that defining “preset picture setting” will improve test repeatability and reproducibility, and minimize confusion when selecting picture settings for on mode and luminance testing. DOE proposes to define “preset picture setting” in section 2.11 (Preset Picture Setting) of Appendix H to subpart B of 10 CFR part 430 as “a pre-programmed factory setting obtained from the TV menu with pre-determined picture parameters such as brightness, contrast, color, sharpness, etc. Preset picture settings are selected within the home menu after the initial set-up selection from the forced menu, if a forced menu is present”. DOE requests comment on the need to define “preset picture setting”, as well as DOE's proposed definition (Section V.B.6).
Based on comments from interested parties, DOE is proposing to remove the term “retail picture setting” and define “brightest selectable preset picture setting” in section 2.2 (Brightest -selectable preset picture setting) of Appendix H to subpart B of 10 CFR part 430 as “the preset picture setting in which the television produces the highest luminance during on mode”. To determine the “brightest selectable preset picture setting”, each “preset picture setting” must be tested according to the luminance test in section 5.5 (Luminance Test) of Appendix H to subpart B of 10 CFR part 430. DOE requests comment from interested parties on the use of the term “brightest selectable preset picture setting” and its proposed definition (Section V.B.7).
Although Sharp commented that it agrees with the current definition for “home picture setting” (Sharp, No. 45 at p. 2), DOE no longer feels this term and its associated definition is appropriate given its association with the forced menu requirements in
DOE believes that the addition of “brightest selectable preset picture setting” and “default picture setting” clarifies how picture settings should be selected and used for testing. Determining the luminance values of the available “preset picture settings” should require little time and is the most definitive way to determine the ”brightest selectable preset picture setting” (see figure 1). DOE also believes that excluding any picture settings derived from the “retail” forced menu setting (see figure 2), as specified in
In the January 2012 NOPR, DOE proposed adopting the IEC 62087 Ed. 3.0 power supply specifications with several modifications. 77 FR 2830, 2838. DOE proposed to limit the input voltage and frequency to 115 V at 60 Hz, rather than including the general requirement that the TV be tested at “the nominal voltage of the region.” DOE also proposed restricting the voltage fluctuation supplied to the TV during testing to be within ± 1 percent, rather than the ± 2 percent specified in IEC 62087 Ed. 3.0. 77 FR 2830, 2838.
In response to DOE's proposal, Panasonic recommended adopting IEC 62087 Ed 3.0 Section 5.1.1 (Power Supply) requirements, which specify that the nominal voltage and frequency of the region be used and provide tolerances for voltage, frequency, and harmonics. (Panasonic, No. 50 at p. 2) Although DOE agrees with Panasonic's comments in support of a nominal voltage requirement, DOE is proposing to adopt power specifications from IEC 62301 Ed. 2.0 rather than from IEC 62087 Ed. 3.0. IEC 62301 Ed. 2.0 is consistent with DOE's proposal in the January 2012 NOPR of a voltage and frequency tolerance of ±1% while still specifying the nominal voltage and frequency of the country. This allows the DOE test procedure to be used by other regulating bodies while still specifying the same criteria proposed in the January 2012 NOPR. IEC 62301 Ed. 2.0 also provides a table for the nominal voltage and frequency values by country which is consistent with the NOPR proposal of 115 volts at a frequency of 60 Hz for the United States. This table explicitly states the nominal voltage of the United States to avoid any confusion while listing other regions so the DOE test procedure may easily be adapted by other regions and regulating bodies. DOE proposes to modify section 3.1.1 (Power Supply Requirements) to Appendix H to subpart B of 10 CFR part 430, and incorporate by reference section 4.3.1 (Supply Voltage and Frequency) of IEC 62301 Ed. 2.0.
Additionally, it has come to DOE's attention that the proposed language in the January 2012 NOPR for measuring power factor may be confusing. DOE clarifies that for proposed section 3.1.2.2 to Appendix H to subpart B of 10 CFR part 430, both power factor and real power shall be measured and reported for all on mode tests.
DOE wishes to retain the total harmonic distortion (THD) requirement that was proposed in the January 2012 NOPR as additional clarification to the power supply requirement referenced in IEC 62301 Ed. 2.0. DOE did not receive comment on its proposal and feels that a tolerance of 5% is sufficient without being a test burden.
In the January 2012 NOPR, DOE proposed that either a contact or a non-contact Light Measurement Device (LMD) could be used for measuring TV screen luminance. 74 FR 2838-39. DOE believes the January 2012 NOPR proposal may have incorrectly implied that LMD specifications only referred to luminance meters. In this SNOPR, DOE clarifies that LMD specifications are designed to be used for both luminance and illuminance LMDs. DOE also proposed, in the January 2012 NOPR, an accuracy of ±2 percent (±2 digits) of the digitally displayed value, and repeatability within 0.4 percent (±2 digits) of the display value for all LMDs used during the test. 77 FR 2830, 2838-39. PG&E agreed with allowing both a contact and distance luminance meter for measuring screen luminance (PG&E, No. 46 at p. 2), and Sharp agreed with DOE's proposed LMD specifications. (Sharp, No. 45 at p. 3) NEEA urged DOE to clarify the accuracy of the luminance meters in the test procedure. (NEEA, No. 43 at p. 2) MEVSA also asked DOE to provide more clarification on the LMD tolerance specification. (Public Meeting Transcript, No. 51 at p. 29) Given interested party feedback, DOE is proposing to update section 3.1.3 (Light Measurement Device) of Appendix H to subpart B of 10 CFR part 430 by providing examples for calculating LMD tolerance and adding language to clarify the scope of this requirement. However,
In the January 2012 NOPR, DOE proposed adopting High-Definition Multimedia Interface (HDMI)/Digital Video Interface (DVI), Video Graphics Array (VGA), component video, separate video (S-Video), and composite video input cables for conducting on mode power consumption testing. 77 FR 2830, 2839-40. Panasonic, Sharp, and MEVSA indicated that VGA and DVI inputs should be excluded from TV testing because those formats are designed for displays. Sharp also noted that video input should be tested in the following order: HDMI, Component Analog, S-Video, and Composite Analog. (Sharp, No. 45 at p. 6) MEVSA suggested the following input hierarchy: “Testing shall be performed using an HDMI input. If the TV does not have an HDMI input, the following inputs shall be used in the following order: component, S-Video, and composite. If the TV has none of these inputs, an appropriate interface shall be used.” (MEVSA, No. 44 at p. 3) Panasonic commented that VGA and DVI should be excluded from the input hierarchy. (Panasonic, No. 50 at p. 2) NEEA also commented on the input and signal sources, indicating that DOE should align the signal source and generation section with IEC 62087 Ed. 3.0. (NEEA, No. 43 at p. 2) IEC 62087 Ed. 3.0 does not specify a particular input cable or input cable hierarchy, but rather indicates that only one set of input cables be used. DOE believes that specifying a particular hierarchy of input cables will avoid confusion and improve test repeatability.
Given interested party feedback, and that VGA and DVI input cables are specific to displays, DOE is proposing to remove VGA and DVI from section 4.5 (Input Cable) of Appendix H to subpart B of 10 CFR part 430, resulting in the following input cable hierarchy: HDMI, component video, S-video, and composite video. DOE requests comment from interested parties on the proposed input cable hierarchy and the removal of VGA and DVI from this hierarchy (Section V.B.10).
In the January 2012 NOPR, DOE did not propose to specify a particular input terminal when connecting the signal source and the TV. DOE is aware that some TVs have multiple HDMI input terminals designed for specific signal sources such as video game consoles and personal computers. Different input terminals may affect the picture setting the TV assigns to a particular component. For example, an input terminal designed for video game consoles may default to a picture setting designed for video games; this may not be the picture setting designed for typical on mode viewing or with a Blu-ray Disc player. Given that some TVs have multiple input terminals and some of those inputs are not designed for a typical on mode signal source, DOE is proposing to include section 4.6 (Input Terminal) to Appendix H to subpart B of 10 CFR part 430, to specify that the primary input terminal (or any input that maintains the same TV characteristics as the primary input, as specified by the owner's manual) shall be used to conduct testing. Such input terminals are designed to be used with Blu-ray disc players and set-top boxes. DOE requests comment from interested parties on the proposal to perform testing using the primary input terminal (Section V.B.11).
During testing, DOE observed that power consumption differences can arise when the Blu-ray Disc (BD) player used in testing is made by the same manufacturer as the television. DOE has observed that these power consumption differences can be as high as 29.7%, which may result in test procedure reproducibility issues.
DOE believes that these power consumption differences in the TV arise because TVs and BD players can communicate by utilizing the consumer electronic control function on the HDMI terminal. Consumer electronic control functionality can automatically perform operations for the customer, such as powering on or off the other device, adjusting volume on the TV when the BD player volume is adjusted, or defaulting to a different picture setting. While this functionality can provide a better user experience, DOE observed two situations in which this communication can result in the television automatically changing to a different picture setting when connected to a BD player made by the same manufacturer as the TV. The picture setting and energy consumption differences observed when using different manufacturer BD players with TV1, manufactured by Manufacturer A is shown in Table 1 through Table 4. Although Table 1 shows constant power consumption for TV1 across all BD player manufacturers, BD player A (same manufacturer as TV A) exhibited a proprietary picture setting by default, which was not seen with the other BD players. When the picture setting was changed to the standard picture setting, consistent with the other BD players, DOE observed an average power consumption decrease for TV1 of 21.2% (Table 2). Table 3 shows another TV from manufacturer A, TV2, that also entered the proprietary picture setting when using BD player A, but the power consumption of TV2 was on average 29.7% higher than when using the other BD players. When the picture setting was changed to the standard picture setting seen with the other BD players, the power consumption of TV2 decreased to a value similar to the other players (Table 4). DOE tested both TV1 and TV2 with four BD players made by other manufacturers and did not observe any changes to the picture setting or power consumption. To prevent such interaction between the TV and BD player, DOE is proposing that all TVs shall be tested with a BD player of a different manufacturer than the TV. For example, Manufacturer A's TV may be tested with any BD player other than one manufactured by Manufacturer A.
Additionally, DOE believes that the video input device may interact with the TV in standby modes as well as in on mode. To ensure that no data are transferred between the video input device and the TV, DOE proposes that all video input devices be disconnected from the TV during standby-passive mode and standby-active, low mode testing. DOE requests comment from interested parties on the proposed additional specifications for video input devices (See Section III.E.).
In the January 2012 NOPR, DOE proposed section 5.2 (Warm-up), which included warming up the TV using the IEC 62087 Ed. 3.0 dynamic broadcast-content video signal. 77 FR 2830, 2842-43. In response to this proposal, interested parties indicated that DOE should reference IEC 62087 Ed. 3.0 for stabilization criteria. While Panasonic is in favor of the 2 percent stabilization criteria proposed in the NOPR, they recommended that DOE adopt the stabilization criteria used by IEC 62087 Ed 3.0. This allows the stabilization period to end once the TV has reached the 2 percent stabilization criteria, rather than the mandatory 1 hour period proposed in the January 2012 NOPR for all TVs. (Panasonic, No. 50 at p. 2) Sharp indicated that IEC 62087 Ed. 3.0 should be used for stabilization criteria. (Sharp, No. 45 at p. 3)
DOE believes that it is appropriate to incorporate IEC 62087 Ed. 3.0 Section 11.4.2 (Stabilization) by reference, since it is similar to section 5.2 (Warm-up) which DOE proposed in the January 2012 NOPR. 77 FR 2830, 2842-43. The specifications in IEC 62087 Ed. 3.0 ensure that the TV reaches stabilization, as proposed in the January 2012 NOPR, but it may reduce test time if a TV stabilizes in less than an hour. For this reason, DOE proposes to remove section 5.2 (Warm-up) as proposed in the January 2012 NOPR and replace it with a revised section 5.2 (Stabilization) of Appendix H to subpart B of 10 CFR part 430, which incorporates by reference section 11.4.2 (Stabilization) of IEC 62087 Ed. 3.0. DOE requests comment from interested parties on incorporating by reference the stabilization requirements in section 11.4.2 of IEC 62087 Ed. 3.0 (Section V.B.12).
Additionally, DOE would like to provide guidance for stabilization specifications incorporated from IEC 62087. DOE proposes that the TV stabilization shall be performed in the “default picture setting” and all TVs shipped with the ABC sensor enabled by default shall be stabilized with the ABC sensor enabled. The TV settings are configured in the same manner for on mode testing as they are for the stabilization, in order to decrease the risk that other settings may be modified when enabling or disabling functions or settings. DOE also proposes that at least 300 lux of light shall enter the TV ABC sensor during the stabilization period, allowing the sensor to remain active and engaged. A light level of at least 300 lux shall be applied in accordance with section 5.5 of Appendix H. DOE believes that the TV should be stabilized under the same conditions used during on mode testing. DOE would like to ensure that the TV settings remain in the default picture setting throughout testing. DOE requests comment from interested parties on (1) stabilizing the TV in the default picture setting and (2) stabilizing the TV with the ABC sensor enabled and 300 lux entering the sensor, when the ABC sensor is enabled by default (See Section V.B.14).
In the January 2012 NOPR, DOE proposed conducting testing in the following order: luminance, on mode, standby mode, and off mode. 77 FR 2830, 2841-42. DOE proposed testing luminance before on mode since “brightest selectable preset picture setting” could have been interpreted as the retail mode from the forced menu, using the definitions in the January 2012 NOPR. Thus, if the on mode test is performed before luminance testing, some TVs may not be capable of being placed into the “retail picture setting” for luminance testing once the TV has been placed in the “home picture setting”. To address this potential issue, DOE proposed testing luminance prior to on mode in the January 2012 NOPR.77 FR 2830.
NEEA supported DOE's proposal to test luminance before testing on mode. (NEEA, No. 43 at p. 3) Panasonic urged DOE to place the luminance test after the on mode test as the on mode test may not be as repeatable when it does not immediately follow the stabilization period. (Panasonic, No. 50 at p. 3) Panasonic indicated that if a TV could not switch back to the “retail picture setting” after being in “home picture setting” a revised test procedure could be used that includes an additional stabilization period between the luminance and on mode tests to ensure that it is repeatable. (Panasonic, No. 50 at p. 3) Sharp noted that changing the order of luminance testing might require double testing for products that need to be tested with IEC 62087 Ed. 3.0. (Sharp, No. 45 at p. 3)
As discussed earlier, DOE is proposing to add the defined term “brightest selectable preset picture setting” and remove the definition of “retail picture setting”, initially proposed in the January 2012 NOPR. Since the “brightest selectable preset picture setting” can be readily accessed within the home mode from a forced menu, DOE is proposing to revise the test order to the following: on mode, luminance, standby mode, and off mode. This is consistent with the comments received from Panasonic and Sharp and is also consistent with the current test order specified by IEC 62087 Ed. 3.0 and ENERGY STAR v. 6.0. DOE requests comment from interested parties regarding the proposed change to the testing order (Section V.B.12).
The January 2012 NOPR proposed that the luminance test be performed immediately following the initial warm-up period. MEVSA agreed with DOE's proposed warm-up period but suggested that DOE clarify what was meant by “immediately after the warm-up period” to measure the luminance (MEVSA, No. 44 at p. 6). Panasonic suggested that an additional 10 minute warm-up period is needed before each luminance measurement (Panasonic, No. 50 at p. 3). Today's SNOPR proposes that the on mode test follow the initial stabilization period with the luminance test conducted immediately following the on mode test. As discussed in the stabilization section of the SNOPR (Section III.E.5), DOE is proposing to incorporate by reference the requirements in section 11.4.2 (Stabilization) of IEC 62087 Ed. 3.0, which states that the luminance measurement should occur “before the activation of any image retention prevention features”. Prior to the January 2012 NOPR, DOE found that stabilizing the TV for any length of time resulted in activation of anti-image retention features and therefore proposed in the January 2012 NOPR that the screen luminance be measured immediately after the TV is warmed-up.
In the January 2012 NOPR, DOE proposed incorporating a test procedure for TVs with ABC enabled by default. 77 FR 2850. NEEA agreed that TVs with ABC enabled by default should be tested differently than TVs without ABC or without ABC enabled by default. (NEEA No. 8 at p. 4) Appliance Standards Awareness Project (ASAP) supported a robust test procedure that captures the effect of ABC on energy consumption for TVs with ABC enabled by default. (ASAP No. 1 at p. 1) Based on interested party feedback, DOE has maintained its initial proposal to incorporate a test procedure for TVs with ABC enabled by default in today's SNOPR but wishes to modify the specification of this procedure to make it more repeatable and reproducible.
In the January 2012 NOPR, DOE proposed to evaluate ABC sensor response by directing light from a halogen incandescent lamp into the TV's ABC sensor. 77 FR 2853-54. NEEA supported using a direct light source to generate the illuminance values, as diffused light may not be repeatable. (NEEA No. 9 at p. 5) PG&E agreed with using a direct light source but recommended allowing different lighting types. (PG&E No. 5 at p. 4) Panasonic supported creating illuminance with a direct light source. (Panasonic No. 9 at p. 7) Sharp agreed that halogen incandescent is a proper lamp for ABC testing. (Sharp No. 8 at p. 6) Sharp further suggested directing light into the ABC sensor at an angle that results in the maximum power consumption. (Sharp No. 8 at p. 6) Additionally, National Resource Defense Council (NRDC) recommended that DOE provide clear guidance on how to create the illuminance values. (NRDC, No. 2 at p. 4) While DOE has maintained its proposal to generate illuminance values using a direct light source, DOE proposes to clarify the light source set-up in response to stakeholder comment.
Neither IEC 62087 Ed. 3.0 nor ENERGY STAR v. 5.3
The “distance” test set-up requires only a light source that is placed at a distance of 5 feet (± 3 inches) from the center of the ABC sensor. The center of the lamp is aligned at the same height as the center of the ABC sensor with respect to the floor, resulting in a perpendicular angle with respect to the center of the sensor. All four corners of the TV face are equidistant from a vertical reference wall (e.g., fixed position room wall). The light source is positioned ensuring the center focal point of the lamp is perpendicular to the center of the ABC sensor, and the vertical reference wall. A side view of the “distance” test set-up is shown in Figure 3; a bird's eye view of the
The “adjacent” test set-up requires a lamp and a cylindrical apparatus with a diameter at one end large enough to fit completely around the lamp and a diameter at the other end of 2 inches. The light source is secured flush against the large diameter end of the apparatus so that no light escapes between the lamp and apparatus. The 2 inch diameter end of the apparatus is then placed flush against the bezel of the TV, completely covering the ABC sensor. The center of the lamp is aligned at the same height as the center of the ABC sensor with respect to the floor, resulting in a perpendicular angle with respect to the center of the sensor. The “adjacent” test set-up is shown in Figure 4.
In the January 2012 NOPR DOE proposed using a 100 W halogen incandescent lamp to create illuminance values. While no stakeholders expressed objection to the proposed 100 W halogen incandescent lamp, DOE now has an incandescent reflector lamp efficacy standard in place
Both the “distance” and “adjacent” test set-up discussed in the previous section utilized a 1000 lumen PAR 30S halogen incandescent lamp in the round robin testing instead of a 100 W lamp. For both set-ups, target illuminance values are obtained by varying the light source input voltage, with the illuminance measured at the ABC sensor. To compare these test set-ups, DOE conducted round robin testing on eight different TV models at four separate test labs to determine the repeatability and reproducibility of both test set-ups. Each lab tested all eight TVs
Analysis of the round robin testing results indicates that the “distance” test set-up provides more repeatable results at the target illuminance values.
During round robin testing, DOE observed different power consumption values for the “distance” and “adjacent” test set-ups when testing at the same illuminance values. To further understand this concept, DOE conducted an investigation which evaluated light intensity as a function of wavelength at multiple illuminance values using the “distance” set-up. The “distance” test set-up requires a greater light intensity output compared to the “adjacent” set-up to compensate for the increased distance from the ABC sensor. Results show that the ratio of infrared (IR) to visible light increased significantly as illuminance values decreased, especially at illuminance values less than 35 lux.
DOE is proposing to use a 67 mm diameter IR/UV blocking filter because it is a common size used in photography and can be easily obtained. DOE is proposing to place the filter directly in front of the ABC sensor because it provides a safer, simpler, more repeatable method. Although DOE is proposing to use an IR/UV filter placed in front of the TV's sensor during ABC on mode testing with the “distance” test set-up, DOE is also considering using this test set-up without an IR/UV filter.
In summary, DOE performed round robin testing to evaluate the repeatability of two test set-ups for specifying the location of the light source in response to interested party feedback requesting detailed instructions on how to generate direct illuminance values. Results show that the “distance” test set-up is more repeatable than the “adjacent” test set-up. Additional testing using an IR/UV blocking filter, with the “distance” test set-up resulted in more realistic ABC sensor responses than when no filter was used. Based on interested party feedback and recent test results, DOE is proposing the following set up requirements for determining on mode power consumption for TVs with ABC enabled by default: (1) Light source shall be a standard spectrum halogen PAR short neck lamp with a rated brightness of 1000 lumens (± 5 percent); (2) lamp assembly shall be set-up using the “distance” test set-up (Figure 3), with the lamp 5 feet (± 3 inches) from the sensor and the center focal point of the lamp perpendicular to the center of the ABC sensor; (3) each corner of the TV face shall be aligned equidistant to a vertical reference wall; (4) all illuminance measurements shall be taken at the ABC sensor; and (5) a 67 mm diameter IR/UV blocking filter shall be placed in front of the ABC sensor in a way that allows no unfiltered light to pass into the sensor during testing. The full round robin test report and additional testing data are provided on regulations.gov.
