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Agricultural Marketing Service, USDA.
Interim rule with request for comments.
This rule changes the size and grade requirements currently prescribed under the marketing order for oranges, grapefruit, tangerines, and tangelos grown in Florida (order). The order is administered locally by the Citrus Administrative Committee (Committee). This rule reduces the minimum size requirement for Valencia and other late type oranges shipped to interstate markets from 2
Effective May 15, 2013; comments received by July 15, 2013 will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Corey E. Elliott, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This rule is issued under Marketing Order No. 905, as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule changes the minimum size requirement on Valencia and other late type oranges shipped to interstate markets from 2
Section 905.52 of the order provides, in part, authority to establish minimum grade and size requirements for Florida citrus. Section 905.306 of the order's rules and regulations specifies the minimum grade and size requirements for different varieties of fresh Florida citrus. Such requirements for domestic shipments are specified in Table I of § 905.306(a). Currently, the minimum size for Valencia and other late type oranges is 2
At its meeting, the Committee discussed that there may be a late season market for Florida Valencia and other late type oranges in the food
During the last few seasons, approximately 97.5 percent of Valencia and other late type oranges were utilized in the production of orange juice, while approximately 2.5 percent, or about 3.1 million cartons, were utilized as shipments to the fresh market. Of the fresh shipments, 85 percent were shipped between March and May. With the current size and grade requirements, the Committee estimates that fewer than 465,000 cartons would be available after May 15 for shipment to the food service market.
According to the National Agricultural Statistics Service (NASS), approximately 10 percent of Valencia oranges measured at the end of April are 2
However, most of the remaining fruit wouldn't meet grade requirements due to discoloration and scarring. As fruit continues to mature on the tree, physiological changes occur that affect the color of the fruit. Also, over time, the fruit gets more blemishes due to wind scarring. Therefore, only changing the minimum size may not be sufficient to make additional fruit available late in the season.
Consequently, to provide additional Valencia and other late type oranges to supply the food service market, the Committee recommended a relaxation in size and grade. This rule changes the minimum size requirement for Valencia and other late type oranges shipped to interstate markets from 2
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 29 Valencia and other late type orange handlers subject to regulation under the marketing order and approximately 8,000 producers of citrus in the production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those whose annual receipts are less than $7,000,000, and small agricultural producers are defined as those having annual receipts less than $750,000 (13 CFR 121.201).
Based on industry and Committee data, the average f.o.b. price for fresh Valencia and other late type oranges during the 2011-12 season was approximately $12.42 per
This rule relaxes the size and grade requirements prescribed under the order. These changes will allow additional late season fruit to be shipped to the fresh market, maximizing shipments and providing additional returns to both handlers and growers. This rule revises § 905.306 by reducing the minimum size requirements for interstate shipments of fresh Valencia and other late type oranges from 2
This action does not impose any additional costs on the industry. However, it is anticipated that this action will have a beneficial impact. Reducing size and grade requirements for Valencia and other late type oranges from May 15 to August 31 will make additional fruit available for shipment to the fresh market, providing the opportunity to supply the potential food service industry market. The Committee believes that relaxing the size and grade requirements will provide an outlet for fruit that may otherwise go un-harvested. This will allow more fruit to be shipped to the fresh market and increase returns to both handlers and growers. The benefits of this rule are expected to be equally available to all fresh citrus growers and handlers, regardless of their size.
Regarding alternatives to this action, the Committee considered two different approaches to providing additional fruit to the market. They considered changing the minimum size and leaving the current grade standard in place. However, the consensus of the Committee was that late in the season the additional quantity demanded could not be met through a size change alone. The Committee also considered changing the minimum size and establishing U.S. No. 1 Golden as the grade from May 15 to August 31. However, this option would effectively increase the grade from June 15 to July 31, which was not the Committee's intention for the 2013 season. Therefore, the Committee rejected both of these alternatives.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This rule will not impose any additional reporting or recordkeeping requirements on either small or large Florida citrus handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Further, the Committee meeting was widely publicized throughout the Florida citrus industry. All interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the January 8, 2013, meeting was a public meeting. All entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
This rule invites comments on changes to the size and grade requirements currently prescribed under the Florida citrus marketing order. Any comments received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Grapefruit, Marketing agreements, Oranges, Reporting and recordkeeping requirements, Tangelos, Tangerines.
For the reasons set forth in the preamble, 7 CFR part 905 is amended as follows:
7 U.S.C. 601-674.
(a) * * *
Agricultural Marketing Service, USDA.
Interim rule with request for comments.
This rule changes the reporting and assessment requirements currently prescribed under the marketing order for Vidalia onions grown in Georgia (order). The order regulates the handling of Vidalia onions grown in Georgia and is administered locally by the Vidalia Onion Committee (Committee). This rule changes the date by which handlers are required to submit monthly shipping reports and their corresponding assessments to the Committee from the fifth day of the month to the tenth day of the month. In addition, this rule also changes the due date to the first business day after the tenth of the month should the tenth fall on a weekend or a holiday. These changes are expected to benefit handlers without negatively affecting program compliance.
Effective May 15, 2013; comments received by July 15, 2013 will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Corey Elliott, Marketing Specialist, or Christian Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324-3378, Fax: (863) 325-8793, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This rule is issued under Marketing Agreement and Order No. 955, as amended (7 CFR part 955), regulating the handling of Vidalia onions grown in Georgia, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule changes the reporting and assessment requirements currently prescribed under the order. This rule changes the date by which handlers are required to submit monthly shipping reports and their corresponding assessments to the Committee from the fifth day of the month to the tenth day of the month. In addition, this rule also changes the due date to the first business day after the tenth of the month should the tenth fall on a weekend or a holiday. These changes are expected to benefit handlers without negatively affecting program compliance. The Committee unanimously recommended these changes at a meeting on August 9, 2012.
Section 955.60 of the order provides authority for the Committee to require handlers to file reports and provide information as may be necessary for the Committee to perform its duties. Section 955.101 of the regulations provides the requisite reporting requirements. Currently this section provides, in part, that handlers are required to file with the Committee a monthly shipping report on the fifth day of each month following the month in which shipments were made.
Section 955.42 provides the authority for the collection of assessments from handlers to administer the order and the authority to establish the time and rate of assessments. Section 955.142 specifies that handler assessments are required to be paid on a monthly basis corresponding with the due date of the monthly shipping reports. In addition, §§ 955.101 and 955.142 specify that should the fifth day of the month fall on a weekend or holiday, both reports and assessments are due on the first business day prior to the fifth.
This rule revises §§ 955.101 and 955.142 to require that handlers submit monthly shipping reports and assessments to the Committee by the tenth day of the month following the month in which shipments were made. This rule also changes the reporting and assessment requirements to state that if the tenth falls on a weekend or holiday, the monthly reports and assessments are due on the first business day after the tenth day of the month.
At the August meeting, the Committee discussed that the industry has expressed concern regarding the difficulties some handlers were having in submitting their reports and assessments by the fifth of the month. Some handlers have reported that the current due date of the fifth of the month has created a hardship for them because of the short turnaround time for preparing the monthly shipping report and getting it submitted to the
Some of the data on the shipping report is not available or verifiable until after the final day of the month when all shipments have been made. This data is necessary for the handlers to prepare and submit accurate shipping reports to the Committee and to pay assessments associated with those shipments. Handlers routinely find that they do not have sufficient time to close out their internal month-end sales paperwork in time to complete and submit their monthly reports and the assessment payment by the fifth of the month.
Further, for those times when the fifth falls on a weekend or holiday, the first business day before the weekend or holiday could be as early as the second of the month. This can make it even more difficult for handlers to meet the established due date. Handlers who have the staff necessary to gather data quickly can have a difficult time getting reports and assessments to the Committee office in just two days. Such a short turnaround can be even more challenging for smaller operations.
In addition, the Committee established penalties and an increased interest rate for late assessments in 2011. Although this has helped improve compliance with reporting and assessment requirements, handlers that were already having trouble submitting their monthly reports and assessments now face interest and late fees on late payments.
Therefore, the Committee voted unanimously to extend the monthly reporting and assessment due date an additional five days to the tenth of the month. For those occasions when the tenth falls on a weekend or a holiday, the due date will be the next business day following the tenth. These changes will allow handlers additional reporting time, and should provide handlers sufficient time to receive the sales and shipment data information needed to complete their monthly reports and to submit their assessments.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 40 handlers of Vidalia onions who are subject to regulation under the order and approximately 80 onion producers in the designated production area. Small agricultural service firms, which include handlers, are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. (13 CFR 121.201).
Based on National Agricultural Statistical Service (NASS) and Committee data, the average annual grower price for fresh Vidalia onions during the 2012 season was around $17 per 40-pound container, and total Vidalia onion shipments were around 4,450,000 40-pound containers. Using available data, more than 90 percent of Vidalia onion handlers have annual receipts less than $7,000,000. However, the average receipts for Vidalia producers were around $946,000 in 2012, which is higher than the SBA threshold for small producers. Assuming a normal distribution, the majority of handlers of Vidalia onions may be classified as small entities, while the majority of producers may be classified as large entities, according to the SBA definition.
This rule changes the reporting and assessment requirements currently prescribed under the order. This rule revises §§ 955.101 and 955.142 to change when monthly shipping reports and assessments, respectively, are due to the Committee from the fifth day of the month to the tenth day of the month following the month in which the shipments were made. In addition, this rule also changes both sections to specify that should the tenth fall on a weekend or a holiday, the due date will be the first business day after the tenth of the month. Authority for these changes is provided for in §§ 955.60 and 955.42. These changes are expected to benefit handlers without negatively affecting program compliance. The Committee unanimously recommended these changes at a meeting on August 9, 2012.
It is not anticipated that this action will impose any additional costs on the industry. This action relaxes the current due dates for monthly reports and assessments, which should benefit all businesses. Handlers may see reduced costs as they will have more time to submit reports without accruing late payment penalties. While the majority of Vidalia onion handlers are considered to be small businesses, the effects of this rule are not expected to be disproportionately greater or less for small entities than for larger entities.
As an alternative to this action, the Committee considered making no change to the current regulations. However, filing reports and paying assessments by the fifth day of the month was a hardship for some handlers. Thus, the Committee determined that action was needed, and this alternative was rejected.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178 (Generic Vegetable Crops). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This rule will not impose any additional reporting or recordkeeping requirements on either small or large Vidalia onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Further, the Committee's meeting was widely publicized throughout the Vidalia onion industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 9, 2012, meeting was a public meeting, and all entities, both large and small, were able to express their views on this issue.
Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
This rule invites comments on changes to the reporting and assessment requirements currently prescribed under the order. Any comments received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including the Committee's recommendation and other information, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Onions, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 955 is amended as follows:
7 U.S.C. 601-674.
Agricultural Marketing Service, USDA.
Affirmation of interim rule as final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that decreased the assessment rate established for the Florida Tomato Committee (Committee) for the 2012-13 and subsequent fiscal periods from $0.037 to $0.024 per 25-pound carton of tomatoes handled. The Committee locally administers the marketing order which regulates the handling of tomatoes grown in Florida. The interim rule was necessary to allow the Committee to reduce its financial reserve and to help reduce overall industry costs, while still providing adequate funding to meet program expenses.
Effective May 15, 2013.
Corey Elliott, Marketing Specialist or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or Email:
Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site:
This rule is issued under Marketing Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966), regulating the handling of tomatoes grown in Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
Under the order, Florida tomato handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable Florida tomatoes for the entire fiscal period, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period began on August 1, and ends on July 31.
In an interim rule published in the
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 80 handlers of tomatoes in the production area and approximately 100 producers subject to regulation under the marketing order.
Based on industry and Committee data, the average annual price for fresh Florida tomatoes during the 2011-12 season was approximately $6.62 per 25-pound container, and total fresh shipments for the 2011-12 season were approximately 38,175,363 25-pound cartons of tomatoes. Committee data indicates that approximately 21 percent of the handlers handle 90 percent of the total volume shipped. Based on the average price, about 80 percent of handlers could be considered small businesses under SBA's definition. In addition, based on production data, grower prices as reported by the National Agricultural Statistics Service, and the total number of Florida tomato growers, the average annual grower revenue is below $750,000. Thus, the majority of handlers and producers of Florida tomatoes may be classified as small entities.
This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2012-13 and subsequent fiscal periods from $0.037 to $0.024 per 25-pound carton of tomatoes. The Committee unanimously recommended 2012-13 expenditures of $1,672,952 and an assessment rate of $0.024 per 25-pound carton of tomatoes. The assessment rate of $0.024 is $0.013 lower than the rate previously in effect. Applying the $0.024 rate per 25-pound carton assessment rate to the Committee's 35 million cartons crop estimate should provide $840,000, in assessment income. Income derived from handler assessments, along with funds from the Committee's authorized reserve, interest income, and funds from block grants, will be adequate to cover budgeted expenses. This action will allow the Committee to reduce its financial reserve and will help lower overall industry cost, while still providing adequate funding to meet program expenses.
This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers.
In addition, the Committee's meeting was widely publicized throughout the Florida tomato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 22, 2012, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.
This action imposes no additional reporting or recordkeeping requirements on either small or large Florida tomato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Comments on the interim rule were required to be received on or before April 9, 2013. No comments were received. Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.
To view the interim rule, go to:
This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, and the E-Gov Act (44 U.S.C. 101).
After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the
Marketing agreements, Reporting and recordkeeping requirements, Tomatoes.
Accordingly, the interim rule amending 7 CFR part 966, which was published at 78 FR 9307 on February 8, 2013, is adopted as a final rule, without change.
Agricultural Marketing Service, USDA.
Final rule.
This final rule amends the Lamb Promotion, Research, and Information Order (Order) to increase the assessment rate on all live ovine animals sold from $0.005 per pound to $0.007 per pound for producers, feeders, and seedstock producers, and from $0.30 per head of ovine animals purchased for slaughter to $0.42 per head for first handlers. The increase is provided for under the Order, which is authorized by the Commodity Promotion, Research, and Information Act of 1996 (Act) (7 U.S.C. 7411-7425). The American Lamb Board (Board), which administers the Order, recommended this action to maintain and expand their promotional, research, advertising, and communications programs.
Effective June 13, 2013.
Emily DeBord, Agricultural Marketing Specialist, Research and Promotion Division, on 202-690-2611, fax 202-720-1125, or by email at
The Office of Management and Budget (OMB) has waived the review process required by Executive Order (E.O.) 12866 for this action.
This final rule has been reviewed under E.O. 12988, Civil Justice Reform. The rule is not intended to have retroactive effect and will not affect or preempt any other State or Federal law authorizing promotion or research relating to an agricultural commodity.
Under section 519 of the Act a person subject to the Order may file a petition
The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Secretary's final ruling.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Administrator of the Agricultural Marketing Service (AMS) has considered the economic effect of this action on small entities and has determined that this final rule will not have a significant impact on a substantial number of small entities. The purpose of the RFA is to fit regulatory action to the scale of businesses subject to such action in order that small businesses will not be unduly burdened.
The U.S. Department of Agriculture's (Department) National Agricultural Statistics Service estimated that in 2012 the number of operations in the United States with sheep totaled approximately 79,500. The majority of these operations that are subject to the Order may be classified as small entities.
The Small Business Administration defines, in 13 CFR Part 121, small agricultural producers as those having annual receipts of no more than $750,000, and small agricultural service firms (handlers and importers) as those having annual receipts of no more than $7 million. Under these definitions, the majority of the producers, feeders, seedstock producers, and first handlers that will be affected by this final rule are considered small entities.
Funds collected under the programs are used for promotion, information, research, and advertising of American lamb and for the administration, maintenance, and functioning of the Board. At the current assessment rate of one-half of a cent ($0.005) per pound on all live lambs sold by producers, feeders, and seedstock producers and thirty cents ($0.30) per head of lamb purchased by first handlers for slaughter, the program generates about $1.8 million in annual revenues. The current assessment rate was established in April 11, 2002, when the Order was issued (70 FR 17848). The Order is administered by the Board under Department oversight. According to the Board, additional revenue is required in order to sustain and expand the promotional, research, advertising, and communications programs.
On May 26, 2011, the Board passed a motion to raise the assessment rate as authorized under the Act and Order (7 CFR Part 1280). This final rule is consistent with section 1280.217(e) of the Order, which states that the rate of assessment for producers, seedstock producers, and feeders may be raised or lowered no more than twenty-hundredths of a cent ($0.002) in any one year. In addition, section 1280.219 states the rate of assessment for first handlers shall be increased or decreased proportionately if the assessment paid by producers, feeders, and seedstock producers is increased or decreased. The current rate producers pay on a per pound basis, $0.005 per pound, is 16.7 percent of the rate first handlers pay on a per head basis, $0.30 per head. To keep the same proportionality when producers are assessed a rate of $0.007 per pound, the first handlers will be assessed a rate of $0.42 per head. Currently, section 1280.217 of the Order states that the rate of assessment shall be one-half of a cent ($0.005) per pound on all live lambs sold. Section 1280.219 currently states each first handler, in addition to remitting the assessment collected pursuant to section 1280.217, shall pay an assessment equal to thirty cents ($0.30) per head of lambs purchased by the first handler for slaughter or slaughtered by such first handler pursuant to a custom slaughter arrangement. This final rule will amend the aforementioned sections.
The Board's most recent return on investment study,
Over the last several fiscal years, however, several trends have asserted downward pressure on the Board's continued ability to sustain the industry's recognized high level of return. Domestic lamb production levels have continued to decrease. A growing percentage of domestic lamb is being sold into non-traditional markets and higher costs driven by worldwide inflation have increased the expense of implementing Board programs. The Board's assessment collections have continued to decrease from $2.8 million in 2003 to $1.9 million in 2012. Over the past few years the Board's budget has decreased and business costs have increased. The Board has explored ways to maintain effective programs by cutting programs that are not meeting the Board's expectations. The Board believes that marketing and promotions programs should not be reduced any further at a time when it is critical for the industry to protect American lamb's position in retail and foodservice and maintain market share.
The Board states that the proposed assessment rate increase would enable it to maintain, enhance, and expand its efforts to build demand, increase awareness, and create preference for American lamb through targeted advertising, retail promotions, public relations campaigns and media outreach, foodservice programs, consumer events, social marketing, and nutrition education. The Board strongly believes that it is a critical time for the industry to protect their position in retail and foodservice and maintain market share in order for there to be a future for domestic lamb. The Board believes that it is essential to increase the lamb checkoff revenue and get its marketing and promotion budget back to the original budget levels in fiscal years 2003 and 2004 in order to maintain its efforts to promote American lamb and deliver a good return on the industry's investment.
This final rule does not impose additional recordkeeping requirements on producers, feeders, seedstock producers, or first handlers of American lamb. There are no Federal rules that duplicate, overlap, or conflict with this rule. In accordance with OMB regulation (5 CFR part 1320), which implements the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the information collection and recordkeeping requirements have been approved previously under OMB control number 0581-0093. This final rule does not result in a change to the
We have performed this initial RFA regarding the impact of this final amendment to the Order on small entities.
Under the Order, which became effective April 11, 2002, the Board administers a nationally coordinated program of research, development, advertising, and promotion designed to strengthen the position of, and to develop and expand the markets for, ovine animals and ovine products. This program is currently financed by assessments from producers, feeders, and seedstock producers who pay an assessment of one-half cent ($0.005) per pound when live ovine animals are sold. First handlers, primarily packers, pay an additional $0.30 per head on ovine animals purchased for slaughter. Importers are not assessed.
This final rule will increase the assessment rate on all live lambs sold from $0.005 per pound to $0.007 per pound for producers, feeders, and seedstock producers and from $0.30 per head of lamb purchased for slaughter to $0.42 per head for first handlers. According to the Board, in order to sustain and expand the promotion, research, and communications programs at present levels, the Board contends that additional revenue is required. The assessment rate increase is estimated to generate $700,000 in new revenue, depending upon production levels.
The Board's budget is based on the amount of assessments collected on an annual basis. As assessments have continued to decline, the Board's budget has decreased from $2.8 million in 2003 to $1.9 million in 2012. As expenses to successfully promote and increase the consumption of American lamb continue to rise, the Board believes it is necessary to amend the Order to increase the rate of assessment.
On May 26, 2011, the Board unanimously approved a motion to request that the Secretary amend sections 1280.217 (e) and 1280.219 of the Order to increase the assessment rate on all live lambs sold from $0.005 per pound to $0.007 per pound for producers, feeders, and seedstock producers and from $0.30 per head of lamb purchased for slaughter to $0.42 per head for first handlers. The Board has not amended the Order to raise or lower the assessment rate since the inception of the program. The vote to recommend the assessment increase was unanimous.
The Act provides for the creation of, and amendments to, the Order. The Order provides in section 1280.210 that the Board shall have the powers and duties to recommend to the Secretary such amendments to the Order as the Board considers appropriate.
On June 12, 2012, the Department published in the
The Department received 121 timely comments related to the proposed rule, of which 94, or 77.7% were in support of the assessment rate increase, and 26, or 21.5%, were opposed to the increase. One comment was neither for nor against the increase, and four comments, which generally reflected the views of those who supported the increase, were received after the closing date. Commenters included producers, feeders, seedstock producers, first handlers, and other interested parties.
Commenters supporting the assessment rate increase pointed to the need to raise sufficient funding for lamb promotions in the face of rising costs. Many noted that the assessment rate had not been increased during the past decade and that the increase would restore marketing funding to earlier levels. Several commenters suggested that the lamb industry would lose share of voice in the market without increased funding. Commenters also noted that the rate increase would offset the decline in lamb inventories across the country. Other commenters pointed out that the lamb industry increasingly was being outspent by competing meats and international competitors in marketing activities.
Commenters who opposed the assessment rate increase cited the decline of the industry (lamb numbers falling; prices not competitive with imported lamb meat). Many suggested that lamb producers were losing money and could not afford the additional cost. Several commenters based their opposition to the rate increase on their belief that the Lamb Checkoff has not been driving increased lamb consumption. Two commenters noted that the lamb industry is too diversified for the generic checkoff program to be successful.
AMS has carefully considered all comments submitted and is not making any changes to the proposed rule. As has been stated previously in this rulemaking, in the Board's view, it is a critical time for the lamb industry to protect its position in retail and foodservice, and maintain market share, in order for there to be a future for domestic lamb. Therefore, it is essential to increase the lamb checkoff revenue and get its marketing and promotion budget back to the original budget levels in fiscal years 2003 and 2004 in order to maintain the Board's efforts to promote American lamb and deliver a good return on the industry's investment.
Administrative practice and procedure, Advertising, Agricultural research, Marketing agreements, Lamb and Lamb products, Reporting and recordkeeping requirements.
For reasons set forth in the preamble, this final rule amends 7 CFR part 1280 as follows:
7 U.S.C. 7411-7425 and 7 U.S.C. 7401.
(e)
Each first handler, in addition to remitting the assessment collected pursuant to § 1280.217, shall pay an assessment equal to forty-two cents ($0.42) per head of lambs purchased by the first handler for slaughter or slaughtered by such first handler pursuant to a custom slaughter arrangement. The rates of assessment for first handlers shall be increased or
Executive Office for Immigration Review, Department of Justice.
Notice of implementation of registration requirement.
The Executive Office for Immigration Review (EOIR) has established a mandatory electronic registry for attorneys and accredited representatives who practice before EOIR's immigration courts and Board of Immigration Appeals (BIA or Board). This notice provides additional instructions regarding the registration process.
Attorneys and accredited representatives will be able to register beginning on June 10, 2013. After December 10, 2013, attorneys and accredited representatives must be registered in order to practice before EOIR's immigration courts and the Board and may be subject to administrative suspension for failure to register.
Jeff Rosenblum, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free call).
On April 1, 2013, the Department published in the
eRegistry is part of a long-term agency plan to create an electronic case access and filing system for the immigration courts and the Board. The eRegistry will individually and uniquely identify each registered attorney or accredited representative and associate the information provided during registration with that attorney or accredited representative. This will increase efficiency by reducing system errors in scheduling matters and providing improved notice to attorneys and accredited representatives. Further, registration will ultimately enable an electronic filing system that will reduce the time and expense presently incurred with paper filings.
All attorneys and accredited representatives who practice before EOIR's immigration courts or the Board must register with EOIR's eRegistry.
Registration is a two-step process, which consists of an online registration and an identity validation. Both steps must be completed in order for an attorney or accredited representative to be registered before EOIR.
Attorneys and accredited representatives will begin the online registration process by selecting their relevant account type, creating an individual UserID and password, and providing answers to password-related security questions.
Attorneys will be required to provide the following information when registering: full name; date of birth; business address(es); business telephone number(s); email address(es)
Accredited representatives will be required to provide the following information when registering: full name; date of birth; business address(es); business telephone number(s); email address(es); and name(s) of all the recognized organization(s) that have obtained accreditation for the representative to appear before EOIR.
EOIR will process the submitted information and then communicate with the registry applicant via email. First, EOIR will send an email to the registry applicant with instructions for the identity validation process.
By December 10, 2013, all attorneys and accredited representatives authorized to appear before EOIR must be registered as a condition to practice before the immigration courts and the Board. If an attorney or accredited representative who has cases pending before EOIR fails to register by December 10, 2013, EOIR may administratively suspend that individual from practicing before EOIR.
Upon implementation of eRegistry, registered attorneys and accredited representatives will be able to use their stored eRegistry information to pre-populate and, on a voluntary basis, electronically file entry of appearance forms for certain designated proceedings before the immigration courts and the Board.
EOIR will continue to accept paper submissions of the Form EOIR-27 and Form EOIR-28. At this time, immigration practitioners who are not required to register will not be able to file these forms electronically.
EOIR will send all official correspondence to the representative's address included on the most recent Form EOIR-27 or Form EOIR-28 for each case. Representatives are under an obligation to notify the immigration court and the Board of any change in their current address or any change in affiliations with recognized organizations, including branch offices.
Registrants may change their addresses electronically by completing a two-step process. First, registrants must log in to their eRegistry account and add the new address to their account profile. Second, registrants must electronically file a Form EOIR-27 or Form EOIR-28 for each of their cases to which the newly-added address should be assigned. In such cases, registrants should check the “new address” box on the Form EOIR-27 or Form EOIR-28. As with all submissions of the Form EOIR-27 or the Form EOIR-28, registrants are required to serve DHS with a printed copy of the completed Form EOIR-27 or Form EOIR-28.
Registrants should note that adding a new address to their eRegistry profiles will not serve to update their addresses with the immigration court or the Board unless and until the Form EOIR-27 or Form EOIR-28 has been filed in each of their cases with their updated address.
In matters in which EOIR does not yet accept electronic filings of the Form EOIR-27 or Form EOIR-28, registrants will need to file paper versions of those forms with the immigration court or the Board to complete the address change.
Registered attorneys and accredited representatives will be responsible for all activity conducted under the attorney's or accredited representative's account. Once eRegistry is operational, registered attorneys and accredited representatives should immediately contact EOIR if they think that their account has been compromised.
Individuals with law licenses are not permitted to register as attorneys if they are under any order suspending, enjoining, restraining, disbarring, or otherwise restricting them in the practice of law, or are otherwise not a member in good standing of the bar. Such individuals do not meet the definition of “attorney” under 8 CFR 1001.1(f).
EOIR will deactivate the EOIR ID of an attorney or accredited representative who has been disbarred or suspended pursuant to 8 CFR 1003.101
Additional information regarding eRegistry will be available on EOIR's Web site.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain Twin Commander Aircraft LLC Models 690, 690A, and 690B airplanes. This AD requires inspection for cracking of the outer fuselage attachments, the lower wing main spar, the vertical channels, the upper picture window channels, aft cabin pressure web, external wing to fuselage fillets, and fasteners; repair or replacement of damaged parts as necessary; and modification of the structure with reinforced parts. This AD
This AD is effective May 29, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of May 29, 2013.