DOE requests comment from interested parties on each of the five proposed test set-up specifications for determining on mode power consumption for TVs with ABC enabled by default (Section V.B.17).
In the January 2012 NOPR, DOE proposed testing TVs with ABC enabled by default at four distinct illuminance values: 10, 50, 100, and 300 lux. 77 FR 2850-52. ASAP, CEA, MEVSA, NEEA, NRDC, PG&E, and Sharp all agreed that testing should be performed at multiple illuminance values and also proposed specific values at which testing should be done.
ASAP supported testing at four different illuminance values, in particular at both 50 and 100 lux. (ASAP No. 1 at p. 1) Sharp suggested illuminance values of 0, 12, 35, and 300 lux and stated that no testing should be performed at an illuminance level near 100 lux as manufacturers may dim brightness above 100 lux, potentially leading consumers to disable ABC. (Sharp No. 8 at p. 4) NEEA supported DOE's proposed illuminance values of 10, 50, 100, and 300 lux but would prefer testing at 150 lux instead of 100 lux, as 150 lux would act as a better saturation point. (NEEA No. 8 at p. 5-6) NRDC also preferred testing at 150 lux instead of 100 lux. (NRDC No. 2 at p. 3) MEVSA recommended levels of 0, 12, and 300 lux, as “23% of viewership occurs between 0 lux and 6 lux, 70% between 6 and 156 lux, and 7% greater than 156 lux.” (MEVSA No. 5 at p. 7) PG&E suggested setting illuminance values at 5, 15, 45, and 135 lux. (PG&E No. 5 at p. 4) Panasonic provided a prioritized list of illuminance values for testing as follows: (1) 0 and 300 lux; (2) 0, 12, and 300 lux; (3) 0, 35, and 300 lux; (4) 0, 12, 35, and 300 lux. (Panasonic No. 8 at p. 5)
In response to the January 2012 NOPR, CEA recommended that the illuminance values for testing should be 0, 12, and 300 lux, with the possibility of an additional point at 35 lux. (CEA No. 5 at p. 5) While multiple interested parties recommended testing at 0 lux, an ambient lighting level of 0 lux is impossible to achieve in practice and is typically achieved in the lab by covering the ABC sensor during testing. NEEA commented that a 0 lux value does not add value to this test since it is not representative of real world conditions. (NEEA, No. 43 at p. 4) ASAP also stated that a 0 lux illuminance value is not representative of real world conditions, but that a value under 10 lux may be appropriate. (ASAP, No. 46 at p. 2) DOE agrees and believes that an illuminance value just above 0 lux should be tested to measure the lowest possible power consumption with ABC enabled and is therefore proposing to test at 3 lux. DOE feels that it is necessary to have another low illuminance value due to the high viewership that takes place under low illuminance conditions. As such, DOE is proposing to also test at 12 lux, which aligns with many industry advocates including CEA, MEVSA, Panasonic and Sharp. (CEA, No. 47 at p. 5; MEVSA, No. 44 at p. 7; Panasonic, No. 50 at p. 5; Sharp, No. 45 at p. 4) DOE proposed testing at the 10 lux value in the January 2012 NOPR; however, since round robin results indicate little difference between power consumption at 10 and 12 lux,
Additionally DOE is proposing 100 lux as a maximum illuminance value. DOE proposed both 150 and 300 lux in the January 2012 NOPR. However, based on DOE's round robin testing,
DOE is also proposing to measure illuminance from the brightest value to the dimmest value. The TV will already be warmed up at brighter levels and specifying the test order will ensure test repeatability. DOE seeks comment from interested parties on the proposed illuminance values and the order in which the values are tested (Section V.B.18).
DOE originally selected the 0 lux illuminance value because it could be easily simulated by completely blocking the sensor. Now that DOE is proposing a 3 lux illuminance point, there may be some measurement equipment accuracy concerns for stakeholders because this 3 lux value is so low. To mitigate some of these concerns for stakeholders, DOE is proposing to allow the 3 lux illuminance value to be simulated with a neutral density (ND) filter. ND filters work by uniformly reducing the light intensity entering the ABC sensor across the full spectrum (both visible and invisible). For example, 12 lux could be measured at the ABC sensor, but when a 2-stop ND filter is placed in front of the sensor, 75% of the light is blocked and the sensor would read 3 lux. This approach was created for labs that may not have illuminance meters capable of accurately reading 3 lux. An ND filter is not required for ABC testing, but may be used to simulate the 3 lux value.
DOE performed testing to verify that similar power consumption values are measured whether or not an ND filter is used when testing at 3 lux. DOE observed that the power consumption in some TVs decreased by as much as 12 percent
In addition, DOE evaluated illuminance meters that are currently available on the market and found that with the accuracy specified in section 3.1.3 (Light Measurement Device) of the proposed test procedure, LMDs should have the tolerance to accurately measure 3 lux. Although DOE believes that the LMD accuracy specifications are sufficient to accurately measure 3 lux at the ABC sensor, DOE is proposing to allow the option to use a ND filter to obtain 3 lux at the sensor provided that DOE moves forward with its proposal to also require the use of an IR/UV blocking filter. DOE notes that it is only proposing to allow an ND filter when also using an IR/UV blocking filter. DOE seeks comment from interested parties on the use of a ND filter (section V.B.19).
In the January 2012 NOPR, DOE discussed combining the power consumption measured at the four illuminance values using a weighted average, with equal weighting factors to determine ABC power consumption for TVs with ABC enabled by default. 77 FR 2854. DOE ultimately decided not to propose a specific weighting approach in the January 2012 NOPR and requested additional feedback from interested parties.
Sharp, NRDC, and ASAP all agreed with assigning equal weight to the power consumption at each illuminance value. (Sharp No. 45 at p. 6; NRDC No. 40 at p. 3; ASAP No. 46 at p. 2) NEEA preferred that power consumption be reported for each of the four illuminance values instead of reporting an average. However, NEEA suggested weightings of 33 percent, 33 percent, 17 percent, and 17 percent for each of the illuminance values, respectively, if a weighting system were used. (NEEA No. 8 at p. 4-5) Panasonic commented that the higher illuminance values should be weighted less, as viewership occurs less at those levels. (Panasonic No. 8 at p. 5-6) Given that 76 percent of viewership occurs at or below 50 lux, DOE believes that the three lower illuminance values proposed (3, 12, and 35 lux) should comprise the majority of the overall power consumption average. Based on interested party feedback, DOE is proposing to weight each illuminance value equally when calculating a TV's overall power consumption. DOE requests comment from interested parties on equally weighting the illuminance values to determine on mode power consumption for TVs with ABC enabled by default (Section V.B.20).
In comments to the January 2012 NOPR, NRDC expressed concerns with “quick start” options that may be available on some TVs. NRDC suggested that DOE require network-capable TVs be attached to a live internet connection with “quick start” features enabled and power consumption measured over 15 minutes. (NRDC, No. 40 at p. 4-5) While DOE understands that there may be an increase in power consumption associated with this feature, DOE does not believe the TV needs to be connected to a network for this feature to be active. The additional power consumed is most likely keeping components active to reduce the latency of powering on the TV, rather than downloading content. In addition, DOE believes that “quick start”-type functions would be classified as “special functions”. As discussed in Section III.D.2, DOE proposes to incorporate the definition for “special functions” from IEC 62087 Ed. 3.0 by
In the January 2012 NOPR, DOE discussed potentially testing standby while connected to a network, as standby-active, low mode. DOE ultimately decided not to propose this test in the January 2012 NOPR because testing revealed little to no increase in power consumption when the TV was connected to a network input (e.g. Wi-Fi or Ethernet).
In today's SNOPR, DOE is proposing to incorporate the ENERGY STAR v. 6.0 standby-active, low mode test into the DOE test procedure. DOE expects the market share of network-capable TVs to grow,
DOE also proposes that standby-active, low mode is tested using a hierarchy of network inputs, as follows: Wi-Fi, Ethernet (if the TV supports an Energy Efficient Ethernet, it shall be tested using that connection), Coax, RJ11 and other. DOE believes that using the aforementioned hierarchy will increase testing repeatability and reproducibility by ensuring that a network-capable TV is tested using the same network connection regardless of who is administering the test. The addition of this test is expected to increase the overall test time by approximately 40 minutes, 30 minutes for stabilizing the TV while in the standby-active, low mode and 10 minutes for measuring the power consumption. The proposed additional testing will add approximately 17 percent to the testing time assuming that each test (on mode, standby-passive mode, standby-active, low mode, and luminance) takes approximately 10 minutes to perform. DOE does not believe that this test adds a significant amount of test burden compared to the entire test procedure proposed for TVs. Including a test to measure the energy consumption associated with standby-active, low mode would allow consumers to understand the increased cost and energy consumption associated with the TV while it is in that mode. Furthermore, including a standby-active, low mode test as part of the TV test procedure will ensure a consistent test set-up that other programs, such as ENERGY STAR, can reference. For these reasons, DOE is proposing to add section 5.6.2 (Standby-Active, Low Mode Test) to Appendix H to subpart B of 10 CFR part 430 to include a standby-active, low mode test that requires the TV be connected to a LAN input while the TV is in standby mode. DOE requests comment from interested parties on the addition of a standby-active, low mode power measurement test in addition to the proposed network hierarchy (Section V.B.22).
In the January 2012 NOPR, DOE incorporated several definitions from IEC 62087 Ed. 2.0, including standby-active, high mode. This mode is defined as a period when the TV provides neither audio nor video output, may be switched into another mode by a user initiated input, and is actively exchanging data with an external source. DOE also proposed to adopt the “CEA Procedure for testing DAM: For TVs” (CEA DAM test procedure)
PG&E voiced their support to include the CEA DAM test procedure, but indicated that DOE should clarify that all TVs require DAM testing. (PG&E, No. 46 at p. 5) Panasonic recommended that DOE should include the ENERGY STAR guidance document for the CEA DAM test procedure, which specifies that the test may be performed using the “practical approach”. (Panasonic, No. 50 at p. 7)
While DOE proposed to include the CEA DAM test procedure in the January 2012 NOPR, further investigation has revealed that the DAM test requires significant manufacturer involvement during testing. First, laboratories must use a hardware module specific to the make and model of the TV under test. The hardware module must correspond to the preloaded software on the TV in order for data to be sent and received by the TV. It is impossible for the TV to enter into DAM without this external source; however, this approach is not explicitly stated in the CEA DAM test procedure. Second, each manufacturer must specify the workload the hardware module sends to the TV. The CEA DAM test procedure only states that the workload shall be “representative of frequent downloads”. Without a specific and consistent workload applied to all tested units, it is likely impossible to obtain a reliable evaluation of a TV's performance in DAM that can be compared to other TVs available on the market.
DOE has also discovered that the CEA DAM test procedure may not be applicable for all network-capable TVs. The CEA DAM test procedure was originally designed to capture the energy associated with hospitality TVs. Hospitality TVs, as defined by ENERGY STAR v. 6.0, operate similarly to a set-top box and frequently receive updates while they are in standby mode. Hospitality TVs are different from many network-capable TVs in that they are designed to communicate with a specific hardware module to update program guide information and download pay-per-view movies. As
Accordingly, DOE is proposing to remove the reference to the CEA DAM test procedure in today's SNOPR. As discussed above, there are currently no accepted approaches for producing a consistent network workload that could be used to evaluate and compare the power consumption of all TVs when in standby-active, high mode. Therefore, DOE does not plan to specify a test procedure for determining TV power consumption in standby-active, high mode at this time. However, DOE will maintain the proposed definition for standby-active, high mode in section 2.14 (Standby-Active, High Mode) of Appendix H to subpart B of 10 CFR part 430 to help distinguish between all TV standby modes. DOE requests comment from interested parties on the removal of the CEA DAM test procedure, while maintaining a definition for standby-active, high mode (Section V.B. 23).
In the January 2012 NOPR, DOE proposed multiple output metrics. These metrics included luminance ratio, on mode power consumption, standby mode power consumption, and off mode power consumption. In addition to proposing multiple output metrics, DOE also requested comment on the energy efficiency metrics in general and, more specifically, including the use of an annual energy consumption metric. 77 FR 2830, 2859. In today's SNOPR, DOE maintains its proposal from the January 2012 NOPR to include metrics for luminace ratio, on mode power consumption and standby mode power consumption, and also proposes a metric to estimate the annual energy consumption.
CEC, NEEA, NRDC, MEVSA, PG&E, Sharp and Panasonic all indicated that reporting individual metrics is critical. MEVSA commented that a single metric would not be helpful and it would force changes elsewhere in the industry. (MEVSA, No. 44 at p. 7) PG&E urged DOE to require separate power consumption outputs and not a single metric. (PG&E, No. 46 at p. 5) Sharp noted that a single metric would be helpful but reporting on individual modes is critical. (Sharp, No. 45 at p. 7) Panasonic urged for reporting individual metrics. (Panasonic, No. 50 at p. 7) NEEA suggested that the output of the test procedure should be the average power (in watts) of each mode tested. (NEEA, No. 43 at p. 7) NRDC also recommended that the test procedure output the power values in each mode rather than a combined metric. This would allow other policy makers to determine which metrics to include in a calculation of total energy consumption. (NRDC, No. 40 at p. 1) Given interested party feedback, DOE is maintaining multiple output metrics in the test procedure but is proposing that the standby mode power consumption metric be separated into two output metrics: standby-passive mode and standby-active, low mode. DOE also proposes to include an additional metric to the test procedure for calculating annual energy consumption, discussed in Section below.
DOE received additional comments pertaining to the output metrics in general. NRDC noted that the test procedure should output the on mode power consumption associated with both two and three dimensional (2D and 3D, respectively) pictures and allow policy makers to determine how these values would be utilized. (NRDC, No. 40 at p. 6) PG&E voiced their support for DOE to include a power factor measurement as part of the output metric. (PG&E, No. 46 at p. 5) NEEA suggested that the test procedure require reporting the power consumption at each illuminance level, in addition to annual kilowatt-hours. (NEEA, No. 43 at p. 5) NEEA stated that “the use of the power values (in watts) from the television test procedure, while the minimum efficiency ratings are specified in annual kilowatt-hours, would effectively be no different.” (NEEA, No. 43 at p. 7)
DOE is proposing to require the following output metrics in the test procedure: luminance ratio, on mode power consumption (watts), standby-passive mode power consumption (watts), standby-active, low mode power consumption (watts), and power factor during testing. DOE is not proposing to include a 3D metric because it does not currently intend to include a 3D on mode power consumption test in the test procedure. DOE is also not proposing to report the power consumption at each illuminance value. DOE feels that it may be confusing for consumers if power consumption was reported at each illuminance. Therefore, DOE believes that it is sufficient to only report the on mode power consumption as a calculated value for TVs with ABC enabled by default.
In addition to the metric outputs discussed above, DOE is proposing to include an annual energy consumption (AEC) metric, calculated from the test procedure values for on mode, standby modes and off mode power consumption. The AEC uses standard TV viewing hours over a 24 hour period and extrapolates to a yearly kilowatt-hour value. A standard approach for calculating AEC will harmonize different voluntary, incentive, and State programs applicable to TVs.
The proposed equation to calculate annual energy consumption (kWh/year) is:
AEC = 365* (P
In the January 2012 NOPR, DOE considered using a similar metric which weighted 7 hours for on mode (typical TV viewing hours represented by H
Given interested party feedback and DOE's revised analysis of Nielson data of typical TV viewing hours,
In today's SNOPR, DOE is also proposing to assign 0 hours to off mode for those TVs equipped with a hard off switch. DOE believes that consumers will not use this mode as it does not allow for powering the TV on using a remote. As such, DOE is proposing to distribute the remaining 19 hours in which the TV is not in on mode among standby-active, low mode and standby-passive mode depending on the features specific to the TV. For TVs that are network-capable, DOE is proposing to assign all 19 remaining hours to standby-active, low mode, as this is the only other power consuming mode.
After publication of the January 2012 NOPR, DOE considered additional weighting criteria for TVs with network connectivity enabled by default, but no longer feels this method is appropriate. The network connection for these TVs needs to be configured before network access is granted and therefore cannot be enabled by default. While this set-up can typically be performed from a menu when the TV is initially powered on, this can take several minutes and frequently offers a skip option. Additionally, this set-up requires information like the wireless access point name and password which are unique to each network connection. Even wired connections that require very little set-up, prompt the user to check the network connection with a connection test prior to completing the network set-up.
DOE believes that most users will connect network-capable TVs, regardless of the set-up required, in order to take advantage of the additional capabilities. However, DOE cannot determine the appropriate hourly average that a network-capable TV spends in standby-active, low mode without market data. Therefore, DOE is assuming that all network-capable TVs will be connected to a network. When placed in standby, any network capable TV will enter standby-active, low mode and not standby-passive mode. Therefore, DOE proposes in today's SNOPR that a network-capable TV will have 19 hours assigned to standby-active, low mode.
In Table 5, DOE has outlined the proposed hourly weightings associated with an AEC metric for each power mode. DOE believes that these values are representative of consumer use, based on data from Nielsen,
Proposed values for hourly weightings are summarized in Table 5.
In section 2.15 (Symbol Usage) of the January 2012 NOPR, DVD was identified as “digital visual disc”. After receiving a comment from Sharp indicating that DVD stands for Digital Versatile Disc
DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the January 2012 NOPR remain unchanged for this SNOPR. These determinations are set forth in the NOPR. 77 FR 2830, 2859-62. An update to its Review under Section 32 of the Federal Energy Administration Act of 1974, section IV.L of the January 2012 NOPR, is set forth below.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.
Today's SNOPR incorporates testing methods contained in the following standards: CEA-770.3-D, High Definition TV Analog Component Video Interface, HDMI Specification Version 1.0, High-Definition Multimedia Interface Specification, and Section 3.1.1, 3.1.18, 11.4.2, and 11.4.5 from International Electrotechnical Commission Standard 62087,
The time, date and location of the public meeting are listed in the
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Although comments are welcome on all aspects of this rulemaking, DOE is particularly interested in receiving comments and views of interested parties on the following issues:
1. Television Set Definition—DOE seeks comment from interested parties on DOE's proposed TV definition, and on whether the modified definition provides clarification on the scope of coverage (See Section III.B).
2. Sampling Plan—DOE requests comment from interested parties regarding its proposed sampling plan for on mode power consumption, which specifies a divisor of 1.05, and for standby mode and other power consumption values that are not on mode, which specifies a divisor of 1.10 (See Section III.C).
3. Rounding—DOE requests comment on the proposed rounding requirements for representing a TV's on mode, standby-active, low mode, and standby-passive mode power consumption (See Section III.C).
4. Special Functions—DOE requests comment from interested parties on incorporating by reference the IEC definitions for “additional functions” and “special functions” in today's SNOPR (See Section III.D.2).
5. Distance from Room Surface—DOE requests comment from interested parties on requiring the ABC sensor to be at least 2 feet from any room surfaces (See Section III.D.3.a).
6. Preset Picture Setting—DOE requests comment on adding a definition for “preset picture setting” (See Section III.D.3.c).
7. Brightest Selectable Preset Picture Setting—DOE requests comment from interested parties on discontinuing the use of the term “retail picture setting” and using the term “brightest selectable preset picture setting” and its proposed definition (See Section III.D.3.c).
8. Default Picture Setting—DOE requests comment from interested parties on discontinuing the use of the term “home picture setting” and instead using the proposed term and definition “default picture setting” (See Section III.D.3.c).
9. Light Measurement Devices—DOE seeks comment from interested parties on the clarification for the LMD accuracy requirement and the removal of the LMD repeatability requirement (See Section III.E.2).
10. Video Input Cable—DOE requests comment from interested parties on the proposed input cable hierarchy and the removal of VGA and DVI from this hierarchy (See Section III.E.3).
11. Input Terminal—DOE requests comment from interested parties on the proposal to perform testing using the primary input terminal (See Section III.E.4).
12. Video Input Device—DOE requests comment from interested parties on the additional specifications for video input devices (See Section III.E.5).
13. Stabilization—DOE requests comment from interested parties on incorporating by reference the stabilization requirements in section 11.4.2 of IEC 62087 Ed. 3.0 (See Section III.E.5).
14. Guidance to Stabilization—DOE requests comment from interested parties on stabilizing the TV with the ABC sensor enabled and 300 lux entering the sensor when the ABC sensor is enabled by default (See Section III.E.5).
15. Testing Order—DOE requests comment from interested parties regarding the proposed change to the testing order (See Section III.E.7).
16. Test Transition—DOE requests comment from interested parties on the transition between the on mode power consumption test and the luminance test (See Section III.E.7).
17. ABC Test Set-up—DOE requests comment from interested parties on each of the five proposed test set-up specifications, (1) a 1000 lumen halogen incandescent PAR 30S type lamp shall be used to generate light for testing, (2) the test set-up shall be configured as seen in Figure 3 replicating the “distance” test set-up, (3) all four corners of the TV shall be aligned equidistant to a vertical reference plane, (4) illuminance values shall be measured at the sensor, and (5) a 67mm IR/UV blocking filter shall be placed in front of the ABC sensor to only allow visible light to enter (See Section III.F.2).
18. Illuminance Values—DOE seeks comment from interested parties on the proposed illuminance values of 3 ± 1 lux, 12 ± 1 lux, 35 ± 2 lux, and 100 ± 5 lux (See Section III.F.3).
19. ND Filter—DOE is also proposing the option to use an ND filter to obtain 3 lux. DOE seeks comment from interested parties on the use of an ND filter only with the use of an IR/UV blocking filter (See Section III.F.2.d).
20. Illuminance Value Weighting—DOE requests comment from interested parties on equally weighting the illuminance values to determine on mode power consumption for TVs with ABC enabled (See Section III.F.4).
21. Quick Start—DOE requests comment from interested parties on testing “quick start” functionality and if it is adequately covered under the proposed test procedure (See Section III.G.1III.G.1).
22. Standby-active, low mode—DOE requests comment from interested parties on the addition of a standby-active, low mode power measurement test. DOE also requests comments on the proposed network hierarchy (See Section III.G.2).
23. Standby-active, high mode—DOE requests comment from interested parties on the removal of the CEA DAM test, while maintaining a definition for standby-active, high mode (See Section III.G.3).
24. Energy Efficiency Metrics—DOE requests comment from interested parties on the multiple metric outputs (see Section IIII.H.1), including the annual energy consumption metric. DOE also requests comment on its proposed hourly weighting for the annual energy consumption metric (See Section III.H.2).
The Secretary of Energy has approved publication of this supplemental notice of proposed rulemaking.
List of Subjects
Confidential business information, Energy conservation, Household
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
For the reasons stated in the preamble, DOE is proposing to amend parts 429 and 430 of chapter II of title 10, subchapter D of the Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317.
(a)
(1) The requirements of § 429.11 are applicable to televisions; and
(2) For each basic model of television, samples shall be randomly selected and tested to ensure that—
(i) Any represented value of power consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
and,
(B) For on mode power consumption, the upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
And
And
(C) For standby mode power consumption and power consumption measurements in modes other than on mode, the upper 90 percent confidence limit (UCL) of the true mean divided by 1.10, where:
And
(ii) [Reserved]
(b) [Reserved]
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
The additions and revisions read as follows:
(1) Broadcast and similar services for terrestrial, cable, satellite, and/or broadband transmission of analog and/or digital signals; and/or
(2) Display-specific data connections, such as HDMI, Component Video, S-Video, Composite Video; and/or
(3) Media storage devices such as a USB flash drive, memory card, or a DVD; and/or
(4) Network connections, usually using Internet Protocol, typically carried over Ethernet or Wi-Fi.
A TV may contain, but is not limited to, one of the following display technologies: liquid crystal display (LCD), organic light-emitting diode (OLED), cathode ray tube (CRT), or plasma display panel (PDP). TV also includes TV Combination units that DOE has further defined in Appendix H to subpart B of this part.
The additions read as follows:
(i)
(1) CEA-770.3-D, High Definition TV Analog Component Video Interface, approved February 2008; IBR approved for § 430.2.
(2) [Reserved]
(m)
(1) HDMI Specification Version 1.0, High-Definition Multimedia Interface Specification, Informational Version 1.0, approved September 4, 2003; IBR approved for § 430.2.
(2) [Reserved]
(o)
(1) International Electrotechnical Commission (IEC) Standard 62087, (“IEC 62087 Ed. 3.0”),
(h)
This appendix covers the test requirements used to measure the power consumption of television sets.
2.1.
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
2.8.
2.9.
2.10.
2.11.
2.12.
2.13.
2.14.
2.15.
2.16.
WAN—Wide Area Network
2.17.
3.1.1.
3.1.2.
3.1.2.1. The sampling rate of the watt-hour meter or wattmeter with averaging function shall be one measurement per second or more frequent.
3.1.2.2. The power measurement instrument shall measure and record the power factor and the real power consumed during all on mode tests.
3.1.2.3. Power measurements of 0.5 W or greater shall be made with an uncertainty of less than or equal to 2 percent (at the 95 percent confidence level). Measurements of power of less than 0.5 W shall be made with an uncertainty of less than or equal to 0.01 W (at the 95 percent confidence level). The power measurement instrument shall have a resolution of:
0.01 W or better for power measurements of 10 W or less;
0.1 W or better for power measurements of greater than 10 W up to 100 W;
1 W or better for power measurements of greater than 100 W.
3.1.3.
If the LMD displays “300”, then 2 percent is ±6 cd/m
If the LMD displays “10.00”, then 2 percent is ±0.2 cd/m
4.
4.1.
4.2.
4.3.
4.4.
4.5.
4.6.
4.7.
4.8.
4.9.
4.10.
5.
5.1.
5.2.
5.3.
5.4.
5.4.1. For all tests in the on, standby-active, low, and standby-passive modes, the average power shall be calculated using one of the following two methods:
5.4.1.1. Record the accumulated energy (Ei) in kilo-watt hours (kWh) consumed over the time period specified for each test (Ti). The average power consumption is calculated as Pi = Ei/Ti.
5.4.1.2. Record the average power consumption (Pi) by sampling the power at a rate of at least 1 sample per second and computing the arithmetic mean of all samples over the time period specified for each test (Ti).
5.4.2. The rated power consumption in the on, standby, and off modes shall be determined as follows:
5.4.2.1. Apply the sampling and statistical requirements described in 10 CFR 429.25 to the average power consumption values of each mode of operation.
5.4.2.2. The resulting rated power consumption value for each mode of operation shall be rounded according to the accuracy requirements specified in section 3.1.2.3.
5.5.
5.5.1.
5.5.2.
5.6.
5.6.1.
5.6.2.
P
W
5.6.3.
5.6.4.
5.6.5.
5.6.6.
A 2-stop ND filter uniformly blocks 75% of the light from entering the ABC sensor. For an ABC sensor to receive 3 lux, 12 lux of light needs to reach the sensor prior to applying the ND filter. After applying the ND filter the TV will only interpret 3 lux of light entering the sensor.
5.7.
5.7.1.
5.7.1.1.
5.7.1.2.
5.7.1.3.
5.8.
5.8.1.
5.8.2.
5.8.3.
5.8.3.1.
5.8.3.2.
5.8.3.3.
5.9.
5.9.1. The off mode test shall be performed according to section 5.3.1 of the IEC 62301 Ed. 2.0 off mode test (incorporated by reference, see § 430.3). Measure the instantaneous power and record the average value over the test duration as P
6.
6.1. The annual energy consumption (AEC) of the TV shall be calculated using on mode and standby mode power consumption values as calculated pursuant to section 5.4
6.2. Compute the AEC of the TV using the equation below. The computed AEC value shall be rounded as follows:
6.2.1. If the computed AEC value is 100 kWh or less, the rated value shall be rounded to the nearest tenth of a kWh.
6.2.2. If the computed AEC value is greater than 100 kWh, the rated value shall be rounded to the nearest kWh.
6.3. Calculate AEC expressed in kilowatt-hours per year, according to the following: AEC = 365 * (P
Proposed values for H
Consumer Product Safety Commission.
Final rule.
The Consumer Product Safety Commission (CPSC, Commission, or we) is issuing a final rule establishing requirements pertaining to the third party conformity assessment bodies (laboratories) whose accreditations are accepted to test children's products in support of the certification required by the Consumer Product Safety Act (CPSA), as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA). The final rule establishes the general requirements concerning third party conformity assessment bodies, such as the requirements and procedures for CPSC acceptance of the accreditation of a third party conformity assessment body, and it addresses adverse actions that may be imposed against CPSC-accepted third party conformity assessment bodies. The final rule also amends the audit requirements for third party conformity assessment bodies and amends the Commission's regulation on inspections.
The rule is effective June 10, 2013 and applies to products manufactured on or after that date. The incorporation by reference of the publications listed in this rule is approved by the Director of the
Scott Heh, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; 301-504-7646; email:
On May 24, 2012, the Commission published a notice of proposed rulemaking to establish requirements for third party conformity assessment bodies whose accreditations are accepted to test children's products in support of the certification that the CPSA requires. As explained in the following section, the CPSA requires that certain children's products must be tested by a third party conformity assessment body (also sometimes called a laboratory), and the manufacturer or private labeler of that product must issue a certificate, based on the third party testing, stating that the product meets all applicable CPSC requirements. This rule finalizes the proposal published on May 24, 2012.
Section 14(a)(1) of the CPSA (15 U.S.C. 2063(a)(1)), as amended by the CPSIA (Pub. L. 110-314, 122 Stat. 3016), requires that the manufacturer (this term includes the importer) and the private labeler, if any, of a product that is subject to an applicable consumer product safety rule under the CPSA, or any similar rule, ban, standard, or regulation under any other Act enforced by the CPSC, issue a General Conformity Certificate. The General Conformity Certificate certifies “based on a test of each product or upon a reasonable testing program, that such product complies with all rules, bans, standards, or regulations applicable to the product under this Act or any other Act enforced by the Commission,” and it specifies each rule, ban, standard, or regulation applicable to the product. 15 U.S.C. 2063(a)(1)(A).
As noted above, section 14(a)(2) of the CPSA states that for any children's product that is subject to a children's product safety rule, every manufacturer (this term includes the importer) of such children's product (and the private labeler, if the children's product bears a private label) shall submit sufficient samples of the product, or samples that are identical in all material respects to the product, to an accredited third party conformity assessment body (or, laboratory) to be tested for compliance with such children's product safety rule. Section 14(a)(2)(B) of the CPSA requires the manufacturer or private labeler, based on such testing, to issue a certificate (Children's Product Certificate), certifying that such product complies with the children's product safety rule. Section 14(h) of the CPSA clarifies that, irrespective of certification, the product in question must actually comply with all applicable rules, regulations, standards, or bans enforced by the CPSC.
Section 14(a)(3) of the CPSA establishes various timelines for accreditation of the laboratories that may conduct third party tests of children's products, and it requires the Commission to publish “a notice of the requirements for accreditation of third party conformity assessment bodies to assess conformity” with specific laws or regulations. Under section 14(a)(3)(A) of the CPSA, the requirement for a manufacturer or private labeler of a children's product subject to a children's product safety rule to issue a certificate based on third party testing does not commence until “more than 90 days” after the Commission publishes a notice of requirements pertaining to the regulation or standard to which the children's product is subject.
Section 14(a)(3)(C) of the CPSA provides that the Commission may either accredit laboratories itself, or it may designate an independent accreditation organization to conduct the accreditations. Section 14(a)(3)(E) of the CPSA requires that the Commission maintain on its Web site an up-to-date list of entities that have been accredited to assess conformity with children's product safety rules.
Section 14(i)(1) of the CPSA requires the Commission to establish “requirements for the periodic audit of third party conformity assessment bodies as a condition for the continuing accreditation of such conformity assessment bodies” under section 14(a)(3)(C) of the CPSA. Section 14(e) of the CPSA addresses Commission withdrawal and suspension of the accreditation (or its acceptance of the accreditation) of a laboratory.
Section 14(f)(2)(A) of the CPSA defines a “third party conformity assessment body” to mean a conformity assessment body that is not owned, managed, or controlled by the manufacturer or private labeler of a product assessed by the laboratory, unless such a laboratory has satisfied certain statutory criteria. Section 14(f)(2)(D) of the CPSA provides that a laboratory owned, managed, or controlled by a manufacturer or private labeler may be accredited by the Commission, if the Commission makes certain findings, by order, concerning the laboratory's protections against undue influence by the manufacturer, private labeler, or other interested parties. In that case, the laboratory is considered “firewalled.” Similarly, section 14(f)(2)(B) of the CPSA lists five criteria that a conformity assessment body, owned or controlled in whole or in part by a government (or, governmental laboratory), must satisfy for its accreditation to be accepted by the CPSC.
The final rule establishes the requirements for CPSC acceptance of the accreditation of a laboratory to test children's products under section 14 of the CPSA. As discussed in detail in the preamble to the proposed rule, the requirements of the final rule are largely the same as the requirements used by the CPSC since passage of the CPSIA in August 2008. 77 FR at 31087-89. In addition, the rule delineates how a laboratory may discontinue voluntarily
In this section, we describe and respond to the comments received on the proposed rule. A summary of each of the commenter's topics is presented, and each topic is followed by our response. We received six comments on seven topics. Several commenters make general statements supporting the overall purpose of the proposed rule. All of the comments can be viewed at: www.regulations.gov, by searching under the docket number of the rulemaking, CPSC-2012-0026.
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The commenter states that any empirical evidence of nonhomogenieties resulting in a false determination of compliance is “questionable at best.” The commenter raises several objections to the “wet chemistry” method (Inductively Coupled Plasma, or ICP, using various spectrometric techniques), including a procedural step where 30 to 100 milligrams (mg) of a sample are collected and subjected to testing. The commenter points out that the ICP method does not require samples from three areas of the component part to be tested, and the commenter questions why the XRF method should be subject to that requirement. The commenter opines that this is a policy issue to be determined by the Commission and not a technical issue to be determined by CPSC staff. The commenter states that if a component part “appears not to have visual anomalies, it can reasonably be presumed to in fact be homogeneous with respect to its lead content.” The commenter adds that very small component parts may pose practical difficulties in providing locations for three measurements and that the proposed testing method has no allowance for very small component part testing. The commenter concludes that the test method, ASTM F2853-10, requires only one measurement when used to determine the lead content of a paint sample.
Another commenter expresses concern that the small spot size (on the order of 1 mm
Another commenter expresses concern that the testing for homogeneity requires the use of XRF in the test methods for lead content determination (the requirement that at least three spatially separated measurements be made). The commenter points out that the ICP method requires only 30 to 100 mg of material, which the commenter considers “incongruous” with respect to homogeneity.
Another commenter remarks that the CPSC test method CPSC-CH-E1001-08.2 (total lead (Pb) in nonmetal children's products), states that a homogenized aliquot
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With respect to small parts and the need to determine homogeneity, there are no limitations on using XRF for testing small component parts. Small parts may be rotated so that different surface areas would be tested. If three completely distinct areas could not be tested, three separate tests could still be done on overlapping areas.
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The commenter adds that even though other types of XRF spectrometers that
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We decline the request to allow XRF to be used to test electroplated materials because currently it is not possible to determine the correct lead content in such materials by this method. The commenter is correct that electroplated coatings that become part of the substrate are not considered paint under 16 CFR part 1303. The combined electroplated metal (
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At the time the report was prepared, the CPSC test methods for determining the lead content of metal and nonmetallic component parts did not include procedural steps or limitations on the use of XRF for homogeneous glass materials, crystals, and some metals. The report recommended updating the CPSC test methods to allow laboratories to use HHXRF or other types of laboratory XRF analyzers for testing glass and metal items, with limitations.
Since then, the CPSC test methods have been updated. The phrase “may be” is not used in the context of XRF in
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• Verify the instrument performance daily, by analyzing one or more reference materials of the same matrix or metal type as the materials on which the analyses will be performed.
• For testing metals, if the form of XRF described in ASTM F2853-10, deviates from the method described in the ASTM test method, all of the limitations in test method CPSC-CH-E1001-08.2 applied to other forms of XRF should be applied to the form of XRF described in ASTM F2853-10.
• Because uncoated wood and fabrics were not evaluated in the interlaboratory study of the form of XRF described in ASTM F2853-10, all of the limitations in test method CPSC-CH-E1002-08.2 applied to other forms of XRF should be applied to the form of XRF described in ASTM F2853-10.
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The second and third bullet points in the commenter's recommendations suggest that additional limitations should be placed on ASTM F2853-10 testing for metals other than zinc. We believe that the staff study presented in Tab C of the Staff Briefing Package for the NPR was sufficient and that CPSC-CH-E1001-08.2 adequately deals with other metals for XRF testing using the method described in ASTM F2853-10. The third bullet point suggests that for natural wood and for fabric, ASTM F2853-10 testing should have the same requirements as traditional XRF testing, and CPSC staff believes that is the case as the method is written.
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First, the commenter asks if the term “matrix” means “metal” or the specific alloy used as a reference material in the test method CPSC-CH-E1001-08.2.
Second, the commenter asks for guidance on how many glass or other substrate standards should be used daily to verify instrument performance in the test method CPSC-CH-E1002-08.2. Finally, the commenter questions the value of a relative standard deviation (RSD) of 30 percent for very low instrument readings using the XRF method described in ASTM F2853-10. In the commenter's opinion, this proposed requirement does not take instrument repeatability into account and makes more expensive ICP testing necessary, even though the readings are not close to the compliance limits. The commenter recommends that when the testing results are well below the concentration limit that would render a reading inconclusive, the XRF results should not be excluded from indicating compliance with the lead content limit.
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We agree with the commenter's final comment. Notably, this comment illustrates that at very low lead concentrations, differences of just a few ppm in measurements can result in an RSD indicating nonhomogeneity where possibly the instrumental variability is dominating the calculation. We believe that it is appropriate to allow XRF use where at least three measurements were taken by XRF as described in this method, and the result of each of those measurements is below 50 percent of the limit (
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Public Law 112-28 requires the Commission to provide alternative testing requirements for small batch manufacturers for certain children's product safety rules. If no alternative method is available, the Commission, with some exceptions, is to exempt small batch manufacturers from the third party testing requirements. However, developing alternative testing requirements for small batch manufacturers is not within the scope of
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By making the accreditation and audit requirements more focused on the authentication of independence, the CPSC will be able to adopt requirements that will further its commitment to ensure that all approved laboratories are meeting the conditions for their continuing accreditation.
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For the Commission to accept a laboratory as firewalled, the laboratory must have policies and procedures in place, consistent with laboratory independence and impartiality. To evaluate whether a laboratory satisfies these criteria on independence and impartiality, the final rule requires that a laboratory seeking CPSC-accepted firewalled status submit copies of various documents to the CPSC. The applicant laboratory would need to submit its policies and procedures that explain how test results are protected from undue influence by the manufacturer, private labeler, or other interested party. The CPSC's purpose in reviewing such documents would be to assess whether the laboratory has established the necessary written procedures to maintain its independence from the manufacturer or private labeler. We also require the laboratory to submit copies of established policies and procedures, indicating that the CPSC will be notified immediately of any attempt to hide or exert undue influence over test results and policies and procedures and explaining that an allegation of undue influence may be reported confidentially to the CPSC. Our purpose in reviewing these documents is to ensure that the laboratory has written procedures in place that address when and how the CPSC will be notified of any attempt to exert undue influence.
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The commenter adds that the Occupational Safety and Health Administration (OSHA) Nationally Recognized Laboratories (NTRL) program and the Federal Communications Commission (FCC) accreditation program for Telecommunications Certification Bodies include reciprocity provisions. The commenter states that such reciprocity provisions benefit U.S. manufacturers, by streamlining compliance requirements across markets and allowing laboratories to bundle services.
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One commenter notes that absent any indication that such a contractual relationship, in fact, constitutes “ownership or control” by a manufacturer over a laboratory, the proposed rule/staff justification offers no foundation for this provision, and in fact, appears to have no valid purpose (including any based on congressional intent in this regard) for such an overly broad definition of “firewalled lab.” Another commenter recommends that this provision be modified to reflect that, absent any indication that such a contractual relationship, in fact, constitutes “ownership or control” by a manufacturer over a laboratory, the laboratory should not be considered to be a “firewalled lab.”
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After reviewing the comments regarding this section of the proposed rule, we agree with the commenters that this type of contractual relationship would not necessarily result in a situation where the manufacturer controls the laboratory. Because the specific details of these types of contracts are highly variable, it would be impractical and complex to assess independently each contract on a case-by-case basis. Further, we consider that such an assessment would result in little benefit to consumer safety, above the other elements in the rule that define a firewalled laboratory, and above the criteria CPSC acceptance of a laboratory's accreditation. Therefore, we are removing the provision regarding contractual relationships as one of the criteria that define a “firewalled” laboratory in § 1112.11(b)(1)(ii)(D) of the final rule.
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We decline to adopt the commenter's recommendation with regard to considering a fact-based determination. The definition of a “governmental third party conformity assessment body” in section 14(f)(2)(B)(ii) of the CPSA states that the laboratory's test results are not “subject to undue influence.” We interpret “subject to undue influence” to mean being liable or vulnerable to undue influence, not to an after-the-fact determination that undue influence had actually been exerted to compromise the integrity of testing results. Thus, we consider being vulnerable to the exercise of undue influence, not whether the undue influence has occurred, as being “subject to undue influence.”