We must receive comments on this AD by June 28, 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 AD, contact Twin Commander Aircraft LLC; 1176 Telecom Drive, Creedmoor, NC 27522; telephone: (360) 403-0258; email:
You may examine the AD docket on the Internet at
Vince Massey, Aerospace Engineer, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057; telephone: (425) 917-6475; fax: (425) 917-6590; email:
We were notified of cracks found in the left and right wing main spar frame support channels, the aft pressure bulkhead web, and the left and right picture window upper frame channels of a Twin Commander Aircraft LLC Model 690B airplane. Nineteen airplanes were inspected with one having severe cracking in the left and right wing main spar frame support channels, the aft pressure bulkhead web, and the left and right picture window upper frame channels. Five other of the inspected airplanes had similar but less severe damage. This condition, if not corrected, could result in structural failure of the aircraft.
We reviewed Twin Commander Aircraft LLC Service Bulletin 241, dated September 26, 2012. The service information describes procedures for access, disassembly, and inspecting the outer fuselage attachments, the lower wing main spar, the vertical channels, the upper picture window channels, aft cabin pressure web, external wing to fuselage fillets, and fasteners for cracking. The service information also describes procedures for modifying the structure with reinforced parts and reassembly.
We are issuing 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 AD requires inspection for cracking of the outer fuselage attachments, the lower wing main spar, the vertical channels, the upper picture window channels, aft cabin pressure web, external wing to fuselage fillets, and fasteners; repair or replacement of damaged parts as necessary; and modification of the structure with reinforced parts.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because cracking in the upper picture window frame channels, left- and right-hand wing main spar frame support channels, and/or aft pressure bulkhead web could result in structural failure of the aircraft. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 280 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
The scope of damage found in the required inspection could vary significantly from airplane to airplane. We have no way of determining how much damage may be found on each airplane or the cost to repair damaged parts on each airplane. The damage could be as minor as replacing rivets or fasteners or as extensive as a major wing/fuselage repair or replacement.
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.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.
To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. In accordance with Section 608 of the Regulatory Flexibility Act, an agency head may waive or delay completion of some or all of the requirements of Section 603 by providing a written finding that this final rule is being promulgated in response to an emergency that makes compliance or timely compliance with the provisions of Section 603 impracticable.
We are performing a review to determine whether this final rule AD action will have a significant economic impact on a substantial number of small entities. However, the immediate safety of flight conditions of this AD action make compliance with the provisions of Section 603 impracticable. Our justification for immediate adoption of this rule, and therefore of impracticability, is stated in FAA's Justification and Determination of the Effective Date. After we determine whether this final rule AD action has a significant economic impact on a substantial number of small entities or not, we will publish in the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective May 29, 2013.
None.
This AD applies to the following Twin Commander Aircraft LLC airplanes, certificated in any category:
(1) Model 690, all serial numbers except 11057;
(2) Model 690A, all serial numbers except 11104, 11106, 11129, 11134, 11146, 11159, 11173, 11192, 11220, 11237, 11252, 11263, 11280, 11287, 11298, 11303, 11317, 11339, and 11341; and
(3) Model 690B, all serial numbers except 11383, 11384, 11401, and 11436.
(4) Aircraft equipped with AVIADESIGN, Inc. STC No. SA5740NM (You may find information on STC No. SA5740NM at Internet:
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 53; Fuselage.
This AD was prompted by cracks found in the upper picture window frame channels, left- and right-hand wing main spar frame support channels, and aft pressure bulkhead web. This condition, if not corrected, could result in structural failure of the airplane. We are issuing this AD to correct the unsafe condition on these products.
Comply with this AD within the compliance times specified, unless already done.
(1) Inspect the airplane structural components, at the compliance times specified in paragraphs (g)(1)(i) through (g)(1)(iv) of this AD following Part I of Twin Commander Aircraft LLC Service Bulletin 241, September 26, 2012:
(i) For airplanes with 10,000 or more hours time-in-service (TIS), inspect within the next 30 days after the effective date of this AD.
(ii) For airplanes with 7,500 through 9,999 hours TIS, inspect within the next 60 days after the effective date of this AD.
(iii) For airplanes with 5,000 through 7,499 hours TIS, inspect within the next 6 months after the effective date of this AD.
(iv) For airplanes with less than 5,000 hours TIS, inspect when the airplane accumulates a total of 5,000 hours TIS or within the next 12 months after the effective date of this AD, whichever occurs later.
If any damage, cracks, and/or cracks that exceed the allowable limits specified in the service bulletin are found during the inspection required in paragraph (g)(1) of this AD, before further flight, repair or replace parts as necessary following Twin Commander Aircraft LLC Service Bulletin 241, dated, September 26, 2012. If Twin Commander Aircraft LLC Service Bulletin 241, dated, September 26, 2012, does not give procedures for repair of the damaged area, before further flight, you must contact Twin Commander Aircraft LLC to obtain repair instructions approved by the Seattle Aircraft Certification Office (ACO) specifically for compliance with this AD and incorporate those instructions. You can find contact information for Twin Commander Aircraft LLC in paragraph (l)(2) of this AD.
(1) Before further flight after completing the actions in paragraphs (g) and (h) of this AD, modify and reassemble the airplane using the modification and reassembly procedures in Part II of Twin Commander Aircraft LLC Service Bulletin 241, dated, September 26, 2012.
(2) Although Twin Commander Aircraft LLC Service Bulletin 241, dated September 26, 2012, states that at least one person on the modification team must have completed the Twin Commander Aircraft LLC approved training, the FAA does not require that a mechanic complete this specialized training to do the modification work required in this AD. Regulations 14 CFR 65.81(a) and 14 CFR 65.81(b) provide criteria about qualifications of those performing maintenance; in this case, the requirements 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.
For more information about this AD, contact Vince Massey, Aerospace Engineer, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057; telephone: (425) 917-6475; fax: (425) 917-6590; email:
(1) You must use the following service information to do the actions required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference (IBR) under 5 U.S.C. 552(a) and 1 CFR part 51:
(i) Twin Commander Aircraft LLC Service Bulletin 241, dated September 26, 2012.
(ii) Reserved.
(2) For service information identified in this AD, contact Twin Commander Aircraft LLC; 1176 Telecom Drive, Creedmoor, NC 27522; telephone: (360) 403-0258; email:
(3) You may review copies of the service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-300, -400, and -500 series airplanes. This AD was prompted by reports of two in-service occurrences on Model 737-400 airplanes of total loss of boost pump pressure of the fuel feed system, followed by loss of fuel system suction feed capability on one engine, and in-flight shutdown of the engine. This AD requires repetitive operational tests of the engine fuel suction feed of the fuel system, and corrective actions if necessary. We are issuing this AD to detect and correct loss of the engine fuel suction feed capability of the fuel system, which, in the event of total loss of the fuel boost pumps, could result in dual engine flameout, inability to restart the engines, and consequent forced landing of the airplane.
This AD is effective June 18, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of June 18, 2013.
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
You may examine the AD docket on the Internet at
Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM-140S, Seattle Aircraft Certification Office, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6438; fax: 425-917-6590; email:
We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That SNPRM published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM (78 FR 6254, January 30, 2013) or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
We estimate that this AD affects 827 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide a cost estimate for the on-condition actions specified in this 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 have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective June 18, 2013.
None.
This AD applies to all The Boeing Company Model 737-300, -400, and -500 series airplanes, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 2800, Aircraft Fuel System.
This AD was prompted by reports of two in-service occurrences on Model 737-400 airplanes of total loss of boost pump pressure of the fuel feed system, followed by loss of fuel system suction feed capability on one engine, and in-flight shutdown of the engine. We are issuing this AD to detect and correct loss of the engine fuel suction feed capability of the fuel system, which in the event of total loss of the fuel boost pumps could result in dual engine flameout, inability to restart the engines, and consequent forced landing of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 7,500 flight hours or 24 months after the effective date of this AD, whichever occurs first: Perform an operational test of the engine fuel suction feed of the fuel system, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-28A1407, dated May 14, 2012. Do all applicable corrective actions before further flight. Repeat the operational test thereafter at intervals not to exceed 7,500 flight hours or 24 months, whichever occurs first. Thereafter, except as provided in paragraph (h) of this AD, no alternative procedures or repetitive test intervals are allowed.
(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. Information may be emailed to:
(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.
For more information about this AD, contact Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM-140S, Seattle Aircraft Certification Office, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6438; fax: 425-917-6590; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin 737-28A1407, dated May 14, 2012.
(ii) Reserved.
(3) 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
(4) You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. This AD was prompted by reports of two in-service incidents where the left main landing gear (MLG) failed to extend. This AD requires installing stopper plates on the aft uplock frames in the MLG bay adjacent to the right and left MLG uplock assemblies. We are issuing this AD to prevent incorrect installation of the upper bolt in the MLG uplock assembly, which could prevent the MLG from extending and could adversely affect the safe landing of the airplane.
This AD becomes effective June 18, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 18, 2013.
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 (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; phone: 516-228-7328; fax: 516-794-5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
There have been two reported in-service incidents where the left main landing gear (MLG) failed to extend. The investigation revealed that in both cases, the uplock assembly had been replaced prior to the in-service incidents and the upper bolt of the uplock assembly was incorrectly installed. The incorrect installation of the upper bolt resulted in the uplock assembly pivoting on the lower attachment bolt and preventing the MLG from extending under normal or alternate extension.
The potential for an incorrect installation of the upper bolt could occur at both the left hand side (LHS) and/or the right hand side (RHS) MLG uplock assembly. Failure of the MLG to extend could adversely affect the safe landing of the aeroplane.
This [Canadian] AD mandates the installation of stopper plates on the aft uplock frames in the MLG bay, adjacent to both the RHS and LHS MLG uplock assemblies, to prevent an incorrect installation of the MLG uplock assembly.
We have reviewed Bombardier Service Bulletin 601R-32-109, Revision A, dated February 26, 2013. In the NPRM (77 FR 63281, October 16, 2012), we referred to Bombardier Service Bulletin 601R-32-109, dated May 29, 2012, as the appropriate source of service information for doing the actions specified in the NPRM. Revision A of the service information adds information for parts that are listed in paragraph 1.G. “Material—Price and Availability,” and small editorial changes that do not have an effect on the technical content of the service information.
We have updated paragraphs (g) and (j) of this AD to refer to Bombardier Service Bulletin 601R-32-109, Revision A, dated February 26, 2013. We have also added a new paragraph (h) to this AD to give credit for actions done before the effective date of this AD, using Bombardier Service Bulletin 601R-32-109, dated May 29, 2012, and re-identified the subsequent paragraph identifiers accordingly.
We gave the public the opportunity to participate in developing this AD. We have considered the comments received.
The National Transportation Safety Board supported the NPRM (77 FR 63281, October 16, 2012).
The Air Line Pilots Association International (ALPA) requested that the proposed compliance time in the NPRM (77 FR 63281, October 16, 2012) be shortened from “Within 5,500 flight hours or 48 months after the effective date of this AD, whichever occurs first . . . .” to “Within 2,400 flight hours or 24 months after the effective date of the AD, whichever occurs first . . . .” The ALPA based its suggested compliance time on the two reported in-service incidents and the potential safety implication of landing with an MLG fully or partially retracted.
We do not agree with the request to shorten the compliance time. The proposed compliance time in the NPRM (77 FR 63281, October 16, 2012) was based on a risk assessment completed by the airplane manufacturer, Bombardier, Inc. The risk was conservatively assessed with a compliance time of 6,000 flight hours, based on the estimated release date of Bombardier service information. Transport Canada Civil Aviation (TCCA), the State of Design Authority,
The ALPA also recommended that, until operators have complied with the proposed AD (77 FR 63281, October 16, 2012), the operators be required to have a Required Inspection Item for any maintenance work involving the upper MLG assembly. The ALPA recommended this requirement to ensure correct installation of the upper MLG assembly until the proposed AD is complied with.
We do not agree with this recommendation. If operators properly follow the instructions in the airplane maintenance manual, the upper MLG uplock assembly will be correctly installed. In addition, Bombardier, Inc. issued All Operators Message No. 1307, dated September 6, 2011, to inform operators of the second in-flight MLG incident; and Service Letter CRJ100/200/440-SL-32-046, dated October 11, 2011, to provide additional information and recommendations to address the second in-flight MLG incident. We have not changed the AD in this regard.
We reviewed the available data and determined that air safety and the public interest require adopting the AD with the changes described previously-and minor editorial changes. We have determined that these changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 63281, October 16, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 63281, October 16, 2012).
We estimate that this AD will affect 574 products of U.S. registry. We also estimate that it will take about 5 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $243,950, or $425 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
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 AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
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 airworthiness directive (AD) becomes effective June 18, 2013.
None.
This AD applies to Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category, serial numbers 7003 through 7990 inclusive, and 8000 through 8999 inclusive.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by reports of two in-service incidents where the left main landing gear (MLG) failed to extend. We are issuing this AD to prevent incorrect installation of the upper bolt in the MLG uplock assembly, which could prevent the MLG from extending and could adversely affect the safe landing of the airplane.
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 5,500 flight hours or 48 months after the effective date of this AD, whichever occurs first: Install stopper plates on the aft uplock frame of both the right and left MLG uplock assemblies, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601R-32-109, Revision A, dated February 26, 2013.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to MCAI Canadian Airworthiness Directive CF-2012-22, dated July 24, 2012; and Bombardier Service Bulletin 601R-32-109, Revision A, dated February 26, 2013; for related information.
(2) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514 855-7401; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Bombardier Service Bulletin 601R-32-109, Revision A, dated February 26, 2013.
(ii) Reserved.
(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514 855-7401; email
(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class D airspace at El Monte Airport, El Monte, CA. This action, initiated by the FAA's biennial review of the El Monte Airspace area, creates additional Class D airspace to accommodate aircraft departures and arrivals. This improves the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Effective date, 0901 UTC, August 22, 2013. The Director of the Federal Register approves this incorporation by reference action under 1 CFR Part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Rick Roberts, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA, 98057; telephone (425) 203-4517.
On March 4, 2013, the FAA published in the
Class D airspace designations are published in paragraph 5000, of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class D airspace at El Monte Airport, El Monte, CA. The FAA's biennial review of the airspace found additional controlled airspace necessary laterally for the safety and management of aircraft departing and arriving under IFR operations at El Monte Airport, along with a reduction in the ceiling from 2,800 feet MSL to and including 2,400 feet MSL due to arrivals to Los Angeles International Airport that overfly El Monte Airport.
The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at El Monte Airport, El Monte, CA.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,”
Airspace, Incorporation by reference, Navigation (air)
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 2,400 feet MSL within a 4-mile radius of El Monte Airport and within 1.8 miles each side of the El Monte Airport 097° bearing extending from the 4-mile radius to 4.5 miles east of the airport. This Class D airspace area is effective during the specific dates and times established by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective May 14, 2013. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of May 14, 2013.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169; or
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective May 14, 2013. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of May 14, 2013.
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Department of State.
Final rule.
The U.S. Department of State (Department) is revising regulations to increase the Application Fee for Sponsor Designation or Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits assessed for providing Exchange Visitor Program services, in order to recoup the costs incurred by the Department's Bureau of Educational and Cultural Affairs associated with operating the Exchange Visitor Program.
Robin J. Lerner, Deputy Assistant Secretary for Private Sector Exchange, U.S. Department of State, SA-5, Floor 5, 2200 C Street NW., Washington, DC 20522, 202-632-9290, or email at
The Department published a proposed rule on January 30, 2013 (RIN 1400-AD28; 78 FR 6263), with a request for comments, to amend 22 CFR 62.17 (“Fees and Charges”) to increase fees to recover the costs of administrative processing of requests for program designation or redesignation, and certain services for exchange visitor benefits. These costs were calculated by an independent, certified public accounting firm following the guidelines set forth in Office of Management and Budget (OMB) Circular A-25 regarding such fee calculation.
The Department received thirteen comments and is now promulgating a final rule with no changes from the proposed rule. Thus, the application fee charged to U.S. corporate entities will increase to $3,982.00 for program designation and redesignation. The individual program services fee paid by foreign nationals will increase to $367.00 for services such as change of program category, program extensions and reinstatements.
The Department received thirteen comments. One comment suggested that the Exchange Visitor Program be shut down and the other, from a foreign national, requested assistance on visas and travel. These comments were not responsive to the proposed rule.
Three comments represented the academic community and supported the proposed rule. One commenter stated that the fees should be adopted and believes that the Department cannot prevent abuses to the program if the Office of Designation limits itself, as it does now, to some 13 staff members monitoring more than 1,400 separate and distinct sponsors. Two comments did not object to the increases, but requested that sufficient time be allowed so that academic institutions could properly budget for the 47% increase in the application fee. The Department's fee schedule is reviewed and implemented on a two-year cycle. Delaying the fee increases for all sponsors is not feasible.
In addition, one of the three commenters who expressed support for the proposed rule requested clarification as to whether designation fees paid by private sector program sponsors were also meant to cover the cost of administering U.S. Government exchange programs. Designation fees paid by private sector program sponsors do not currently fund the administration of U.S. Government exchange programs, and the Department does not anticipate that private sector programs would cover the cost of administering such exchange programs in the future.
A total of eight comments oppose the proposed increase in fees. One comment inquired about the purpose of increasing the application fee since the Department has imposed a moratorium on new sponsor applications for the Summer Work Travel category of the Exchange Visitor Program. Once the Department has completed the comprehensive review of the Summer Work Travel category, it is anticipated that the moratorium will be lifted.
Another comment opposed the increase and stated that the opposition was “due to the Department's failure to adequately demonstrate its best use of resources and lack of timely and knowledgeable response time to questions and application requests.” According to this commenter, the requirement to provide increased oversight of the Exchange Visitor Program over the last two years has diverted resources away from the administrative processing of stakeholder requests. The increase in fees is designed to facilitate the hiring of additional staff to manage the administrative workload in a timely fashion, increase the Office of Designation's efficiency and enhance the office's customer service. Five
Finally, one commenter opposed the fee structure and questioned whether applications for designation and redesignation undergo the same level of review. The commenting party also noted that both large and small sponsors are charged the same application fee, and suggested that the fee structure be based on program size. The Department recognizes that, in general, processing designation and redesignation applications does not require the same level of review. The Department also recognizes that there is an on-going relationship between the parties once a sponsor becomes designated. This relationship involves program monitoring, responding to sponsor inquiries, processing of requests whose costs are not recouped through administrative fees, and other activities, all of which must be funded.
Program size has minimal impact on the level of effort associated with processing redesignation applications, since the Office of Designation has to review and assess the same factors and the same documents.
The Department of State is of the opinion that the Exchange Visitor Program is a foreign affairs function of the U.S. Government and that rules implementing this function are exempt from section 553 (Rulemaking) and section 554 (Adjudications) of the Administrative Procedure Act (APA). The U.S. Government supervises programs that invite foreign nationals to come to the United States to participate in exchange visitor programs, either directly or through private sector program sponsors or grantees. When problems occur, the U.S. Government often has been, and likely will be, held accountable by foreign governments for the treatment of their nationals, regardless of who is responsible for the problems.
The purpose of this rulemaking is to set the fees that will fund services provided by the Exchange Visitor Program Office of Designation to more than 1,400 sponsor organizations and 300,000 Exchange Visitor Program participants. These services include oversight and compliance with program requirements, as well as the monitoring of programs to ensure the health, safety and well-being of foreign nationals entering the United States (many of these exchange programs and participants are funded by the U.S. Government) under the aegis of the Exchange Visitor Program and in furtherance of its foreign relations mission. The Department of State represents that failure to protect the health and well-being of these foreign nationals and their appropriate placement with reputable organizations will have direct and substantial adverse effects on the foreign affairs of the United States.
Although the Department is of the opinion that this rulemaking is exempt from the rulemaking provisions of the APA, the Department published this rulemaking as an NPRM and solicited comments, without prejudice to its determination that this rulemaking concerns a foreign affairs function of the Department.
As discussed above, the Department believes that this final rule is exempt from the provisions of 5 U.S.C. 553. This final rule is not subject to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601,
This rulemaking will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the provisions of Executive Order 13175 do not apply to this rulemaking.
Based on the criteria of 5 U.S.C. 804(2), the Department does not believe this rulemaking will have an annual effect on the economy of $100,000,000 or more. The Department estimates that approximately 60 government, academic and private sector programs apply for designation annually, and approximately 700 of the currently-designated sponsors apply for redesignation annually. Therefore, 760 organizations will be required to pay the application fee, which amounts to a total of $3,026,320, an increase of $974,320 from the current application fee of $2700 ($3,026,320-$2,052,000). This is the only monetary effect on the economy that the Department is able to identify.
A rule is also considered “major” if it will result in a major increase in costs or prices for consumers, individual industries, Federal, state or local government agencies, or geographic regions. The Department does not anticipate that this rule will have any effect at all on those categories. Finally, a rule is considered major if it will have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and foreign markets. The Department knows of no adverse effects, much less significant adverse effects, on any of those categories.
This rulemaking has been found not to be a major rule within the meaning of 5 U.S.C. 804.
As discussed above, the Department is of the opinion that the Exchange Visitor Program is a foreign affairs function of the United States Government and that rules governing the conduct of this function are generally exempt from the requirements of Executive Order 12866. However, the Department has nevertheless reviewed this final rule to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.
The Department has examined the economic benefits, costs, and transfers associated with this rule, and declares that educational and cultural exchanges are both cornerstones of U.S. public diplomacy and an integral component of U.S. foreign policy. The benefits of these exchanges to the United States and its people are invaluable and cannot be monetized; in the same way, even one exchange visitor having a bad experience or, worse, being mistreated, will result in embarrassment and incalculable harm to the foreign policy of the United States. Therefore, the Department is of the opinion that the benefits of this rulemaking outweigh its costs.
The Department has reviewed this rulemaking in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
This rulemaking will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.
The information collection requirements contained in this rulemaking are pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35 and OMB Control Number 1405-0147, expiring on November 30, 2013.
Cultural exchange program.
Accordingly, 22 CFR part 62 is amended as follows:
8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451 et seq.; Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, Div. G, 112 Stat. 2681 et seq.; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), Pub. L. 107-56, Sec. 416, 115 Stat. 354; and the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 107-173, 116 Stat. 543.
(a)
(b)
(1) For filing an application for program designation and/or redesignation (Form DS-3036)—$3,982.00.
(2) For filing an application for exchange visitor status changes (i.e., extension beyond the maximum duration, change of category, reinstatement, reinstatement-update SEVIS status, ECFMG sponsorship authorization, and permission to issue)—$367.00.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the draw of the State Highway Bridge across the Tuckahoe River, mile 8.0, between Corbin City and Upper Township, NJ. The deviation is necessary to facilitate mechanical repair work for excessive corrosion within working assemblies on the State Highway Bridge. This deviation allows the drawbridge to remain in the closed to navigation position during the deviation period.
This deviation is effective from May 14, 2013 to 7 a.m. on October 24, 2013.
The docket for this deviation, [USCG-2013-0308] is available at
If you have questions on this temporary deviation, call or email Mr. Jim Rousseau, Bridge Administration Branch Fifth District, Coast Guard; telephone 757-398-6557, email
The New Jersey Department of Transportation, who owns and operates this swing bridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.758, to facilitate emergency repair work on the structure.
Under the regular operating schedule, the State Highway Bridge, mile 8.0, between Corbin City and Upper Township, NJ shall open on signal if at least 24 hours notice is given. The State Highway Bridge has vertical clearance in the closed position of 8 feet above mean high water.
Under this temporary deviation, the drawbridge will be closed to navigation from May 14, 2013 to 7 a.m. on Thursday October 24, 2013. Emergency openings cannot be provided. There are no alternate routes for vessels transiting this section of the Tuckahoe River.
The Tuckahoe River in this area is used by small recreational vessels. There have been no documented navigational requests for openings in 28 years. The Coast Guard will inform users of the waterway through our Local and Broadcast Notice to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation. Mariners able to pass under the bridge in the closed position may do so at any time. Mariners are advised to proceed with caution.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Department of Veterans Affairs.
Final rule.
This document amends the Department of Veterans Affairs (VA) regulation authorizing tentative eligibility determinations to comply with amended statutory authority concerning minimum active-duty service requirements. This document also codifies in regulation statutory presumptions of medical care eligibility for veterans of certain wars and conflicts who developed psychosis within specified time periods and for Persian Gulf War veterans who developed a mental illness other than psychosis within 2 years after service and within 2 years after the end of the Persian Gulf War period.
This rule is effective June 13, 2013.
Kristin J. Cunningham, Director, Business Policy, Chief Business Office, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420; (202) 461-1599. (This is not a toll-free number.)
VA is revising 38 CFR 17.34(b) to allow for tentative eligibility determinations for persons who seek a tentative eligibility determination for VA health care based on a period of service that began after September 7, 1980 and meet the minimum service requirements in 38 U.S.C. 5303A, provided they have filed their application for VA health care within 6 months after the date of discharge under conditions other than dishonorable. We are also revising § 17.34(b) to remove the minimum active-duty period of 6 months for persons who seek a tentative eligibility determination based on a period of service that began on or before September 7, 1980.
We are also amending VA's regulation on the provision of care to non-enrolled veterans, 38 CFR 17.37, to include veterans with psychosis or mental illness other than psychosis. We are establishing a new § 17.109 that codifies for the first time in regulation the two presumptions of eligibility for medical care based on specific diagnoses in certain veteran populations, as set forth in 38 U.S.C. 1702(a). Finally, we are amending 38 CFR 17.108, 17.110, and 17.111 to clearly exempt from any copayment requirement persons eligible for care under proposed § 17.109.
VA proposed all of these amendments in a document published in the
One commenter requested clarification regarding the purpose of the regulation. The commenter suggested that VA intended the regulation to “put an end to `mental illness' claims by Gulf War Vets.”
In response, we assure the commenter that this rulemaking does not prevent Gulf War veterans, or any veterans, from filing VA benefit claims. The rulemaking facilitates an eligible veteran's ability to receive medical care for psychosis and mental illness other than psychosis. In the proposed rulemaking, we stated that “the Veterans Health Administration (VHA) may treat the covered disabilities as if they were service-connected for purposes of furnishing VHA benefits and, in turn, determine that no copayment is applicable to the receipt of such benefits.” By providing medical care to a veteran before VA determines that the veteran's psychosis or mental illness other than psychosis is service-connected, VA is ensuring that the veteran receives immediate medical treatment for such condition, without waiting for a determination of service-connection. The immediate medical treatment will, in turn, enable the veteran to manage his or her medical condition more effectively.
The commenter also asked whether VA “want[s] to use this regulation just for medical decisions.” The answer is that we do intend to use this regulation solely for VA medical care eligibility determinations. Tentative eligibility determinations have no effect on a determination of actual eligibility for VA medical care or any other VA benefit. We hope this explanation resolves the commenter's concerns, and we do not make any changes based on this comment.
Another commenter stated that the “entire rule should be [re]vised due to its ineffectiveness to service military personnel suffering from psychosis.” The commenter went on to state that the proposed rule did not consider four factors enumerated by the commenter. The first factor is that “having a mental illness is like having a disability.” The second factor is that “the six month rule is insane, no matter the time one serves this country should not be an issue.” The third factor is that “[t]he manner in which a person was discharged should not be relevant.” Lastly, the fourth factor provided by the commenter indicated that changes should start with addressing “the understaffed and unsanitary conditions of some of these facilities.” We discuss each of these factors below.
Regarding the commenter's first factor, VA currently rates a veteran's mental illness in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), and we recognize mental illness as a disability that can serve as the basis for an award of service-connection. See 38 CFR 4.130. In fact, this final rulemaking enables VA to provide prompt treatment of a veteran's psychosis or mental illness other than psychosis without waiting for a finding of service-connection. Providing such treatment will not hinder the process of determining whether the psychosis or mental illness is service-connected for VA purposes. In the proposed rulemaking we made clear that, in many cases, the condition for which the veteran seeks care is one for which service-connection will probably be established. The aim of this rulemaking is to make certain that veterans receive prompt treatment for psychosis or mental illness other than psychosis after discharge from service. We do not make any changes based on this comment.