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We do not agree with the commenter that changes are needed to the proposed rule to provide an applicant a reasonable opportunity to correct an omission or error in its application because the language in the proposed rule already provides such opportunity. Section 1112.17(a) of the final rule (unchanged from the proposal) allows CPSC staff to contact a laboratory with any questions regarding an application or to request the submission of missing information. Section 1112.43(b) in the final rule provides that “the CPSC's denial of an application will follow the process described in § 1112.51 of this subpart.” Section 1112.51 of the final rule stipulates that the CPSC will provide an initial notice that advises the laboratory of the specific grounds for a denial of an application. Some common reasons for denial of an application include: a missing scope document or a missing or incorrect test method reference within a scope document.
In § 1143(a)(1) of the final rule, a laboratory has 30 calendar days to respond and correct the issue. Further, the procedures in the final rule allow for a laboratory to request an extension of time with an explanation and an estimate for how much additional time is needed. Even in cases in which an applicant cannot correct the issue within an allotted extension and an application is denied, the applicant may reapply for CPSC acceptance when all required elements are fulfilled.
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(1) The integrity of test(s) being conducted under a scope for which we have accepted the laboratory's accreditation has been affected by undue influence or otherwise interfered with or compromised; and
(2) any portion of a CPSC scope for which we have accepted the laboratory's accreditation involve a product(s) which, if noncompliant with CPSC rules, bans, standards, and/or regulations, constitutes an imminently hazardous consumer product under section 12 of the CPSA.
We believe this language, which is unchanged from the proposal, clearly defines the threshold for CPSC to consider immediate withdrawal of its acceptance of accreditation.
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The list of CPSC-accepted laboratories on the CPSC Web site at:
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It is important to note, however, that many of the CPSC-accepted governmental laboratories have a small portion of government ownership and little-to-no government involvement in their operations. These laboratories operate essentially as independent laboratories, but by law, they must be categorized as “governmental” because they have partial government ownership, such as through a joint venture. Other governmental laboratories are associated with state-funded institutions. Because forms of governmental involvement can vary, listing a laboratory as “governmental” does not necessarily convey any meaningful information to the public. Yet, in the interest of transparency the Commission has chosen to provide the information in a similar manner to the way in which the CPSC lists firewalled laboratories.
As noted, the CPSC already lists firewalled laboratories on its Web site, despite the fact that the firewalled status applies only to a manufacturer or private labeler who owns, manages, or controls the laboratory. This practice will not change. (See
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Section 14(e)(3) of the CPSA states:
The Commission may suspend the accreditation of a conformity assessment body if it fails to cooperate with the Commission in an investigation under this section.
Section § 1112.45 of the final rule:
(a) The CPSC may suspend its acceptance of a third party conformity assessment body's accreditation for any portion of its scope when the third party conformity assessment body fails to cooperate with an investigation under section 14 of the CPSA.
Finally, a laboratory that exercises any legal procedural right available under law would not be considered to have “failed to cooperate” under the final rule. Such a legal procedural right would include a laboratory request for the issuance of a subpoena before providing documents to the CPSC.
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A third party conformity assessment body “fails to cooperate” when it does not respond to CPSC inquiries or requests, or it responds in a manner that is unresponsive, evasive, deceptive, or substantially incomplete, or when it fails to cooperate with an investigatory inspection under § 1112.27.
Because the text of the proposed and final rule already includes responding evasively to investigations, we believe that the current text already meets the commenter's concerns. It is not necessary for a pattern of evasion to be established before suspension of acceptance of accreditation is considered. Requiring a pattern of evasion would allow laboratories to respond to inquiries in a manner that is evasive some of the time, until a pattern is established. Because inspections or investigations frequently pertain to the presence of noncompliant children's products in the marketplace, evasive responses are never acceptable.
With regard to the commenter's statement regarding “reasonable delays,” what is considered “reasonable” varies, based on the nature of the request. Therefore, specifying a period is impractical. For example, a request for a corrected phone number, compared to a request for testing records covering a multiyear period, will have different “reasonable” expected response periods. Thus, 20 days may be excessive for a telephone number correction, while that period may be unreasonably short for the collection and transmission of voluminous records. Further, the phrase “other reasonable time based on the circumstances” does not add specificity to what is considered “reasonable.”
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Section 1112.49(a) of the final rule (unchanged from the proposal) allows any person to submit information alleging grounds for adverse action, as set forth in part 1112. The submitter is required to allege that one or more of the grounds for adverse action set forth in part 1112 exist. Section 1112.49(a) of the final rule describes the kind of information necessary for CPSC to substantiate an allegation for an adverse action. Any investigation resulting from the information submitted under § 1112.49 would be investigated under the procedures described in § 1112.51. If a person submitting information does not provide sufficient information to investigate an allegation, it will be difficult for the agency to substantiate the allegation, as is indicated in § 1112.49(b), which states:
Upon receiving the information, the CPSC will review the information to determine if it is sufficient to warrant an investigation. The CPSC may deem the information insufficient to warrant an investigation if the information fails to address the categories of information outlined in paragraph (a) of this section above.
The language of § 1112.49(a) sets the threshold regarding the types and sufficiency of the information necessary to warrant an investigation. Therefore, it is unnecessary to define the term “Investigation,” as the commenters have requested.
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The commenter does not explain why the withdrawal of CPSC acceptance of a firewalled laboratory should be treated differently than other types of laboratories. The CPSC regards any exercise of undue influence on the integrity of a laboratory's test results as calling into question the integrity of all of the laboratory's test results, including those related to the testing of children's products.
If a laboratory disagrees with a CPSC final notice of adverse action, § 1112.51 of the final rule describes procedures for filing an administrative appeal. In addition, for firewalled laboratories, any suspension or withdrawal of CPSC acceptance of accreditation must be
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The commenter further recommends that the Commission should allow “immediate withdrawal” of a laboratory's acceptance of accreditation (proposed § 1112.53) only upon an affirmative vote of the Commission (not a mere staff determination that withdrawal is necessary “to protect the public health and safety”). The commenter notes that Commission action is necessary for the analogous action by the CPSC to waive the 6(b) notification rights of a company to disclose immediately product-specific information to the public, and likewise, should be required here.
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Subpart D of the final rule (unchanged from the proposal),
We decline to adopt the commenter's recommendation that an affirmative vote of the Commission be required for “immediate withdrawal” of a laboratory's acceptance of accreditation. Section 14(a)(3)(C) of the CPSA states that accreditation of third party conformity assessment bodies may be conducted by the Commission or an independent accreditation organization designated by the Commission. Currently, CPSC staff has been tasked with reviewing and accepting the accreditation of independent and governmental laboratories. While CPSC staff also reviews accreditation and application materials from firewalled applicants, section 14(f)(2)(D) of the CPSA provides that the Commission may accept a firewalled laboratory's accreditation by order of the Commission after determining that the firewalled applicant meets statutory requirements.
Section 14(e) of the CPSA authorizes the Commission to withdraw or suspend its accreditation or acceptance of accreditation of a laboratory under certain conditions. To parallel the acceptance process to accredit firewalled laboratories, the withdrawal of acceptance of accreditation of firewalled laboratories occurs by Commission vote. In order to maintain the parallel structure of Commission acceptance of accreditation, the Commission does not require a vote to withdraw or suspend acceptance of accreditation of independent or governmental laboratories.
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Regarding the commenter's suggestion that we should only require English translations of documents “that are relevant and reasonably necessary with regard to the CPSC's specific inquiry or investigation,” the documents required in §§ 1112.25(a)(1)-(4) of the final rule are always considered to be “relevant and reasonably necessary with regard to the CPSC's specific inquiry or investigation.” Hence, that is the reason for the requirement to maintain those records. Therefore, we decline to make the commenter's recommended change because the proposed and final rules inherently require maintaining records “that are relevant and reasonably necessary with regard to the CPSC's specific inquiry or investigation.”
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This section of the final rule, describing the major topics addressed in part 1112, is substantially the same as proposed. As in the proposal, this section notes that the part defines the term “third party conformity assessment body” and describes the types of third party conformity assessment bodies whose accreditations are accepted by the CPSC to test children's products under section 14 of the CPSA. This section notes that part 1112 describes the requirements and procedures for becoming a CPSC-accepted third party conformity assessment body; the audit requirement applicable to third party conformity assessment bodies; how a third party conformity assessment body may voluntarily discontinue participation as a CPSC-accepted third party conformity assessment body; the grounds and procedures for withdrawal or suspension of CPSC acceptance of accreditation of a third party conformity assessment body; and how an individual may submit information alleging grounds for adverse action. The description of the purpose in § 1112.1 of the final rule is unchanged from the proposed rule, with the following exception. Proposed § 1112.1 used the phrase “that are accepted by” when referring to CPSC acceptance of a third party conformity assessment body's acceptance of accreditation by the CPSC. The final rule replaces the phrase “that are accepted by” used in proposed § 1112.1 with “whose accreditations are accepted by” in the final rule because the revised language describes more accurately the CPSC acceptance of the accreditation process. This change is not a substantive change and has been made throughout the rule, where appropriate, for consistency.
Proposed § 1112.3 amended two definitions that appear in the audit final rule. One definition is the term “Audit.” An audit of a CPSC-accepted laboratory consists of two parts: the reassessment portion, which is conducted by the accreditation body, and the examination portion, which is conducted by the CPSC. We did not receive any comments on this proposed definition and are finalizing the definition as proposed.
The other definition from the audit rule that the Commission proposed to amend is “CPSC.” The rule discusses certain tasks that must be accomplished by the Commission body, as opposed to the CPSC as an agency. Thus, to distinguish between the Commission, as a body, as opposed to the agency, as a whole, the proposed rule, for purposes of part 1112 only, revised the definition of “CPSC” to mean the U.S. Consumer Product Safety Commission as an agency. The definition of “CPSC” in the final rule is unchanged from the proposed rule.
Final § 1112.3 creates the following nine definitions; all are the same as proposed:
This section describes, for purposes of part 1112, the three types of third party conformity assessment bodies: independent, firewalled, and governmental. Section 1112.11(a) describes an “independent laboratory” as a third party conformity assessment body that is neither owned, managed, or controlled by a manufacturer or private labeler of a children's product to be tested by the laboratory, nor owned or controlled, in whole or in part, by a government.
Section 1112.11(b) describes the circumstances that result in firewalled status. The rule considers a laboratory “firewalled” if it is owned, managed, or controlled by a manufacturer or private labeler of a children's product. The rule considers a laboratory owned by a trade association to be firewalled. Like a manufacturer, an association of manufacturers is in a position to exert undue influence on a laboratory owned, managed, or controlled by the association. The undue influence may come in the form of an expectation that special consideration will be given to the test results of association members or by discouraging reports of attempted undue influence by an association member.
A laboratory would be considered to be “owned, managed, or controlled” by a manufacturer or private labeler if one (or more) of three characteristics apply. The first is if the manufacturer or private labeler of the children's product holds a 10 percent or greater ownership interest, whether direct or indirect, in the laboratory, the laboratory would be considered firewalled. In this context, indirect ownership interest would be calculated by successive multiplication of the ownership percentages for each link in the ownership chain. We chose the 10 percent threshold ownership amount because it is our estimation that a manufacturer or private labeler who possesses less than a 10 percent ownership interest in a laboratory and does not otherwise exercise management or control of the laboratory, presents a low risk of exercising undue influence over the laboratory. In addition, our experience using this threshold over the past 3 years indicates that applicants understand it easily and have been able to supply such information. We note that the Federal Communications Commission also uses a 10 percent ownership threshold in its ownership disclosure requirements for applications.
The second circumstance that signifies that a laboratory is firewalled arises when the laboratory and a manufacturer or private labeler of a children's product are owned by the same parent entity. In this instance, the manufacturer would not be a 10 percent owner of the laboratory, either directly or indirectly, but the interests of both entities would converge in a common parent. In such a case, the parent company would hold the interests of the manufacturer, and the laboratory should be firewalled to ensure that its testing processes are independent.
The third circumstance that results in firewalled status occurs when a manufacturer or private labeler of the children's product has the ability to appoint any of the laboratory's senior internal governing body (including, but not limited to, a board of directors); the ability to appoint the presiding official (including, but not limited to, the chair or president) of the laboratory's senior internal governing body; the ability to hire, dismiss, or set the compensation levels for laboratory personnel. The ability to appoint the president or any of the senior internal governing body or to make personnel decisions indicates management and/or control of the laboratory. The preamble to the proposed rule discusses in more detail the development of the firewalled requirements in proposed §§ 1112.11(b)(1)(ii)(A)-(C).
The fourth circumstance described in the proposed rule that would have resulted in firewalled status arises when the laboratory is under a contract to a manufacturer or private labeler of the children's product and the contract explicitly limits the services the laboratory may perform for other customers and/or explicitly limits which or how many other entities may also be customers of the laboratory. As discussed in the response to Comment 13 in section II.B. of the preamble, the Commission has decided to delete proposed § 1112.11(b)(1)(ii)(D) from the final rule.
Section 1112.11(c) implements the CPSA section 14(f)(2)(B) definition of a “governmental” laboratory as one “owned or controlled in whole or in part by a government.” The proposed rule stated that, for purposes of this
As in the proposal, § 1112.11(c) lists six characteristics, any one of which triggers governmental laboratory status:
• A governmental entity holds a 1 percent or greater ownership interest, whether direct or indirect, in the laboratory (§ 1112.11(c)(1)). Selecting 1 percent as an ownership threshold is a practical matter of selecting the smallest whole number as an expression of ownership “in part.” Indirect ownership interest would be calculated for these purposes in the same way as we propose to calculate it for purposes of indirect ownership of a firewalled laboratory, which is by successive multiplication of the ownership percentages for each link in the ownership chain;
• A governmental entity provides any direct financial investment or funding (other than fee-for-work) to the laboratory (§ 1112.11(c)(2)). This circumstance triggers governmental status because operational control of an enterprise may be affected by control or influence over its resources;
• A governmental entity has the ability to appoint a majority of the laboratory's senior internal governing body (such as, but not limited to, a board of directors); the ability to appoint the presiding official of the laboratory's senior internal governing body (such as, but not limited to, the chair or president); and/or the ability to hire, dismiss, or set the compensation level for laboratory personnel. The ability to appoint the president or a majority of the senior internal governing body, or to make personnel decisions, indicates, at least in part, control of the laboratory (§ 1112.11(c)(3));
• If any of the laboratory's management or technical personnel are government employees (§ 1112.11(c)(4)). Direct involvement by government personnel in the operation of a laboratory would represent control, in part;
• If the laboratory has a subordinate position to a governmental entity in its external organizational structure (§ 1112.11(c)(5)). We consider laboratories that are organizationally a part of, or formally linked to, the government to be governmental laboratories. In those cases, even if the government is not an owner, it has the means of controlling the laboratory; or
• If a government can determine, establish, alter, or otherwise affect the laboratory's testing outcomes, its budget or financial decisions, its organizational structure, or continued existence, or determines whether the laboratory may accept particular offers of work, then the laboratory would be considered governmental (§ 1112.11(c)(6)). The preamble to the proposed rule discusses the criteria for governmental laboratory status in further detail.
Section 1112.13 describes how a third party conformity assessment body may apply for CPSC acceptance of its accreditation. We are finalizing this section as proposed. Section 1112.13(a) describes the initial baseline requirements for any laboratory to apply. The laboratory must submit the following:
• A completed application, CPSC Form 223. The laboratory also must update its CPSC Form 223 whenever any information previously supplied on the form changes.
• A certificate of accreditation to ISO/IEC Standard 17025:2005(E), “General requirements for the competence of testing and calibration laboratories.”
• Accreditation by an accreditation body that is a signatory to the ILAC-MRA. All laboratories also are required to furnish their statement of scope, and the statement of scope would have to identify clearly the CPSC rule(s) and/or test method(s) for which CPSC acceptance is sought.
The preamble to the proposed rule discusses the baseline requirements for accreditation in further detail.
Section 1112.13(b) describes the additional requirements for firewalled laboratories. Section 14(f)(2)(D) of the CPSA requires that a laboratory may be accepted as firewalled only if the Commission, by order, finds that:
(i) [Acceptance] of the accreditation of the conformity assessment body would provide equal or greater consumer safety protection than the manufacturer's or private labeler's use of an independent third party conformity assessment body; and
(ii) The conformity assessment body has established procedures to ensure that—
(I) Its test results are protected from undue influence by the manufacturer, private labeler, or other interested party;
(II) The Commission is notified immediately of any attempt by the manufacturer, private labeler or other interested party to hide or exert undue influence over test results; and
(III) Allegations of undue influence may be reported confidentially to the Commission.
To evaluate whether a laboratory satisfies these criteria, the rule requires that a laboratory seeking CPSC-accepted firewalled status submit copies of various documents to the CPSC. Such laboratories must submit:
• Copies of certain established policies and procedures. The laboratory would need to submit its policies and procedures that explain how test results are protected from undue influence by the manufacturer, private labeler, or other interested party. We also would require the laboratory to submit copies of established policies and procedures, indicating that the CPSC will be notified immediately of any attempt to hide or exert undue influence over test results, in addition to submitting the laboratory's policies and procedures explaining that an allegation of undue influence may be reported confidentially to the CPSC.
• Copies of training documents, including a description of the training program content, showing how employees are trained on the three policies just described. The rule requires this training annually.
• Training records listing staff members who received the training and bearing their signatures. The training records must include training dates, location, and the name and title of the individual providing the training.
• For firewalled laboratory applicants, two organizational charts. One chart must be an organizational chart(s) of the laboratory itself. It must include the names of all personnel, both temporary and permanent, and their reporting relationship within the laboratory. The other organizational chart must identify the reporting
• A list of all laboratory personnel with reporting relationships outside of the laboratory. The list must identify the name and title of the relevant laboratory employee(s) and the names, titles, and employer(s) of all individuals outside of the laboratory to whom they report.
The preamble to the proposed rule discusses the additional requirements for firewalled laboratories in further detail.
Section 14(f)(2)(B) of the CPSA mandates that the Commission may accept the accreditation of a governmental laboratory if:
(i) To the extent practicable, manufacturers or private labelers located in any nation are permitted to choose conformity assessment bodies that are not owned or controlled by the government of that nation;
(ii) The entity's testing results are not subject to undue influence by any other person, including another governmental entity;
(iii) The entity is not accorded more favorable treatment than other third party conformity assessment bodies in the same nation who have been accredited under [section 14];
(iv) The entity's testing results are accorded no greater weight by other governmental authorities than those of other accredited third party conformity assessment bodies accredited under [section 14]; and
(v) The entity does not exercise undue influence over other governmental authorities on matters affecting its operations or on decisions by other governmental authorities controlling distribution of products based on outcomes of the entity's conformity assessments.
The rule restates these statutory requirements and provides that, in order for the CPSC to make the necessary determinations, governmental laboratories must submit the following:
• A description that can be in the form of a diagram. The description should illustrate the laboratory's relationships with other entities, such as government agencies and joint venture partners.
• Questionnaires completed by the governmental laboratory and the relevant governmental entity. The questionnaires are designed to elicit information related to the five statutory criteria.
• A copy of an executed memorandum that addresses undue influence. The memorandum must be on company letterhead, from the senior management of the laboratory, and directed to all laboratory staff. The memorandum must be in the primary written language used for business communications in the area in which the laboratory is located, and, if that language is not English, then the laboratory must provide an English translation. The memorandum must be displayed prominently at the laboratory for as long as the laboratory's accreditation is accepted by the CPSC. The memorandum must state certain policies and require that the laboratory's policy is to reject undue influence. Additionally, the memorandum must require employees to report immediately, to their supervisor or to another designated laboratory official, any attempt at undue influence. Finally, the memorandum must state that the laboratory will not tolerate violations of the undue influence policy.
• An attestation by a senior official of the governmental laboratory, who has the authority to make binding statements of policy on behalf of the laboratory. The official must attest to several statements related to the application, including that the laboratory does not receive and will not accept favorable treatment from any governmental entity with regard to products that are subject to CPSC jurisdiction and that are for export to the United States. Among other things, the senior official of the governmental laboratory must attest that the information in the laboratory's application continues to be accurate, unless the laboratory notifies the CPSC otherwise.
• If CPSC approval of a governmental laboratory application is dependent upon a recently changed circumstance in the relationship between the laboratory and the governmental entity, and/or a recently changed policy of the related governmental entity, the CPSC may require the relevant governmental entity to attest to the details of the new relationship or policy.
The preamble to the proposed rule discusses the additional requirements for firewalled laboratories in further detail.
Section 1112.13(d) states that if a laboratory satisfies both the criteria for governmental status and the criteria for firewalled status, such a laboratory would be required to apply under both categories. This provision of the final rule is unchanged from the proposed rule.
As in the proposal, § 1112.13(e) requires all application materials to be in English.
Section 1112.13(f) requires that CPSC Form 223 and all required accompanying documentation be submitted electronically via the CPSC Web site. We have established an electronic application system that can be accessed via our Internet site at:
Section 1112.13(g) reserves the authority to require additional information from an applicant laboratory to determine whether the laboratory meets the relevant criteria. This provision allows us to gather additional information if the initial information supplied by an applicant laboratory is insufficient. The rule also states that the CPSC, before acting on an application, may verify the accreditation certificate and statement of scope directly from the laboratory's accreditation body. This provision of the final rule is unchanged from the proposed rule.
Section 1112.13(h) provides that a laboratory may retract an application at any time before the CPSC has acted on it. The rule notes, however, that a retraction would not end or nullify any enforcement action that the CPSC is authorized to pursue. This provision of the final rule is unchanged from the proposed rule.
Section 1112.13(i) contains the incorporation by reference language for ISO/IEC Standard 17025:2005(E): “General requirements for the competence of testing and calibration laboratories,” which is required by the Office of the Federal Register.
Section 1112.15(a) states, consistent with section 14(a)(3) of the CPSA, that a laboratory may apply to the CPSC for acceptance of its accreditation to test a children's product to a particular CPSC rule or test method once the Commission has published the
Section 1112.15(b) lists the rules and test methods for which the Commission has published the requirements for accreditation of laboratories. The list in the final rule is current through the publication date of the final rule in the
The preamble to the proposed rule (77 FR at 31135) noted that proposed §§ 1112.15(b)(28) and (29), would contain two proposed revisions, which provided that, to be considered for CPSC-acceptance of accreditation to test for lead in children's metal products (including metal jewelry), an applicant laboratory may have in its scope of accreditation either Test Method CPSC-CH-E1001-08 (the original test method) and/or Test Method CPSC-CH-E1001-08.1 (the revised test method allowing alternative, simplified procedures) and/or the proposed revision of the test method, Test Method CPSC-CH-E1001-08.2 (allowing the use of XRF for certain metals).
Comment 3 in section II.A of the preamble notes that CPSC test method CPSC-CH-E1001-08.2 was not included as an acceptable test method in the codified text of proposed § 1112.15(b)(28). In the codified text of proposed § 1112.15(b)(28), test method CPSC-CH-E1001-08.2 was omitted inadvertently, although it was discussed in the preamble to the proposed rule, and we intended that test method CPSC-CH-E1001-08.2 be allowed under § 1112.15(b)(28). Therefore, § 1112.15(b)(28) of the final rule expressly allows for the use of test method CPSC-CH-E1001-08.2.
Additionally, as discussed in response to Comment 8 in section II.A of the preamble, CPSC staff has posted two new test methods, CPSC-CH-E1001-08.3 (
Finally, editorial changes have been made to §§ 1112.15(b)(28), (29), and (30) of the final rule. In §§ 1112.15(b)(28) and (29) of the final rule, the full name of the CPSC test method CPSC-CH-E1001-08, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)” is used the first time it appears in the provision; and thereafter, reference is made to the number of the test method because the name of the test method is clear from the context of the provision. The same change has been made to § 1112.15(b)(30) regarding the reference to CPSC Test Method CPSC-CH-E1002-08, “Standard Operating Procedure for Determining Total Lead (Pb) in Nonmetal Children's Products.” These changes are not intended to change those provisions substantively. Other than the changes just discussed, §§ 1112.15(b)(28) and (29) of the final rule have been finalized as proposed.
In order to ease the transition to new third party testing requirements and to avoid a “bottlenecking” of products at laboratories at or near the effective date of required third party testing for children's product, the Commission, in the past, and under certain conditions, has accepted certifications based on testing that occurred prior to the effective date for third party testing. The CPSC will accept retrospective testing under certain conditions for six new or revised requirements for accreditation listed in § 1112.15(b) of the final rule. The retrospective testing conditions listed here are based on other standards that previously allowed for retrospective testing. The details for retrospective testing for particular standards or tests methods are discussed below.
We will accept retrospective testing for 16 CFR parts 1221 (play yards), 1223 (infant swings), and 1224 (portable bed rails) for the tests contained in those standards, if the following conditions are met:
• The children's product was tested by a third party conformity assessment body accredited to ISO/IEC 17025:2005(E) by a signatory to the ILAC-MRA at the time of the test. The scope of the third party conformity body accreditation must include testing in accordance with the applicable standard. For firewalled third party conformity assessment bodies, the firewalled third party conformity assessment body must be one that the Commission, by order, has accredited on or before the time that the children's product was tested, even if the order did not include the tests contained in the applicable standard at the time of initial Commission acceptance. For governmental third party conformity assessment bodies, accreditation of the body must be accepted by the Commission, even if the scope of accreditation did not include the tests contained in the applicable standard at the time of initial CPSC acceptance.
• The third party conformity assessment body's application for acceptance of its accreditation is accepted by the CPSC on or after May 24, 2012, and before June 10, 2013.
• The test results show compliance with the applicable standard(s).
• The children's product was tested on or after the date of publication in the
○ 16 CFR part 1221, Play Yards (published August 29, 2012);
○ 16 CFR part 1223, Infant Swings (published November 7, 2012); and/or
○ 16 CFR part 1224, Portable Bed Rails (published February 29, 2012);
• The laboratory's accreditation remains in effect through June 10, 2013.
We will accept retrospective testing using test methods CPSC-CH-E1001-08.2 (for testing children's metal products) and CPSC-CH-E1002-08.2 (for testing nonmetal children's products), if the following conditions are met:
• The children's product was tested by a third party conformity assessment body accredited to ISO/IEC
• The third party conformity assessment body's application for acceptance of its accreditation to the revised test methods is accepted by the CPSC on or after May 24, 2012, and before June 10, 2013.
• The test results show compliance with limits on total lead content, as established in section 101 of the CPSIA.
• The children's product was tested on or after April 10, 2012 (the date the revised test methods were posted on the CPSC Web site) and before June 10, 2013.
• The laboratory's accreditation remains in effect through June 10, 2013.
We will accept retrospective testing using test methods CPSC-CH-E1001-08.3 (for testing children's metal products) and CPSC-CH-E1002-08.3 (for testing nonmetal children's products), if the following conditions are met:
• The children's product was tested by a third party conformity assessment body accredited to ISO/IEC 17025:2005(E) by a signatory to the ILAC-MRA at the time of the test. The scope of the third party conformity body accreditation must include test methods CPSC-CH-E1001-08.3 and/or CPSC-CH-E1002-08.3. For firewalled third party conformity assessment bodies, the Commission, by order, must have accredited it on or before the time that the children's product was tested, even if the order did not include the test methods CPSC-CH-E1001-08.3 and/or CPSC-CH-E1002-08.3 at the time of initial Commission acceptance. For governmental third party conformity assessment bodies, accreditation of the body must be accepted by the Commission, even if the scope of accreditation did not include at the time of initial CPSC acceptance the test methods CPSC-CH-E1001-08.3 and/or CPSC-CH-E1002-08.3.
• The third party conformity assessment body's application for acceptance of its accreditation to the revised test methods is accepted by the CPSC on or after May 24, 2012, and before June 10, 2013.
• The test results show compliance with limits on total lead content, as established in section 101 of the CPSIA.
• The children's product was tested on or after November 15, 2012 (the date the revised test methods were posted on the CPSC Web site) and before June 10, 2013.
The laboratory's accreditation remains in effect through June 10, 2013.
We will accept retrospective testing on children's products conducted by a third party conformity assessment body accepted by the Commission for those tests in ASTM F963-11 that have no equivalent, or functionally equivalent, test in ASTM F963-08, if the following conditions are met:
• The children's product was tested by a third party conformity assessment body accredited to ISO/IEC 17025:2005(E) by a signatory to the ILAC-MRA at the time of the test. The scope of the third party conformity assessment body accreditation must include the tests contained in the applicable nonequivalent section of ASTM F963-11. For firewalled third party conformity assessment bodies, the Commission, by order, must have accredited it, on or before the time that the children's product was tested, even if the order, at the time of initial Commission acceptance, did not include the nonequivalent tests contained in ASTM F963-11. For governmental third party conformity assessment bodies, accreditation of the body must be accepted by the Commission, even if the scope of accreditation at the time of initial CPSC acceptance did not include the nonequivalent tests methods contained in ASTM F963-11.
• The third party conformity assessment body's application for acceptance of its accreditation is accepted by the CPSC on or after May 24, 2012, and before June 10, 2013.
• The test results show compliance with the nonequivalent section(s) of ASTM F963-11.
• The children's product was tested on or after February 22, 2012 (the date that the Commission voted to approve ASTM F963-11 as a mandatory standard), and before June 10, 2013.
• The third party conformity assessment body's accreditation remains in effect through June 10, 2013.
This section establishes the procedures related to CPSC action on a third party conformity assessment body's application for CPSC acceptance of its accreditation. We are finalizing this section as proposed.
CPSC staff will review each application and may contact applicant laboratories with questions or to request submission of missing information.
Consistent with section 14(f)(2)(D) of the CPSA, an application from a firewalled laboratory will be accepted, by order of the Commission, if the Commission makes certain findings that are required by the statute; the required findings are enumerated. We intend that CPSC staff will act on applications from independent and governmental laboratories, as long as such action is consistent with a proper delegation of authority from the Commission.
The CPSC will communicate its decision on each application, in writing, to the applicant; the written decision may be by electronic mail.
In accordance with section 14(a)(3)(E) of the CPSA, § 1112.19 provides that the CPSC will maintain on its Web site an up-to-date listing of third party conformity assessment bodies whose accreditations have been accepted and the scope of each acceptance. The rule states that the CPSC will update the listing regularly to account for changes of information and status, such as the addition of CPSC rules and/or test methods to a scope of accreditation; changes to accreditation certificates; or a new address. In addition, the CPSC will update the listing to indicate changes in status, such as if a laboratory voluntarily discontinues its participation with the CPSC, or if the CPSC suspends or withdraws its acceptance of a laboratory's accreditation. This provision of the final rule is unchanged from the proposed rule.
We are finalizing this section as proposed. It requires a CPSC-accepted laboratory to use only a test method specified by the CPSC for a particular CPSC rule and/or test method, for any test conducted for purposes of section 14 of the CPSA. The CPSC is requiring that test methods be specified for several reasons. First, a specified test method firmly establishes how to generate test results that are acceptable to the CPSC as indicative of compliance, so there is a common understanding between the CPSC and CPSC-accepted laboratories. Second, by specifying the test method, greater consistency among tests conducted at different CPSC-accepted laboratories is established. Variations between laboratories are reduced. Finally, the specified test method serves as a common procedure that accreditation bodies can use to evaluate a laboratory for a particular CPSC rule or test method. By evaluating to a CPSC-specified test method, accreditation bodies can determine whether the laboratory meets competency requirements to carry out a particular test.
This section of the final rule is unchanged from the proposed rule. It prohibits subcontracting of tests conducted for purposes of section 14 of the CPSA, unless the work is subcontracted to a CPSC-accepted laboratory. In addition, the CPSC's acceptance of the scope of accreditation of the subcontracting laboratory must include the test being subcontracted. The purpose of requiring a third party conformity assessment body subcontractor to be a CPSC-accepted laboratory is to promote competent and consistent test results across all laboratories that conduct testing of children's products under section 14 of the CPSA.
The provisions of part 1112 apply to all CPSC-accepted laboratories, even if they are a prime contractor and/or a subcontractor.
This section requires third party conformity assessment bodies to retain certain records related to the tests conducted for purposes of section 14 of the CPSA. All required records must be legible. All test reports and technical records related to tests conducted for purposes of section 14 of the CPSA must be maintained for a period of at least 5 years from the date the test was conducted. These requirements are unchanged from the proposed rule.
Proposed § 1112.25(a)(2) required, in the case of a test report for a test conducted by a CPSC-accepted laboratory acting as a sub-contractor, that the prime contractor's test report identify clearly which test(s) was performed by a CPSC-accepted laboratory acting as a subcontractor(s), and the test report from the CPSC-accepted laboratory acting as a subcontractor must be appended to the prime contractor's test report. This provision of the final rule has been changed to require only that the subcontractor's laboratory test report be made available to the CPSC, upon request, but not necessarily appended to the prime contractor's test report, as discussed in the response to Comment 28 in section II.F of the preamble.
The remaining subsections of § 1112.25(a) are unchanged from the proposed rule. For purposes of section 14 of the CPSA, where a report, provided by the laboratory to a customer is different from the test record, the laboratory also must retain the report provided to the customer for a period of at least 5 years from the date the test was conducted.
Any and all laboratory internal documents describing testing protocols and procedures (such as instructions, standards, manuals, guides, and reference data) that have been applied to a test conducted for purposes of section 14 of the CPSA must be retained for a period of at least 5 years from the date such test was conducted.
As noted in the response to comment section of this preamble, we are modifying § 1112.25(b). The proposed rule stated that, upon request by the CPSC, the laboratory must make any and all of the records required by this section available for inspection, either in hard copy or electronic form, within 48 hours. If the records are not in English, copies of the original records must be made available to the CPSC within 48 hours, and an English translation of the records must be made available by the laboratory within 30 calendar days of the date the CPSC requested an English translation. As discussed in the response to Comment 29 in section II.F of the preamble, we are revising § 1112.25(b) to remove the “within 48 hours” language in the proposed rule and replacing it with: “Such as through an Internet Web site.” The revised language is being added to be consistent with the recordkeeping language in 16 CFR part 1107 (testing and labeling rule) and 16 CFR part 1109 (component part testing rule), which require submission of records, upon request, but do not specify a time frame within which the records must be submitted and allows for electronic records “such as through an Internet Web site.” Implicit in the requirement to submit records to the CPSC upon request, is the commenter's concept of “within a reasonable time given the particular circumstances.” The time frame necessary to respond to a document request by the CPSC, by its nature, is required to be determined on a case-by-case basis. Therefore, stating an explicit time frame, such as “48 hours,” as the proposed rule specified, would not fit the many different circumstances that might occur when the CPSC requests records.
This section of the final rule is unchanged from the proposal. It requires that each CPSC-accepted third party conformity assessment body allow an officer or employee, duly designated by the Commission, to enter its facility and conduct an inspection, as a condition of the continued CPSC-acceptance of its accreditation. The CPSC will conduct such inspections in accordance with 16 CFR 1118.2,
This section is unchanged from the proposed rule. It provides that a third party conformity assessment body may voluntarily discontinue participation as a CPSC-accepted laboratory at any time and for any portion of its scope that is accepted by the CPSC. To discontinue voluntarily its participation as a CPSC-accepted laboratory, the laboratory must notify the CPSC in writing. This notification may be sent electronically. The notice must include the name, address, phone number, and electronic mail address of the laboratory and the person responsible for submitting the
The CPSC may verify the information submitted in a notice of voluntary discontinuance. Either upon receipt of a notice for voluntary discontinuance as a CPSC-accepted third party conformity assessment body, or after verifying the information in a notice, the CPSC will update its Web site to indicate that the CPSC no longer accepts the accreditation of the third party conformity assessment body as of the date provided, and for the scope indicated in the notice. We may begin or continue an investigation related to an adverse action under this part, or any other legal action, despite the voluntary discontinuation of a laboratory.
As explained in the audit final rule published in the
We are finalizing these provisions as proposed. Section 1112.35(b) established when the examination portion of an audit must be conducted. This section requires each laboratory to submit a new CPSC Form 223 and applicable accompanying documentation no less than every 2 years.
This section notes that under § 1112.13(a)(1) a third party conformity assessment body must submit a new CPSC Form 223 whenever the information supplied on the form changes. If the third party conformity assessment body submits a new CPSC Form 223 to provide updated information, the third party conformity assessment body may elect to have the new CPSC Form 223 satisfy the audit requirement of § 1112.35(b)(1). If the laboratory also intends to satisfy the audit requirement of § 1112.35(b)(1), it must indicate that intent clearly when it submits a CPSC Form 223. In addition, the laboratory must upload all applicable accompanying documentation.
Section 1112.35(b)(3) states that, at least 30 days before the date by which a third party conformity assessment body must submit a CPSC Form 223 for audit purposes, CPSC will notify the body, in writing, of the impending audit deadline. The notice may be delivered by electronic mail. A laboratory may request an extension of the deadline for the examination portion of the audit, but it must indicate how much additional time is requested, and it also must explain why such an extension is warranted. The CPSC will notify the laboratory whether its request for an extension has been granted.
This section lists the possible adverse actions that the CPSC may take against a third party conformity assessment body: Denial of acceptance of accreditation; suspension of acceptance of accreditation; or withdrawal of acceptance of accreditation. It also states that withdrawal of acceptance of accreditation can be on a temporary or permanent basis, and the CPSC may immediately withdraw its acceptance in accordance with § 1112.53 of this part. This section of the final rule is unchanged from the proposed rule.
This section, unchanged from the proposal, lists the grounds for denying an application for acceptance of accreditation from a third party conformity assessment body. It notes that failure to complete all information, and/or attestations, and/or failure to provide accompanying documentation, required in connection with an application, within 30 days after notice of deficiency, constitute grounds for denial of an application.
Submission of false or misleading information concerning a material fact(s) on an application, or concerning any other information provided to the CPSC related to a third party conformity assessment body's ability to become or remain a CPSC-accepted third party conformity assessment body are grounds for denial of an application.
The CPSC may deny an application if the applicant laboratory fails to satisfy the necessary requirements described in § 1112.13, such as ISO/IEC 17025:2005(E) accreditation by an ILAC-MRA signatory accreditation body for the scope for which acceptance of accreditation is being sought.
The CPSC's denial of an application will follow the process described in § 1112.51 of this part.
This section, unchanged from the proposal, provides that the CPSC may suspend acceptance of a laboratory's accreditation for any portion of its CPSC scope when the laboratory fails to cooperate with an investigation under section 14 of the CPSA. A third party conformity assessment body “fails to cooperate” when it does not respond to CPSC inquiries or requests, or it responds in a manner that is unresponsive, evasive, deceptive, or substantially incomplete, or when the laboratory fails to cooperate with an investigatory inspection under § 1112.27.
A suspension will last until the laboratory complies, to CPSC's satisfaction, with required actions, as outlined in the initial notice described in proposed § 1112.51(b), or until the CPSC withdraws acceptance of the laboratory. The suspension of CPSC acceptance will be lifted if the CPSC determines that the third party conformity assessment body is cooperating sufficiently with the investigation. The suspension would be lifted as of the date of the CPSC's written notification to the laboratory, which may be by electronic mail, indicating that the CPSC is lifting the suspension.
This section, unchanged from the proposal, establishes the grounds upon which the CPSC may withdraw acceptance of the accreditation of a third party conformity assessment body for any portion of its CPSC scope.
One basis for withdrawal is when a manufacturer, private labeler,
A second ground for withdrawal occurs when a third party conformity assessment body has failed to comply with an applicable protocol, standard, or requirement under subpart C of this part.
Finally, the CPSC may withdraw its acceptance of the accreditation of a laboratory if the laboratory fails to comply with any provision in subpart B of this part. Subpart B establishes the general requirements pertaining to third party conformity assessment bodies, such as requirements, processes, and timing related to applying for CPSC acceptance, recordkeeping requirements, and limitations on subcontracting.
This section, unchanged from the proposal, allows any person to submit information alleging that one or more of the grounds for adverse action exists. The information may be submitted in writing or electronically. Any request for confidentiality would need to be indicated clearly in the submission. This section also lists the information to be included in a submission alleging grounds for adverse action.
• The submission should include the name and contact information of the person making the allegation.
• The submission should identify the laboratory against whom the allegation is being made, as well as any officials or employees of the laboratory relevant to the allegation, in addition to contact information for those individuals.
• A person alleging a ground for adverse action should identify any manufacturers, distributors, importers, private labelers, or governmental entities relevant to the allegation, along with any officials or employees of the manufacturers, distributors, importers, private labelers, and/or governmental entities relevant to the allegation, as well as contact information for those individuals.
• A submission should include a description of acts and/or omissions to support each asserted ground for adverse action. Generally, the submission should describe, in detail, the basis for the allegation that grounds for adverse action against a laboratory exists. In addition to a description of the acts and omissions and their significance, a description may include: Dates, times, persons, companies, governmental entities, locations, products, tests, test results, equipment, supplies, frequency of occurrence, and negative outcomes. When possible, the submission should attach documents, records, photographs, correspondence, notes, electronic mails, or any other information that supports the basis for the allegations.
• A submission of grounds for adverse action should include a description of the impact of the acts and/or omissions, where known.
Upon receiving the information, the CPSC will review the information to determine if it is sufficient to warrant an investigation. The CPSC may deem the information insufficient to warrant an investigation if the information fails to address adequately the categories of information outlined in paragraph (a) of this section.
This section, unchanged from the proposal, describes the process by which the CPSC may deny an application from a laboratory; suspend our acceptance of the accreditation of a laboratory; withdraw our acceptance of the accreditation of a laboratory on a temporary or permanent basis; and/or immediately temporarily withdraw our acceptance of the accreditation of a laboratory. The CPSC would use the
An investigation under this part may include: Any act the CPSC may take to verify the accuracy, veracity, and/or completeness of information received in connection with an application for acceptance of accreditation; a submission alleging grounds for an adverse action; or any other information we receive, which relates to a laboratory's ability to become or remain a CPSC-accepted laboratory.
The CPSC will begin an investigation by providing written notice, which may be electronic, to the laboratory. The notice will inform the laboratory that we have received information sufficient to warrant an investigation, and describe the information received by the CPSC, as well as describe the investigative process. The notice also will inform the laboratory that failure to cooperate with a CPSC investigation is grounds for suspension.