The commenter's second concern is the requirement in § 17.34(b)(1) that a veteran who seeks eligibility based on service provided on or before September 7, 1980, must have served for a period of at least 6 months of active duty. Since its promulgation, VA's regulation governing tentative eligibility determinations included a 6-month minimum requirement. See 38 CFR 17.35 (1970). However, as explained in the proposed rule preamble, we proposed to amend § 17.34 to comply with the minimum service requirements contained in 38 U.S.C. 5303A, which apply to veterans who entered active duty after September 7, 1980. We now remove from § 17.34(b) the 6-month service requirement for veterans who seek eligibility for VA health care based on service provided on or before September 7, 1980, in consideration of the fact that very few, if any, veterans will be seeking tentative eligibility determinations within 6 months of discharge for a period of service that began over 32 years ago. The amount of time that a veteran, who entered active duty after September 7, 1980, must serve on active duty in order to be
Regarding the commenter's third factor, in reference to the “manner in which a person was discharged,” the proposed rulemaking stated that the veteran must have received an honorable discharge to qualify for tentative eligibility for VA health care. The term “veteran” is defined in 38 U.S.C. 101(2) as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” Before it was amended by this rulemaking, § 17.34(b) stated that tentative eligibility for VA health care may be authorized if “[t]he application was filed within 6 months after date of honorable discharge from a period of not less than 6 months of active duty.” Proposed § 17.34(b) retained use of the term “honorable discharge;” however, we agree with the commenter that this may be too restrictive. For example, a general discharge under honorable conditions technically is not the same as an “honorable” discharge, but it is a discharge that is “other than dishonorable.” To limit tentative eligibility to veterans with an “honorable discharge” would exclude some veterans with discharges that are not dishonorable and whose eligibility “probably will be established.” Therefore, to cover all veterans whose eligibility for VA health care probably will be established, we amend § 17.34(b) to state that the application for tentative eligibility for VA health care must be filed within 6 months after the date of discharge “under conditions other than dishonorable.” This amendment will also correctly reflect the requirement of the statutory definition of “veteran,” which, as previously stated in this rulemaking, requires that a person be discharged under conditions other than dishonorable. For applications for which tentative eligibility cannot be granted, VA will honor its duty to assist veterans in obtaining necessary documentation of proof of service or other documentation necessary to validate eligibility.
The commenter's last factor concerning “the understaffed and unsanitary conditions of some of these facilities” is beyond the scope of this rulemaking. We do not make any changes based on this comment.
Another commenter suggested that the “presumptive service be given for all veterans to whichever is later, the proposed changes or this . . . within two years of separation from active duty.” The commenter cited as an example that “if the presumptive service-connection was afforded two years after the veteran retired it would give the veteran time to come forward with their mental health issues after they have separated which is more likely the time they would report their symptoms.” The purpose and meaning of this comment is unclear.
We believe that the commenter's concern was that the tentative eligibility determination under § 17.34 should apply if a veteran submits an application within 2 years after discharge. The 6-month limitation for tentative eligibility determinations for VA health care is to afford medical assistance to veterans immediately after discharge but before they have had sufficient time to file a claim to establish eligibility as is generally required. If the veteran's psychosis is not manifested immediately after discharge, but develops within 2 years after discharge from active duty, the veteran may be eligible for treatment under new § 17.109, which codifies the statutory presumptions of eligibility established by Congress at 38 U.S.C. 1702. The 2-year time period to be eligible to receive medical care under 38 U.S.C. 1702 recognizes that psychosis may take some time to fully manifest itself. We do not make any changes based on this comment.
A commenter supported the rulemaking and believes that it “will bring about needed changes to [the] VA healthcare system.” The commenter also stated that “I do, however, like that there is no minimum service requirement for length of active-duty in order to qualify for these benefits.” The commenter's statement regarding no minimum active duty service requirement to qualify for benefits is correct as it applies to § 17.109. However, as previously stated in this final rulemaking, 38 U.S.C. 5303A establishes a minimum active duty period for tentative eligibility determinations, as stated in § 17.34(b).
This same commenter, along with a second commenter, was concerned with the 2-year time limit in § 17.109 for the development of psychosis following discharge to establish a presumptive eligibility. The first commenter stated that the “patients would have needed to develop psychosis within 2 years of discharge or after the war/conflict. My problem with this provision is that illnesses that stem from a traumatic event, such as psychosis, can develop later in life.” This first commenter further stated that psychosis does not follow a calendar. The second commenter stated that “[d]espite all the advances in diagnosing and treating mental illnesses, the field is still not precise in diagnosis.” This second commenter further stated that the diagnosis of a mental condition can be subjective, because “there isn't always objective empirical evidence.” Both commenters concluded that, to address their concerns, VA should extend the 2-year time limit. However, Congress established the 2-year period at 38 U.S.C. 1702. As previously noted, VA cannot amend a statutory period through regulation. Therefore, we do not make any changes based on these comments.
Another commenter stated that VA needs to “house and care for basic human conditions, including comprehensive medical and psychiatric care.” The commenter suggested that this care could be accomplished with comprehensive advanced registered nurse practitioners who work “in the community where these veterans live.” We appreciate the commenter taking the time to comment on the rulemaking, however, we believe that the specific mechanisms for providing care to veterans who are in need of medical and psychiatric care are beyond the scope of this rulemaking. We do not make any changes based on this comment.
Finally, one commenter observed an increasing need for mental health care for veterans. The commenter stated that, although the “proposed rule would not solve the critical issue of veterans[']
Based on the rationale set forth in the Supplementary Information to the proposed rule and in this final rule, VA is adopting the proposed rule as a final rule with the change mentioned above.
Title 38 of the Code of Federal Regulations, as revised by this rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.
This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance program numbers and titles for the programs affected by this document are: 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.013, Veterans Prosthetic Appliances; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jose D. Riojas, Interim Chief of Staff, Department of Veterans Affairs, approved this document on May 3, 2013, for publication.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
For the reasons stated in this rulemaking, the Department of Veterans Affairs amends 38 CFR part 17 as set forth below:
38 U.S.C. 501, and as noted in specific sections.
(b)
(38 U.S.C. 501, 5303A)
(k) A veteran may receive care for psychosis or mental illness other than psychosis pursuant to 38 CFR 17.109.
(d) * * *
(12) A veteran receiving care for psychosis or a mental illness other than psychosis pursuant to § 17.109.
(a)
(1) Within 2 years after discharge or release from the active military, naval, or air service; and
(2) Before the following date associated with the war or conflict in which he or she served:
(i) World War II: July 26, 1949.
(ii) Korean conflict: February 1, 1957.
(iii) Vietnam era: May 8, 1977.
(iv) Persian Gulf War: The end of the 2-year period beginning on the last day of the Persian Gulf War.
(b)
(1) Within 2 years after discharge or release from the active military, naval, or air service; and
(2) Before the end of the 2-year period beginning on the last day of the Persian Gulf War.
(c)
(38 U.S.C. 501, 1702, 5303A)
(c) * * *
(10) A veteran receiving care for psychosis or a mental illness other than psychosis pursuant to § 17.109.
(f) * * *
(9) A veteran receiving care for psychosis or a mental illness other than psychosis pursuant to § 17.109.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving a request submitted by the Indiana Department of Environmental Management (IDEM) on April 15, 2011, and supplemented on January 30, 2013, to revise the Indiana state implementation plan (SIP) for nitrogen dioxide (NO
This direct final rule will be effective July 15, 2013, unless EPA receives adverse comments by June 13, 2013. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Nos. EPA-R05-OAR-2011-0406, EPA-R05-OAR-2013-0083 by one of the following methods:
1.
2.
3.
4.
5.
Charles Hatten, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6031,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
Indiana's April 15, 2011, submittal, supplemented on January 30, 2013, revises its existing IAC to be consistent with the Federal primary and secondary NAAQS for NO
Public hearings for the NO
On February 9, 2010, revisions to the NO
On June 22, 2010, revisions to the SO
The State has requested that EPA approve the following SIP revision to reflect EPA's revised primary and secondary SO
A. Rule 326 IAC 1-3-4(b)(1), Ambient air quality standards for “Sulfur oxides as (SO
EPA is approving revisions to the Indiana SIP to amend and update 326 IAC 1-3-4 to include the NAAQS for NO
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 15, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Lead, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces an adjustment to the start of the annual closure of the shrimp fishery in the exclusive economic zone (EEZ) off Texas. The closure is normally from May 15 to July 15 each year. For 2013, the closure will begin on May 23. The Texas closure is intended to prohibit the harvest of brown shrimp during the major period of emigration of these shrimp from Texas estuaries to the Gulf of Mexico (Gulf) so the shrimp may reach a larger, more valuable size and to prevent the waste of brown shrimp that would be discarded in fishing operations because of their small size.
Effective 30 minutes after sunset, May 23, 2013, to 30 minutes after sunset, July 15, 2013, unless the latter date is changed through notification in the
Steve Branstetter, telephone: 727-824-5305, email:
The Gulf shrimp fishery is managed under the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented by regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations at 50 CFR 622.55(a) describe the Texas closure and provide for adjustments to the start and end dates by the Regional Administrator, Southeast Region, NMFS, (RA) under specified criteria.
The Texas closure in Federal waters is set to coincide with the Texas closure in state waters, after a determination has been made by Texas Parks and Wildlife Department (TPWD) of the start date of the closure. The start and end dates of the Texas closure are based on biological sampling by TPWD. This sampling is used to project when brown shrimp in Texas bays and estuaries will reach a mean size of 3.54 in (90 mm), and begin strong emigrations out of the bays and estuaries during maximum duration ebb tides. Sampling during the spring of 2013 indicates that brown shrimp will be leaving the Texas estuaries later than normal. Thus, state waters off Texas will close starting 30 minutes after sunset on May 23, 2013. NMFS, therefore, will also close Federal waters off Texas starting 30 minutes after sunset on May 23, 2013. NMFS is adjusting the closure date to maximize fishing opportunities in Federal waters to shrimp trawling. During the closure, the EEZ off Texas is closed to all trawl fishing, except for vessels trawling for royal red shrimp beyond the 100-fathom (183-m) depth contour.
The end date of the Texas closure is based on continued sampling by TPWD to develop projections of when brown shrimp will reach a mean size of 4.41 in (112 mm), and when maximum duration ebb tides will occur. If there is a need to adjust the July 15 date for the end of the closure, notification of the revised end date will be published in the
The RA has determined this temporary rule is necessary for the conservation and management of the Gulf shrimp fishery and is consistent with the Magnuson-Stevens Act, the FMP, and other applicable laws.
This action is taken under 50 CFR 622.55(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.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule. Such procedures are unnecessary because regulations to adjust the start date of the annual closure of the shrimp fishery in the EEZ off Texas, located at 50 CFR 622.55(a), have already been subject to notice and comment and authorize the RA to adjust the closing and/or opening date of the Texas closure by filing a notification with the Office of the Federal Register. All that remains is to notify the public of the adjusted closing date of the Texas closure for Gulf shrimp for the 2013 fishing year.
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
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would increase the assessment rate established for the California Desert Grape Administrative Committee (Committee) for the 2013 and subsequent fiscal periods from $0.0150 to $0.0165 per 18-pound lug of grapes handled. The Committee locally administers the marketing order that regulates the handling of grapes grown in a designated area of southeastern California. Assessments upon grape handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins January 1 and ends December 31. The assessment rate would remain in effect indefinitely unless modified, suspended or terminated.
Comments must be received by May 29, 2013.
Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Kathie M. Notoro, Marketing Specialist, or Martin Engeler, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This proposed rule is issued under Marketing Order No. 925, as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, grape handlers in a designated area of southeastern California are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable grapes beginning on January 1, 2013, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule would increase the assessment rate established for the Committee for the 2013 and subsequent fiscal periods from $0.0150 to $0.0165 per 18-pound lug of grapes.
The grape order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of grapes grown in a designated area of southeastern California. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2012 and subsequent fiscal periods, the Committee recommended, and the USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA based upon a recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on March 4, 2013, and unanimously recommended 2013 expenditures of $100,000 and an assessment rate of $0.0165 per 18-pound lug of grapes handled. In comparison, last year's budgeted expenditures were $95,500. The assessment rate of $0.0165 is $0.0015 higher than the $0.0150 rate currently in effect. The Committee also estimated shipments for the 2013 season to be 5,800,000 lugs. The higher assessment rate, applied to estimated
The major expenditures recommended by the Committee for the 2013 fiscal period include $15,500 for research, $17,000 for general office expenses, and $67,500 for management and compliance expenses. In comparison, major expenditures for the 2012 fiscal period included $15,500 for research, $17,500 for general office expenses, and $62,500 for management and compliance expenses.
The assessment rate recommended by the Committee was derived by evaluating several factors, including estimated shipments for the 2013 season, budgeted expenses, and the level of available financial reserves. The Committee determined that it could utilize $4,300 from its financial reserves and still maintain the reserves at an acceptable level. The remaining $95,700 necessary to meet budgeted expenses would need to be raised through assessments. Thus, dividing the $95,700 in necessary assessment revenue by 2013 estimated shipments of 5,800,000 lugs results in an assessment rate of $0.0165.
Reserve funds by the end of 2013 are projected at $53,972, which is well within the amount authorized under the order. Section 925.41 of the order permits the Committee to maintain approximately one fiscal period's expenses in reserve.
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA based upon a recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate the Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2013 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 14 handlers of southeastern California grapes who are subject to regulation under the order and about 41 grape producers in the production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000. Nine of the 14 handlers subject to regulation have annual grape sales of less than $7,000,000, according to Committee and USDA data. In addition, it is estimated that ten of the 41 producers have annual receipts of less than $750,000. Based on the foregoing, it may be concluded that a majority of grape handlers regulated under the order, and about 10 of the producers could be classified as small entities under the Small Business Administration definitions.
This proposal would increase the assessment rate established for the Committee and collected from handlers for the 2013 and subsequent fiscal periods. The Committee unanimously recommended an assessment rate of $0.0165 per 18-pound lug of grapes handled, and 2013 expenditures of $100,000. The proposed assessment rate of $0.0165 is $0.0015 higher than the 2012 rate currently in effect. The quantity of assessable grapes for the 2013 season is estimated at 5,800,000 18-pound lugs. Thus, the $0.0165 rate should generate $95,700 in income. Combined with $4,300 from financial reserves, this should provide adequate revenue to meet the 2013 fiscal period expenses. In addition, reserve funds at the end of the year are projected to be $53,972, which is well within the order's limitation of approximately one fiscal period's expenses.
The major expenditures recommended by the Committee for the 2013 fiscal period include $15,500 for research, $17,000 for general office expenses, and $67,500 for management and compliance expenses. In comparison, major expenditures for the 2012 fiscal period included $15,500 for research, $17,500 for general office expenses, and $62,500 for management and compliance expenses.
Prior to arriving at this budget, the Committee considered alternative expenditures and assessment rates, including not increasing the $0.0150 assessment rate currently in effect. Based on a crop estimate of 5,800,000 18-pound lugs, the Committee ultimately determined that revenue generated from an assessment rate of $0.0165, combined with funds from the financial reserve, would adequately cover increased expenses while providing an adequate 2013 ending reserve.
A review of historical crop and price information, as well as preliminary information pertaining to the upcoming fiscal period indicates that the producer price for the 2013 season could average about $8.00 per 18-pound lug of grapes handled for Southeastern California grapes. Utilizing this estimate and the proposed assessment rate of $0.0165, estimated assessment revenue as a percentage of total estimated producer revenue would be 0.20 percent for the 2013 season ($0.0165 divided by $8.00 per 18-pound lug). Thus, the assessment revenue should be well below 1 percent of estimated producer revenue in 2013.
This proposal would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the order. In addition, the Committee's meeting was widely publicized throughout the grape production area and all interested persons were invited to attend and participate in Committee deliberations on all issues. Like all Committee meetings, the March 4, 2013, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C.
This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large California grape handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreement and orders may be viewed at:
A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2013 fiscal period began on January 1, 2013, and the order requires that the rate of assessment for each fiscal period apply to all assessable grapes handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.
Grapes, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 925 is proposed to be amended as follows:
7 U.S.C. 601-674.
On and after January 1, 2013, an assessment rate of $0.0165 per 18-pound lug is established for grapes grown in a designated area of southeastern California.
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule invites comments on revisions to the determination of sales history provisions currently prescribed under the cranberry marketing order (order). The order regulates the handling of cranberries grown in Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York, and is administered locally by the Cranberry Marketing Committee (Committee). This change would modify sales history calculations so that they would be applicable for future seasons and would adjust the number of years that could be considered when determining the highest four years of past sales.
Comments must be received by June 13, 2013.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Doris Jamieson, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or Email:
Small businesses may request information on complying with this proposed regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This proposed rule is issued under Marketing Agreement and Order No. 929, as amended (7 CFR part 929), regulating the handling of cranberries produced in Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Order 12866.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before
This proposal invites comments on revisions to the rules and regulations pertaining to the determination of grower sales history currently prescribed under the order. This change would modify sales history calculations so that they would be applicable for future seasons and would adjust the number of years that could be considered when determining the highest four years of past sales. These changes were unanimously recommended by the Committee at a meeting on February 20, 2012.
The order provides authority for volume control in the form of a grower allotment program. This program provides a method for limiting the quantity of cranberries that handlers may purchase or handle on behalf of growers in years of oversupply. Under this program, a marketable quantity and allotment percentage are established by the Committee. Each grower's sales history is calculated by averaging recent years' sales data using information submitted by the grower on a production and eligibility report filed with the Committee. If volume control regulations are to be implemented, each grower's allotment is then calculated by multiplying the allotment percentage by the grower's sales history.
Section 929.48 of the order prescribes provisions for computing grower sales history. These provisions include a requirement that a new sales history be calculated for each grower after each crop year, using the formula established in § 929.48(a) or such other formula as determined by the Committee, with the approval of the Secretary. Section 929.149 provides another formula for calculating grower sales history, which includes provisions for additional sales history to make calculations more equitable for growers with new acreage. The calculations in this section are currently based on, and specifically reference, the six years immediately preceding the last year volume regulation was in effect, 2001-02, making them applicable for only the one season. This section also specifies that sales history can be calculated using the average of the highest four of the most recent seven years of sales for acreage with seven or more years of sales history.
In an effort to update the regulations pertaining to the calculation of grower sales history, the Committee recommended two changes to § 929.149. The first change would remove the outdated references to specific years used in calculating sales history. The second change would reduce the maximum number of years of sales that could be used to determine the highest four years of sales from seven years to six years.
The formula for determining sales history in § 929.149 was developed specifically for the implementation of volume regulation during the 2001-02 season, the last time volume regulation was used under the order. The Committee developed the formula to address potential inequities that could result when calculating sales history, especially in regards to new acreage. Because a cranberry bog does not reach full production capacity until several years after being planted, using an average of early sales for bogs which have not reached maturity could result in a sales history that does not reflect future sales potential. Because calculated sales history impacts the amount of allotment received under volume regulation, it is important that the calculated sales history is as representative of grower sales as possible.
Therefore, in 2001 the Committee created a formula to determine an amount of additional sales history per acre to be applied to acreage planted in 1995, 1996, 1997, 1998, 1999, and 2000. To help establish the additional amount of sales volume to be provided for new acreage, the Committee and USDA conducted surveys to determine average yields on new acreage over the first five years of production. Recognizing that the averages may not be reflective of all growers, the averages were adjusted upward by 25 barrels and were used to calculate the numbers for additional sales history provided in Table 1 in § 929.149 for bogs planted from 1995 through 2000.
At its February 20, 2012, meeting, the Committee discussed the volume regulation provisions in the order's rules and regulations and how these provisions may need to be updated for upcoming seasons in the event volume regulation is implemented. The Committee reviewed § 929.149 and how it calculates sales history and agreed that the adjustments for additional sales history were still important in establishing equity for new acreage.
Recognizing the specific dates currently in § 929.149 are not applicable for future seasons, the Committee recommended revising this section to remove the date-specific language so that it would be applicable to each individual season. Rather than referring to acreage planted in the years 1995 through 2000, the proposed amendment would refer to acreage planted between one and six years prior to the current season. With this change, § 929.149 would be applicable to the calculation of grower sales history for any season, making the additional sales history adjustment available to growers with new acreage.
In regards to the specific amounts of additional sales history per acre provided for new acreage in Table 1 in § 929.149, the Committee recommended no change. While the amounts were based on production data collected in 2000, the majority of cranberry production still comes from the same variety as in 2000, as do the majority of new plantings. Further, with the average yields used to calculate the amounts increased by 25 barrels, the calculated yields used to develop the additional sales history should still be reflective of the average yields for new acreage. Therefore, the current amounts of additional sales history to be applied per acre for new or re-planted cranberry acreage would remain unchanged by this proposed rule.
The Committee also discussed the time period that should be used to determine a grower's highest four years of sales when calculating sales history. Section 929.149 currently uses the average of the highest four of the most recent seven years of sales for acreage with seven or more years of sales history. The formula in § 929.48 calculates sales history using the average of the highest four of the most recent six years of sales. The additional year provided for in § 929.149 was to compensate growers for possible lower sales numbers stemming from volume regulation in 2000-01, so that grower sales history would be more reflective of their typical sales. Committee members agreed that since volume regulation has not been implemented for more than six years, the additional year is no longer needed, and that the most recent six years of sales data would be adequate for determining a grower's highest four years of sales.
Therefore, this proposed rule would revise § 929.149 to remove the outdated references to specific years so that its provisions could be utilized to calculate a grower's sales history for all future seasons. The proposed rule would also reduce the time period used to determine the highest four years of sales from seven years to six years.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 55 handlers of cranberries who are subject to regulation under the marketing order and approximately 1,200 cranberry producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
Based on Committee data and information from the National Agricultural Statistics Service, the average annual f.o.b. price of cranberries during the 2011 season was approximately $43.90 per barrel and total shipments were approximately 7.5 million barrels. Using the average f.o.b. price and shipment data, the majority of cranberry handlers could be considered small businesses under SBA's definition. In addition, based on production, producer prices, and the total number of cranberry growers, the average grower revenue is less than $750,000. Therefore, the majority of growers and handlers of cranberries may be considered small entities.
This proposal would revise the rules and regulations pertaining to the determination of sales history currently prescribed under the order in § 929.149. This change would update sales history calculations so that they would be applicable for future seasons and would adjust the number of years that could be considered when determining the highest four years of past sales. These changes were unanimously recommended by the Committee at a meeting on February 20, 2012. Authority for these changes is provided in § 929.48 of the order.
It is not anticipated that this action would impose any additional costs on the industry. Each year, the Committee is required to calculate a sales history for each grower. This rule would update § 929.149 making its provisions for calculating grower sales history applicable to any season. Reducing the number of seasons that can be considered when determining the highest four years of sales from seven years to six years in this section, could result in a slightly lower average for the highest four years. However, as this change makes this section reflect the calculation currently used by the industry for the highest four, and given that a grower allotment volume regulation has not been implemented in more than ten years, the effects of this change should be minimal.
Further, the provisions in § 929.149 were developed to make the calculations of sales history more equitable for growers with new acreage. Because a cranberry bog does not reach full production capacity until several years after being planted, using an average of early sales for bogs which have not reached maturity could result in sales histories that do not reflect future sales potential. As calculated sales history impacts the amount of allotment received under volume regulation, it is important that the calculated sales history is as representative of grower sales as possible. Revising the calculations in § 929.149 could actually increase the calculated amount of sales history for new acreage, which in turn would provide the grower with additional allotment should volume regulation be implemented. The benefits of this rule are not expected to be disproportionately greater or less for small handlers or growers than for large entities.
The Committee considered one alternative to these changes: making no change to the rules and regulations pertaining to the determination of sales history. The Committee recognized making no revisions to the way sales history is calculated under § 929.149 could mean new acreage not yet producing at full capacity could receive sales history below their potential average. Therefore, this alternative was rejected.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This action would not impose any additional reporting or recordkeeping requirements on either small or large cranberry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule.
Further, the Committee's meeting was widely publicized throughout the cranberry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the February 20, 2012, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate so this rule would be in place prior to August, when the Committee is planning its next industry meeting. At this meeting, the Committee members would need to know how sales history would be calculated for any discussions they may have regarding producer allotment volume regulation. All written comments timely received will be considered before a final determination is made on this matter.
Cranberries, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 929 is proposed to be amended as follows:
7 U.S.C. 601-674.
(a) For each grower with acreage with 6 or more years of sales history, a new sales history shall be computed using an average of the highest 4 of the most recent 6 years of sales. If the grower has acreage with 5 years of sales history and such acreage was planted more than 6 years ago, a new sales history shall be computed by averaging the highest 4 of the 5 years.
(b) For growers whose acreage has 5 years of sales history and was planted 6 years ago or later, the sales history shall be computed by averaging the highest 4 of the 5 years and shall be adjusted as provided in paragraph (d). * * *
(c) For growers with acreage with no sales history or for the first harvest of re-planted acres, the sales history will be 75 barrels per acre for acres planted or re-planted 1 year ago and first harvested in the current crop year and 156 barrels per acre for acres planted or re-planted 2 years ago and first harvested in the current crop year.
(d) In addition to the sales history computed in accordance with paragraphs (a) and (b) of this section, additional sales history shall be assigned to growers with acreage planted in the last 6 years. The additional sales histories depending on the date the acreage is planted are shown in Table 1.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain Airbus Model A318-111 and -112 airplanes, Model A319 series airplanes, Model A320 series airplanes, and Model A321 series airplanes. The existing AD currently requires repetitive inspections of the 80VU rack lower lateral fittings for damage; repetitive inspections of the 80VU rack lower central support for cracking; and corrective action if necessary. That existing AD also specifies optional terminating action for the repetitive inspections. Since we issued that AD, we have received reports of worn lower lateral fittings of the 80VU rack. This proposed AD would reduce the inspection compliance time, add an inspection of the upper fittings and shelves of the 80VU rack, and add airplanes to the applicability. We are proposing this AD to detect and correct damage or cracking of the 80VU fittings and supports, which could lead to possible disconnection of the cable harnesses to one or more computers and, if occurring during a critical phase of flight, could result in reduced control of the airplane.
We must receive comments on this proposed AD by June 28, 2013.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone (425) 227 1405; fax (425) 227-1149.
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
On November 15, 2010, we issued AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010), the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012-0134, dated July 18, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Damage to the lower lateral fittings of the 80VU rack, typically elongated holes, migrated bushes, and/or missing bolts have been reported on in-service aeroplanes. The 80VU rack contains computers for flight controls, communication and radio-navigation. In addition, damage to the lower central support fitting (including cracking) has been reported.
Failure of the 80VU fittings, in combination with a high load factor or strong vibration, could lead to failure of the rack structure and/or computers or rupture/disconnection of the cable harnesses to one or more computers located in the 80VU rack. Even though the computer functions are duplicated across other racks, multiple system failures or (partial) disconnection of systems, if occurring during a critical phase of flight, could result in reduced control of the aeroplane.
To address this potential unsafe condition, EASA issued AD 2007-0276 to require repetitive inspections of the lower lateral 80VU fittings and the lower central 80VU support and, depending on findings, the accomplishment of corrective actions. [EASA] AD 2007-0276 was revised to introduce a reinforced lower central support as an optional terminating action for the repetitive inspections.