Any notice sent by the CPSC under § 1112.35(b)(3) informing the third party conformity assessment body that it must submit a CPSC Form 223 for audit purposes, constitutes a notice of investigation for purposes of this section. The examination portion of an audit under § 1112.33(c) of this part (which is currently in effect) constitutes an investigation for purposes of this section.
If, after investigation, the CPSC determines that grounds for adverse action exist, and the CPSC proposes to take an adverse action against a laboratory, the CPSC will notify the laboratory, in writing, which may be electronic, about the proposed adverse action. If the proposed adverse action is suspension or withdrawal, the CPSC's notice formally would begin a proceeding to suspend or withdraw our acceptance of its accreditation, as described in section 14(e) of the CPSA. The notice must:
• Include the proposed adverse action;
• Specify the grounds upon which the proposed adverse action is based;
• Provide findings of fact to support the proposed adverse action;
• When appropriate, specify actions a third party conformity assessment body must take to avoid an adverse action;
• Include consideration of the criteria set forth in § 1112.51(d)(1), when the proposed adverse action is withdrawal; and
• Specify the time period by which a laboratory has to respond to the notice. In general, the notice would inform the laboratory that it has 30 calendar days to respond. A laboratory may request an extension of the response time, but it must explain why such an extension is warranted and indicate the amount of additional time needed for a response.
Section 1112.51(c) addresses how a laboratory may respond to the initial notice. The proposed rule required the laboratory's response to be in writing, which may be by electronic mail, and in English. The response may include, but would not be limited to, an explanation or refutation of material facts upon which the CPSC's proposed action is based, supported by documents or a sworn affidavit; results of any internal review of the matter, and action(s) taken as a result; or a detailed plan and schedule for an internal review.
The written response from the laboratory must state the laboratory's
Section 1112.51(d) addresses proceedings for adverse actions. The CPSC will consider the gravity of the laboratory's action or failure to act, including:
• Whether the action or failure to act resulted in injury, death, or the risk of injury or death;
• Whether the action or failure to act constitutes an isolated incident or represents a pattern or practice; and
• Whether and when the third party conformity assessment body initiated remedial action.
In all cases, the CPSC will review and take under advisement, the response provided by the third party conformity assessment body. Except for cases under § 1112.51(d)(3), the CPSC will determine what action is appropriate under the circumstances. Any suspension or withdrawal of a firewalled laboratory would occur by order of the Commission.
The CPSC may withdraw its acceptance of the accreditation of a laboratory on a permanent or temporary basis.
If the CPSC withdraws its acceptance of accreditation of a laboratory, it may establish requirements for the reacceptance of the laboratory's accreditation. Any such requirements would be related to the reason(s) for the withdrawal.
Section 1112.51(e) describes the Final Notice for an adverse action. If, after reviewing a laboratory's response to a notice, and conducting additional investigation, where necessary, the CPSC determines that grounds for adverse action exist, the CPSC will send a Final Notice to the laboratory, in writing, which may be electronic. The Final Notice will state:
• The adverse action that we are taking;
• The specific grounds on which the adverse action is based;
• The findings of fact that support the adverse action;
• When the adverse action is withdrawal, the Final Notice would address the consideration of the criteria set forth in § 1112.51(d)(1);
• When the adverse action is withdrawal, whether the withdrawal is temporary or permanent, and, if the withdrawal is temporary, the duration of the withdrawal.
• The Final Notice will inform the laboratory that its accreditation is no longer accepted by the CPSC as of the date of the Final Notice of denial, suspension, or withdrawal for any specified portion(s) of its CPSC scope. The Final Notice also will inform the laboratory that the CPSC Web site will be updated to reflect adverse actions taken against a previously CPSC-accepted laboratory.
• The Final Notice will inform the laboratory whether it may submit a new application.
Upon receipt of a Final Notice, a third party conformity assessment body, as applicable, may submit a new application (if the Final Notice indicated such) or file an Administrative Appeal.
Section 1112.51(g) addresses Administrative Appeals. Except for cases covered in § 1112.51(g)(2), a laboratory could file an Administrative Appeal with the CPSC Office of the Executive Director. The Administrative Appeal must be sent by mail within 30 calendar days of the date on the Final Notice; § 1112.51(g) provides the appropriate mailing and electronic mail addresses. The rule requires all appeals to be in English; to explain the nature and scope of the issues appealed from in the Final Notice; and describe, in detail, the reasons why the laboratory believes that no grounds for adverse action exist. The Executive Director would issue a Final Decision within 60 calendar days of receipt of an Administrative Appeal. If the Executive Director's Final Decision would require more than 60 calendar days, the Executive Director would notify the third party conformity assessment body that more time is required, state the reason(s) why more time is required, and if feasible, include an estimated date for a Final Decision to issue.
Section 1112.51(g)(2) addresses the circumstance in which the Commission has suspended or withdrawn its acceptance of the accreditation of a firewalled laboratory. Because suspensions and withdrawals of firewalled laboratories must occur by order of the Commission, Administrative Appeals, in these cases, would be filed with the Commission. The Administrative Appeal would need to be sent to the CPSC Office of the Secretary by mail within 30 calendar days of the date on the Final Notice. The rule requires all appeals to be in English, to explain the nature of the issues appealed in the Final Notice, and to describe in detail the reasons why the laboratory believes that no ground(s) exist for adverse action.
This section, unchanged from the proposal, establishes a means of withdrawing immediately and temporarily the accreditation of a laboratory in the rare circumstance that it would be in the public interest to remove our acceptance of the laboratory while we pursue an investigation and potential adverse action against the laboratory under § 1112.51.
When it is in the public interest to protect health and safety, and notwithstanding any other provision of this part, the CPSC may immediately and temporarily withdraw our acceptance of a laboratory's accreditation for any portion of its CPSC scope while it pursues an investigation and potential adverse action. “In the public interest to protect health and safety” means that the CPSC has credible evidence that: (1) The integrity of test(s) being conducted under a scope for which we have accepted the laboratory's accreditation have been affected by undue influence or otherwise interfered with or compromised; and (2) any portion of a CPSC scope for which we have accepted the laboratory's accreditation involve a product(s) which, if noncompliant with CPSC rules, bans, standards, and/or regulations, constitutes an imminently hazardous consumer product under section 12 of the CPSA.
When presented with an allegation that, if credible, would result in immediate and temporary withdrawal of CPSC acceptance of a third party conformity assessment body's accreditation, the investigation and adverse action procedures described in § 1112.51 apply, except that instead of the time frames described in § 1112.51, the following time frames would apply when the CPSC pursues immediate and temporary withdrawal: The Initial Notice will generally inform the third party conformity assessment body that it has 7 calendar days to respond; an administrative appeal of a Final Notice of immediate and temporary withdrawal will be timely if filed within 7 calendar days of the date of the Final Notice.
If the laboratory is already the subject of an investigation or adverse action
If the laboratory is not already the subject of an investigation or adverse action process under § 1112.51, an investigation under § 1112.51(a) will be launched based on the same information that justified the immediate and temporary withdrawal.
This section, unchanged from the proposal, states that, immediately following a final adverse action, the CPSC may publish the fact of a final adverse action, the text of a final adverse action, or a summary of the substance of a final adverse action. In addition, after issuance of a final adverse action, the CPSC will amend its Web site listing of CPSC-accepted laboratories to reflect the nature and scope of such adverse action.
The Commission's regulations on investigations, inspections, and inquiries under the CPSA are located at 16 CFR part 1118. Subpart A of part 1118 prescribes CPSC procedures for investigations, inspections, and inquiries. Section 1118.2 addresses topics such as how the CPSC conducts an inspection, which sites the CPSC has authority to inspect, and what the CPSC may view or obtain during an inspection.
The proposed rule sought to amend § 1118.2(a) in two ways. First, it included firewalled third party conformity assessment bodies as entities that the CPSC may inspect. This amendment is necessary to conform § 1118.2(a) with the statutory language in section 16(a) of the CPSA and the inspection provision at § 1112.27. Second, it removed the word “consumer” before the word “product” throughout paragraph (a), for accuracy. Some children's products regulated by the Commission and that are required by the CPSA to be third party tested are not regulated primarily under the CPSA. To be consistent with the inspection provision at § 1112.27, the references to “product” must be broad enough to include more than just products subject to CPSA safety standards. The final rule is unchanged from the proposed amendments to the existing provisions of § 1118.2 of the proposed rule.
The Regulatory Flexibility Act (RFA) requires that final rules be reviewed for their potential economic impact on small entities, including small businesses. Section 604 of the RFA generally requires that the Commission prepare a final regulatory flexibility analysis when it promulgates a final rule. The final regulatory flexibility analysis must describe the impact of the rule on small entities. Specifically, the final regulatory flexibility analysis must contain:
• A succinct statement of the objectives of, and legal basis for, the rule;
• A summary of the significant issues raised by public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;
• A description of, and where feasible, an estimate of, the number of small entities to which the rule will apply;
• A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities subject to the requirements, and the type of professional skills necessary for the preparation of reports or records; and
• A description of the steps the agency has taken to reduce the significant economic impact on small entities, consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the rule, and why each one of the other significant alternatives to the rule considered by the agency, which affect the impact on small entities, was rejected.
The preamble to the proposed rule contained the initial regulatory flexibility analysis (IRFA). The CPSC received six public comments in response to the notice of proposed rulemaking. None of the comments addressed the content of the IRFA or its findings.
The final rule applies to laboratories that intend to test children's products for conformance to children's product safety rules under Section 14 of the CPSA. The final rule does not impose any requirements on laboratories that do not intend to provide this service.
Although there are 5,198 firms in the United States classified as “testing laboratories” (NAICS code 54138), only a small subset of these laboratories is expected to provide third party conformity assessments of children's products for purposes of section 14 of the CPSA. As of October 5, 2012, the CPSC has accepted the accreditation of 92 laboratories located in the United States.
According to criteria established by the U.S. Small Business Administration (SBA), a laboratory is considered small if its revenue is less than $14 million a year. Of the 92 laboratories located in the United States with CPSC-accepted accreditations, 58 (or 63 percent) could be small businesses, according to the SBA criteria.
The final rule establishes the requirements for CPSC acceptance of the accreditation of a laboratory. Therefore, the rule applies only to laboratories that intend to provide third party testing of children's products in support of the certifications required by section 14(a)(2) of the CPSA. The final rule does not impose any requirements on laboratories that do not intend to provide these services.
The final rule requires that, as a condition of CPSC acceptance of its accreditation, the laboratory must be accredited to ISO/IEC 17025:2005(E). The accreditation must be made by an accreditation body that is a signatory to the ILAC-MRA. The scope of the accreditation must list the specific regulations or test methods contained in the product safety rules or in the notices of requirements that are required as the basis for certifying that children's products conform to the applicable product safety rules. This aspect of the final rule would simply codify the existing conditions for CPSC acceptance of accreditation that have been stated in every NOR published previously by the Commission.
The final rule requires that laboratories provide the Commission with their accreditation and scope documents. These records are normally generated during the accreditation process and can be provided to the CPSC electronically. The application for CPSC acceptance of accreditation would be accomplished using CPSC Form 223, an electronic application form. All of the information that is required to be supplied on the form should be readily available to the laboratory. The professional skills required to complete Form 223, and the related documents, are skills that a competent, accredited laboratory would be expected to possess.
The final rule also requires laboratories that are managed, owned, or controlled by a manufacturer or private labeler (or, firewalled laboratories) to submit additional materials, as described in § 1112.13(b). The acceptance of a firewalled laboratory's accreditation occurs, by Commission order, only after the Commission has made certain findings based on the additional documents.
The final rule also establishes additional requirements as described in § 1112.11 for Commission acceptance of the accreditation of laboratories that are owned or controlled, in whole or in part, by a government. The CPSC has accepted the accreditation of three conformity assessment bodies located in the United States that are owned by or affiliated with government entities, none of which meet the definition of a “small entity.” Laboratories that are owned or controlled by foreign governments do not meet the definition of a “small entity” under the RFA.
In addition to the baseline requirements (accreditation to ISO/IEC 17025:2005(E) by a signatory to the ILAC-MRA and submission of CPSC Form 223 and related documents to the CPSC), laboratories that are owned or controlled by a government entity must provide additional information and materials to the CPSC, as described in § 1112.11, so that the CPSC can determine whether the laboratory satisfies the criteria for the acceptance of the accreditation of a governmental laboratory.
There are no fees payable to the CPSC associated with applying for CPSC acceptance of accreditation. The amount of time required to complete Form 223 and to submit the related documents to the CPSC is less than 1 hour for most laboratories. The amount of time could be somewhat higher for firewalled and governmental laboratories, which are required to submit additional materials.
The costs of obtaining ISO/IEC 17025:2005(E) accreditation by an ILAC-MRA accreditation body typically include: a one-time application fee, an annual fee for each field in which the laboratory is accredited, and an assessment fee. These charges will vary, somewhat, among accreditation bodies; but representative charges, based on the published fee schedule of one accreditation body are: $800 for the initial application fee, $1,300 per field for the annual fee, and $135 per hour per assessor. A representative of an accreditation body stated that assessments can take from 1 to 5 days, with 2.5 days being about average. The laboratory will also probably be charged for the travel, lodging, and meals of the assessor(s) conducting the assessment.
Based on the above discussion, a laboratory seeking accreditation in one field of testing can expect to pay around $4,800 in fees, plus travel, lodging, and meal expenses. The cost could be higher if the assessment takes longer than 2.5 days. If the laboratory is seeking accreditation in more than one field, such as chemical and mechanical testing, the cost will be higher because there will be additional fees for each field, and the assessment will likely take more time. There will be some cost to the laboratory in terms of laboratory personnel, who must prepare documents for the assessment and also work with the assessors during the assessment.
If a laboratory is already accredited to ISO/IEC 17025:2005(E) by an accreditation body that is a signatory to the ILAC-MRA, and the laboratory is seeking simply to expand its scope of accreditation to include specific CPSC tests, then the cost to the laboratory will be substantially less. In some cases, if the scope already includes closely related tests, the accreditation body might be willing to add the CPSC tests to the scope without additional charges. In other cases, there could be some administrative or assessment charges, but these would be less than what would be required for a full initial assessment.
For most children's product safety rules, the required test methods were specified in the regulation that established the safety rule. However, in the case of the requirements for lead content of children's products, the test methods are specified in the notices of requirements for accreditation, which are included in the final rule. The final rule expands the list of acceptable test methods for measuring lead content to include the use of XRF for measuring the lead content of glass materials, crystals, and certain metals. Because XRF can be significantly less expensive than other approved test methods, such as inductively coupled plasma or atomic absorption spectrometry, this provision could lower laboratories' testing costs. Some or all of the cost reductions could be passed onto the consumer product manufacturers in the form of lower testing prices.
Each ILAC-MRA signatory accreditation body has requirements for the periodic reassessment of accredited laboratories. The Commission has established the auditing requirements for maintaining CPSC acceptance of a laboratory's accreditation in the separate, but related, rule on periodic audits (16 CFR §§ 1112.30 through 1112.39), which is currently in effect.
The final rule requires that third party conformity assessment bodies maintain certain records associated with the testing conducted for purposes of section 14 of the CPSA for at least 5 years. The retention requirement would apply to all test reports and technical records, records related to subcontracted tests, and customer reports, if different from the test record, if they are related to tests conducted for purposes of section 14 of the CPSA. Additionally, all internal documents describing testing protocols and procedures (such as instructions, standards, manuals, guides, and reference data) that applied to a test conducted for purposes of section 14 of the CPSA must be retained for a period of at least 5 years from the date such test was conducted. The cost of storing the records for 5 years could be less than $200, if the records are stored in electronic format; but the costs could be several thousand dollars, or more, if stored on paper in commercial warehouse space.
Upon request by the CPSC, the third party conformity assessment body must make any and all of the records required by this section available for inspection, either in hard copy or electronic form. If the records are not in the English language, the third party conformity assessment body must make copies of the original (non-English language) records available to the CPSC, and they must make an English translation of the records available to the CPSC within 30 calendar days of the date the CPSC requested an English translation.
The final rule also establishes the grounds and procedures that the CPSC would use to take adverse actions against a laboratory. Adverse actions include: Denying the acceptance of the
During an investigation of an allegation, some costs would be incurred by the laboratory for actions such as making employees available for interviews with CPSC investigators and providing the CPSC with documents or records requested by the investigators and allowing CPSC investigators access to its facilities. The costs incurred would depend upon the scope of the investigation. If the CPSC proposed an adverse action against the laboratory, the laboratory could incur some cost in preparing a reply to the notice, if the laboratory chooses to reply. The number of investigations of laboratories that the CPSC may open is not known.
Laboratories that intend to provide the third party testing services required by section 14 of the CPSA will incur some costs to obtain CPSC acceptance of their accreditation. If the laboratory is not already accredited to ISO/IEC 17025:2005(E) by an ILAC-MRA signatory, it can expect to incur fees of around $4,800. The fees could be higher if the laboratory sought accreditation in more than one field of testing or the assessment took more than 2.5 days. The costs could be significantly lower for laboratories that are already accredited to ISO/IEC 17025:2005(E) by a body that is an ILAC-MRA signatory. There will also be some cost to the laboratory to prepare documents for the assessment and to work with the assessors. If the CPSC opened an investigation of the laboratory, the laboratory would likely incur some costs in connection with the investigation. The final rule requires laboratories to maintain certain records for 5 years, which could also add to a laboratory's costs, depending upon how it maintains the records.
As noted, the requirements would apply only to those laboratories that intend to provide the third party testing services for purposes of certifying children's products under section 14 of the CPSA. The only laboratories that are expected to provide such services are those that anticipate receiving sufficient revenue from providing the testing services to justify accepting the requirements as a business decision. Laboratories that do not expect to receive sufficient revenue from these services to justify accepting these requirements would not be expected to pursue accreditation for this purpose. Therefore, one would not expect the requirements to have a significant adverse impact on a substantial number of laboratories.
Although the final rule is not expected to have a significant adverse impact on a substantial number of small entities, CPSC staff considered alternatives that could have reduced the costs associated with the accreditation process or providing the testing services to some laboratories. The alternatives considered were accepting the accreditation of laboratories that were not accredited by a signatory to the ILAC-MRA and allowing the use of XRF techniques for determining compliance with the lead content requirements for more materials.
CPSC staff considered accepting the accreditation of laboratories that have been accredited by accreditation bodies that are not signatories to the ILAC-MRA. This alternative could have reduced the cost of obtaining CPSC acceptance of their accreditation for laboratories accredited by bodies that were not ILAC-MRA signatories. Under the final rule, to gain CPSC acceptance of their accreditation, these laboratories would have to seek additional accreditation by a body that is a signatory to the ILAC-MRA, despite being accredited by an accrediting body that was not a signatory to the ILAC-MRA. This alternative would not have any impact on laboratories that are not accredited by any accreditation body.
This alternative was not included in the final rule because it would not meet the objectives that CPSC staff have identified for a program to meet the laboratory accreditation requirements in the CPSA. In establishing the requirements for the laboratory accreditation program, the CPSC staff considered timelines established by the CPSA and the fact that children's products destined for the U.S. market are manufactured in nations throughout the world and established several objectives for the laboratory accreditation program. These objectives were to:
• Delegate the core elements of a CPSC accreditation program to an entity that was established and had acceptance on a multinational level and that followed internationally recognized standards for assessing the competence of laboratories and for the processes and standards used by accreditation bodies that evaluate such laboratories. In addition, CPSC staff sought a program that included regular evaluation of the accreditation bodies to ensure those bodies continued to follow the same, internationally recognized, set of standards and procedures;
• Designate one entity that could bring on board, on a multinational level, a large number of accreditation bodies that could begin the process of accrediting laboratories in accordance with the CPSC specific requirements for a children's product safety rule; and
• Avoid designation to accreditation programs or entities that are recognized only in a specific region, nation, or locality.
In addition to the objectives outlined above, the Commission also seeks to keep the program as simple as possible, avoid any perceived notions of barriers to fair trade practices, and ensure that the program established would be manageable with agency resources. The Commission staff found that the ILAC-MRA signatory program met those objectives. Although CPSC staff recognizes that there are other types of accreditation organizations and accreditation bodies for different types of conformity assessment programs, some of these organizations are for very specific industry or governmental sectors or are only applicable to certain regions. Designations to such organizations would not meet all of the objectives established by CPSC staff for the laboratory accreditation program.
The CPSC has received a number of requests to allow more extensive use of XRF analysis in meeting the third party test requirements because XRF analysis is significantly less expensive than the other test methods for lead content testing. Based on the CPSC's continuing research of testing methods, the Commission has approved the use of certain XRF methods for determining
This rule contains information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The preamble to the proposed rule (77 FR at 31126-30) discussed the information collection burden of the proposed rule and specifically requested comments on the accuracy of our estimates. We did not receive any comments concerning the information collection burden of the proposal, and the final rule does not make any changes to that burden. The OMB has approved the information collection requirements in this rule, and the OMB control number for such approval is OMB 3041-0156.
The final rule falls within the scope of the Commission's environmental review regulations at 16 CFR 1021.5(c)(1), which provide a categorical exclusion from any requirement for the agency to prepare an environmental assessment or environmental impact statement for product certification rules.
Executive Order 12988 (February 5, 1996) requires agencies to state in clear language the preemptive effect, if any, of new regulations. The proposed regulation would be issued under authority of the CPSA and CPSIA. The CPSA provision on preemption appears at section 26 of the CPSA. The CPSIA provision on preemption appears at section 231 of the CPSIA. The preemptive effect of this rule would be determined in an appropriate proceeding by a court of competent jurisdiction.
The Commission proposed that the final rule would become effective 90 days after publication in the
Administrative practice and procedure, Audit, Consumer protection, Incorporation by reference, Reporting and recordkeeping requirements, Third party conformity assessment body.
Administrative practice and procedure, Consumer protection, Investigations.
Therefore, the Commission amends Title 16 of the Code of Federal Regulations by adding:
Accordingly, the CPSC amends 16 CFR parts 1112 and 1118 as follows:
Pub. L. 110-314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.
This part defines the term “third party conformity assessment body” and describes the types of third party conformity assessment bodies whose accreditations are accepted by the CPSC to test children's products under section 14 of the CPSA. It describes the requirements and procedures for becoming a CPSC-accepted third party conformity assessment body; the audit requirement applicable to CPSC-accepted third party conformity assessment bodies; how a third party conformity assessment body may voluntarily discontinue participation as a CPSC-accepted third party conformity assessment body; the grounds and procedures for withdrawal or suspension of CPSC acceptance of the accreditation of a third party conformity assessment body; and how an individual may submit information alleging grounds for adverse action.
a. Revising the definitions of “Audit” and “CPSC,” and
b. Adding definitions for “Accept accreditation,” “Commission,” “CPSA,” “Notice of requirements,” “Scope,” “Suspend,” “Third party conformity assessment body,” “Undue Influence,” and “Withdraw”
The revisions and additions read as follows:
(1) An examination by an accreditation body to determine whether the third party conformity assessment body meets or continues to meet the conditions for accreditation (a process known more commonly as a “reassessment”); and
(2) The resubmission of the “Consumer Product Conformity Assessment Body Acceptance Registration Form” (CPSC Form 223) and accompanying documentation by the third party conformity assessment body and the Consumer Product Safety Commission's (CPSC's) examination of the resubmitted CPSC Form 223 and accompanying documentation. Accompanying documentation includes the baseline documents required of all applicants in § 1112.13(a), the documents required of firewalled applicants in § 1112.13(b)(2), and/or the documents required of governmental applicants in § 1112.13(c)(2).
(a)
(b)
(1) It is owned, managed, or controlled by a manufacturer or private labeler of a children's product;
(i) For purposes of determining whether a third party conformity assessment body is firewalled, “manufacturer” includes a trade association.
(ii) A manufacturer or private labeler is considered to own, manage, or control a third party conformity assessment body if any one of the following characteristics applies:
(A) The manufacturer or private labeler of the children's product holds a 10 percent or greater ownership interest, whether direct or indirect, in the third party conformity assessment body. Indirect ownership interest is calculated by successive multiplication of the ownership percentages for each link in the ownership chain;
(B) The third party conformity assessment body and a manufacturer or private labeler of the children's product are owned by a common “parent” entity; or
(C) A manufacturer or private labeler of the children's product has the ability to appoint any of the third party conformity assessment body's senior internal governing body (such as, but not limited to, a board of directors), the ability to appoint the presiding official (such as, but not limited to, the chair or president) of the third party conformity assessment body's senior internal governing body, the ability to hire, dismiss, or set the compensation level for third party conformity assessment body personnel, regardless of whether this ability is ever exercised;
(2) The children's product is subject to a CPSC children's product safety rule that the third party conformity assessment body requests CPSC acceptance to test; and
(3) The third party conformity assessment body intends to test such children's product made by the owning, managing, or controlling entity for the purpose of supporting a Children's Product Certificate.
(c)
(1) A governmental entity holds a 1 percent or greater ownership interest, whether direct or indirect, in the third party conformity assessment body. Indirect ownership interest is calculated by successive multiplication of the ownership percentages for each link in the ownership chain;
(2) A governmental entity provides any direct financial investment or funding (other than fee for work);
(3) A governmental entity has the ability to appoint a majority of the third party conformity assessment body's senior internal governing body (such as, but not limited to, a board of directors); the ability to appoint the presiding official of the third party conformity assessment body's senior internal governing body (such as, but not limited to, chair or president); and/or the ability to hire, dismiss, or set the compensation level for third party conformity assessment body personnel;
(4) Third party conformity assessment body management or technical personnel include any government employees;
(5) The third party conformity assessment body has a subordinate position to a governmental entity in its external organizational structure (not including its relationship as a regulated entity to a government regulator); or
(6) Apart from its role as regulator, the government can determine, establish, alter, or otherwise affect:
(i) The third party conformity assessment body's testing outcomes;
(ii) The third party conformity assessment body's budget or financial decisions;
(iii) Whether the third party conformity assessment body may accept particular offers of work; or
(iv) The third party conformity assessment body's organizational structure or continued existence.
(a)
(1) Submit a completed Consumer Product Conformity Assessment Body Registration Form (CPSC Form 223 or Application). In submitting a CPSC Form 223, the third party conformity assessment body must attest to facts and characteristics about its business that will determine whether the third party conformity assessment body is independent, firewalled, or governmental. The third party conformity assessment body also must
(2) Submit the following documentation.
(i)
(B) The accreditation must be by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation-Mutual Recognition Arrangement (ILAC-MRA).
(ii)
(b)
(2) For the Commission to evaluate whether an applicant firewalled third party conformity assessment body satisfies the criteria listed in § 1112.17(b), and in addition to the baseline accreditation requirements in paragraph (a) of this section, a firewalled third party conformity assessment body applying for acceptance of its accreditation must submit copies of:
(i) The third party conformity assessment body's established policies and procedures that explain:
(A) How the third party conformity assessment body will protect its test results from undue influence by the manufacturer, private labeler, or other interested party;
(B) That the CPSC will be notified immediately of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the third party conformity assessment body's test results; and
(C) That allegations of undue influence may be reported confidentially to the CPSC;
(ii) Training documents, including a description of the training program content, showing how employees are trained annually on the policies and procedures described in paragraph (b)(2)(i) of this section;
(iii) Training records, including a list and corresponding signatures, of the staff members who received the training identified in paragraph (b)(2)(ii) of this section. The records must include training dates, location, and the name and title of the individual providing the training;
(iv) An organizational chart(s) of the third party conformity assessment body that includes the names of all third party conformity assessment body personnel, both temporary and permanent, and their reporting relationship within the third party conformity assessment body;
(v) An organizational chart(s) of the broader organization that identifies the reporting relationships of the third party conformity assessment body within the broader organization (using both position titles and staff names); and
(vi) A list of all third party conformity assessment body personnel with reporting relationships outside of the third party conformity assessment body. The list must identify the name and title of the relevant third party conformity assessment body employee(s) and the names, titles, and employer(s) of all individuals outside of the third party conformity assessment body to whom they report;
(c)
(i) To the extent practicable, manufacturers or private labelers located in any nation are permitted to choose third party conformity assessment bodies that are not owned or controlled by the government of that nation;
(ii) The third party conformity assessment body's testing results are not subject to undue influence by any other person, including another governmental entity;
(iii) The third party conformity assessment body is not accorded more favorable treatment than other third party conformity assessment bodies in the same nation who have been accredited;
(iv) The third party conformity assessment body's testing results are accorded no greater weight by other governmental authorities than those of other accredited third party conformity assessment bodies; and
(v) The third party conformity assessment body does not exercise undue influence over other governmental authorities on matters affecting its operations or on decisions by other governmental authorities controlling distribution of products based on outcomes of the third party conformity assessment body's conformity assessments.
(2) For the CPSC to evaluate whether a governmental third party conformity assessment body satisfies the criteria listed in paragraph (c)(1) of this section, and in addition to the baseline accreditation requirements in paragraph (a) of this section, a governmental third party conformity assessment body seeking CPSC-accepted status must submit:
(i)
(ii)
(iii)
(A) The memorandum must be:
(
(
(
(
(
(B) The memorandum must state that:
(
(
(
(iv)
(A) The third party conformity assessment body seeks acceptance as a governmental third party conformity assessment body under the CPSC's program of requirements for the testing of children's products;
(B) The official intends the attestation to be considered in support of any and all applications made by this third party conformity assessment body for acceptance of its accreditation by the CPSC, including future applications related to additional CPSC rules and/or test methods;
(C) The attestation, and any other document submitted in support of the application, is accurate in its representation of current conditions or policies at the third party conformity assessment body, to the best of the official's knowledge, information, and/or belief. The information in the attestation, and any other document submitted in support of the application, will be understood by the CPSC as continuing in its accuracy in every respect, until and unless notice of its revocation by an authorized officer of the third party conformity assessment body is received by the CPSC. The official understands that acceptance by the CPSC carries with it the obligation to comply with this part, in order to remain on the CPSC's list of accepted third party conformity assessment bodies. The attestation is submitted as a condition of acceptance of this laboratory as a governmental third party conformity assessment body by the CPSC.
(D) The word “government” in the attestation refers to any government (central, provincial, municipal, or other) in this third party conformity assessment body's country or administrative area and includes state-owned entities, even if those entities do not carry out governmental functions.
(E) With regard to consumer products to be distributed in commerce in the United States and subject to CPSC third party testing requirements, the third party conformity assessment body does not receive, and will not accept from any governmental entity, treatment that is more favorable than that received by other third party conformity assessment bodies in the same country or administrative area, which have been accepted as accredited for third party testing by the CPSC. More favorable treatment for a governmental third party conformity assessment body includes, but is not limited to, authorization to perform essential export-related functions, while competing CPSC-accepted laboratories in the same country or administrative area are not permitted to perform those same functions.
(F) With regard to consumer products to be sold in the United States and subject to CPSC third party testing requirements, the third party conformity assessment body's testing results are not accorded greater weight by any governmental entity that may be evaluating such results for export control purposes, compared to other third party conformity assessment bodies in the same country or administrative area, which have been accepted as accredited for third party testing by the CPSC.
(G) The third party conformity assessment body has an expressed policy, known to its employees, that forbids attempts at undue influence over any government authorities on matters affecting its operations.
(H) When a governmental third party conformity assessment body is owned or controlled by a governmental entity that also has any ownership or control over consumer product production, the senior officer of the applicant third party conformity assessment body must attest that the third party conformity assessment body will not conduct CPSC tests in support of a Children's Product Certificate for products for export to the United States that have been produced by an entity in which that governmental entity holds such ownership or control until it has applied for and been accepted by the Commission as, a dual governmental-firewalled third party conformity assessment body.
(v)
(d)
(e)
(f)
(g)
(h)
(i) The Director of the Federal Register approves this incorporation by reference in paragraph (a)(2)(i) in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of ISO/IEC 17025:2005(E), “General requirements for the competence of testing and calibration laboratories,” Second Edition, May 15, 2005 from the International Organization for Standardization (ISO), 1, ch. de la Voie-Creuse, Case postale 56, CH-1211 Geneva 20, Switzerland; Telephone +41 22 749 01 11, Fax +41 22 733 34 30;
(a) Once the CPSC publishes the requirements for accreditation to a particular CPSC rule or test method, a third party conformity assessment body may apply to the CPSC for acceptance
(b) The CPSC has published the requirements for accreditation for third party conformity assessment bodies to assess conformity for the following CPSC rules or test methods:
(1) 16 CFR part 1203, Safety Standard for Bicycle Helmets;
(2) 16 CFR part 1215, Safety Standard for Infant Bath Seats;
(3) 16 CFR part 1216, Safety Standard for Infant Walkers;
(4) 16 CFR part 1217, Safety Standard for Toddler Beds;
(5) 16 CFR part 1219, Safety Standard for Full-Size Baby Cribs;
(6) 16 CFR part 1220, Safety Standard for Non-Full-Size Baby Cribs;
(7) 16 CFR part 1221, Safety Standard for Play Yards;
(8) 16 CFR part 1223, Safety Standard for Infant Swings;
(9) 16 CFR part 1224, Safety Standard for Portable Bed Rails;
(10) 16 CFR part 1303, Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paint. For its accreditation to be accepted by the Commission to test to 16 CFR part 1303, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope:
(i) CPSC Standard Operating Procedure for Determining Lead (Pb) in Paint and Other Similar Surface Coatings, CPSC-CH-E1003-09;
(ii) CPSC Standard Operating Procedure for Determining Lead (Pb) in Paint and Other Similar Surface Coatings, CPSC-CH-E1003-09.1;
(iii) ASTM F2853-10, “Standard Test Method for Determination of Lead in Paint Layers and Similar Coatings or in Substrates and Homogenous Materials by Energy Dispersive X-Ray Fluorescence Spectrometry Using Multiple Monochromatic Excitation Beams.”
(11) 16 CFR part 1420, Safety Standard for All-Terrain Vehicles;
(12) 16 CFR 1500.86(a)(5), Exceptions from Classification as a Banned Toy or Other Banned Article for Use by Children (Clacker Balls);
(13) 16 CFR 1500.86(a)(7) and (8), Exceptions from Classification as a Banned Toy or Other Banned Article for Use by Children (Dive Sticks and Similar Articles);
(14) 16 CFR part 1501, Method for Identifying Toys and Other Articles Intended for Use by Children Under 3 Years of Age Which Present Choking, Aspiration, or Ingestion Hazards Because of Small Parts;
(15) 16 CFR part 1505, Requirements for Electrically Operated Toys or Other Electrically Operated Articles Intended for Use by Children;
(16) 16 CFR part 1510, Requirements for Rattles;
(17) 16 CFR part 1511, Requirements for Pacifiers;
(18) 16 CFR part 1512, Requirements for Bicycles;
(19) 16 CFR part 1513, Requirements for Bunk Beds;
(20) 16 CFR part 1610, Standard for the Flammability of Clothing Textiles;
(21) 16 CFR part 1611, Standard for the Flammability of Vinyl Plastic Film;
(22) 16 CFR part 1615, Standard for the Flammability of Children's Sleepwear: Sizes 0 Through 6X (FF 3-71);
(23) 16 CFR part 1616, Standard for the Flammability of Children's Sleepwear: Sizes 7 Through 14 (FF 5-74);
(24) 16 CFR part 1630, Standard for the Surface Flammability of Carpets and Rugs (FF 1-70);
(25) 16 CFR part 1631, Standard for the Surface Flammability of Small Carpets and Rugs (FF 2-70);
(26) 16 CFR part 1632, Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72, amended);
(27) 16 CFR part 1633, Standard for the Flammability (Open Flame) of Mattress Sets;
(28) Lead Content in Children's Metal Jewelry. For its accreditation to be accepted by the Commission to test for lead content in children's metal jewelry, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope:
(i) CPSC Test Method CPSC-CH-E1001-08, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”;
(ii) CPSC Test Method CPSC-CH-E1001-08.1, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”;
(iii) CPSC Test Method CPSC-CH-E1001-08.2, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”;
(iv) CPSC Test Method CPSC-CH-E1001-08.3, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”;
(v) Section I, “Screening Test for Total Pb Analysis,” from CPSC “Standard Operating Procedure for Determining Lead (Pb) and its Availability in Children's Metal Jewelry,” February 3, 2005;
(29) Limits on Total Lead in Children's Products: Children's Metal Products. For its accreditation to be accepted by the Commission to test for total lead content in children's metal products, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope:
(i) CPSC Test Method CPSC-CH-E1001-08, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”;
(ii) CPSC Test Method CPSC-CH-E1001-08.1, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”;
(iii) CPSC Test Method CPSC-CH-E1001-08.2, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”;
(iv) CPSC Test Method CPSC-CH-E1001-08.3, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”;
(30) Limits on Total Lead in Children's Products: Nonmetal Children's Products. For its accreditation to be accepted by the Commission to test for lead content in nonmetal children's products, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope:
(i) CPSC Test Method CPSC-CH-E1002-08, “Standard Operating Procedure for Determining Total Lead (Pb) in Nonmetal Children's Products”;
(ii) CPSC Test Method CPSC-CH-E1002-08.1, “Standard Operating Procedure for Determining Total Lead (Pb) in Nonmetal Children's Products”;
(iii) CPSC Test Method CPSC-CH-E1002-08.2, “Standard Operating Procedure for Determining Total Lead (Pb) in Nonmetal Children's Products”;
(iv) CPSC Test Method CPSC-CH-E1002-08.3, “Standard Operating Procedure for Determining Total Lead (Pb) in Nonmetal Children's Products”;
(31) Limits on Phthalates in Children's Toys and Child Care Articles. For its accreditation to be accepted by
(i) CPSC Test Method CPSC-CH-1001-09.3, “Standard Operating Procedure for Determination of Phthalates”;
(ii) GB/T 22048-2008, “Toys and Children's Products—Determination of Phthalate Plasticizers in Polyvinyl Chloride Plastic”;
(32) ASTM F963-11 “Standard Consumer Safety Specification for Toy Safety,” and section 4.27 (toy chests) from ASTM F963-07ε1 “Standard Consumer Safety Specification for Toy Safety.” The CPSC only requires certain provisions of ASTM F963-11 and Section 4.27 of ASTM F963-07ε1 to be subject to third party testing; and therefore, the CPSC only accepts the accreditation of third party conformity assessment bodies for testing under the following toy safety standards:
(i) ASTM F963-07ε1; Section 4.27—Toy Chests (except labeling and/or instructional literature requirements);
(ii) ASTM F963-11:
(A) Section 4.3.5.1(2), Surface Coating Materials—Soluble Test for Metals
(B) Section 4.3.5.2, Toy Substrate Materials
(C) Section 4.3.6.3, Cleanliness of Liquids, Pastes, Putties, Gels, and Powders (except for cosmetics and tests on formulations used to prevent microbial degradation)
(D) Section 4.3.7, Stuffing Materials
(E) Section 4.5, Sound Producing Toys
(F) Section 4.6, Small Objects (except labeling and/or instructional literature requirements)
(G) Section 4.7, Accessible Edges (except labeling and/or instructional literature
requirements)
(H) Section 4.8, Projections (except bath toy projections)
(I) Section 4.9, Accessible Points (except labeling and/or instructional literature requirements)
(J) Section 4.10, Wires or Rods
(K) Section 4.11, Nails and Fasteners
(L) Section 4.12, Plastic Film
(M) Section 4.13, Folding Mechanisms and Hinges
(N) Section 4.14, Cords, Straps, and Elastics
(O) Section 4.15, Stability and Overload Requirements
(P) Section 4.16, Confined Spaces
(Q) Section 4.17, Wheels, Tires, and Axles
(R) Section 4.18, Holes, Clearances, and Accessibility of Mechanisms
(S) Section 4.19, Simulated Protective Devices (except labeling and/or instructional literature requirements)
(T) Section 4.20.1, Pacifiers with Rubber Nipples/Nitrosamine Test
(U) Section 4.20.2, Toy Pacifiers
(V) Section 4.21, Projectile Toys
(W) Section 4.22, Teethers and Teething Toys
(X) Section 4.23.1, Rattles with Nearly Spherical, Hemispherical, or Circular Flared Ends
(Y) Section 4.24, Squeeze Toys
(Z) Section 4.25, Battery-Operated Toys (except labeling and/or instructional literature requirements)
(AA) Section 4.26, Toys Intended to Be Attached to a Crib or Playpen (except labeling and/or instructional literature requirements)
(BB) Section 4.27, Stuffed and Beanbag-Type Toys
(CC) Section 4.30, Toy Gun Marking
(DD) Section 4.32, Certain Toys with Nearly Spherical Ends
(EE) Section 4.35, Pompoms
(FF) Section 4.36, Hemispheric-Shaped Objects
(GG) Section 4.37, Yo-Yo Elastic Tether Toys
(HH) Section 4.38, Magnets (except labeling and/or instructional literature requirements)
(II) Section 4.39, Jaw Entrapment in Handles and Steering Wheels
(c) The Director of the Federal Register approves the incorporations by reference in paragraph (b) of this section in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may inspect a copy of the standards incorporated in this section at the Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone 301-504-7923, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741- 6030, or go to:
(1) ASTM International, 100 Bar Harbor Drive, P.O. Box 0700, West Conshohocken, PA 19428:
(i) ASTM F2853-10, “Standard Test Method for Determination of Lead in Paint Layers and Similar Coatings or in Substrates and Homogenous Materials by Energy Dispersive X-Ray Fluorescence Spectrometry Using Multiple Monochromatic Excitation Beams,” July 1, 2010;
(ii) ASTM F963-07ε1, “Standard Consumer Safety Specification for Toy Safety,” March 15, 2007;
(iii) ASTM F963-11, “Standard Consumer Safety Specification for Toy Safety,” December 1, 2011.