Since issuance of EASA AD 2007-0276R1 [which corresponds to FAA AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010)], and prompted by in-service experience, the previous inspection programme has been reassessed. New conditions of inspection for a new finding on the lower central fitting attachment (crack in the lower of the lateral flanges), and a new visual inspection of the upper fittings and shelves of the 80VU are introduced by this inspection programme. In addition, the replacement of a cracked lateral fitting or central support with a lateral fitting or central support having the same part number is no longer preferable as corrective action. Instead, the installation of the reinforced lower central support is now defined as optional terminating action for the repetitive inspections required by this [EASA] AD.
For the reasons described above, this [EASA] AD supersedes EASA AD 2007-0276R1 and requires implementation of an amended inspection programme with a reduced inspection threshold.
This proposed AD would add airplanes to the applicability including Model A318-121 and -122 airplanes. Existing AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010), exempted airplanes on which Airbus Modification 34804 has been embodied in production or on which Airbus Service Bulletins A320-25-1557 and A320-53-1215 have been done in service. This AD exempts those airplanes from the restated paragraphs of AD 2010-24-07, which are paragraphs (g) and (i) of this proposed AD. You may obtain further information by examining the MCAI in the AD docket.
Compliance times for the corrective actions specified in paragraph (m) of this proposed AD range from before further flight to within 4,500 flight cycles, depending on the condition found during the inspection required by paragraph (l) of this proposed AD.
Airbus has issued Mandatory Service Bulletin A320-25A1555, including Appendix 01, Revision 03, dated February 28, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD differs from the MCAI and/or service information as follows:
• Although the MCAI or service information allows further flight after cracks are found during compliance with the required action, this AD requires that you do a corrective action before further flight.
• Although Airbus Mandatory Service Bulletin A320-25A1555, including Appendix 01, Revision 03, dated February 28, 2012, specifies to contact the manufacturer for instructions to repair certain conditions when certain kits are available, this proposed AD would require contacting the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, for instructions when those kits are available and doing the repairs.
Based on the service information, we estimate that this proposed AD would affect about 755 products of U.S. registry.
The actions that are required by AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010), and retained in this proposed AD, take about 82 work-hours per product, at an average labor rate of $85 per work hour. Required parts cost about $2,592 per product. Based on these figures, the estimated cost of the currently required actions is $9,562 per product.
We estimate that it would take about 5 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Where the service information lists 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 $320,875, or $425 per product.
In addition, we estimate that any necessary follow-on actions would take about 189 work-hours and require parts costing $7,047, for a cost of $23,112 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. 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 June 28, 2013.
This AD supersedes AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010).
This AD applies to Airbus Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111, -211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes; certificated in any category; all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 25, Equipment/Furnishings, and Code 53, Fuselage.
This AD was prompted by reports of worn lower lateral fittings of the 80VU rack. We are issuing this AD to detect and correct damage or cracking of the 80VU fittings and supports, which could lead to possible disconnection of the cable harnesses to one or more computers, and if occurring during a critical phase of flight, could result in reduced control of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
This paragraph restates the requirements of paragraph (g) of AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010). Except for Model A318-121 and -122 airplanes, and except for airplanes on which Airbus Modification 34804 has been embodied in production or on which Airbus Service Bulletins A320-25-1557 and A320-53-1215 have been done in service, prior to the accumulation of 24,000 total flight cycles, or within 500 flight cycles after January 11, 2011 (the effective date of AD 2010-24-07), whichever occurs later: Do a special detailed inspection of the 80VU rack lower lateral fittings for damage (e.g., broken fitting, missing bolts, migrated bushings, material burr, or rack in contact with the fitting) of the 80VU rack lower lateral fittings, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, Revision 02, dated November 5, 2008. Repeat the inspection thereafter at the interval specified in paragraph (g)(1) or (g)(2) of this AD, as applicable. Modifying the 80VU lower lateral fittings, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-25-1557, Revision 02, dated November 5, 2008, terminates the inspection requirements of this paragraph. Doing the initial inspection specified in paragraph (l) of this AD terminates the requirements of this paragraph.
(1) For airplanes on which the 80VU rack lower lateral fittings have not been replaced in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, Revision 02, dated November 5, 2008: Repeat the inspection thereafter at intervals not to exceed 4,500 flight cycles.
(2) For airplanes on which the 80VU rack lower lateral fittings have been replaced in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, Revision 02, dated November 5, 2008: Do the next inspection within 24,000 flight cycles after doing the replacement and repeat the inspection thereafter at intervals not to exceed 4,500 flight cycles.
This paragraph restates the requirements of paragraph (h) of AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010), with new corrective actions. If any damage is found during any inspection required by paragraph (g) of this AD, do all applicable corrective actions (inspection and/or repair), in accordance with the Accomplishment Instructions and timeframes in Airbus Mandatory Service Bulletin A320-25A1555, Revision 02, dated November 5, 2008; or in accordance with and at the time specified in paragraph (q) of this AD. As of the effective date of this AD, if any damage is found, do all applicable corrective actions in accordance with and at the times specified in paragraph (q) of this AD.
This paragraph restates the requirements of paragraph (i) of AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010). Except for airplanes on which Airbus Modification 34804 has been embodied in production or on which Airbus Service Bulletins A320-25-1557 and A320-53-1215 have been done in service, prior to the accumulation of 24,000 total flight cycles, or within 500 flight cycles January 11, 2011 (the effective date of AD 2010-24-07), whichever occurs later: Do a special detailed inspection of the 80VU rack lower central support for cracking, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555,
(1) For airplanes on which the 80VU rack lower central support has not been repaired or replaced using Airbus Mandatory Service Bulletin A320-25A1555 or Airbus Service Bulletin A320-25-1557: Repeat the inspection thereafter at the interval specified in paragraph (i)(1)(i) or (i)(1)(ii) of this AD, as applicable.
(i) For airplanes on which the lower central support has accumulated 30,000 total flight cycles or more: At intervals not to exceed 500 flight cycles.
(ii) For airplanes on which the lower central support has accumulated fewer than 30,000 total flight cycles: At intervals not to exceed 4,500 flight cycles, without exceeding 30,750 total flight cycles on the support for the first repetitive inspection.
(2) For airplanes on which the 80VU rack lower central support has been repaired or replaced using Airbus Mandatory Service Bulletin A320-25A1555 or Airbus Service Bulletin A320-25-1557: Do the next inspection within 24,000 flight cycles after the repair or replacement and thereafter repeat the inspection at the interval specified in paragraph (i)(1)(i) or (i)(1)(ii) of this AD, as applicable.
This paragraph restates the requirements of paragraph (j) of AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010). If any crack is found during any inspection required by paragraph (i) of this AD: Before further flight, replace the pyramid fitting on the 80VU rack with a new, reinforced fitting, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1215, dated November 5, 2008. Doing this replacement terminates the inspection requirements of paragraph (i) of this AD.
This paragraph restates the requirements of paragraph (k) of AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010). Doing the actions specified in paragraphs (k)(1) and (k)(2) of this AD terminates the repetitive inspections required by this AD.
(1) Replacing the pyramid fitting on the 80VU rack with a new, reinforced fitting, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1215, dated November 5, 2008.
(2) Modifying the 80VU lower lateral fittings, in accordance with Airbus Service Bulletin A320-25-1557, Revision 02, dated November 5, 2008.
Except for airplanes on which Airbus Modification 34804 has been embodied in production, or on which the 80VU rack lower lateral support has been modified, as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25-1557, dated June 14, 2007; Revision 01, dated February 7, 2008; or Revision 02, dated November 5, 2008: At the latest of the applicable times specified in paragraphs (l)(1) through (l)(4) of this AD, do a special detailed (borescope) inspection of the 80VU rack lower lateral fittings for damage (e.g., broken fitting, missing bolts, migrated bushings, material burr, or rack in contact with the fitting) of the 80VU rack lower lateral fittings, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, Revision 03, dated February 28, 2012. Repeat the inspection thereafter at intervals not to exceed 500 flight cycles until the terminating action specified in paragraph (k) of this AD is done. Doing the initial inspection specified in this paragraph terminates the requirements of paragraph (g) of this AD.
(1) Before the accumulation of 20,000 total flight cycles from the airplane first flight, or within 750 flight cycles after the effective date of this AD, whichever occurs later, without exceeding 24,000 total flight cycles.
(2) Within 20,000 flight cycles after the most recent repair or replacement of the 80VU rack lower lateral fittings was done, as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, dated June 24, 2007; Revision 01, dated February 18, 2008; or Revision 02, dated November 5, 2008.
(3) Within 500 flight cycles after the effective date of this AD, without exceeding 4,500 flight cycles after the most recent inspection of the 80VU rack lower lateral fittings was done, as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, dated June 14, 2007; Revision 01, dated February 18, 2008; or Revision 02, dated November 5, 2008.
(4) Within 500 flight cycles after the effective date of this AD.
If any damage is found during any inspection required by paragraph (l) of this AD: At the applicable time given in paragraph E. (2), “Accomplishment Timescale,” in Airbus Mandatory Service Bulletin A320-25A1555, Revision 03, dated February 28, 2012, accomplish the applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, Revision 03, dated February 28, 2012; except where this service information specifies to contact Airbus for further instructions, before further flight contact either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent) for instructions; and do those instructions.
Except for airplanes on which Airbus Modification 34804 has been embodied in production, or on which the 80VU rack lower central support has been modified, as specified in the Accomplishment Instructions of Airbus Service Bulletin A320-53-1215, dated November 5, 2008: At the latest of the applicable times specified in paragraphs (n)(1) through (n)(6) of this AD, do a special detailed (borescope) inspection of the 80VU rack lower central support for cracking, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, Revision 03, dated February 28, 2012. Repeat the inspection thereafter at intervals not to exceed 500 flight cycles until the terminating action specified in paragraph (k) of this AD is done. Doing the initial inspection specified in this paragraph terminates the requirements of paragraph (i) of this AD.
(1) Before the accumulation of 20,000 total flight cycles from the airplane first flight, or within 750 flight cycles after the effective date of this AD, whichever occurs later, without exceeding 24,000 total flight cycles.
(2) Within 20,000 flight cycles after the most recent repair or replacement of the 80VU rack lower central support was done, as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, dated June 14, 2007; Revision 01, dated February 18, 2008; or Revision 02, dated November 5, 2008.
(3) Within 20,000 flight cycles after modification of the 80VU rack lower central support was done, as specified in the Accomplishment Instructions of Airbus Service Bulletin A320-25-1557, dated June 14, 2007; or Revision 01, dated February 07, 2008.
(4) For airplanes on which, as of the effective date of this AD, the 80VU rack lower central support has accumulated fewer than 30,000 total flight cycles: Within 500 flight cycles after the effective date of this AD, without exceeding 4,500 flight cycles after the most recent inspection of the 80VU rack lower central support was done, as specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, dated June 24, 2007; Revision 01, dated February 18, 2008; or Revision 02, dated November 5, 2008.
(5) For airplanes on which, as of the effective date of this AD, the 80VU rack lower central support has accumulated 30,000 total flight cycles or more: Within 500 flight cycles after the most recent inspection of the 80VU rack lower central support was done, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, dated June 14, 2007; Revision 01, dated February 18, 2008; or Revision 02, dated November 5, 2008.
(6) Within 500 flight cycles after the effective date of this AD.
If any cracking is found during any inspection required by paragraph (n) of this AD: Before further flight do the actions in paragraph (o)(1) or (o)(2) of this AD.
(1) If kits 25A1555A01 thru A05 are available, contact the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA for instructions, and do the repair.
(2) Do the actions specified in paragraph (k)(1) and (k)(2) of this AD.
Concurrently with each special detailed inspection required by paragraphs (m) and (o) of this AD: Do a general visual inspection for damage (cracking or deformation) of the upper fittings and shelves of the 80VU rack, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, Revision 03, dated February 28, 2012. If any damage is found: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA (or its delegated agent).
For airplanes that have been inspected before the effective date of this AD as specified in Airbus Service Bulletin A320-25A1555, dated June 14, 2007; Airbus Mandatory Service Bulletin A320-25A1555, Revision 01, dated February 18, 2008; or Airbus Mandatory Service Bulletin A320-25A1555, Revision 02, dated November 5, 2008; and on which damage of the fittings was found, except for airplanes specified in paragraph (q)(1) or (q)(2) of this AD: At the applicable time given in paragraph E.(2)., “Accomplishment Timescale,” of Airbus Mandatory Service Bulletin A320-25A1555, Revision 03, dated February 28, 2012, accomplish the applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A320-25A1555, Revision 03, dated February 28, 2012, except where this service information specifies to contact Airbus for further instructions, before further flight, contact either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA (or its delegated agent) for instructions; and follow those instructions. Accomplishing the actions required by this paragraph terminates the requirements of paragraph (h) of this AD.
(1) Airplanes on which Airbus Modification 34804 has been embodied in production.
(2) Airplanes on which the terminating action specified in paragraph (k) of this AD has been done.
This paragraph restates the credit given in paragraph (l) of AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010).
(1) This paragraph provides credit for actions required by paragraphs (g), (h), and (i) of this AD, if those actions were performed before January 11, 2011 (the effective date of AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010)), using the service bulletins specified in paragraph (r)(1)(i)or (r)(1)(ii) of this AD.
(i) Airbus Mandatory Service Bulletin A320-25A1555, Revision 01, dated February 18, 2008.
(ii) Airbus Service Bulletin A320-25A1555, dated June 14, 2007.
(2) This paragraph provides credit for actions required by paragraphs (g) and (k)(2) of this AD, if those actions were performed before January 11, 2011 (the effective date of AD 2010-24-07, Amendment 39-16526 (75 FR 75878, December 7, 2010)), using the service bulletins specified in paragraph (r)(2)(i) or (r)(1)(ii) of this AD.
(i) Airbus Service Bulletin A320-25-1557, dated June 14, 2007.
(ii) Airbus Service Bulletin A320-25-1557, Revision 01, dated February 7, 2008.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information EASA Airworthiness Directive 2012-0134, dated July 18, 2012, and the service information listed in paragraphs (t)(1)(i) through (t)(1)(iv) of this AD; for related information.
(i) Airbus Service Bulletin A320-53-1215, dated November 05, 2008.
(ii) Airbus Mandatory Service Bulletin A320-25A1555, Revision 02, dated November 5, 2008.
(iii) Airbus Mandatory Service Bulletin A320-25A1555, Revision 03, dated February 28, 2012.
(iv) Airbus Service Bulletin A320-25-1557, Revision 02, dated November 5, 2008.
(2) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-400 series airplanes. This proposed AD was prompted by reports of excessive wear on the lower latch surface of the main landing gear (MLG) up-lock hook. This proposed AD would require revising the maintenance program. We are proposing this AD to detect and correct up-lock hooks worn beyond the wear limit, which could prevent the successful extension of the MLG using the primary landing gear extension system, which in combination with an alternate extension system failure could result in the inability to extend the MLG.
We must receive comments on this proposed AD by June 28, 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
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2012-21, dated June 25, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
The main landing gear up-lock assembly part number (P/N) 46500-7 was introduced as the terminating action to [Canadian] AD CF-2002-13R2. The main landing gear up-lock assembly P/N 46500-9 was later introduced as a product improvement and has the same up-lock hook as P/N 46500-7.
Due to a delay in the release of the new Maintenance Review Board (MRB) task associated with P/Ns 46500-7 and 46500-9, it is anticipated that in-service aeroplanes may be operating with up-lock hooks worn beyond the wear limit. An up-lock hook worn beyond the wear limit could prevent the successful extension of the main landing gear using the primary landing gear extension system. In combination with an alternate extension system failure, this could result in the inability to extend the main landing gear.
This [Canadian] AD mandates the incorporation of the MRB task number 323100-202.
MRB task number 323100-202 adds a functional check of the main landing gear up-lock assembly latch to the maintenance program. You may obtain further information by examining the MCAI in the AD docket.
Bombardier, Inc. has issued the following service information. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
• Bombardier Repair Drawing 8/4-32-0190, Issue 2, dated January 14, 2013.
• Bombardier Q400 All Operator Message No. 515, DHC8-400-AOM-515, Revision 2009-06-24, dated April 4, 2012.
• Bombardier Temporary Revision MRB-66, dated December 7, 2011, to Section 1-32, “Systems/Powerplant Maintenance Program,” of Part 1 of the Bombardier Dash 8 Series 400 Maintenance Requirements Manual, PSM 1-84-7.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 83 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $7,055, or $85 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 28, 2013.
None.
This AD applies to Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes; certificated in any category; serial numbers 4001 and subsequent; equipped with a main landing gear (MLG) up-lock having part number 46500-7 or 46500-9.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by reports of excessive wear on the lower latch surface of the MLG up-lock hook. We are issuing this AD to detect and correct up-lock hooks worn beyond the wear limit, which could prevent the successful extension of the MLG using the primary landing gear extension system, which in combination with an alternate extension system failure could result in the inability to extend the MLG.
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 30 days after the effective date of this AD, revise the maintenance program to incorporate the information specified in Task Number 323100-202 as specified in Bombardier Temporary Revision MRB-66, dated December 7, 2011, to Section 1-32, “Systems/Powerplant Maintenance Program,” of Part 1 of the Bombardier Dash 8 Series 400 Maintenance Requirements Manual, PSM 1-84-7. Do the initial functional check at the applicable time specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
The maintenance program revision required by paragraph (g) of this AD may be done by inserting a copy of Bombardier Temporary Revision MRB-66, dated December 7, 2011, to Section 1-32, “Systems/Powerplant Maintenance Program,” into Part 1 of the Bombardier Dash 8 Series 400 Maintenance Requirements Manual, PSM 1-84-7. When this temporary revision (TR) has been included in general revisions of the PSM, the general revisions may be inserted in the PSM, provided the relevant information in the general revision is identical to that in TR MRB-66.
(1) For up-lock hook assemblies that have 15,000 total flight cycles or more as of the effective date of this AD: Do the initial functional check within 600 flight cycles after the effective date of this AD.
(2) For up-lock hook assemblies that have 12,000 total flight cycles or more, but less than 15,000 total flight cycles, as of the effective date of this AD: Do the initial functional check within 1,200 flight cycles after the effective date of this AD, but before the accumulation of 15,600 total flight cycles on the assembly.
(3) For up-lock hook assemblies with less than 12,000 total flight cycles as of the effective date of this AD: Do the initial functional check within 6,000 flight cycles after the effective date of this AD, but before the accumulation of 13,200 total flight cycles on the assembly.
For any up-lock assembly outside the wear limit specified in the Inspection Notes of Bombardier Repair Drawing, 8/4-32-0190, Issue 2, dated January 14, 2013; and on which the up-lock roller on the MLG shock strut is free to rotate and free of any damage or flat spots on the riding surface: In lieu of doing the initial functional check, as required by paragraph (g) of this AD, accomplishing the actions specified in paragraphs (h)(1) through (h)(4) of this AD in accordance with Bombardier Repair Drawing, 8/4-32-0190, Issue 2, dated January 14, 2013, may be done. However, as of 36 months after the effective date of this AD, the initial functional check must be done in accordance with the requirements of paragraph (g) of this AD.
(1) Do a detailed inspection for deformation, corrosion, or broken springs of the up-lock assembly of the MLG. If deformation, corrosion, or broken springs are found, before further flight, replace the spring.
(2) Measure the groove depth of the lower latch working surface.
(i) If the groove depth is greater than or equal to 0.022 inch, before further flight, replace the up-lock assembly part number (P/N) 46500-7 or 46500-9 with a new assembly, or an assembly with a new or reworked hook installed.
(ii) If the groove depth is greater than 0.017 inch and less than or equal to 0.0215 inch: Within 600 flight cycles after accomplishing the measurement, do the up-lock inspection as specified in paragraph (h)(1) and (h)(2) of this AD, and repeat the inspections thereafter at intervals not to exceed 600 flight cycles. Replacing the up-lock hook with a new or reworked hook, or installing a new up-lock assembly, terminates the repetitive inspections.
(iii) If the groove depth is between 0.0215 and 0.0220 inch: Within 300 flight cycles after the measurement, replace the up-lock hook with a new or reworked hook, or with a new up-lock assembly.
(3) Unless already accomplished, within 6,000 flight hours or 36 months after doing the initial inspection specified in paragraph (h)(1) of this AD: Replace the up-lock assembly with a new assembly, or a new or reworked hook installed, in accordance with the Inspection Notes of Bombardier Repair Drawing 8/4-32-0190, Issue 1, dated April 2, 2012.
(4) Inspect the up-lock roller on both main gear shock struts for freedom of movement.
(i) If the up-lock roller cannot be freely rotated by finger force, or any flat spots exceeding 0.060 inch (across the flats) are found, before further flight, replace the up-lock roller.
(ii) Repeat the inspections thereafter at intervals not to exceed 50 flight hours until the up-lock has been replaced with a new assembly, or a new or reworked up-lock hook has been installed. Replacing the up-lock with a new assembly, or installing a new or reworked up-lock hook, terminates the repetitive inspection requirements.
After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used, except as provided by paragraph (h) of this AD unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (k) of this AD.
Submit a report of the initial functional check findings at the applicable time specified in paragraph (j)(1) or (j)(2) of this AD using Form No ISETS-03-AOM Q400 in Bombardier Q400 All Operator Message DHC8-400-AOM-515, Revision 2009-06-24, dated April 4, 2012. Send the report to Bombardier, Inc., Technical Help Desk, phone: 416-375-4000; fax: 416-375-4539; email:
(1) If the functional check was done on or after the effective date of this AD: Submit the report within 30 days after the functional check.
(2) If the functional check was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to MCAI Canadian Airworthiness Directive CF-2012-21, dated June 25, 2012; and the service information specified in paragraphs (l)(1)(i), (l)(1)(ii), and (l)(1)(iii) of this AD for related information.
(i) Bombardier Repair Drawing 8/4-32-0190, Issue 2, dated January 14, 2013.
(ii) Bombardier Q400 All Operator Message No. 515, DHC8-400-AOM-515, Revision 2009-06-24, dated April 4, 2012.
(iii) Bombardier Temporary Revision MRB-66, dated December 7, 2011, to Section 1-32, “Systems/Powerplant Maintenance Program,” of Part 1 of the Bombardier Dash 8 Series 400 Maintenance Requirements Manual, PSM 1-84-7.
(2) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). This proposed AD was prompted by a report that cracking was found in area 2 of the frame base fittings between frame 41 and frame 46. This proposed AD would require a check of maintenance records to determine if certain repairs were done in area 1 of the frame brace fittings, and, for affected airplanes, a detailed inspection for cracking in area 2 of the frame base fittings between frame 41 and frame 46, and repair if necessary. We are proposing this AD to detect and correct cracking in area 2 of the frame base fittings between frame 41 and frame 46, which could adversely affect the structural integrity of the airplane.
We must receive comments on this proposed AD by June 28, 2013.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: (202) 493-2251.
• Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-227-2125; fax: 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012-0229, dated October 31, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During accomplishment of Airbus SB [service bulletin] A300-53-6111, which addresses detailed visual inspections of the lower frame fittings between Frame (FR) 41 and FR 46, on one A300-600 aeroplane a crack was detected in the area 2 of the foot of frame FR 46 at junction radius level.
This frame, that was previously repaired due to a crack finding in the area 1, was not due to be inspected before reaching the post-repair inspection threshold, i.e., 45,400 FC [flight cycles], from repair embodiment.
It has been determined that the current repairs proposed in Airbus SB A300-53-6111 and Airbus [SB] A300-53-0337 are of limited effect to prevent cracking in the area 2 of the lower frame fittings.
Consequently, as a temporary action and until an improvement of the existing repairs is made available, this [EASA] AD requires a one-time detailed visual inspection [for cracking] of [the] frame base fittings that were repaired in accordance with Airbus SB A300-53-0337, original issue or Rev. 1, or Airbus SB A300-53-6111 original issue up to Rev. 4 * * *.
The unsafe condition is cracking in the frame base fittings, which could adversely affect the structural integrity of the airplane. The required actions include repairing any cracking found. You may obtain further information by examining the MCAI in the AD docket.
Airbus has issued Alert Operators Transmission (AOT) A53W001-12, dated July 4, 2012, including Appendices 1, 2, and 3. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Although EASA AD 2012-0229, dated October 31, 2012, specifies to contact the manufacturer for instructions to repair certain conditions, this proposed AD would require repairing those conditions using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA (or its delegated agent).
Based on the service information, we estimate that this proposed AD would affect about 124 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $42,160, or $340 per product.
In addition, we estimate that any necessary follow-on actions would take up to 350 work-hours and require parts costing up to $56,469 for a cost of $86,219 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 June 28, 2013.
None.
This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1) Airbus Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes, on which any repair has been done as specified in Airbus Service Bulletin A300-53-0337, dated February 4, 1999; or Airbus Service Bulletin A300-53-0337, Revision 01, dated March 17, 2003.
(2) Airbus Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes, Model A300 B4-605R and B4-622R airplanes, Model A300 F4-605R and F4-622R airplanes, and A300 C4-605R Variant F airplanes, on which any repair has been done as specified in any
(i) Airbus Service Bulletin A300-53-6111, dated February 4, 1999.
(ii) Airbus Service Bulletin A300-53-6111, Revision 01, dated March 17, 2003.
(iii) Airbus Service Bulletin A300-53-6111, Revision 02, dated September 13, 2004.
(iv) Airbus Service Bulletin A300-53-6111, Revision 03, dated September 30, 2009.
(v) Airbus Mandatory Service Bulletin A300-53-6111, Revision 04, dated August 25, 2011.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a report that cracking was found in area 2 of the frame base fittings between frame 41 and frame 46. We are issuing this AD to detect and correct cracking in area 2 of the frame base fittings between frame 41 and frame 46, which could adversely affect the structural integrity of the airplane.
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 1,000 flight hours after the effective date of this AD: Check the airplane maintenance records to determine if repairs were done in area 1 of the frame base fittings as defined in Appendix 1 of Airbus Alert Operators Transmission A53W001-12, dated July 4, 2012.
If, during any records check required by paragraph (g) of this AD, it is determined that area 1 of the frame base fittings was repaired: Within 1,000 flight hours after the effective date of this AD do a detailed inspection of the frame base fittings between frame 41 and frame 46 in the area 2 defined in Appendix 1 of Airbus Alert Operators Transmission A53W001-12, dated July 4, 2012.
If any cracking is found during any detailed inspection required by paragraph (h) of this AD: Before further flight, repair the cracking using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent).
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to MCAI EASA Airworthiness Directive 2012-0229, dated October 31, 2012; and Airbus Alert Operators Transmission A53W001-12, dated July 4, 2012, including Appendices 1 and 2, and excluding Appendix 3; for related information.
(2) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to all Rolls-Royce plc (RR) model RB211 Trent 553-61, 553A2-61, 556-61, 556A2-61, 556B-61, 556B2-61, 560-61, and 560A2-61; and RB211 Trent 768-60, 772-60, and 772B-60; and RB211-Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17, and 895-17; and RB211-524G2-T-19, -524G3-T-19, -524H-T-36, and -524H2-T-19 turbofan engines that have a high-pressure (HP) compressor stage 1 to 4 rotor disc installed, with a certain part number (P/N) installed. The existing AD requires repetitive inspections of the axial dovetail slots, and follow-on corrective action depending on findings. This proposed AD expands the population of affected parts. This proposed AD also changes, for the purposes of this AD, the definition of “engine shop visit.” We are proposing this AD to detect cracks in the HP compressor stage 1 and 2 disc posts, which could result in failure of the disc post and HP compressor blades, damage to the engine, and damage to the airplane.
We must receive comments on this proposed AD by July 15, 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 AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; or email:
You may examine the AD docket on the Internet at
Frederick Zink, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7779; fax: 781-238-7199; email:
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
On February 23, 2012, we issued AD 2012-04-13, Amendment 39-16969 (77 FR 13483, March 7, 2012), for all RR model RB211 Trent 553-61, 553A2-61, 556-61, 556A2-61, 556B-61, 556B2-61, 560-61, and 560A2-61; and RB211 Trent 768-60, 772-60, and 772B-60; and RB211-Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17, and 895-17; and RB211-524G2-T-19, -524G3-T-19, -524H-T-36, and -524H2-T-19 turbofan engines that have a HP compressor stage 1 to 4 rotor disc installed, with a P/N listed in Table 1 of that AD. That AD requires repetitive inspections of the axial dovetail slots, and follow-on corrective action depending on findings. That AD changed the definition of a shop visit to be less restrictive. We issued that AD to detect cracks in the HP compressor stage 1 and 2 disc posts, which could result in failure of the disc post and HP compressor blades, damage to the engine, and damage to the airplane.
Since we issued AD 2012-04-13, Amendment 39-16969 (77 FR 13483, March 7, 2012), RR engineering identified additional affected HP compressor rotor discs that require the same action. As a result of the additional population of discs, this proposed rule would increase the total cost to the U.S. fleet.
Also, since we issued AD 2012-04-13, Amendment 39-16969 (77 FR 13483, March 7, 2012), we changed the definition of “engine shop visit” to be less restrictive. In the existing AD, we define “engine shop visit” to be whenever all compressor blades are removed from the HP compressor drum. In this proposed AD, we define “engine shop visit” to be whenever the HP compressor rotor is accessible for removal of the compressor blades. Under the revised definition in this proposed AD, engine shop visit will occur more frequently, likely resulting in earlier inspection of the Stage 1 to 4 rotor disc than would occur under the original definition. This is more in line with the instructions in revised RR Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AF964, Revision 3, dated January 11, 2013.
We reviewed RR Alert NMSB RB.211-72-AF964, Revision 3, dated January 11, 2013. The Alert NMSB describes procedures for cleaning and inspecting the axial dovetail slots. We also reviewed European Aviation Safety Agency AD No. 2013-0042, dated February 26, 2013, which requires inspection of the new rotor discs.
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 these same type designs.
This proposed AD would retain all of the requirements of AD 2012-04-13, Amendment 39-16969 (77 FR 13483, March 7, 2012). This proposed AD would expand the population of parts to be inspected.
We estimate that this proposed AD would affect about 432 engines installed on airplanes of U.S. registry. We also estimate that it would take about 20 hours per product to comply with this AD. The average labor rate is $85 per hour. No parts would be required per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $734,400.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this 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 that the 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 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.
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.
The FAA must receive comments on this AD action by July 15, 2013.
This AD supersedes AD 2012-04-13, Amendment 39-16969 (77 FR 13483, March 7, 2012).
This AD applies to the following Rolls-Royce plc (RR) model turbofan engines that have a high-pressure (HP) compressor stage 1 to 4 rotor disc installed, with a part number (P/N) listed in Table 1 of this AD:
(1) RB211 Trent 553-61, 553A2-61, 556-61, 556A2-61, 556B-61, 556B2-61, 560-61, and 560A2-61; and
(2) RB211 Trent 768-60, 772-60, and 772B-60; and
(3) RB211-Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17, and 895-17; and
(4) RB211-524G2-T-19, -524G3-T-19, -524H-T-36, and -524H2-T-19.
We are issuing this AD to detect cracks in the HP compressor stage 1 and 2 disc posts, which could result in failure of the disc post and HP compressor blades, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Clean and perform a fluorescent-penetrant inspection of the HP compressor stage 1 to 4 rotor disc at the first shop visit after accumulating 1,000 cycles since new on the stage 1 to 4 rotor disc or at the next shop visit after the effective date of this AD, whichever occurs later.
(2) Use paragraphs 3.A. through 3.E.(11) of the Accomplishment Instructions of RR Alert Non-Modification Service Bulletin (NMSB) No. RB.211-72-AF964, Revision 3, dated January 11, 2013, to do the cleaning and inspection.
(3) Thereafter, at every engine shop visit, perform the cleaning and inspection required by paragraph (e) of this AD.
(4) If on the effective date of this AD, an engine with an affected part has 1,000 CSN or more, and is in the shop, perform the cleaning and inspection required by paragraph (e) of this AD before return to service.
(5) If cracks or anomalies are found during the inspection required by paragraph (e) of this AD, accomplish the applicable corrective actions before return to service.
For the purpose of this AD, an “engine shop visit” is whenever the HP compressor rotor is accessible for removal of the compressor blades.
If you performed cleanings and inspections before the effective date of this AD using RR NMSB No. RB.211-72-AF964, Revision 1, dated June 6, 2008, or Revision 2, dated June 8, 2011, then you met the requirements of paragraph (e)(1) of this AD.
The Manager, Engine Certification Office, FAA may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Frederick Zink, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7779; fax: 781-238-7199; email:
(2) Refer to RR Alert NMSB No. RB.211-72-AF964, Revision 3, dated January 11, 2013, and European Aviation Safety Agency AD No. 2013-0042, dated February 26, 2013, for related information.
(3) For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; or email:
Food and Drug Administration, HHS.
Notice of withdrawal.
The Food and Drug Administration (FDA or we) is announcing the withdrawal, without prejudice to a future filing, of a food additive petition (FAP 8A4775) proposing that the food additive regulations be amended to provide for the safe use of monochloramine as an antimicrobial agent in poultry process chiller water.
Judith Kidwell, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint
May 14, 2013.
In a notice published in the
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a special local regulation on the waters of Bahia de Aguadilla in Aguada, Puerto Rico during the Aguada Offshore Grand Prix, a high speed boat race. The event is scheduled to take place on Sunday, August 4, 2013. Approximately 30 high-speed power boats will be participating in the races. It is anticipated that 20 spectator crafts will be present during the races. The special local regulation is necessary for the safety of race participants, participant vessels, spectators, and the general public during the event.
Comments and related material must be received by the Coast Guard on or before June 13, 2013.
Requests for public meetings must be received by the Coast Guard on or before May 21, 2013.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, call or email Mr. Efrain Lopez, Sector San Juan Prevention Department, Coast Guard; telephone (787) 289-2097, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under
The current regulations under 33 CFR 100 address safety for reoccurring marine events. This marine event does not appear in the current regulations; however, as it is a regulation to provide effective control over regattas and marine parades on the navigable waters of the United States so as to ensure safety of life in a regatta or marine parade, this marine event needs to be temporarily added.
The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to ensure safety of life on navigable waters of the United States during the Aguada Offshore Grand Prix.
On August 4, 2013, Puerto Rico Offshore Series, Inc. is sponsoring the Aguada Offshore Grand Prix, a series of high-speed boat races. The races will be held on the waters of Bahia de Aguadilla in Aguada, Puerto Rico. Approximately 30 high-speed power boats will be participating in the races. It is anticipated that approximately 20 spectator vessels will be present during the races.
The special local regulation encompasses certain waters of Bahia de Aguadilla in Aguada, Puerto Rico. The special local regulation will be enforced from 11 a.m. until 3 p.m. on August 4, 2013. The special local regulation consists of the following three areas: (1) A race area, where all persons and vessels, except those persons and vessels participating in the high-speed boat races, are prohibited from entering, transiting through, anchoring in, or remaining within; (2) a buffer zone around the race areas, where all persons and vessels, except those persons and vessels enforcing the buffer zone, or authorized race participants transiting to or from the race area, are prohibited from entering, transiting through, anchoring in, or remaining within; and (3) a spectator area, where all vessels are prohibited from anchoring and from traveling in excess of wake speed, unless authorized by the Captain of the Port San Juan or a designated representative.
Persons and vessels may request authorization by contacting the Captain of the Port San Juan by telephone at (787) 289-2041, or a designated representative via VHF radio on channel 16, to: (1) Enter, transit through, anchor in, or remain within the race area or the buffer zone; (2) anchor in the spectator area; or (3) travel in excess of wake speed in the spectator zone. If authorization is granted by the Captain of the Port San Juan or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port San Juan or a designated representative. The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The economic impact of this rule is not significant for the following reasons: (1) The special local regulation will be enforced for only four hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the race area and buffer zone, or anchor or travel in excess of wake speed in the spectator area, without authorization from the Captain of the Port San Juan or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the race areas and buffer zone, or anchor in the spectator area, during the enforcement period if authorized by the Captain of the Port San Juan or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulation to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Bahia de Aguadilla encompassed within the special local regulation from 11 a.m. until 3 p.m. on August 4, 2013. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the creation of a special local regulation in conjunction with a regatta or marine parade to ensure the safety of race participants, participant vessels, spectators, and the general public during the event. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(1)
(2)
(3)
(b)
(c)
(1) Except for those persons and vessels participating in the race, all persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the race area. Except for those persons and vessels enforcing the buffer zone, or authorized race participants transiting to or from the race area, all persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the buffer area. All persons are prohibited from anchoring in or traveling in excess of wake speed in the spectator area.
(i) Persons and vessels may request authorization to enter, transit through, anchor in, remain within the regulated areas, or to travel in excess of wake speed in the spectator area, by contacting the Captain of the Port San Juan by telephone at (787) 289-2041, or a designated representative via VHF radio on channel 16.
(ii)If authorization is granted by the Captain of the Port San Juan or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port San Juan or a designated representative.
(2) The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Coast Guard, DHS.
Notice of Proposed Rulemaking.
The Coast Guard proposes to establish a special local regulation on the waters of Bahia de Ponce in Ponce, Puerto Rico during the Cruce a Nado Internacional de la Bahia de Ponce Puerto Rico, a swimming event. The event is scheduled to take place on Sunday, September 1, 2013. Approximately 100 swimmers are anticipated to participate in the event, and no spectator vessels are anticipated to be present. The special local regulation is necessary to provide for the safety of life on the navigable waters of the United States during the event. The special local regulation establishes a swim area, where all persons and vessels, except those participating in the race or vessels patrolling the swim area, will be prohibited from entering, transiting through, anchoring in, or remaining within the area unless authorized by the Captain of the Port San Juan or a designated representative.
Comments and related material must be received by the Coast Guard on or before June 13, 2013.
Requests for public meetings must be received by the Coast Guard on or before May 21, 2013.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, call or email Mr. Efrain Lopez, Sector San Juan Prevention Department, Coast Guard; telephone (787) 289-2097, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one on or before May 21, 2013, using one of the methods specified under
The current regulations under 33 CFR 100 address safety for reoccurring marine events. This marine event does not appear in the current regulations; however, as it is a regulation to provide effective control over regattas and marine parades on the navigable waters of the United States so as to ensure safety of life in a regatta or marine parade, this marine event needs to be temporarily added.
The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to ensure safety of life on navigable waters of the United States during the Cruce a Nado Internacional de la Bahia de Ponce Puerto Rico.
On September 1, 2013, Club Cruce a Nado Inc. is sponsoring the Cruce a Nado Internacional de la Bahia de Ponce Puerto Rico, a swimming event. The event will be held on the waters of Bahia de Ponce in Ponce, Puerto Rico. Approximately 100 swimmers are anticipated to participate in the event, and it is not anticipated that there will be any spectator vessels present.
The proposed rule would establish a special local regulation that will encompass certain waters of Bahia de Ponce in Ponce, Puerto Rico. The special local regulation will be enforced from 3 p.m. until 6 p.m. on September 1, 2013. The special local regulation will establish a swim area, where only those persons participating in the race, and those vessels patrolling the swim area may be. Non-participant people and vessels will be prohibited from entering, transiting through, anchoring in, or remaining within the area unless authorized by the Captain of the Port San Juan or a designated representative.
Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the swim area by contacting the Captain of the Port San Juan by telephone at (787) 289-2041, or through a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the swim area is granted by the Captain of the Port San Juan or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port San Juan or a designated representative. The Coast Guard will provide notice of the special local regulation by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The economic impact of this rule is not significant for the following reasons: (1) The special local regulation will be enforced for only three hours; (2) although non-participant persons and vessels will not be able to enter, transit through, anchor in, or remain within the swim area, without authorization from the Captain of the Port San Juan or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the swim area during the enforcement period if authorized by the Captain of the Port San Juan or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulation to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Bahia de Ponce encompassed within the special local regulation from 3 p.m. until 6 p.m. on September 1, 2013. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the creation of a special local regulation in conjunction with a regatta or marine parade to ensure the safety of race participants and the general public during the event. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(1)
(2) [Reserved]
(b)
(c)
(1) All persons and vessels, except those persons participating in the race and those vessels patrolling the swim area, are prohibited from entering, transiting through, anchoring in, or remaining within the swim area.
(2) Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port San Juan by telephone at 787-289-2041, or a designated representative via VHF radio on channel 16. If authorization is granted by the Captain of the Port San Juan or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port San Juan or a designated representative.
(3) The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to
(d)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes a permanent regulated navigation area (RNA), enforcement of which would take place only during times when a tsunami warning is issued for the Hawaiian Islands by the Pacific Tsunami Warning Center. Tsunami warnings require the evacuation of a large number of vessels from their respective harbors. Following the evacuation, these vessels must remain offshore until the emergency situation has passed and the harbors have been deemed safe for re-entry. Past tsunami warnings have created potentially dangerous offshore traffic congestion between commercial and recreational vessel traffic. Because of this, designated vessel traffic staging areas are necessary for a safe and orderly evacuation of Southern Oahu ports.
Comments and related material must be received by the Coast Guard on or before June 13, 2013.
You may submit comments identified by docket number USCG-2012-0080 using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this notice, call or email Lieutenant Commander Scott Whaley of the United States Coast Guard Sector Honolulu at 808-522-8264 ext.352 or
We encourage you to respond to this notice by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
The statutory basis for this rulemaking is 33 U.S.C. 1231, which gives the Coast Guard, under a delegation from the Secretary of Homeland Security, regulatory authority to enforce the Ports and Waterways Safety Act. A regulated navigation area is a water area within a defined boundary for which regulations for
Earthquakes off Chile and Japan in February 2010 and March 2011, respectively, resulted in tsunami threats to the Main Hawaiian Islands. These incidents emphasized the need to establish heightened safety measures, to ensure an orderly and organized evacuation plan, in order to protect the infrastructure of the southern coast of Oahu, Hawaii, including Honolulu Harbor. Honolulu Harbor has only one entrance for large commercial vessels and is the principle harbor of Hawaii's hub and spoke maritime commerce system. If, during an emergency, a marine incident were to occur off the southern shore of Oahu, especially near the entrance of Honolulu Harbor, the results could be devastating to Hawaii's economy and the maritime commerce system and the constituencies that rely heavily upon the system's viability.
In response to this risk, the Coast Guard proposes to establish a regulated navigation area designated as the Southern Oahu Tsunami Evacuation zone.
The Coast Guard has collaborated with the Hawaii Ocean Safety Team, the Industry Advisory Board, and other industry partners in the development of this rule. All recommendations have received careful consideration during the drafting of this rule. This rule accurately reflects the best practices as recommended by Hawaii's professional mariners.
In the event of a tsunami warning, the Coast Guard Captain of the Port for Honolulu (COTP) would notify the public that an enforcement period is in effect for the duration of the emergency for this RNA. At the conclusion of the treat, the COTP would notify the public when the RNA enforcement period is suspended or terminated.
During the enforcement period, the COTP would deploy Coast Guard assets to ensure participating commercial and recreational vessels move to and stay within separate staging areas, and seaward of the 50 fathom curve that covers near-shore waters less than 300 feet deep. Coast Guard plans, which could vary depending on specific conditions during an actual emergency, call for those staging areas to be separated by an exclusionary area. This exclusionary area would measure 3.7 nautical miles long by one (1) nautical mile wide, centering lengthwise and along a line running seaward at 208 degrees southwest of the Honolulu Harbor Range light. Commercial vessels would have to stay west of the exclusionary area, and recreational vessels would have to stay east of the exclusionary area.
A graphic of the regulated navigation area is in the docket (see the “Viewing comments and documents” section of this NPRM). It shows how we expect to separate commercial and recreational vessels when we would enforce the RNA, but under actual enforcement conditions local commanders could make alternate arrangements as those conditions warrant.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, because it would have an effect on the regulated public only in the rare circumstances of a tsunami threat, while at other times vessels will be able to transit the area freely. Therefore, it does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities because it would have an effect on the regulated public only in the rare circumstances of a tsunami threat, while at other times vessels will be able to transit the area freely.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander Scott Whaley, Waterways Management Division, U.S. Coast Guard Sector Honolulu, at 808-522-8264 ext. 352, or at
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. An action is a “significant energy action” under E.O. 13211 if the action is (1) an agency action, (2) which is or will lead to a final rule, and is either (3a) a “significant regulatory action” under Executive Order 12866 AND is likely to have a significant adverse effect on the supply, distribution, or use of energy OR (3b) has been designated a “significant energy action by the Administrator of the Office of Information and Regulatory Affairs. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, the Administrator of the Office of Information and Regulatory Affairs has not designated this as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded from further review under paragraph (34)(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1) No person or vessel may enter into an exclusionary area 3.7 nautical miles long by one (1) nautical miles wide, centered lengthwise and along a line running seaward at 208 degrees southwest of Honolulu Harbor Front Range Light, except to transit to or from the staging areas or other areas outside the zone. Loitering or lingering in the exclusionary zone is prohibited.
(2) All recreational vessels wishing to remain in the RNA must transit to and stage east of the exclusionary area, while all commercial vessels wishing to remain in the RNA must transit to and stage west of the exclusionary area.
(3) All vessels staging in the RNA must be seaward of the 50 fathom (300 foot) curve.
(c)
(d)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a request submitted by the Indiana Department of Environmental Management on April 15, 2011, and supplemented on January 30, 2013, to revise the Indiana state implementation plan (SIP) for nitrogen dioxide (NO
Comments must be received on or before June 13, 2013.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2010-0083, by one of the following methods:
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the Final Rules section of this
Charles Hatten, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6031,
In the final rules section of this
National Science Foundation.
Proposed rule.
This document sets forth proposed revisions of the Foundation's regulations under the Freedom of Information Act (FOIA). The revisions implement the provision of the Open FOIA Act of 2009 which amended Exemption 3, update procedural provisions, and allow for multi-track processing of requests.
Submit comments on or before June 13, 2013.
Address all comments concerning this rule to the Office of the General Counsel, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Arlington, VA 22230. You may also send comments by facsimile transmission to (703) 292-9041, or send them electronically through the Federal Government's one-stop rulemaking Web site at
D. Matthew Powell, Assistant General Counsel, Office of the General Counsel, National Science Foundation, telephone 703-292-8060 or email
This revision of part 612 implements the provision of the Open FOIA Act of 2009 which amends Exemption 3. It also updates and clarifies several procedural provisions concerning FOIA administration, reflects changes in case law, and includes revised current cost figures for calculating and charging fees. The duplication fee would be reduced. In addition, the Foundation proposes to implement multi-track processing. Clarifications and procedural changes are found at § 612.1(b) (General Provisions); § 612.3(b) and (f) (Requirements for making requests); § 612.5(a), (b), (c) and (d)(3) (Timing of responses to requests); § 612.6(a) (Responses to requests); § 612.7(a)(2), (3) and (5)(iii) (Exemptions); and § 612.10(b)(3), and (c)(1) and (2) (Fees).
For purposes of the Regulatory Flexibility Act (5 U.S.C. 601), the revised rule will not have a significant economic effect on a substantial number of small entities; the rule addresses the procedures to be followed when
Administrative practice and procedure, Freedom of information.
For the reasons stated in the preamble, the National Science Foundation proposes to amend 45 CFR chapter VI by revising part 612 to read as follows:
5 U.S.C. 552, as amended.
(a) This part contains the rules that the National Science Foundation (NSF) follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Information routinely made available to the public as part of a regular Foundation activity (for example, program announcements and solicitations, summary of awarded proposals, statistical reports on U.S. science, press releases issued by the Office of Legislative and Public Affairs) may be provided to the public without reliance on this part. As a matter of policy, the Foundation also makes discretionary disclosures of records or information otherwise exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption. This policy, however, does not create any right enforceable in court. When individuals seek records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, NSF processes those requests under both NSF's Privacy regulations at part 613 of this chapter, and this part.
(b) As used in this part, NSF includes one component, the Office of the Inspector General (OIG) of the National Science Foundation.
(a) The Foundation maintains a public reading room located in the NSF Library at 4201 Wilson Boulevard, Suite 225, Arlington, Virginia, open during regular working hours Monday through Friday. It contains the records that the FOIA requires to be made regularly available for public inspection and copying and has computers and printers available for public use in accessing records. Also available for public inspection and copying are current subject matter indexes of reading room records.
(b) Information about FOIA and Privacy at NSF and copies of frequently requested FOIA releases are available online at
(a)
(2) The National Science Foundation includes one agency component, the NSF Office of the Inspector General (OIG). For records maintained by the NSF OIG, you may write directly to the Office of Inspector General, National Science Foundation, 4201 Wilson Boulevard, Suite 1135, Arlington, VA 22230. Requests may also be sent to the OIG by facsimile to (703) 292-9158. The NSF FOIA Officer and the OIG component will also forward requests as appropriate.
(b)
(c)
(2) If you are making a request for personal information about another individual, either a written authorization signed by that individual in accordance with § 613.2(f) of this chapter permitting disclosure of those records to you, or proof that that individual is deceased (for example, a copy of a death certificate or a published obituary) will help the agency process your request.
(d)
(e)
(f)
(g)
(a)
(b)
(1) If the NSF determines that it is the agency best able to process the record in response to the request, then it will do so, after consultation with the other interested agencies where appropriate.
(2) If it determines that it is not the agency best able to process the record, then it will refer the request regarding that record (or portion of the record) to the agency that originated or has a substantial interest in the record in question (but only if that agency is subject to the FOIA). Ordinarily, the agency that originated a record will be presumed to be best able to determine whether to disclose it.
(3) Whenever NSF refers all or any part of the responsibility for responding to a request to another agency, it ordinarily will notify the requester of the referral and inform the requester of the name of each agency to which the request has been referred and of the part of the request that has been referred, unless such notification would disclose information otherwise exempt.
(a)
(b)
(2) NSF or OIG using multitrack processing may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the NSF's or OIG's faster track(s). The requester may be contacted by telephone, email, or letter, whichever is more efficient in each case.
(c)
(d)
(2) Where the extension is for more than ten working days, the FOIA Officer or the OIG component will provide the requester with an opportunity either to modify the request so that it may be processed within the ten day extension period or to arrange an agreed upon alternative time period with the FOIA Officer or the OIG component for processing the request or a modified request.
(3) Where the NSF reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated.
(e)
(2)(i) Requests and appeals will be given expedited treatment whenever it is determined that a requester has demonstrated compelling need by presenting:
(A) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(B) An urgency to inform the public about an actual or alleged Federal government activity, if made by a person primarily engaged in disseminating information.
(ii) For example, a requester who is not a full-time member of the news media must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. Such requester also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally, and that the information
(3) Within ten calendar days of receipt of a request for expedited processing, the NSF FOIA Officer or OIG component will decide whether to grant it, and will notify the requester of the decision orally or in writing. If a request for expedited treatment is granted, the request will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.
(a)
(b)
(c)
(2) Requesters can appeal an agency determination to withhold all or part of any requested record; a determination that a requested record does not exist or cannot be located; a determination that what has been requested is not a record subject to the Act; a disapproval of a fee category claim by a requester; denial of a fee waiver or reduction; or a denial of a request for expedited treatment (see § 612.9).
(a)
(1)
(2)
(3)
(i) Records that disclose any invention in which the Federal Government owns or may own a right, title, or interest (including a nonexclusive license), 35 U.S.C. 205;
(ii) Contractor proposals not specifically set forth or incorporated by reference into a contract, 41 U.S.C. 253b(m);
(iii) Information protected by the Procurement Integrity Act, 41 U.S.C. 423;
(iv) Statistical information protected by section 14(i) of the NSF Act of 1950, as amended, 42 U.S.C. 1873(i) and/or the Confidential Information Protection and Statistical Efficiency Act of 2002, 44 U.S.C. 3501 note.
(4)
(i) Information received in confidence, such as grant applications, fellowship applications, and research proposals prior to award;
(ii) Confidential scientific and manufacturing processes or developments, and technical, scientific, statistical data or other information developed by a grantee;
(iii) Technical, scientific, or statistical data, and commercial or financial information privileged or received in confidence from an existing or potential contractor or subcontractor, in connection with bids, proposals, or contracts, concerning contract performance, income, profits, losses, and expenditures, as well as trade secrets, inventions, discoveries, or other proprietary data. When the provisions of 41 U.S.C. 253b(m) or 41 U.S.C. 423 are met, certain proprietary and source selection information may also be withheld under Exemption 3;
(iv) Confidential proprietary information submitted on a voluntary basis;
(v) Statements or information collected in the course of inspections, investigations, or audits, when such statements are received in confidence from the individual and retained in confidence because they reveal trade secrets or commercial or financial information normally considered confidential or privileged.
(5)
(i) Those portions of reports, memoranda, correspondence, workpapers, minutes of meetings, and staff papers, containing evaluations, advice, opinions, suggestions, or other deliberative material that are prepared for use within NSF or within the Executive Branch of the Government by agency personnel and others acting in a consultant or advisory capacity;
(ii) Advance information on proposed NSF plans to procure, lease, or otherwise acquire, or dispose of materials, real estate, facilities, services or functions, when such information
(iii) Negotiating positions or limits at least until the execution of a contract (including a grant or cooperative agreement) or the completion of the action to which the negotiating positions were applicable. They may also be exempt pursuant to other provisions of this section;
(iv) Trade secret or other confidential research development, or commercial information owned by the Government, where premature release is likely to affect the Government's negotiating position or other commercial interest;
(v) Records prepared for use in proceedings before any Federal or State court or administrative body;
(vi) Evaluations of and comments on specific grant applications, research projects or proposals, fellowship applications or nominations or other individual awards, or potential contractors and their products, whether made by NSF personnel or by external reviewers acting either individually or in panels, committees or similar groups;
(vii) Preliminary, draft or unapproved documents, such as opinions, recommendations, evaluations, decisions, or studies conducted or supported by NSF;
(viii) Proposed budget requests, and supporting projections used or arising in the preparation and/or execution of a budget; proposed annual and multi-year policy, priorities, program and financial plan and supporting papers;
(ix) Those portions of official reports of inspection, reports of the Inspector General, audits, investigations, or surveys pertaining to safety, security, or the internal management, administration, or operation of NSF, when these records have traditionally been treated by the courts as privileged against disclosure in litigation.
(6)
(i) Reports, records, and other materials pertaining to individual cases in which disciplinary or other administrative action has been or may be taken. Opinions and orders resulting from those administrative or disciplinary proceedings shall be disclosed without identifying details if used, cited, or relied upon as precedent;
(ii) Records compiled to evaluate or adjudicate the suitability of candidates for employment, and the eligibility of individuals (civilian or contractor employees) for security clearances, or for access to classified information;
(iii) Reports and evaluations which reflect upon the qualifications or competence of individuals;
(iv) Personal information such as home addresses and telephone and facsimile numbers, private email addresses, social security numbers, dates of birth, marital status and the like;
(v) The exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal personal, private information, and the public interest in disclosure is not sufficient to outweigh the privacy interest.
(7)
(i) This exemption applies only to the extent that the production of such law enforcement records or information:
(A) Could reasonably be expected to interfere with enforcement proceedings;
(B) Would deprive a person of the right to a fair trial or an impartial adjudication;
(C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, or living close survivors of a deceased person identified in a record;
(D) Could reasonably be expected to disclose the identity of a confidential source, including a source within the Federal Government, or a State, local, or foreign agency or authority, or any private institution, that furnished information on a confidential basis; and information furnished by a confidential source and obtained by a criminal law enforcement authority in a criminal investigation;
(E) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
(F) Could reasonably be expected to endanger the life or physical safety of any individual.