(2) Code of China, Room 2118, New Fortune International Plaza, No.71 Chaoyang Road, Chaoyang District, Beijing, 100123, China:
(i) GB/T 22048-2008, National Standard of the People's Republic of China, “Toys and Children's Products—Determination of Phthalate Plasticizers in Polyvinyl Chloride Plastic,” June 18, 2008;
(ii) [Reserved]
(3) CPSC National Product Testing and Evaluation Center, 5 Research Place, Rockville, MD 20850;
(i) CPSC-CH-C1001-09.3, “Standard Operating Procedure for Determination of Phthalates”, April 1, 2010;
(ii) CPSC-CH-E1001-08, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”, December 4, 2008;
(iii) CPSC-CH-E1001-08.1, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry), Revision”, June 21, 2010;
(iv) CPSC-CH-E1001-08.2, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry), Revision”, April 10, 2012;
(v) CPSC-CH-E1001-08.3, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry) Revision”, November 15, 2012;
(vi) CPSC-CH-E1002-08, “Standard Operating Procedure for Determining Total Lead (Pb) in Non-metal Children's Products”, February 1, 2009;
(vii) CPSC-CH-E1002-08.1, “Standard Operating Procedure for Determining Total Lead (Pb) in Non-metal Children's Products, Revised”, June 21, 2010;
(viii) CPSC-CH-E1002-08.2, “Standard Operating Procedure for Determining Total Lead (Pb) in Nonmetal Children's Products, Revision”, April 10, 2012;
(ix) CPSC-CH-E1002-08.3, “Standard Operating Procedure for Determining Total Lead (Pb) in Non-metal Children's Products, Revision”, November 15, 2012;
(x) CPSC-CH-E1003-09, “Standard Operating Procedure for Determining Lead (Pb) in Paint and Other Similar Surface Coatings”, April 26, 2009;
(xi) CPSC-CH-E1003-09.1, “Standard Operating Procedure for Determining Lead (Pb) in Paint and Other Similar Surface Coatings”, February 25, 2011;
(xii) CPSC “Standard Operating Procedure for Determining Lead (Pb) and its Availability in Children's Metal Jewelry”, February 3, 2005.
(a) The CPSC staff will review each application and may contact the third party conformity assessment body with questions or to request submission of missing information.
(b) The application of a firewalled third party conformity assessment body will be accepted by order of the Commission, if the Commission finds that:
(1) Acceptance of the accreditation of the third party conformity assessment body would provide equal or greater consumer safety protection than the manufacturer's or private labeler's use of an independent third party third party conformity assessment body; and
(2) The third party conformity assessment body has established procedures to ensure that:
(i) Its test results are protected from undue influence by the manufacturer, private labeler, or other interested party;
(ii) The CPSC is notified immediately of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over test results; and
(iii) Allegations of undue influence may be reported confidentially to the CPSC.
(c) The CPSC will communicate its decision on each application in writing to the applicant, which may be by electronic mail.
The CPSC will maintain on its Web site an up-to-date listing of third party conformity assessment bodies whose accreditations it has accepted and the scope of each acceptance. The CPSC will update the listing regularly to account for changes, such as the addition of new CPSC rules and/or test methods to its scope of accreditation, changes to accreditation certificates, new addresses, as well as changes to the status of a third party conformity assessment body due to voluntary discontinuance, suspension, and/or withdrawal. The CPSC will also list the firewalled or governmental status of accepted laboratories on the CPSC Web site.
If the CPSC has specified a test method, a third party conformity assessment body must use that test method for any tests conducted for purposes of section 14 of the CPSA.
(a) A CPSC-accepted third party conformity assessment body (which, for purposes of this section, also will be referred to as the prime contractor) may only subcontract work conducted for purposes of section 14 of the CPSA to other third party conformity assessment bodies whose accreditation has been accepted by the CPSC for the scope necessary for the subcontracted work. Violation of this provision constitutes compromising the integrity of the testing process and may be grounds for withdrawal of the CPSC's acceptance of the accreditation of the prime and/or subcontracting third party conformity assessment body.
(b) The provisions of this part apply to all CPSC-accepted third party conformity assessment bodies, even if they are a prime contractor and/or a subcontractor.
(a) The third party conformity assessment body must maintain the following records, which must be legible:
(1) All test reports and technical records related to tests conducted for purposes of section 14 of the CPSA must be maintained for a period of at least five years from the date the test was conducted;
(2) In the case of a test report for a test conducted by a CPSC-accepted third party conformity assessment body acting as a subcontractor, the prime contractor's test report must clearly identify which test(s) was performed by a CPSC-accepted third party conformity assessment body acting as a subcontractor(s), and the test report from the CPSC-accepted third party conformity assessment body acting as a subcontractor must be available upon request by CPSC.
(3) Where a report, for purposes of section 14 of the CPSA, provided by the third party conformity assessment body to a customer is different from the test record, the third party conformity assessment body also must retain the report provided to the customer for a period of at least five years from the date the test was conducted.
(4) Any and all third party conformity assessment body internal documents describing testing protocols and procedures (such as instructions, standards, manuals, guides, and reference data) that have applied to a test conducted for purposes of section 14 of the CPSA must be retained for a period of at least five years from the date such test was conducted.
(b) Upon request by the CPSC, the third party conformity assessment body must make any and all of the records required by this section available for inspection, either in hard copy or electronically, such as through an Internet Web site. If the records are not in the English language, the third party conformity assessment body must make copies of the original (non-English language) available to the CPSC within 48 hours, and they must make an English translation of the records available to the CPSC within 30 calendar days of the date the CPSC requested an English translation.
A third party conformity assessment body, as a condition of the continued CPSC-acceptance of its accreditation, must allow an officer or employee duly designated by the CPSC to enter and inspect the third party conformity assessment body for purposes of an investigation under this part. The CPSC will conduct such inspections in accordance with 16 CFR 1118.2. Failure to cooperate with such an inspection constitutes failure to cooperate with an investigation and is grounds for suspension under § 1112.45.
(a) A third party conformity assessment body may voluntarily discontinue participation as a CPSC-accepted third party conformity assessment body at any time and for any portion of its scope that is accepted by the CPSC. The third party conformity assessment body must notify the CPSC, in writing, which may be electronic. The notice must include:
(1) Name, address, phone number, electronic mail address for the third party conformity assessment body and the person responsible for submitting the request;
(2) Scope of the discontinuance;
(3) Beginning date for the discontinuance;
(4) Statement that the third party conformity assessment body understands that it must reapply for acceptance of the accreditation scope for which it is requesting discontinuance; and
(5) Verification that the person requesting the discontinuance has the authority to make such a request on behalf of the third party conformity assessment body.
(b) The CPSC may verify the information submitted in a notice of voluntary discontinuance.
(c) Upon receipt of a notice from a third party conformity assessment body that it wishes to discontinue voluntarily as a CPSC-accepted third party conformity assessment body, or after verifying the information in a notice, the CPSC will update its Web site to indicate that the CPSC no longer accepts the accreditation of the third party conformity assessment body for the scope indicated, as of the date provided in the notice.
(d) Notwithstanding a third party conformity assessment body's voluntary discontinuance as a CPSC-accepted third party conformity assessment body, the CPSC may begin or continue an investigation related to an adverse action under this part, or other legal action.
(b) For the examination portion of the audit, which is conducted by the CPSC:
(1) Each third party conformity assessment body must submit a CPSC Form 223 for audit purposes no less than every two years. When a CPSC Form 223 is submitted for audit purposes, the third party conformity assessment body must submit any accompanying documentation that would be required if it were a new application.
(2) Under § 1112.13(a)(1), a third party conformity assessment body must submit a new CPSC Form 223 whenever the information supplied on the form changes. In the event that the third party conformity assessment body submits a new CPSC Form 223 to provide updated information, the third party conformity assessment body may elect to have the new CPSC Form 223 satisfy the requirement of paragraph (b)(1) of this section. If the third party conformity assessment body intends to have the new CPSC Form 223 treated as its submission for audit purposes, the third party conformity assessment body must make that intention clear upon submission, and it must submit any accompanying documentation that would be required if it were a new application.
(3) At least 30 days prior to the date by which a third party conformity assessment body must submit a CPSC Form 223 for audit purposes, the CPSC will notify the body in writing, which may be electronic, of the impending audit deadline. A third party conformity assessment body may request an extension of the deadline for the examination portion of the audit, but it must indicate how much additional time is requested and explain why such an extension is warranted. The CPSC will notify the third party conformity assessment body whether its request for an extension has been granted.
(a) Potential adverse actions against a third party conformity assessment body include:
(1) Denial of Acceptance of Accreditation;
(2) Suspension of Acceptance of Accreditation; or
(3) Withdrawal of Acceptance of Accreditation.
(b) Withdrawal of acceptance of accreditation can be on a temporary or permanent basis, and the CPSC may immediately withdraw its acceptance in accordance with § 1112.53.
(a) The CPSC may deny an application for any of the following reasons:
(1) Failure to complete all information, and/or attestations, and/or failure to provide accompanying documentation, required in connection with an application within 30 days after notice of a deficiency by the CPSC;
(2) Submission of false or misleading information concerning a material fact(s) on an application, any materials accompanying an application, or on any other information provided to the CPSC related to a third party conformity assessment body's ability to become or to remain a CPSC-accepted third party conformity assessment body; or
(3) Failure to satisfy necessary requirements described in § 1112.13, such as ISO/IEC 17025:2005(E) accreditation by a ILAC-MRA signatory accreditation body for the CPSC scope for which acceptance of accreditation is being sought.
(b) The CPSC`s denial of an application will follow the process described in § 1112.51.
(a) The CPSC may suspend its acceptance of a third party conformity assessment body's accreditation for any portion of its scope when the third party conformity assessment body fails to cooperate with an investigation under section 14 of the CPSA. A third party conformity assessment body “fails to cooperate” when it does not respond to CPSC inquiries or requests, or it responds in a manner that is unresponsive, evasive, deceptive, or substantially incomplete, or when it fails to cooperate with an investigatory inspection under § 1112.27.
(b) Suspension lasts until the third party conformity assessment body complies, to the satisfaction of the CPSC, with required actions, as outlined in the notice described in § 1112.51(b), or until the CPSC withdraws its acceptance of the third party conformity assessment body.
(c) If the CPSC determines that the third party conformity assessment body is cooperating sufficiently with the CPSC's investigation, the CPSC will lift the suspension. The suspension will lift as of the date of the CPSC's written notification to the third party conformity assessment body that the CPSC is lifting the suspension. The written notification may be by electronic mail.
(a) A manufacturer, private labeler, governmental entity, or other interested party has exerted undue influence on such third party conformity assessment body or otherwise interfered with or compromised the integrity of the testing process.
(b) The third party conformity assessment body failed to comply with an applicable protocol, standard, or requirement under subpart C of this part.
(c) The third party conformity assessment body failed to comply with any provision in subpart B of this part.
(a)
(1) Contact information, including a name and/or a method by which the CPSC may contact the person providing the information;
(2) Identification of the third party conformity assessment body against whom the allegation is being made, identification of any officials or employees of the third party conformity assessment body relevant to the allegation, and contact information for such individuals.
(3) Identification of any manufacturers, distributors, importers, private labelers, and/or governmental entities relevant to the allegation. The submission also should identify any officials or employees of the manufacturers, distributors, importers, private labelers, or governmental entities relevant to the allegation, and contact information for such individuals.
(4) Description of acts and/or omissions to support each asserted ground for adverse action. Generally, the submission should describe, in detail, the basis for the allegation that grounds for adverse action against a third party conformity assessment body exists. In addition to a description of the acts and omissions and their significance, a description may include: dates, times, persons, companies, governmental entities, locations, products, tests, test results, equipment, supplies, frequency of occurrence, and negative outcomes. When possible, the submission should attach documents, records, photographs, correspondence, notes, electronic mails, or any other information that supports the basis for the allegations;
(5) Description of the impact of the acts and/or omissions, where known.
(b)
(a)
(2) The Commission will use its
(3) An investigation under this part may include any act the CPSC takes to verify the accuracy, veracity, and/or completeness of information received in connection with an application for acceptance of accreditation, a submission alleging grounds for an adverse action, or any other information received by the CPSC that relates to a third party conformity assessment body's ability to become or remain a CPSC-accepted third party conformity assessment body.
(4) The CPSC will begin an investigation under this part by providing written notice, which may be electronic, to the third party conformity assessment body. The notice will inform the third party conformity assessment body that the CPSC has received information sufficient to warrant an investigation, and it will describe the information received by the CPSC and the CPSC's investigative process. The notice also will inform the third party conformity assessment body that failure to cooperate with a CPSC investigation is grounds for suspension under § 1112.45.
(5) The notice sent by the CPSC under § 1112.35(b)(3) informing the third party conformity assessment body that it must submit a CPSC Form 223 for audit purposes, which may be electronic, constitutes notice of investigation for purposes of this section. The examination portion of an audit under § 1112.33(c) constitutes an investigation for purposes of this section.
(b)
(1) The proposed adverse action;
(2) Specific grounds on which the proposed adverse action is based;
(3) Findings of fact to support the proposed adverse action;
(4) When appropriate, specific actions a third party conformity assessment body must take to avoid an adverse action;
(5) When the proposed adverse action is withdrawal, consideration of the criteria set forth in paragraph (d)(1) of this section;
(6) The time period by which a third party conformity assessment body has to respond to the notice. In general, the notice will inform the third party conformity assessment body that it has 30 calendar days to respond. A third party conformity assessment body may request an extension of the response time, but they must explain why such an extension is warranted and the amount of additional time needed for a response; and
(7) Except under § 1112.53, a CPSC-accepted third party conformity assessment body may continue to conduct tests for purposes of section 14 of the CPSA until a Final Notice of adverse action is issued.
(c)
(d)
(i) Whether the action or failure to act resulted in injury, death, or the risk of injury or death;
(ii) Whether the action or failure to act constitutes an isolated incident or represents a pattern or practice; and
(iii) Whether and when the third party conformity assessment body initiated remedial action.
(2) In all cases, the CPSC will review and take under advisement the response provided by the third party conformity assessment body. Except for cases under paragraph (d)(3) of this section, the CPSC will determine what action is appropriate under the circumstances.
(3) If, after reviewing and taking under advisement the response provided by a CPSC-accepted firewalled third party conformity assessment body, the CPSC staff concludes that suspension or withdrawal of CPSC acceptance of accreditation is appropriate, staff will transmit its recommendation to the Commission for consideration. Any suspension or withdrawal of CPSC acceptance of accreditation of a firewalled third party conformity assessment body (including immediate and temporary withdrawal under § 1112.53) will be by order of the Commission.
(4) The CPSC may withdraw its acceptance of the accreditation of a third party conformity assessment body on a permanent or temporary basis.
(5) If the CPSC withdraws its acceptance of the accreditation of a third party conformity assessment body, the CPSC may establish conditions for the reacceptance of the accreditation of the third party conformity assessment body, under section 14(e)(2)(B)(ii) of the CPSA. Any such conditions would be related to the reason(s) for the withdrawal.
(e)
(1) The adverse action that the CPSC is taking;
(2) Specific grounds on which the adverse action is based;
(3) Findings of fact that support the adverse action;
(4) When the adverse action is withdrawal, consideration of the criteria as set forth in paragraph (d)(1) of this section;
(5) When the adverse action is withdrawal, whether the withdrawal is temporary or permanent, and if temporary, the duration of the withdrawal;
(6) The third party conformity assessment body's accreditation is not accepted by the Commission as of the date of the Final Notice of denial, suspension, or withdrawal, for specified portion(s) of its CPSC scope. The CPSC Web site will be updated to reflect adverse actions to any previously CPSC-accepted third party conformity assessment bodies; and
(7) Whether the third party conformity assessment body may submit a new application.
(f)
(1) If the Final Notice indicates such, the third party conformity assessment body may submit a new application; or
(2) File an Administrative Appeal.
(g)
(i) The Administrative Appeal must be sent, by mail, within 30 calendar days of the date on the Final Notice to: the Office of the Executive Director, Room 812, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, or by electronic mail to:
(ii) All appeals must be in writing, and must be in English.
(iii) All appeals must explain the nature and scope of the issues appealed from in the Final Decision, and must describe in detail the reasons why the third party conformity assessment body believes that no ground(s) for adverse action exist.
(iv) If an Administrative Appeal is timely filed, the Executive Director will issue a Final Decision within 60 calendar days of receipt. If the Executive Director's Final Decision requires more than 60 calendar days, he or she will notify the third party conformity assessment body that more time is required, state the reason(s) why more time is required, and, if feasible, include an estimated date for a Final Decision to be issued.
(2) In the case that the Commission has suspended or withdrawn its acceptance of the accreditation of a firewalled third party conformity assessment body, the firewalled third party conformity assessment body may file an Administrative Appeal with the Commission.
(i) The Administrative Appeal must be sent, by mail, within 30 calendar days of the date on the Final Notice to: the Office of the Secretary, Room 820, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, or by electronic mail to:
(ii) All appeals must be in writing, and must be in English.
(iii) All appeals must explain the nature of the issues appealed from in the Final Decision, and must describe in detail the reasons why the third party conformity assessment body believes that no ground(s) for adverse action exist.
(a) When it is in the public interest to protect health and safety, and notwithstanding any other provision of this part, the CPSC may withdraw immediately and temporarily its acceptance of a third party conformity assessment body's accreditation for any portion of its CPSC scope while the CPSC pursues an investigation and potential adverse action under § 1112.51.
(1) For purposes of this part, “in the public interest to protect health and safety” means that the CPSC has credible evidence that:
(i) The integrity of test(s) being conducted under a scope for which the CPSC has accepted the third party conformity assessment body's accreditation, have been affected by undue influence or otherwise interfered with or compromised; and
(ii) The scope for which the CPSC has accepted the third party conformity assessment body's accreditation involve a product(s) which, if noncompliant with CPSC rules, bans, standards, and/
(2) When presented with an allegation that, if credible, would result in immediate and temporary withdrawal of CPSC acceptance of a third party conformity assessment body's accreditation, the investigation and adverse action procedures described in § 1112.51 apply, except that instead of the timeframes described in § 1112.51, the following timeframes will apply when the CPSC pursues immediate and temporary withdrawal:
(i) The Initial Notice will generally inform the third party conformity assessment body that it has 7 calendar days to respond.
(ii) An administrative appeal of a Final Notice of immediate and temporary withdrawal will be timely if filed within 7 calendar days of the date of the Final Notice.
(b) If the third party conformity assessment body is already the subject of an investigation or adverse action process under § 1112.51, the immediate and temporary withdrawal will remain in effect until: the agency communicates in writing that the immediate and temporary withdrawal has been lifted; the investigation concludes and the agency does not propose an adverse action; or the adverse action process concludes with denial, suspension, or withdrawal.
(c) If the third party conformity assessment body is not already the subject of an investigation or adverse action process under § 1112.51, an investigation under § 1112.51(a) will be launched based on the same information that justified the immediate and temporary withdrawal.
Immediately following a final adverse action, the CPSC may publish the fact of a final adverse action, the text of a final adverse action, or a summary of the substance of a final adverse action. After issuance of a final adverse action, the CPSC will amend its Web site listing of CPSC-accepted third party conformity assessment bodies to reflect the nature and scope of such adverse action.
15 U.S.C. 2063; 15 U.S.C. 2065; 15 U.S.C. 2068; 15 U.S.C. 2076; sec. 3, Pub. L. 110-314, 122 Stat. 3016.
(a) After an inspection is initiated as set forth in § 1118.1, an officer or employee duly designated by the Commission shall issue the notice of inspection (hereinafter referred to as “notice”). Upon presenting the notice, along with appropriate credentials, to the person or agent in charge of the firm to be inspected, the Commission officer or employee is authorized for the purposes set forth in § 1118.1(a):
(1) To enter, at reasonable times, any factory, warehouse, firewalled third party conformity assessment body, or establishment in which products are manufactured, tested, or held, in connection with distribution in commerce, or any conveyance being used to transport products in connection with distribution in commerce; and
(2) To inspect, at reasonable times and in a reasonable manner, any conveyance or those areas of the factory, warehouse, firewalled third party conformity assessment body, or establishment where products are manufactured, tested, held, or transported and that may relate to the safety of those products; and
(3) To have access to and to copy all relevant records, books, documents, papers, packaging, or labeling which:
(i) Are required by the Commission to be established, made or maintained, or
(ii) Show or relate to the production, inventory, testing, distribution, sale, transportation, importation, or receipt of any product, or that are otherwise relevant to determining whether any person or firm has acted or is acting in compliance with the Act and regulations, rules, and orders promulgated under the Act, and
(4) To obtain:
(i) Information, both oral and written, concerning the production, inventory, testing, distribution, sale, transportation, importation, or receipt of any product, and the organization, business, conduct, practices, and management of any person or firm being inspected and its relation to any other person or firm;
(ii) Samples of items, materials, substances, products, containers, packages and packaging, and labels and labeling, or any component at manufacturer's, distributor's, third party conformity assessment body's, or retailer's cost, unless voluntarily provided; and
(iii) Information, both oral and written, concerning any matter referred to in the Act and these rules.