(ii) Examples of records normally exempt from disclosure include, but are not limited to:
(A) The identity and statements of complainants or witnesses, or other material developed during the course of an investigation and all materials prepared in connection with related government litigation or adjudicative proceedings;
(B) The identity of firms or individuals investigated for alleged irregularities involving NSF grants, contracts or other matters when no indictment has been obtained, no civil action has been filed against them by the United States, or no government-wide public suspension or debarment has occurred;
(C) Information obtained in confidence, expressed or implied, in the course of a criminal investigation by the NSF Office of the Inspector General.
(iii) The exclusions contained in 5 U.S.C. 552(c)(1) and (2) may also apply to these records.
(8)
(9)
(b)
(a)
(b)
(1)
(2)
(c)
(d)
(e)
(1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(2) The Foundation has reason to believe that the information may be protected from disclosure under Exemption 4.
(f)
(g)
(1) A statement of the reason(s) why the submitter's disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which will be a reasonable time subsequent to the notice.
(h)
(1) The Foundation determines that the information should not be disclosed (the Foundation protects from disclosure to third parties information about specific unfunded applications, including pending, withdrawn, or declined proposals);
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous, in which case the Foundation will, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(i)
(a)
(b)
(c)
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c)
(1)
(ii)
(iii)
(iv)
(2)
(3)
(d)
(2) Except for requesters seeking records for a commercial use, NSF will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent); and
(ii) The first two hours of search (or the cost equivalent).
(3) Whenever a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged.
(4) The provisions of paragraphs (d)(2) and (3) of this section work together. This means that noncommercial requesters will be charged no fees unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $25.00. Commercial requesters will not be charged unless the costs of search, review, and duplication total more than $25.00.
(e)
(f)
(g)
(h)
(i)
(2) Where NSF determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require the requester to make an advance payment of an amount up to the amount of the entire anticipated fee before beginning to process the request, except where it receives a satisfactory assurance of full payment from a requester that has a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged fee to any agency within 30 days of the date of billing, NSF may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before NSF begins to process a new request or continues to process a pending request from that requester.
(4) In cases in which NSF requires advance payment or payment due under paragraph (i)(2) or (3) of this section, the request will not be considered perfected and further work will not be done on it until the required payment is received.
(j)
(k)
(2) To determine whether the first fee waiver requirement is met, NSF will consider the following factors:
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed: Whether disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. Disclosure of information already in the public
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public will be considered. A representative of the news media as defined in paragraph (b)(6) of this section will normally be presumed to satisfy this consideration.
(iv) The significance of the contribution to public understanding: Whether disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent as compared to the level of public understanding existing prior to the disclosure. NSF will make no value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public.
(3) To determine whether the second fee waiver requirement is met, NSF will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. NSF will consider any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters will be given an opportunity in the administrative process to provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. NSF ordinarily will presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
(4) Where only some of the requested records satisfy the requirements for a waiver of fees, a waiver will be granted for those records.
(5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (k)(2) and (3) of this section, insofar as they apply to each request.
Nothing in this part will be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intent to request an extension for and revision to a currently approved information collection for Tart Cherries Grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, pursuant to Marketing Order No. 930 (7 CFR part 930).
Comments must be received by July 15, 2013.
Interested persons are invited to submit written comments concerning this notice. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Weiya Zeng, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Room 1406-S, Washington, DC 20250-0237; Telephone: (202) 690-3870, Fax: (202) 720-8938, or Email:
Small businesses may request information on this notice by contacting Jeffrey Smutny, Assistant to the Director, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Room 1406-S, Washington, DC 20250-0237; Telephone: (202) 720-9922, Fax: (202) 720-8938; or Email:
The information collection requirements in this request are essential to carry out the intent of the AMAA and to administer the program, which has operated since 1996.
The Federal marketing order for tart cherries (7 CFR part 930) regulates the handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The order authorizes volume regulations that provide for a reserve pool in times of heavy cherry supplies. The order also provides for minimum grade and size regulations, and market research and development projects, including paid advertising. These provisions are not currently in use.
The order, and rules and regulations issued thereunder, authorizes the Cherry Industry Administrative Board (Board), the agency responsible for local administration of the order, to require handlers and growers to submit certain information. Much of this information is compiled in aggregate and provided to the Board to assist in carrying out marketing decisions.
The Board has developed forms as a means for persons to file the required and minimum necessary reports with the Board, such as tart cherry inventories, shipments, diversions, and background data. All the information provided is needed to effectively carry out the requirements of the order and fulfill the intent of the AMAA as expressed in the order. Since this order regulates canned and frozen forms of tart cherries, reporting requirements will be in effect all year.
Eight U.S. Department of Agriculture (USDA) forms are also included in this request. Tart cherry growers and handlers nominated by their peers to serve as representatives on the Board must submit nomination forms to the USDA. Formal rulemaking amendments to the order must be approved in grower referenda authorized and conducted by the USDA. In addition, USDA may conduct a referendum to determine industry support for continuation of the order. Finally, handlers are asked to sign an agreement to indicate their willingness to comply with the provisions of the order if the order is amended.
The information collected is used only by authorized representatives of the USDA, including AMS, Fruit and Vegetable Programs' regional and headquarters staff, and authorized Board employees. Authorized Board employees and the industry are the primary users of the information, and AMS is the secondary user.
Comments: Comments are invited on: (1) Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility; (2) the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on those who respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments should reference this docket number and the appropriate marketing order and be sent to the USDA in care of the Docket Clerk at the address above. All comments received within the provided comment period will be available for public inspection during regular business hours, and summarized and included in the request for OMB approval. All comments will become a matter of public record.
Food Safety and Inspection Service, USDA.
Notice of public meeting.
This notice is announcing that the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) will hold public meetings of the full Committee and subcommittees on June 4-6, 2013. The Committee will discuss: (1) Control strategies for reducing foodborne Norovirus infections, (2) Study of microbiological criteria as indicators of process control or insanitary conditions, and (3) Application of NACMCF recommendations to the Agricultural Marketing Service, Federal Ground Beef Purchase Program.
The full Committee will hold an open meeting on Tuesday, June 4, 2013 from 10:00 a.m. to 12:00 p.m. The Subcommittee on Control Strategies for Reducing Foodborne Norovirus Infections and the Subcommittee on Study of Microbiological Criteria as Indicators of Process Control or Insanitary Conditions will hold concurrent open meetings on Tuesday, June 4, 1 p.m. to 5 p.m., Wednesday, June 5, and Thursday, June 6, 2013 from 8:30 a.m. to 5:00 p.m.
The June 4-6, 2013, full Committee and subcommittee meetings will be held at the Patriots Plaza 3, 1st Floor Auditorium and Conference Rooms, respectively, 355 E. Street SW., Washington, DC 20024. All documents related to the full Committee meeting will be available for public inspection in the FSIS Docket Room, USDA, 355 E. Street SW., Patriots Plaza 3, Room 8-164, Washington, DC 20250-3700, between 8:30 a.m. and 4:30 p.m., Monday through Friday, as soon as they become available. The NACMCF documents will also be available on the Internet at
FSIS will finalize an agenda on or before the meeting dates and post it on the FSIS Web page at
Also, the official transcript of the June 4, 2013, full Committee meeting, when it becomes available, will be kept in the FSIS Docket Room at the above address and will also be posted on
The mailing address for the contact person is: Karen Thomas-Sharp, USDA, FSIS, Office of Public Health Science, 1400 Independence Avenue SW., Patriots Plaza 3, Mailstop 3777, Room 9-47, Washington, DC 20250.
Persons interested in making a presentation, submitting technical papers, or providing comments at the June 4, plenary session should contact Karen Thomas: Phone: (202) 690-6620; Fax (202) 690-6334; Email:
The NACMCF was established in 1988, in response to a recommendation of the National Academy of Sciences for an interagency approach to microbiological criteria for foods, and in response to a recommendation of the U.S. House of Representatives Committee on Appropriations, as expressed in the Rural Development, Agriculture, and Related Agencies Appropriation Bill for fiscal year 1988. The charter for the NACMCF is available for viewing on the FSIS Internet Web page at
The NACMCF provides scientific advice and recommendations to the Secretary of Agriculture and the Secretary of Health and Human Services on public health issues relative to the safety and wholesomeness of the U.S. food supply, including development of microbiological criteria and review and evaluation of epidemiological and risk assessment data and methodologies for assessing microbiological hazards in foods. The Committee also provides scientific advice and recommendations to the Centers for Disease Control and Prevention and the Departments of Commerce and Defense.
Dr. Elisabeth A. Hagen, Under Secretary for Food Safety, USDA, is the Committee Chair; Mr. Michael Landa, Director of the Food and Drug Administration's Center for Food Safety and Applied Nutrition (CFSAN), is the Vice-Chair; and Ms. Gerri Ransom, FSIS, is the Executive Secretary.
At the subcommittee meetings the week of June 4-6, 2013, the groups will discuss:
• Control strategies for reducing foodborne Norovirus infections, and
• Study of microbiological criteria as indicators of process control or insanitary conditions.
FSIS intends to make available to the public all materials that are reviewed and considered by the full committee of NACMCF regarding its deliberations. Generally, these materials will be made available as soon as possible after the full Committee meeting. Further, FSIS intends to make these materials available in electronic format on the FSIS Web page (
In order to meet the electronic and information technology accessibility standards in Section 508 of the Rehabilitation Act, NACMCF may add alternate text descriptors for non-text elements (graphs, charts, tables, multimedia, etc.). These modifications only affect the online copies of the documents.
Copyrighted documents will not be posted on the FSIS Web site, but will be available for inspection in the FSIS Docket Room.
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.)
Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at (202) 720-2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call (202) 720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Rural Business-Cooperative Service, USDA.
Notice of Funding Availability (NOFA).
USDA announces the availability of grants through the Rural Business Opportunity Grant Program (RBOG) for Fiscal Year (FY) 2013. Public bodies, nonprofit corporations, institutions of higher education, Indian tribes on Federal or State reservations and other Federally Recognized Native American Tribes or tribal groups, and rural cooperatives may apply. Approximately $2.6 million is available in reserved and unreserved funding and will be distributed as follows: $919,820 is reserved for projects benefitting Federally Recognized Native American Tribes (“Native American”) in rural areas; $919,820 is reserved until June 30, 2013 for projects benefitting Rural Economic Area Partnerships (“Partnerships”); and $790,303 is unreserved. Any Partnership funds unobligated after June 30, 2013, will be added to the unreserved funds. Applications, including those for multi-state projects, are limited to $100,000 or less. See 7 CFR part 4284, subpart G.
Complete applications must be submitted on paper or electronically according to the following deadlines:
Paper applications must be postmarked and mailed, shipped, or sent overnight no later than June 28, 2013, to be eligible for FY 2013 grant funding. An applicant may also hand carry their application to Rural Development field office, but it must be received by close of business on the deadline date. Please note that if you are applying for Partnership funds, your application must be received prior to the June 30, 2013, reservation of funds deadline date. Late applications are not eligible for FY 2013 grant funding.
If you would like to submit an electronic application, you must follow the instructions for the RBOG funding announcement on www.grants.gov. If you would like to submit an electronic application, your application must be received by
If you do not meet the deadline for submitting an electronic application, you may submit a paper application by the deadline as discussed above. Late applications will not be eligible for FY 2013 grant funding.
You should contact a Rural Development State Office if you have questions or need a copy of the application forms. Applications may be submitted in electronic or paper format. If you submit an electronic application, you must follow the instructions for the RBOG funding announcement on www.grants.gov. If you want to submit a paper application, the application should be sent to the State Office located in the State where the project is located. In the case of a multi-state project, you must submit your application to the Rural Development State Office located in the State where the majority of the work will be conducted. You can find the address for your Rural Development State Office at:
Office of the Deputy Administrator, Cooperative Programs, Rural Business-Cooperative Service, United States Department of Agriculture, 1400 Independence Avenue SW., MS-3250, Room 4016-South, Washington, DC 20250-3250, (202) 720-7558.
Paper applications must be postmarked and mailed, shipped, or sent overnight no later than June 28, 2013, to be eligible for FY 2013 grant funding. An applicant may also hand carry your application to one of Rural Development's field offices, but it must be received by close of business on the deadline date. Please note that if you are applying for Partnership funds, your application must be received prior to the June 30, 2013, reservation of funds deadline date. Late applications are not eligible for FY 2013 grant funding.
Electronic copies must be received by
If you do not meet the deadline for submitting an electronic application, you may submit a paper application by the deadline as discussed above. Late applications will not be eligible for FY 2013 grant funding.
The RBOG program is authorized under section 306(a)(11) of the Consolidated Farm and Rural Development Act (CONACT) (7 U.S.C. 1926(a)(11)).
The primary objective of the program is to improve the economic conditions of rural areas. Assistance provided to rural areas under this program includes the following:
In addition, we are encouraging applications that will support regional economic development.
Rural Development is participating in the Investing in Manufacturing Communities Partnership (IMCP), which is a new Administration-wide initiative that will accelerate the resurgence of manufacturing and help cultivate an environment for businesses to create well-paying manufacturing jobs in regions across the country. The IMCP is designed to reward communities that demonstrate best practices in attracting and expanding manufacturing by using long-term planning that integrates targeted investments in workforce training, infrastructure, research, and other key assets.
The IMCP is being initiated in FY 2013 as EDA, USDA, SBA and EPA each provide funding for regional implementation strategy grants. The agencies will allocate funding through existing programs to advance this critical national priority. Strategies developed by these grants, as well as existing strategies and those otherwise under development, will enhance regions' efforts to compete for future proposed large scale IMCP grants (10 to 100 times the size of the implementation strategy grants). These grants will be given to communities with the best strategies for attracting private investment. IMCP partner agencies will coordinate funding across agencies in order to leverage complementary activities while also preventing duplication of efforts. Specific information on how applicants can participate in IMCP can be found at Section V.10 of this Notice.
The terms you need to know are published at 7 CFR 4284.3 and 4284.603.
Grants may be made to public bodies, nonprofit corporations, institutions of higher education, Indian tribes on Federal or State reservations and other Federally recognized tribal groups, and cooperatives with members that are primarily rural residents.
You must obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) number (see Section IV.B.) and register in the System for Awards Management (SAM, formerly managed by the Central Contractor Registry (CCR)) prior to submitting an application. (See 2 CFR 25.200(b).) In addition, you must maintain your registration in SAM during the time your application is active. Finally, you must have the necessary processes and systems in place to comply with the reporting requirements in 2 CFR 170.200(b), as long as you are not exempted from reporting. Exemptions are identified at 2 CFR 170.110(b).
For additional information on applicant eligibility, see 7 CFR 4284.620.
Matching funds are not required.
An application must propose to use project funds, including grant and other contributions committed under the evaluation criterion located at 7 CFR 4284.639(c), for eligible purposes (see 7 CFR 4284.621). Also, the proposed project must benefit a rural area; thus, all ultimate recipients of services provided through the project must either reside in a rural area (if an individual) or be located in a rural area (if a business).
Project funds cannot be used for construction, planning a facility, engineering work, or revolving loan funds. See 7 CFR 4284.10 and 4284.629 for more information on ineligible uses of funds. However, if you include funds in your budget that are for ineligible purposes, we will consider the application for funding if the ineligible purposes total 10 percent or less of an applicant's total project budget. However, if the application is successful, those ineligible costs must be removed before we will make the grant award. If we cannot determine the percentage of ineligible costs, the application will not be considered for funding.
Finally, if you have an existing RBOG award, you must be performing satisfactorily to be considered eligible for a new award. Satisfactory
An application will not be considered for funding if it does not provide sufficient information to determine eligibility or is missing required elements. In particular, you must include a project budget that identifies each task to be performed, along with the time period of performance for each task, and the amounts of grant funds and other contributions needed for each task. For more information on application requirements, see 7 CFR 4284.638.
For further information, you should contact your respective Rural Development State Office. Instructions for identifying Rural Development State Offices can be found in the
You may submit their application in paper form or electronically. If you submit an application in paper form, any forms requiring signatures must include an original signature.
To submit an application electronically, you must use the Grants.gov Web site at:
• When you enter the Grants.gov Web site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• To use Grants.gov, you must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number, which can be obtained at no cost via a toll-free request line at (866) 705-5711. We strongly recommend that you do not wait until the application deadline date to begin the application process through Grants.gov.
• Before submitting an application, you must also be registered and maintain registration in SAM (formerly the CCR database). (See 2 CFR part 25.) You may register in SAM at
• You must submit all of your application documents electronically through Grants.gov.
• After electronically submitting an application through Grants.gov, you will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number.
• You may be required to provide original signatures on forms at a later date.
• You can locate the Grants.gov downloadable application package for this program by using a keyword, the program name, the Catalog of Federal Domestic Assistance Number, or the Funding Opportunity Number.
An application must contain all of the required forms and application elements described in 7 CFR 4284.638 and as otherwise clarified in this Notice. Further clarification of application form requirements is as follows:
1. Standard Form (SF) 424, “Application for Federal Assistance.” Your DUNS number should be identified in the “Organizational DUNS” field. Additionally, you must provide a Commercial and Government Entity (CAGE) code and expiration date. Because there are no specific fields for a CAGE code and expiration date, you may identify them anywhere you want to on the form. If you do not include the CAGE code and expiration date and the DUNS number in your application, it will not be considered for funding.
2. You must complete Form AD-3030, “Representations Regarding Felony Conviction and Tax Delinquent Status for Corporate Applicants,” if you are a corporation. A corporation is any entity that has filed articles of incorporation in one of the 50 States, the District of Columbia, or the various territories of the United States including American Samoa, Federated States of Micronesia, Guam, Midway Islands, Northern Mariana Islands, Puerto Rico, Republic of Palau, Republic of the Marshall Islands, or the U.S. Virgin Islands. Corporations include both for profit and non-profit entities.
Executive Order (EO) 12372, “Intergovernmental Review of Federal Programs,” applies to this program. This EO requires that Federal agencies provide opportunities for consultation on proposed assistance with State and local governments. Many States have established a Single Point of Contact (SPOC) to facilitate this consultation. For a list of States that maintain a SPOC, please see the White House Web site:
Applications for financial assistance are subject to an environmental review. However, if an application is for technical assistance or planning purposes, it is generally excluded from the environmental review process (See 7 CFR 1940.310(e)(1)). We will ensure that any required environmental review is completed prior to approval of an application or obligation of funds.
We will review each application to determine if it is eligible for assistance based on the requirements in 7 CFR part 4284, subpart G as well as other applicable Federal regulations. Eligible applications will be initially scored by the USDA Rural Development State Offices and submitted to the National Office for final review and selection. Applications will be funded in rank order.
You must address each selection criterion outlined in 7 CFR 4284.639 in your application. Any criterion not substantively addressed will receive zero points.
To assist you with addressing each criterion, we are providing what we consider to be necessary documentation along with an explanation of how we will score each criterion below.
1. Sustainability of Economic Development (7 CFR 4284.639(a)). You
• 0 points if you do not identify at least one type of economic development.
• 1-2 points if you identify at least one type of economic development, but are unable to reasonably quantify it or demonstrate sustainability.
• 3-4 points if you identify at least one type of economic development and reasonably quantify it.
• 5-6 points if you identify at least one type of economic development, reasonably quantify it, and demonstrate that it can be sustained for at least 1 year after the completion of the project through user fees, community organization support, or other non-governmental methods.
• 7-8 points if you identify at least one type of economic development, reasonably quantify it, and demonstrate that it can be sustained for at least 3 years after the completion of the project through user fees, community organization support, or other non-governmental methods.
• 9-10 points if you identify at least one type of economic development, reasonably quantify it, and demonstrate that it can be sustained for at least 5 years after the completion of the project through user fees, community organization support, or other non-governmental methods.
2. Improvements in the Quality of Economic Activity (7 CFR 4284.639(b)). You must quantitatively describe how your project will improve the economic activity in your service area through higher wages, improved benefits, greater career potential, and/or the use of higher level skills than are currently typical. We will score the criterion as follows:
• 0 points if you do not quantitatively describe at least one way your project will improve the economic activity in your service area.
• 1-2 points if you quantitatively describe one way your project will improve the economic activity in your service area.
• 3-4 points if you quantitatively describe two ways your project will improve the economic activity in your service area.
• 5-6 points if you quantitatively describe three ways your project will improve the economic activity in your service area.
• 7-8 points if you quantitatively describe four ways your project will improve the economic activity in your service area.
• 9-10 points if your quantitatively describe five or more ways your project will improve the economic activity in your service area.
3. Other Contributions (7 CFR 4284.639(c)). You must provide documentation indicating who will be providing the other source of funds, the amount of funds, when those funds will be provided, and how the funds will be used in the project budget. Examples of acceptable documentation include: A signed letter from the source of funds stating the amount of funds, when the funds will be provided, and what the funds can be used for or a signed resolution from your governing board authorizing the use of a specified amount of funds for specific components of the project. The other contributions you identify must be specifically dedicated to the project and cannot include your organization's general operating budget. No credit will be given for in-kind donations of time, goods, and/or services from any organization, including the applicant organization. If you choose, you may use a template to summarize the other contributions. The template is available either from your Rural Development State Office or the program Web site at:
• 0 points if your other contributions total 25 percent or less of the total project cost.
• 10 points if your other contributions are greater than 25 and 50 percent of the total project cost.
• 20 points if your other contributions are more than 50 percent and less than or equal to 80 percent of the total project cost.
• 30 points if your other contributions are more than 80 percent of the total project cost.
4. Major Natural Disaster (7 CFR 4284.639(d)(1)). You must provide a Federal Emergency Management Agency (FEMA) disaster reference number or USDA disaster declaration date and description for any disasters that occurred within 3 years of the application deadline in the counties in the project service area. We will award 15 points if a FEMA disaster reference number or USDA disaster declaration date and description is provided for the majority of the counties in an applicant's service area; otherwise we will award 0 points.
5. Fundamental Structural Change (7 CFR 4284.639(d)(2)). You must describe a structural change (for example, the loss of major employer or closing of a military base) that occurred within or affected one or more of the counties in the project service area. The structural change must have occurred within the 3 years prior to submitting your application. We will award 15 points if the structural change affected the majority of the counties in your service area and if it caused the loss of at least 100 jobs; otherwise the Agency will award 0 points.
6. Long-Term Poverty (7 CFR 4284.639(d)(3)). You must provide the percentage of residents living below the poverty level from the 1990 and the 2010 decennial censuses for all counties and all States in the service area. If you need assistance locating the census information, you should contact your Rural Development State Office. We will award 10 points if the majority of counties in the service area have a percentage of residents living below that poverty level that is above the state percentage in both the 1990 and the 2010 censuses; otherwise we will award 0 points.
7. Long-Term Population Decline (7 CFR 4284.639(d)(4)). You must provide population statistics from the 1990 and the 2010 decennial censuses for all counties in the service area. If you need assistance locating the census information, you should contact your Rural Development State Office. We will award 10 points if the majority of the counties in the service area experienced a net loss of population between 1990 and 2010; otherwise we will award 0 points.
8. Long-Term Job Deterioration (7 CFR 4284.639(d)(5)). You must provide the unemployment rate from the 1990 and 2010 decennial censuses for all counties in the service area. If you need assistance locating the census information, you should contact your Rural Development State Office. We will award 10 points if the majority of counties in the service area experienced an increase in the unemployment rate between 1990 and 2010; otherwise we will award 0 points.
9. Best Practices (7 CFR 4284.639(e)). You must describe how your project could be replicated, including any potentially necessary modifications, in other communities or service areas. We will score the criterion as follows:
• 0 points if your project could not be replicated.
• 1-3 points if your project could be replicated in another community, but with substantial modifications.
• 4-6 points if your project could be replicated in another community, but with moderate modifications.
• 7-10 points if your project could be replicated in another community, with minimal modifications.
10. Discretionary Points (7 CFR 4284.639(f)). If you wish to be considered for discretionary points, your application must include a description of the following:
• The project service area, and/or
• The special importance for implementation of a regional strategic plan in partnership with other organizations, and/or
• The extraordinary potential for success of the project due to superior project plans or qualifications of your organization, including the key personnel for the project.
Applications can receive discretionary points from either the State Director or the Administrator, but not both. Because awarding these points is completely at the option of the State Director or the Administrator, no additional point break down can be provided.
Successful projects will be regional in scope and focus on manufacturing sectors that demonstrate comparative advantages in the marketplace. To compete for IMCP, applications should emphasize some combination of public-private and higher education collaboration. In addition, they will target investments that help stakeholders within a region to collaborate and build on existing regional assets to create a supportive regional economic ecosystem for business investment and innovation, creation of good jobs, and improved quality of life. Regions are geographic areas, which need not be contiguous or defined by political boundaries, which are capable of undertaking self-sustained economic development.
For the first phase of IMCP in FY 2013, applicants should focus on identifying targeted industries, and specific public investments that will enhance the attractiveness of regions to private investment. Competitive applications will demonstrate the following in the project narrative:
(1)
(2)
(3)
• A regional strategy that expands, strengthens, enhances and advances manufacturing in a specific industry, with a particular focus on the attraction of significant private sector investment in manufacturing communities. This could be based on the manufacturing and private sector investment attraction objectives included in a current comprehensive economic development strategy, or other regional strategy, and further refine the strategy by developing specific action plans, partnerships, networks, that are critical to the development of a manufacturing ecosystem;
• A regional action/implementation initiative that fulfills the manufacturing and private sector investment attraction objectives of an already existing regional economic development strategy. This may include specific non-construction implementation initiatives that benefit the region's manufacturing ecosystem; or,
• A combination of the above.
If an application is successful, you will receive notification regarding funding from the Rural Development State Office where the application was submitted. You must comply with all applicable statutes and regulations before the grant award will be approved. If your application is not successful, you will receive notification by mail.
All adverse determinations regarding applicant eligibility and the awarding of points as part of the selection process are appealable (see 7 CFR part 11). Instructions on the appeal process will be provided at the time an applicant is notified of the adverse decision.
Additional requirements that apply to grantees selected for this program can be found in 7 CFR part 4284, subparts A and G, parts 3015, 3016, 3019, 3052, and 2 CFR parts 215 and 417. All recipients of Federal financial assistance are required to comply with the Federal Funding Accountability and Transparency Act of 2006 and must report information about sub awards and executive compensation (see 2 CFR part 170). These recipients must also maintain their registration in SAM as long as their grants are active. So long as an applicant does not have an exception under 2 CFR 170.110(b), the applicant must have the necessary processes and systems in place to comply with the reporting requirements should the applicant receive funding (see 2 CFR 170.200(b)). These regulations may be obtained at
The following additional requirements apply to grantees selected for this program:
• Agency-approved Grant Agreement.
• Letter of Conditions.
• Form RD 1940-1, “Request for Obligation of Funds.”
• Form RD 1942-46, “Letter of Intent to Meet Conditions.”
• Form AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters-Primary Covered Transactions.”
• Form AD-1048, “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions.”
• Form AD-1049, “Certification Regarding a Drug-Free Workplace Requirement (Grants).”
• Form AD-3031, “Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants.”
• Form RD 400-4, “Assurance Agreement.”
• SF LLL, “Disclosure of Lobbying Activities,” if applicable.
If you have questions about this Notice, please contact the Rural Development State Office located in your State as identified in the
USDA prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identify, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)
If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online at
Individuals who are deaf, hard of hearing or have speech disabilities and who wish to file either an EEO or program complaint, please contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).
Persons with disabilities who wish to file a program complaint, please see information above on how to contact us by mail directly or by email. If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.), please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
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 that the Ohio Advisory Committee (Committee) will hold a fact finding meeting on Wednesday, June 5, 2013, and Thursday, June 6, 2013, for the purpose to acquire information and hear recommendations regarding human trafficking in Ohio from advocates, federal and state officials, law enforcement officials, business leaders, professors, and community leaders. The June 5 session will convene at 1:00 p.m. for a business meeting with panels beginning at 2:00 p.m. and adjourn at approximately 5:30 p.m. The June 6 session will convene at 9:00 a.m. and adjourn at approximately 1:00 p.m. The meeting will be held at the THE Hotel @ UTMC, 3100 Glendale Ave., Toledo, OH 43614.
Members of the public are entitled to submit written comments; the comments must be received in the regional office by June 25, 2013. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8311, or emailed to the Commission at
Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Midwestern Regional Office at least ten (10) working days before the scheduled date of the meeting.
Records generated from this meeting may be inspected and reproduced at the Midwestern 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.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Researchers propose to conduct two distinct data collection efforts, a survey of non-commercial, shore-based fishers. This survey will ascertain the catch, effort, and socioeconomic characteristics of fishers using this mode of fishing on St. Croix. A survey of boat-based, non-commercial fishers on St. Croix to document levels of catch and effort will be submitted separately.
The data gathered will be used to describe recreational and subsistence sectors in St. Croix, and evaluate the socio-economic impacts of federal regulatory actions. In addition, the information will be used to strengthen
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
On January 7, 2013, GE Appliances, operator of Subzone 29C in Louisville, Kentucky, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
The Chattanooga Area Chamber of Commerce, grantee of FTZ 134, submitted a notification of proposed production activity to the FTZ Board on behalf of Komatsu America Corporation (Komatsu), for its facility located in Chattanooga, Tennessee. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on May 6, 2013.
The Komatsu facility is located within Site 14 of FTZ 134 (S-38-2013, 4-2-2013). The facility is used for the production of construction and forestry equipment. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products listed in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Komatsu from customs duty payments on the foreign status components used in export production (an estimated five percent of production). On its domestic sales, Komatsu would be able to choose the duty rates during customs entry procedures that apply to hydraulic excavators; bulldozers; wheel loaders; dump trucks; forklifts; forestry harvesters, feller bunchers and forwarders; and, parts of excavators and forestry equipment (duty rates range from duty-free to 25%) 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: cleaning agents; glues; adhesives; adhesive plates; O-rings; rubber bolts/rods; hoses/tubes (including reinforced); floor mats; gaskets/washers/seals; rubber caps; glass; mirrors; insulating covers; tubes/pipes; elbows; nipples; fuel tanks; joints; nuts; washers; rivets; cotter pins; indicators; springs; supports; clamps; pipes; brackets; engines; engine blocks; engine plugs; engine cylinders; motors; pump assemblies; parts of pumps; fan parts; bands; filter assemblies; air cleaner assemblies; connectors; arm assemblies; plastic shrouds; accumulators; accumulator parts; valves; breathers; ball bearings; bearings; bearing flanges; bushings; swing circles; pulleys; idlers and parts; gaskets; washers; alternators; cameras; monitors; horns; fuses; electrical connectors; switch sensors; lamps; wiring harnesses; electrical cables; bumpers and parts; supports; exhaust tubes; steering wheels; guides; sensors; plugs; and timer switches (duty rate ranges from duty-free to 8.6%). The request indicates that certain bearings and bearing flanges may be subject to antidumping/countervailing duty (AD/CVD) orders. The FTZ Board's regulations (15 CFR 400.14(e)) require that merchandise subject to AD/CVD actions be admitted to the zone in privileged foreign status (19 CFR 146.41).
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 June 24, 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
Import Administration, International Trade Administration, U.S. Department of Commerce.
On November 8, 2012, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on carbon and certain alloy steel wire rod (wire rod) from Mexico. The period of review (POR) is October 1, 2010, through September 30, 2011, and the review covers one producer/exporter of the subject merchandise, Deacero S.A. de C.V. and Deacero USA, Inc. (collectively, Deacero).
Based on our analysis of the comments received, we have made certain changes in the margin calculations. The final results, consequently, differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”
Patricia M. Tran or Eric B. Greynolds, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-1503 or (202) 482-6071, respectively.
On November 8, 2012, the Department published in the
The POR covered by this review is October 1, 2010, through September 30, 2011.
The merchandise subject to this order is carbon and certain alloy steel wire rod. The product is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0010, 7227.20.0020, 7227.20.0090, 7227.20.0095, 7227.90.6051, 7227.90.6053, 7227.90.6058, and 7227.90.6059. Although the HTS numbers are provided for convenience and customs purposes, the written product description, available in
On October 1, 2012, the Department published
All issues raised in the case and rebuttal briefs by parties to this proceeding and to which we have responded are listed in Appendix 1 to this notice and addressed in the Memorandum to Paul Piquado, Assistant Secretary for Import Administration, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, “Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review: Carbon and Certain Alloy Steel Wire Rod from Mexico; 2010-2011, dated concurrently with this notice (Issues and Decision Memorandum)”, which is hereby adopted by this notice. A list of the issues which parties raised is attached to this notice as Appendix I. The Issues and Decision Memorandum is a public document and is on file in the Central Records Unit (CRU), Room 7046 of the main Department of Commerce building, as well as electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
Based on our analysis of the comments received, we have corrected a programming error in the weighted-average dumping margin calculation. A detailed discussion of the corrections made is included in the final analysis memorandum,
As a result of this review, we determine that the following margin exists for the period October 1, 2010, through September 30, 2011:
Pursuant to section 751(a)(2)(A) of the Act, and 19 CFR 351.212(b), the Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.
For assessment purposes, the Department applied the assessment rate calculation method adopted in
We calculated such rates based on the ratio of the total amount of dumping calculated for the examined sales to the total entered value of the sales for which entered value was reported. If an importer-specific assessment rate is zero or
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 each respondent for which they did not know that their 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, see
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for 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) of the Act: (1) The cash deposit rate for Deacero will be the rate established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 20.11 percent, the all-others rate established in the investigation.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent increase in antidumping duties by the amount of antidumping duties reimbursed.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b). We are issuing and publishing these results of review 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 (the Department) is conducting an administrative review of the antidumping duty order on polyethylene retail carrier bags (PRCBs) from Thailand. The review covers 11 respondents. The period of review (POR) is August 1, 2011, through July 31, 2012. We preliminarily find that subject merchandise has been sold at less than normal value by the companies subject to this review.
Dmitry Vladimirov, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0665.
The merchandise subject to the antidumping duty order is polyethylene retail carrier bags, which are currently classified under subheading 3923.21.0085 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS number is provided for convenience and customs purposes. A full description of the scope of the order is contained in the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, “Decision Memorandum for Preliminary Results of the 2011/12 Antidumping Duty Administrative Review: Polyethylene Retail Carrier Bags from Thailand,” dated concurrently with this notice (Preliminary Decision Memorandum), which is hereby adopted by this notice. The written description is dispositive.
The Preliminary Decision Memorandum is a public document and is on file electronically
We have relied on total facts available with respect to Trinity Pac Co., Ltd. (Trinity Pac), the sole company selected for individual examination in this review. Because this company did not act to the best of its ability to respond to the Department's requests for information, we have drawn an adverse inference in selecting from among the facts otherwise available.
With respect to TPN FlexPac Co., Ltd., we preliminarily determine that it had no shipments of subject merchandise to the United States during the POR.
Section 735(c)(5)(B) of the Act states that “if the estimated weighted average dumping margins established for all exporters and producers individually investigated are zero or
As a result of our review, we preliminarily determine that the following percentage weighted-average dumping margins on PRCBs from Thailand exist for the period August 1, 2011, through July 31, 2012:
Pursuant to 19 CFR 351.309(c), interested parties may submit cases briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs. Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
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
Upon issuance of the final results, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review. For the final results, if we continue to rely on total adverse facts available to establish Trinity Pac's weighted-average dumping margin, we will instruct CBP to apply an
For the companies which were not selected for individual examination and for which we did not determine that there were no shipments, we will
Consistent with the
We intend to issue liquidation instructions to CBP 15 days after publication of the final results of review.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of PRCBs from Thailand entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2) of the Act: (1) The cash deposit rates for the reviewed companies, except for TPN FlexPac Co., Ltd., will be the rates established in the final results of this review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value investigation but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) if neither the exporter nor the manufacturer has its own rate, the cash deposit rate will be 4.69 percent.
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 Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
These preliminary results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Jerry Huang, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4047.
On April 15, 2013, the Department of Commerce (“Department”) published, in the
This correction is published in accordance with sections 751(h) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to a request from The Polyethylene Retail Carrier Bag Committee and its individual members: PCL Packaging, Inc., Hilex Poly Co., LLC, Superbag Corp., and Inteplast Group, Ltd., (collectively, the petitioners), the Department of Commerce (the Department) is initiating an anticircumvention inquiry pursuant to section 781(a) of the Tariff Act of 1930, as amended (the Act), to determine whether imports of unfinished polyethylene retail carrier bags (PRCBs) from the People's Republic of China (PRC) are circumventing the antidumping duty order on PRCBs from the PRC.
Dustin Ross, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and
The Department received from U.S. Customs and Border Protection (CBP) a sample of merchandise that was part of a larger shipment imported into the United States and that resembles an unfinished PRCB. The sample resembles an in-scope, finished PRCB in all respects except that it is sealed on all four sides and appears ready to undergo the final processing step of die-cutting the unfinished PRCB, which will create the opening and the handles of the finished PRCB.
On March 15, 2013, the petitioners requested that the Department issue an affirmative anticircumvention determination (the petitioners' Request), pursuant to section 781(a) of the Act and 19 CFR 351.225(g). Specifically, the petitioners stated that CBP officials advised them that some importers have been entering merchandise described by the CBP officials as unfinished “t-shirt” style PRCBs. The petitioners explain that CBP officials conveyed that the unfinished PRCBs are sealed on all four sides and lack handles when entered into the United States, but that they are clearly intended for use as finished PRCBs. Furthermore, they explained that the CBP officials advised the petitioners that the practice of importing unfinished PRCBs is increasing and expanding to multiple ports. The petitioners further assert that there is no commercial justification for not completing the PRCB production process at the place of manufacture and instead locating the final minor finishing operation in the United States except to evade imposition of antidumping duties.
The merchandise subject to the antidumping duty order is PRCBs which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches but not longer than 40 inches (101.6 cm). PRCBs are typically provided without any consumer packaging and free of charge by retail establishments,
This anticircumvention inquiry covers merchandise from the PRC that appears to be an unfinished PRCB which is sealed on all four sides, cut to length, and which appears ready to undergo the final step in the production process,
As stated above, the petitioners filed a request for a circumvention determination, in which they commented on the relationship of this merchandise to merchandise covered by the scope of the
Citing the International Trade Commission (ITC)'s recent sunset review determination of PRCBs from the PRC, the petitioners explain that the PRCB production process can be described as a four-step process consisting of (1) blending polyethylene resin pellets, color concentrates, and other additives; (2) extrusion and film forming; (3) printing; and (4) PRCB conversion.
Section 781(a) of the Act and 19 CFR 351.225(g) provide that the Department may find circumvention of an antidumping duty order when merchandise of the same class or kind subject to the order is completed or assembled in the United States. In conducting anticircumvention inquiries under section 781(a)(1) of the Act, the Department relies upon the following criteria: (A) Merchandise sold in the United States is of the same class or kind as any other merchandise that is produced in a foreign country that is subject to an antidumping duty order; (B) such merchandise sold in the United States is completed or assembled in the United States from parts or components produced in the foreign country with respect to which the antidumping duty order applies; (C) the process of assembly or completion in the United States is minor or insignificant; and (D) the value of the parts or components referred to in (B) is a significant portion of the total value of the merchandise. As discussed below, the petitioners presented evidence with respect to these criteria.
The petitioners state that the unfinished PRCB sold in the United States is of the same class or kind as subject merchandise, as it is dedicated as a generic “Thank You” t-shirt bag and only requires a simple die-cutting to become proto-typical subject merchandise.
The petitioners assert that the unfinished PRCBs are imported from the PRC and CBP officials described the product as only needing to undergo the final die-cutting operation to open the top and create the handles of finished PRCBs, which means that no materials are added in the United States.
According to the petitioners, the process of converting this product into a finished PRCB is minor or insignificant.
The petitioners argue that the level of investment in the United States is extremely limited. The only equipment needed is a small press and a die for the cut-out. The petitioners assert that dies cost from $45 to $65 each and a new press, according to the advertisement provided by the petitioners, can be purchased for around $7,000.
The petitioners argue that no research and development expenditures are required to perform the simple die-cutting operation, as the technically complex research and development activities are performed prior to this stage in the PRC.
Next, the petitioners explain that all production steps, with the exception of the final die-cutting operation, are performed in the PRC and, therefore, the nature of the production process in the United States is minor in scope and elementary in technique, relative to the production process as a whole.
The petitioners also state that minor production facilities are required to perform the final die-cutting operation in the United States. Specifically, the operation could be performed in a small single-story room.
Finally, the petitioners assert that the value of processing performed in the United States represents a negligible proportion of the value of the merchandise sold in the United States.
As stated above, the petitioners contend that the value of the processing performed in the United States represents a minor portion of the value of the completed merchandise, as little value is added by processing in the United States.
Section 781(a)(3) of the Act identifies additional factors that the Department shall consider in determining whether to include parts or components in an antidumping duty order as part of an anticircumvention inquiry. Of these, the petitioners argue that importation of the circumventing merchandise represents a change in the pattern of trade.
Based on our analysis of the petitioners' Request, the Department determines that the criteria under section 781(a) of the Act have been satisfied to warrant an initiation of an anticircumvention inquiry. In accordance with 19 CFR 351.225(f)(1), a notice of the initiation of an anticircumvention inquiry issued under 19 CFR 351.225(e) will include a description of the product that is the subject of the anticircumvention inquiry—in this case, unfinished PRCBs from the PRC—and an explanation of the reasons for the Department's decision to initiate an anticircumvention inquiry, as provided below.
With regard to whether the merchandise sold in the United States is of the same class or kind as the merchandise covered by the antidumping duty order, the petitioners presented information indicating that the merchandise sold in the United States is of the same class or kind as finished PRCBs from the PRC, which are subject to the antidumping duty order.
With regard to completion of merchandise in the United States, the petitioners have also presented information to support their contention that the unfinished PRCBs which are presumably further processed and sold in the United States as in-scope merchandise are produced from merchandise imported into the United States from the PRC.
With regard to whether the process of converting this product into a finished PRCB is a “minor or insignificant process,” the petitioners addressed the relevant statutory factors with the best information available to them at the time of their anticircumvention inquiry request.
With respect to the value of the merchandise produced in the PRC, the petitioners relied on the information and arguments in the “minor or insignificant process” portion of their anticircumvention request to indicate that the value of the PRC production for unfinished PRCBs is significant relative to the total value of finished PRCBs sold in the United States.
Finally, the petitioners argued that the Department should also consider the pattern of trade as a factor in determining whether to initiate the anticircumvention inquiry. In particular, the petitioners asserted that no party imported unfinished PRCBs that must undergo the final step of the production process to be converted into finished PRCBs prior to the imposition of the
Based on our analysis of the information in the petitioners' submission, we find that the petitioners provided sufficient evidence for each of the criteria enumerated in the statute to initiate an anticircumvention inquiry.
Accordingly, we are initiating an anticircumvention inquiry concerning the antidumping duty order on PRCBs from the PRC, pursuant to section 781(a) of the Act and 19 CFR 351.225(g). The Department is initiating this circumvention proceeding with respect to all such unfinished PRCBs received by CBP from the PRC as described above, regardless of producer or exporter. In accordance with 19 CFR 351.225(l)(2), if the Department issues a preliminary affirmative determination, we will then instruct CBP to suspend liquidation and require a cash deposit of estimated duties, at the applicable rate, for each unliquidated entry of the merchandise at issue, entered or withdrawn from warehouse for consumption on or after the date of initiation of the inquiry. In accordance with section 781(e)(1) of the Act and 19 CFR 351.225(f)(7)(i)(C), we intend to notify the ITC in the event of an affirmative preliminary determination of circumvention under section 781(d) of the Act.
This notice serves as an invitation to interested parties to participate in this anticircumvention inquiry. The Department invites all potential respondents to identify themselves as producers of such merchandise, and provide their own evidence and information that may inform the Department's determination. Please contact the official listed under the above heading,
This notice is published in accordance with 781(a) of the Act and 19 CFR 351.225(f).
Committee for the Implementation of Textile Agreements (CITA).
Notice of Interim Procedures and Request for Comments.
This notice sets forth the interim procedures the Committee for the Implementation of Textile Agreements (“CITA”) will follow in implementing certain provisions of the United States-Panama Trade Promotion Agreement (“US-Panama TPA”). Section 203(o)(4) of the United States-Panama Trade Promotion Agreement Implementation Act (“Implementation Act”) [Public Law 112-43] authorizes the President to establish procedures to modify the list of fabrics, yarns, or fibers not available in commercial quantities in a timely manner in either the United States or Panama as set out in Annex 3.25 of the US-Panama TPA. The President has delegated to CITA the authority to determine whether fabrics, yarns, or fibers are not available in commercial quantities in a timely manner in either the United States or Panama and has directed CITA to establish procedures that govern the submission of a request and provide the opportunity for interested entities to submit comments and supporting evidence for any such determination pursuant to the Implementation Act. CITA hereby gives notice to interested entities of the procedures CITA will follow in considering such requests and solicits public written comments on these interim procedures. CITA will be using the procedures detailed in this notice as of May 14, 2013.
If submitting comments in hard copy, an original, signed hard copy must be submitted to the Chairman, Committee for the Implementation of Textile Agreements, Room 30003, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230. If submitting comments electronically, the electronic copy must be submitted to
Maria Dybczak, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.
Section 203(o) of the Implementation Act and Proclamation No. 8894, 77 FR 66507 (November 5, 2012).
The US-Panama TPA provides a list in Annex 3.25 for fabrics, yarns, and fibers that the United States has determined are not available in commercial quantities in a timely manner from producers in the United States or Panama. A textile or apparel good must satisfy the specific rules of origin in Annex 4.1 of the US-Panama TPA as well as other requirements of the Agreement. However, a textile and apparel good containing fabrics, yarns, or fibers that are included on the list in Annex 3.25 of the US-Panama TPA will be treated as if it is an originating good for purposes of the US-Panama TPA, regardless of the actual origin of those inputs in accordance with the specific rules of origin in Annex 4.1, Notes to Section XI. The Implementation Act provides that the President will establish procedures governing the submission of requests under Section 203(o)(4) (“the commercial availability provision”), and as set forth in the US-Panama TPA, and may determine whether additional fabrics, yarns, or fibers are available or are not available in commercial quantities in a timely manner in the United States or Panama. In addition, Section 203(o)(4) of the Implementation Act establishes that the President may restrict the quantity of, or remove a fabric, yarn, or fiber from the list, if it has been added to the list in an unrestricted quantity or has had a restriction eliminated, if he determines that the fabric, yarn, or fiber has become available in commercial quantities in a timely manner.
In Proclamation No. 8894 (77 FR 66507, November 5, 2012), the President delegated to CITA his authority under the commercial availability provision to establish procedures for modifying the list of fabrics, yarns, or fibers not available in commercial quantities in a timely manner, as set out in Annex 3.25 of the US-Panama TPA.
Pursuant to that delegation, CITA provides below its interim procedures governing the submission of requests under Section 203(o)(4) set forth in the Implementation Act. As of May 14, 2013, CITA intends to use these procedures to process requests for modifying the list of fabrics, yarns, or fibers not available in commercial quantities. CITA intends to publish its final procedures after considering any public comments received pursuant to its request for comments.
The intent of these procedures is to foster trade in U.S. and Panamanian textile and apparel articles by allowing non-originating fibers, yarns, or fabrics to be placed on or removed from a list of items not available in commercial quantities in a timely manner, and in a manner that is consistent with normal business practice. To this end, these procedures are intended to facilitate the transmission, on a timely basis, of requests for commercial availability determinations and offers to supply the products that are the subject of the requests; have the market indicate the availability of the supply of products that are the subject of requests; make available promptly, to interested entities and parties, information regarding the requests for products and offers to supply received; ensure wide participation by interested entities and parties; provide careful scrutiny of information provided to substantiate order requests and response to supply offers; and provide timely public dissemination of information used by CITA in making commercial availability determinations.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(a)
(1) An electronic version of the submission must be either in PDF, Word, or Word-Perfect format, must contain an adequate public summary of any business confidential information and the due diligence certification, and be sent to
(2) The original signed submission must be received via express courier to—Chairman, Committee for the Implementation of Textile Agreements, Room 30003, U.S. Department of Commerce, 14th and Constitution Ave. NW., Washington, DC 20230. Any business confidential information upon which an interested entity wishes to rely must be included in the original signed submission only. Except for the inclusion of business confidential information and corresponding public summary, the two versions of a submission should be identical.
(3) Brackets must be placed around all business confidential information contained in submissions. Documents containing business confidential information must have a bolded heading stating “Confidential Version.” Attachments considered business confidential information must have a heading stating “Business Confidential Information.” Documents, including those submitted electronically, provided for public release, must have a bolded heading stating “Public Version” and all the business confidential information must be deleted and substituted with an adequate public summary.
(4) Generally, details such as quantities and lead times for providing the subject product can be treated as business confidential information. However, the names of US-Panama TPA suppliers who were contacted, what was asked generally about the capability to manufacture the subject product, and the responses thereto should be included in public versions, which will be made available to the public.
(b)
(1) For the person responsible for presentation of the factual information: I, (name and title), currently employed by (interested entity), certify that (1) I have read the attached submission, and (2) the information contained in this submission is, to the best of my knowledge, complete and accurate.
(2) For the person's legal counsel or other representative: I, (name), of (law or other firm), counsel or representative to (interested entity), certify that (1) I have read the attached submission, and (2) based on the information made available to me by (person), I have no reason to believe that this submission contains any material misrepresentation or omission of fact.
(c)
(a)
(b)
(1)
If any aspect of the Request is outside the normal course of business (e.g., tight deadline, higher standards of performance, requirements to match existing specifications), requestors must provide US-Panama TPA suppliers with detailed explanations and measurable criteria for the specification or term at issue. In the course of its review of the Request, CITA will consider record evidence to determine whether such specifications and terms are reasonable.
The requestor must clearly describe the unique characteristics of the subject product that distinguishes it from other similar or potentially substitutable products. In addition, the requestor must also explain why such characteristics are required for the purposes of the end-use of the product and cannot be substituted by another product. However, all characteristics and specifications must be supported by measurable criteria.
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(4)
(5)
In considering whether to accept a Request, CITA will consider and determine whether the Request provides all the required information specified in Sections 3 and 4 of these Procedures. CITA will determine whether to accept the Request for consideration and investigation not later than two U.S. business days after the official receipt of a Request.
(a)
(1)
(2)
(b)
Responses must meet the requirements outlined in Section 3 of these Procedures. General comments in support of or opposition to a Request do not meet the requirements of a Response. A Due Diligence Certification must accompany a Response.
(b)
(1)
(2)
(3)
(i) The Response must report the quantity, in metric units, that the US-Panama TPA supplier produced of the subject product, or a substitutable product, in the preceding 24-month period.
(ii) For products that have experienced cyclical demand or are not currently produced, the US-Panama TPA supplier must indicate the quantity that has been supplied or offered commercially in the past, with an explanation of the reasons it is not currently produced or offered.
(iii) If the subject product involves a new style, weight, or other variation that is new to the market or new to the US-Panama TPA supplier, then the supplier must provide detailed information on its current ability to make the subject
(iv) A US-Panama TPA supplier may support its claim to be able to produce the subject product through provision of a sample meeting exactly the specifications as presented in the Request. However, the provision of a sample is not required. Regardless of whether a sample is provided, a respondent must demonstrate its ability to produce the subject product by providing sufficient relevant information regarding their production capability. Such information could include past production of similar products and/or descriptions of equipment and identification of suppliers necessary to produce the subject product. If some operations, such as finishing, will be completed by other entities, the name of the facility and contact information must be provided.
(v) The Response may provide, if relevant, the basis for the US-Panama TPA supplier's rationale that other products that are supplied by the US-Panama TPA supplier in commercial quantities in a timely manner are substitutable for the subject product(s) for purposes of the intended use, supported by measurable criteria.
(vi) In its review of a Response, CITA will consider whether the US-Panama TPA supplier was responsive to the efforts employed by the requestor to obtain the subject product in the course of due diligence. In the event that a US-Panama TPA supplier was not responsive, a US-Panama TPA supplier must provide a reasonable explanation in its Response as to why it did not respond to earlier inquiries by the requestor in the course of due diligence. CITA will reject a Response if it does not include such explanation.
(4)
(i) If a US-Panama TPA supplier has been responsive to a requestor in the undertaking of due diligence, the US-Panama TPA supplier must have stated its ability to supply or not supply the subject product. If the product can be supplied, the response to the inquiry must contain information supporting the US-Panama TPA supplier's claim to supply the subject product, or one substitutable, in commercial quantities in a timely manner.
(ii) If a US-Panama TPA supplier offers to supply the subject product, the supplier may support its offer by reporting the quantity, in metric units, that it has produced of the subject product, or a substitutable product, in the preceding 24-month period. If the US-Panama TPA supplier does not provide such information, it must, subject to section 6(b)(4)(vii), explain why the information it has provided sufficiently supports its offer to supply.
(iii) In response to a requestor's inquiry, for products that have experienced cyclical demand or are not currently produced, the US-Panama TPA supplier must provide the requestor the quantity that has been supplied or offered commercially in the past, with an explanation of the reasons it is not currently produced or offered.
(iv) If the subject product involves a new style, weight, or other variation that is new to the market or new to the US-Panama TPA supplier, then the supplier must provide detailed information on its current ability to make the subject product in commercial quantities in a timely manner. Such information could include current production capacity, current loom availability, and standard timetables to produce the subject product.
(v) A US-Panama TPA supplier may support its claim to be able to produce the subject product through provision of a sample meeting the specifications as presented in an inquiry. However, the provision of a sample is not required. Regardless of whether a sample is provided, the US-Panama TPA supplier must demonstrate its ability to produce the subject product by providing sufficient relevant information regarding their production capability. Such information could include past production of similar products and/or descriptions of equipment and identification of suppliers necessary to produce the subject product. If some operations, such as finishing, will be completed by other entities, the name of the facility and contact information must be provided.
(vi) A response to a requestor's inquiry must provide, as applicable, the basis for the US-Panama TPA supplier's rationale that other products that are supplied by the US-Panama TPA supplier in commercial quantities in a timely manner are substitutable for the subject product for purposes of the intended use, supported by measurable criteria.
(vii) Nothing in these procedures shall require any US-Panama TPA supplier to provide business confidential or other commercially sensitive information to a requestor. However, a US-Panama TPA supplier must provide the requestor a reasonable explanation why such information was not provided and why the information it has provided sufficiently supports its offer to supply.
(5)
A Rebuttal must meet the requirements outlined in Section 3 of these procedures. General comments in support of or opposition to a Request or a Response do not meet the requirements of a Rebuttal. A Due Diligence Certification must accompany a Rebuttal.
(a)
(b)
(a) Not later than 30 U.S. business days after official receipt of a Request (or not later than 44 U.S. business days where an extension is provided), CITA will notify interested entities by email and will post a notice on its Web site whether the subject product is available in commercial quantities in a timely manner in the United States or Panama and whether an interested entity has objected to the Request.
(b) CITA will notify the public of the determination by publication in the
(c)
(1)
(i)
(ii)
(2)
If a Request is approved without restriction, a notice will be published in the U.S.
(3)
(i)
(A) If a Request is approved in a restricted quantity, a notice will be published in the
(B) The effective date of the determination will be the date of publication in the U.S.
(ii)
(A) The determination that the subject product is not available in commercial quantities in a timely manner will be based upon whether the restricted quantity has been provided by a US-Panama TPA supplier(s). CITA will solicit comments and information from the US-Panama TPA supplier(s) and the requestor.
(B) If the US-Panama TPA supplier(s) are still capable of providing the restricted quantity, the restriction will remain.
(C) If the US-Panama TPA supplier(s) are unable to provide the restricted quantity, CITA will eliminate the quantity restriction. CITA will publish a notice in the U.S.
(4)
(i)
(ii) CITA also will consider evidence in support of claims that US-Panama TPA supplier(s) can supply a substantially similar product to that specified in the Request.
(ii) CITA will make a determination, not later than 44 U.S. business days after the official receipt of a Request whether to approve, approve with restriction, or deny the Request and will follow the notification process accordingly.
(5)
(a)
(b)
(c)
(1) In considering whether to accept a Request to Remove or Restrict, CITA will follow procedures set forth in Section 5 (Consideration and Acceptance of a Request) of these procedures.
(2) If CITA determines to accept the Request to Remove or Restrict, CITA and any responding interested entity shall follow applicable procedures and contents set forth in subsection 6(a) (Response with an Offer to Supply) and Section 7 (Submitting a Rebuttal Comment) of these procedures.
(3) As set forth in subsections 8(a) and (b) (Determination Process) of these procedures, CITA will determine whether the subject product of the Request to Remove or Restrict is available in commercial quantities in a timely manner from a US-Panama TPA supplier not later than 30 U.S. business days after the official receipt of the Request to Remove or Restrict.
(i) If CITA determines that the product is available in commercial quantities in a timely manner in the United States or Panama, then that product will be removed from the Commercial Availability List in Annex 3.25 of the US-Panama TPA.
(ii) If CITA determines that the product is available in restricted quantities in a timely manner in the United States or Panama, then a restricted quantity will be introduced for that product.
(iii) If the Commercial Availability List in Annex 3.25 of the US-Panama TPA changes as a result of CITA's determination for the Request to Remove or Restrict, CITA will notify interested parties by email of its determination and will publish a notice of its determination for the Request to Remove or Restrict in the U.S. Federal Register.
(A) For removal, the notice of determination will state that textile and apparel good containing the subject product are not to be treated as originating in either the United States or Panama if the subject product is obtained from sources outside the United States or Panama, effective for goods entered into the United States on or after six months (i.e., 180 calendar days) after the date of publication of the notice.
(B) For restriction, the notice of determination will specify the restricted quantity for the subject product that is to be effective on or after six months (i.e., 180 calendar days) after the publication date of the notice.
Comments must be received no later than June 13, 2013, and in the following format:
(1) Comments must be in English.
(2) Comments must be submitted electronically OR in hard copy, with original signatures.
(3) Comments submitted electronically must be either in PDF, Word, or Word-Perfect format, and sent to the following email address:
(4) Comments submitted in hard copy must be original signed documents and must be mailed to the Chairman, Committee for the Implementation of Textile Agreements, Room 30003, U.S. Department of Commerce, 14th and Constitution Avenue NW., Washington, DC 20230. Comments submitted in hard copy will be made available for public inspection at the Office of Textiles and Apparel, Room 30003, U.S. Department of Commerce, 14th and Constitution Avenue NW., Washington, DC, between the hours of 8:30 a.m. and 5:00 p.m. on business days. In addition, comments submitted in hard copy will also be posted for public review on the Web site dedicated to US-Panama TPA commercial availability proceedings.
10:00 a.m., Thursday, May 16, 2013.
CFTC Headquarters Conference Center, Three Lafayette Centre, 1155 21st St. NW., Washington, DC.
Open.
The Commission has scheduled this meeting to consider various rulemaking matters, including the issuance of interpretive guidance and policy statement and the approval of final rules. The agenda for this meeting is available to the public and posted on the Commission's Web site at
Melissa D. Jurgens, Secretary of the Commission, 202-418-5516.
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is proposing to renew the Office and Management and Budget (OMB) approval for an existing information collection titled,
Written comments are encouraged and must be received on or before July 15, 2013 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
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Documentation prepared in support of this information collection request is available at
Request for Comments: Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Bureau, including whether the information shall have practical utility; (b) The accuracy of the Bureau's estimate of the burden of the collection of information, including the validity of the methods and the assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Please note that the Bureau may revise the burden estimates of these information collection requirements as it engages in its compliance cost research efforts and obtains data allowing for revisions to its burden calculation methodology. In this regard, the Bureau especially appreciates comments providing insights into the time and effort (“burden”) for supervised entities to comply with the recordkeeping and disclosure requirements of Regulation DD. Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval. All comments will become a matter of public record.
U.S. Consumer Product Safety Commission.
Notice.
Notice of the second prehearing conference for the case: In the Matter of BABY MATTERS LLC, CPSC Docket No.13-1.
May 23, 2013, 11:00 a.m. Eastern.
Members of the public are welcome to attend the prehearing conference to be held at the Alexander Hamilton U.S. Customs House, One Bowling Green, Room 302 (U.S. Coast Guard Hearing Room), New York, New York 10004.
Regina Maye, Paralegal Specialist, U.S. Coast Guard ALJ Program, (212) 825-1230.
The purpose of this prehearing conference is to address the remaining items listed in the Final Pre-Hearing Order that were left unresolved at the time this matter was stayed.
Telephonic conferencing arrangements for the parties will be made by the court. Mary B. Murphy, Esq., Kelly Moore, Esq. and Daniel Vice, Esq., Counsel for the U.S. Consumer Product Safety Commission; Raymond G. Mullady, Jr., Esq. and Adrien C. Pickard, Esq. of BLANK ROME, LLP, Counsel for BABY MATTERS LLC; and, Larry W. Bennett, Esq. and Geoffrey S. Wagner, Esq., of GIARMARCO, MULLINS & HORTON, PC, shall be provided with a phone number and passcode in a separate notice of pre-hearing conference so they may participate telephonically if they so choose.
Consumer Product Safety Act, 15 U.S.C. 2064.
U.S. Department of Energy.
Notice of availability and public hearings.
The U.S. Department of Energy (DOE) announces the availability of the Lake Charles Carbon Capture and Sequestration Project Draft
DOE prepared this draft EIS in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the Council on Environmental Quality (CEQ) regulations that implement the procedural provisions of NEPA (40 CFR Parts 1500-1508), the DOE procedures implementing NEPA (10 CFR Part 1021), the DOE procedures for compliance with floodplain and wetland environmental review requirements (10 CFR Part 1022), and the General Conformity Rule for air emissions in non-attainment or maintenance areas (40 CFR 93.150-165).
DOE invites the public to comment on the draft EIS during the public comment period, which ends June 25, 2013. DOE will consider all comments postmarked or received during the public comment period in preparing the final EIS and will consider late comments to the extent practicable.
DOE will conduct public hearings on June 4, 2013 at Westlake City Hall, 1001 Mulberry Street, in Westlake, Louisiana, and on June 5, 2013 at Berry Miller Junior High School, 3301 Manvel Road, in Pearland, Texas, to obtain comments on the draft EIS. Requests to speak at the public hearings can be made by calling or writing to Mrs. Pierina N. Fayish (see
The hearings will begin at 6 p.m. with an informational session. The formal presentations and formal comment period will be held from 7 p.m. to approximately 9 p.m., or until all registered commenters have been given the opportunity to speak.
All meetings will be accessible to people with disabilities. Any individual needing specific assistance, such as a sign language interpreter or a translator, should contact Mrs. Fayish (see
Requests for information about this draft EIS and requests to receive a copy of it should be directed to: Mrs. Pierina N. Fayish, U.S. Department of Energy, National Energy Technology Laboratory, M/S 922-243D, P.O. Box 10940, Pittsburgh, PA 15236. Additional information about the draft EIS may also be requested by electronic mail:
Written comments on the draft EIS can be mailed to Mrs. Fayish at the address noted above. Written comments may also be submitted by fax to: (412) 386-4775, or submitted electronically to:
For further information on the proposed project or the draft EIS, please contact Mrs. Fayish (see
DOE proposes to provide limited financial assistance (approximately $261.4 million), through a cooperative agreement, to Leucadia for the proposed Lake Charles Carbon Capture and Storage (CCS) Project. The total cost of the Lake Charles CCS Project is estimated at $435.6 million (2010 dollars). DOE has already provided a portion of the total funding (approximately $9.5 million) to Leucadia for DOE's share of the costs of preliminary design and project definition.
The Lake Charles CCS Project would involve the capture and sequestration of carbon dioxide (CO
Though DOE funds would only apply to the CCS Project, which consists of the carbon capture unit, compression and associated equipment, a new pipeline approximately 12 miles in length connecting the plant to the existing Green Pipeline, and the research MVA program, DOE determined that the LCCE Gasification Plant is a connected action in accordance with 40 CFR 1508.25 (a), and its impacts are analyzed in the draft EIS.
The LCCE gasification plant would use a state-of-the-art process to gasify approximately 2.6 million tons per year of petroleum coke, producing syngas that would be converted into methanol and hydrogen gas. The LCCE gasification plant also produces steam during the gasification and auxiliary processes, which would be used in turbines to generate power, covering a significant portion of the plant's energy demand.
The draft EIS evaluates the potential impacts of DOE's proposed action; Leucadia's proposed project, the connected action, and reasonable alternatives. DOE analyzed two alternatives in the draft EIS: the proposed action described above and the no-action alternative. The proposed project also included an alternative route for the CO
The draft EIS considers the environmental consequences that may result from the proposed project and describes mitigation that might be used to reduce impacts. Potential impacts identified during the scoping process and analyzed in the draft EIS relate to the following:
Air quality; soils, geology, and mineral resources; ground water; surface water; biological resources; cultural resources; land use; socioeconomics; environmental justice; community services; utility systems; transportation; materials and waste management; human health, safety, and accidents; and noise. Because the proposed project may affect wetlands, the draft EIS includes an assessment of impacts to wetlands in accordance with DOE regulations for Compliance with Floodplains and Wetlands Environmental Review Requirements (10 CFR Part 1022). In accordance with 40 CFR 93.156, DOE is also publishing a draft conformity analysis for the Lake Charles area, which is contained in the draft EIS.
Copies of the draft EIS have been distributed to members of Congress; Native American tribal governments; federal, state, and local officials; and agencies, organizations, and individuals who have expressed interest. The draft EIS will be available on the internet at
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, June 6, 2013; 8:30 a.m.-5:00 p.m., Friday, June 7, 2013; 8:30 a.m.-3:30 p.m.
Red Lion Hanford House, 802 George Washington Way, Richland, WA 99352.
Kimberly Ballinger, Federal Coordinator, Department of Energy Richland Operations Office, 825 Jadwin Avenue, P.O. Box 550, A7-75, Richland, WA, 99352; Phone: (509) 376-6332; or Email:
Office of Electricity Delivery and Energy Reliability, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Electricity Advisory Committee (EAC). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Wednesday, June 5, 2013; 12:15 p.m.-5:45 p.m. (EDT); Thursday, June 6, 2013; 8:00 a.m.-3:30 p.m. (EDT).
National Rural Electric Cooperative Association, 4301 Wilson Boulevard, Arlington, Virginia 22203.
Matthew Rosenbaum, Office of Electricity Delivery and Energy Reliability, U.S. Department of Energy, Forrestal Building, Room 8G-017, 1000 Independence Avenue SW., Washington, DC 20585; Telephone: (202) 586-1060 or Email:
The meeting agenda may change to accommodate EAC business. For EAC agenda updates, see the EAC Web site at:
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The following electronic file formats are acceptable: Microsoft Word (.doc), Corel Word Perfect (.wpd), Adobe Acrobat (.pdf), Rich Text Format (.rtf), plain text (.txt), Microsoft Excel (.xls), and Microsoft PowerPoint (.ppt). If you submit information that you believe to be exempt by law from public disclosure, you must submit one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been deleted. You must also explain the reasons why you believe the deleted information is exempt from disclosure. DOE is responsible for the final determination concerning disclosure or nondisclosure of the information and for treating it in accordance with the DOE's Freedom of Information regulations (10 CFR 1004.11).
Delivery of the U.S. Postal Service mail to DOE may be delayed by several weeks due to security screening. DOE, therefore, encourages those wishing to comment to submit comments electronically by email. If comments are submitted by regular mail, the Department requests that they be accompanied by a CD or diskette containing electronic files of the submission.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 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:
This is a supplemental notice in the above-referenced proceeding, of Gainesville Renewable Energy Center, 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 May 21, 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 5 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
Equal Employment Opportunity Commission.
Notice.
In accordance with the Paperwork Reduction Act of 1995, the Commission announces that it intends to request an extension without change of the existing information collection described below from the Office of Management and Budget (OMB). The Commission is seeking public comments on the proposed extension.
Written comments on this notice must be submitted on or before
Send written comments by mail to Bernadette B. Wilson, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE., Suite 6NE03F, Washington, DC 20507. Written comments of six or fewer pages may be faxed to the Executive Secretariat at (202) 663-4114. (There is no toll free FAX number.) Receipt of facsimile transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not toll free numbers.) Instead of sending written comments to EEOC, comments may be submitted to EEOC electronically on the Federal eRulemaking Portal:
All comments received will be posted without change to
Thomas J. Schlageter, Assistant Legal Counsel, (202) 663-4668, or Danielle Hayot, General Attorney, (202) 663-4695, Office of Legal Counsel, 131 M Street NE., Washington, DC 20507. Copies of this notice are available in the following alternate formats: large print, braille, electronic computer disk, and audio-tape. Requests for this notice in an alternative format should be made to the Publications Center at 1-800-699-3362 (voice), 1-800-800-3302 (TTY), or 703-821-2098 (FAX—this is not a toll free number).
The Equal Employment Opportunity Commission (EEOC), in accordance with the Paperwork Reduction Act of 1995 (PRA) and OMB regulation 5 CFR 1320.8(d)(1), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and
For the Commission.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before July 15, 2013. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202-395-5167 or via Internet at
Judith B. Herman, FCC, Office of Managing Director, (202) 418-0214.
The FCC Report 395, Common Carrier Annual Employment Report, is a data collection mechanism to implement the FCC's Equal Employment Opportunity (EEO) rules. All common carrier
Section 42.5 requires that records kept in a machine-readable medium be accompanied by a statement indicating the type of data included in the record and certifying that the information contained in it has been accurately duplicated.
Section 42.6 requires a carrier to retain telephone toll records for 18 months that are necessary to provide the following billing information about telephone toll calls: the name, address, and telephone number of the caller, telephone number called, date, time and length of call.
Section 42.7 allows a carrier to establish its own retention periods for all of its records, except records of telephone toll calls and records relevant to complaint proceedings.
Documentation of premature records destruction is necessary so that the Commission can be aware of the frequency and consequences of such destruction. If carriers were allowed to destroy records at will, the Commission would lose historical information, thus making it impossible to regulate the industry properly. A specific retention period for telephone toll records of 18 months is imposed to assist Department of Justice in law enforcement.
Any interested party seeking preemption of a state commission's jurisdiction based on the state commission's failure to act shall notify the Commission as follows: (1) File with the Secretary of the Commission a detailed petition, supported by an affidavit, that states with specificity the basis for any claim that it has failed to act; and (2) serve the state commission and other parties to the proceeding on the same day that the party serves the petition on the Commission. Within 15 days of filing the petition, the state commission and parties to the proceeding may file a response to the petition. In an OMB-approved Public Notice, DA 97-2540, released December 4, 1997, the Commission set forth procedures for filing petitions for preemption pursuant to section 252(e)(5). Section 252(e)(5) provides that “if a state commission fails to act to carry out its responsibility under this section in any proceeding or other matter under this section, then the Commission shall issue an order preempting the state commission's jurisdiction of the proceeding or matter within 90 days after being notified (or taking notice) of such failure, and shall assume the responsibility of the state commission under this section with respect to the proceeding or matter and act for the state commission.” All of the requirements are used to ensure that petitioners have complied with their obligations under the Communications Act of 1934, as amended.
Pursuant to the E-rate program (formerly known as the schools and libraries universal support program), eligible schools, libraries, and their consortia may apply for discounts for telecommunications services, Internet access, and internal connections. In general, the applicant must use the funded services within the funding year, which runs from July 1 through June 30, except that the rules of the FCC, hereinafter the “Commission”, give applicants three additional months, until September 30 following the close of the funding year, to install one-time services known as non-recurring services. The Universal Service Administrative Company (USAC) may extend the September 30 deadline if the applicant falls within at least one of four designated circumstances. The applicant must, however, submit any required documentation to support an extension on or before the September 30 deadline. These extensions ensure that schools and libraries are not penalized when they are not responsible for missing the installation deadline. Additionally, implementation of this policy provides clarify to the USAC and applicants by establishing a certain deadline for installation. This rule also gives schools and libraries in the program the opportunity to schedule implementation of non-recurring services over the summer months.
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, May 9, 2013. The meeting is scheduled to commence at 10:30 a.m. in Room TW-C305, at 445 12th Street SW., Washington, DC
The meeting site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, and assistive listening devices will be provided on site. Other reasonable accommodations for people with disabilities are available upon request. In your request, include a description of the accommodation you will need and a way we can contact you if we need more information. Last minute requests will be accepted, but may be impossible to fill. Send an email to:
Additional information concerning this meeting may be obtained from Meribeth McCarrick, Office of Media Relations, (202) 418-0500; TTY 1-888-835-5322. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC Live Web page at
For a fee this meeting can be viewed live over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. To purchase these services call (703) 993-3100 or go to
Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Best Copy and Printing, Inc. (202) 488-5300; Fax (202) 488-5563; TTY (202) 488-5562. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio and video tape. Best Copy and Printing, Inc. may be reached by email at
The following item has been adopted by the Commission and deleted from the list of agenda items scheduled for consideration at the Thursday, May 9, 2013, Open Meeting and previously listed in the Commission's Notice of May 2, 2013.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of meeting.
Email your name, organization and contact information to
You may also send a written request via U.S. Mail, fax or commercial carrier to the Executive Director of the ASC, 1401 H Street NW., Ste 760, Washington, DC 20005. The fax number is 202-289-4101. Your request must be received no later than 4:30 p.m., ET, on the Monday prior to the meeting. Attendees must have a valid government-issued photo ID and must agree to submit to reasonable security measures. The meeting space is intended to accommodate public attendees. However, if the space will not accommodate all requests, the ASC may refuse attendance on that reasonable basis. The use of any video or audio tape recording device, photographing device, or any other electronic or mechanical device designed for similar purposes is prohibited at ASC meetings.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of meeting.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 7, 2013.
A. Federal Reserve Bank of New York (Ivan Hurwitz, Vice President) 33 Liberty Street, New York, New York 10045-0001:
1.
9:00 a.m. (Eastern Time), May 20, 2013.
10th Floor Board Meeting Room, 77 K Street NE., Washington, DC 20002.
Parts will be open to the public and parts closed to the public.
Kimberly Weaver, Director, Office of External Affairs, (202) 942-1640.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodin Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Renee Chapman, Contact Representative, or Theresa Kingsberry, Legal Assistant, Federal Trade Commission, Premerger Notification Office, Bureau Of Competition, Room H-303, Washington, DC 20580, (202) 326-3100.
By Direction of the Commission.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting of the aforementioned committee:
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a) (2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announce the following meeting for the aforementioned committee:
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Youth Violence Training and Technical Assistance, Funding Opportunity Announcement (FOA) CE13-1305, Initial Review.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned SEP:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (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.
1.
The U.S. Department of Health and Human Services (HHS) released the Rate Review Grants Cycle I funding opportunity twice; first to states (and the District of Columbia) in June 2010 and then to the territories and the five states that did not apply during the first release,
On February 24, 2011, HHS released the Funding Opportunity Award (FOA) for Cycle II Rate Review Grants. On December 21, 2012, Cycle II of the Rate Review Grant Program was amended in order to include an additional application date. Thirty (30) states, the District of Columbia, and three territories were awarded grants in Cycle II.
The CMS is seeking to publish the Cycle III Funding Opportunity Announcement, “Grants to Support States in Health Insurance Rate Review and Pricing Transparency”, and associated grantee reporting requirements consisting of: (4) quarterly reports, (5) rate review transaction data reports (quarterly and annual), (1) Annual report, and (1) final report from all grantees. This information collection is required for effective monitoring of grantees and to fulfill statutory requirements under section 2794(b)(1)(A) of the ACA that requires grantees, as a condition of receiving a grant authorized under section 2794(c) of the ACA, to report to the Secretary information about premium increases.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by
1.
2.
ACF is proposing to collect information necessary to identify Head Start CARES study respondents' current location and follow-up with respondents until the children reach third grade. In support of the examination of fourth grade outcomes, information must be collected from parents or guardians until the third grade year. Therefore, in the summer of 2013 and spring of 2014 tracking of all children will be necessary, in the spring of 2015 for the three- and four-year-olds in Cohort 2 only, and in the spring of 2016 the three-year-olds in Cohort 2 only. In addition to location and contact information, a small set of additional items will provide information on the parents' perception of the children's social and emotional skills and behavioral outcomes.
Respondents: Low-income parents and their Head Start children. This is a three-year information collection request.
Administration for Community Living, HHS.
Notice.
The Administration for Community Living (formerly the Administration on Aging (AoA)) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by June 13, 2013.
Submit written comments on the collection of information by fax 202.395.5806 or by email to
Susan Jenkins, 202.357.3591
In compliance with 44 U.S.C. 3507, the Administration for Community Living (Formerly the Administration for Aging) has submitted the following proposed collection of information to OMB for review and clearance. The data collection associated with the Evaluation of the Elderly Nutrition Services Program (ENSP) is necessary to meet three broad objectives of ACL: (1) To provide information to support program planning, including an analysis of program processes, (2) to develop information about program efficiency and cost issues, and (3) to assess program effectiveness, as measured by the program's effects on a variety of important outcomes, including nutrient adequacy, socialization opportunities, health outcomes, and, ultimately, helping elderly people avoid institutionalization.
In response to the 60-day
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Prescription Drug Product Labeling; Medication Guide Requirements” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Ila S. Mizrachi, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-7726,
On April 30, 2012, the Agency submitted a proposed collection of information entitled “Prescription Drug Product Labeling; Medication Guide Requirements” to OMB for review and clearance under 44 U.S.C. 3507. 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 0910-0393. The approval expires on January 31, 2016. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by June 13, 2013.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Daniel Gittleson, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-5156,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 1701(a)(4) of the Public Health Service Act (42 U.S.C. 300u(a)(4)) authorizes FDA to conduct research relating to health information. Section 903(b)(2)(c) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 393(d)(2)(C)) authorizes FDA to conduct research relating to drugs and other FDA regulated products in carrying out the provisions of the FD&C Act.
To market their products, pharmaceutical companies must demonstrate to FDA the efficacy and safety of their drugs, typically through well-controlled clinical trials (Ref. 1) (see section 505 of the FD&C Act; 21 U.S.C. 355). In some cases, drug efficacy can be measured by a single endpoint, such as high blood pressure (Ref. 2). Often, however, efficacy is measured by multiple endpoints that are sometimes combined into an overall score called a composite score (Ref. 3). For example, nasal allergy relief is measured by examining individual symptoms such as runny nose, congestion, nasal itchiness, and sneezing. Each symptom is measured on its own. An overall score is computed from the individual symptom measurements; if a drug has a significantly better overall score than the comparison group (e.g., placebo), it can be marketed for the relief of allergy symptoms. However, although a drug may have a significantly better score overall, it may not have a significantly better score on a particular aspect (e.g., runny nose). Scientists and medical professionals have had training to understand the difference between composite score endpoints and single endpoints, but members of the general public may not understand the difference.
Given the frequency of DTC advertising, it is important to determine whether consumers understand composite scores as they are currently communicated and how best to communicate such scores to lay audiences in general. Because most DTC prescription drug ads do not explicitly state that they used composite scores to demonstrate efficacy or they provide little explanation of how these scores are calculated, it is also important to investigate whether consumers understand how composite scores are used for measuring drug efficacy.
Prior research on composite scores is scant. Therefore, in September 2011, FDA conducted a focus group study (OMB control number 0910-0677) to better understand how consumers understand the concept of composite scores. Prior to the focus group, few participants had heard the term “composite score,” none were aware of how the scores might be used in clinical trials, and most participants had difficulty correctly interpreting efficacy information that was based on composite scores. Once the moderator explained composite scores to
The focus group findings suggest that research is required to examine how the inclusion of increasingly detailed information affects understanding of composite scores and influences perceptions of efficacy. This is especially important given the many marketed prescription drugs that are based on composite scores.
We are aware of no quantitative research on best practices for communicating composite score information to consumers. One related area of research, communicating health-related information to consumers, offers two practical recommendations that are particularly relevant to communicating composite scores in DTC advertisements. First, because less-numerate and less-literate consumers may not understand the information as well, examining differences in comprehension of composite scores by numeracy- and literacy-relevant demographic characteristics such as education level and age is important (Refs. 4 and 5). Second, although the literature tends to suggest limiting the amount of information presented in advertisements (Ref. 5 to 7), examining the amount of detail that best facilitates comprehension of composite scores is warranted.
Given the lack of research on consumer understanding of composite scores and how to best present this information in DTC advertisements, the main goal of the current research is to evaluate how consumers interpret and respond to DTC prescription drug advertising that includes benefit information based on composite scores. Specifically, this research will explore:
• Whether consumers are aware of how efficacy is measured for specific drugs;
• How well consumers comprehend the concept of composite scores;
• Whether exposure to DTC advertisements with composite scores influence consumers' perceptions of a drug's efficacy and risk; and
• Different methods for presenting composite scores in DTC ads to maximize consumer comprehension and informed decision making.
As part of the survey, participants will view a print ad that contains claims based on composite scores and respond to questions about the ad to assess whether they recognized that composite scores were used. Other outcomes will include ad comprehension, perceived efficacy, and perceived risk as they relate to their understanding of composite scores. We will also examine whether and in what ways participants' perceived efficacy and perceived risk change after they are given a definition and examples of composite scores. Questions will also explore consumers' understanding of how the effectiveness of drugs is measured in general.
This exploratory survey will not be used to test specific hypotheses about the outcome measures. However, we will explore the differences in responses to the ad before and after information about composite scores is provided. We will also examine differences in the comprehension of the composite score concept and in the features of the ad by education level and age because literature suggests that less-educated and older consumers may not understand this type of information as well (Ref. 4).
This study will manipulate two variables: Three types of information presentations and the presence or absence of an educational intervention. In terms of information presentation, there are many aspects of composite scores that could be communicated and one research project cannot test them all. In this study, we have chosen to examine three different information presentations that may or may not help consumers understand the composite score concept. These different information presentations were chosen based on a review of the literature and a review of past DTC submissions.
The three different information presentations are described as follows:
We will also manipulate whether or not participants see a specific educational intervention. This intervention was developed from prior focus groups (OMB control number 0910-0677) where it was found to resonate with participants. In these focus groups, medical examples were confusing, so non-medical examples were explored. This example will feature the decathlon as an educational example of a composite score. For example, “Drug A's effectiveness is based on a composite score. A composite score is like a decathlon. In that event, athletes compete in 10 events, such as the long jump, the shot put, and the 50-yard dash. An athlete may not win all events, but if he or she performs well enough in some events, he or she may be the winner based on a combination of scores for each event.”
We will test whether the educational intervention, the information presentation, and the interaction of the two affect outcomes such as consumers' awareness and comprehension of the composite score concept, perceived drug efficacy, and risk recall. We will test whether numeracy and literacy moderate any significant relations.
The sample for the second study will include approximately 1,740 participants who have been diagnosed with seasonal allergies. The protocol will take place via the Internet. Participants will be randomly assigned to view one print ad for a fictitious prescription drug that treats seasonal allergies and will answer questions about it. The entire process is expected to take no longer than 20 minutes.
In the
(Comment 1) One comment mentioned the respondents who were identified as screeners, wondering who these individuals were and what their roles will be.
(Response) These individuals are members of the Internet panel who are screened for participation. They originate from the same source as participants who complete the whole survey but either do not meet the criteria in the screener or choose not to participate in the study.
(Comment 2) One comment mentioned that ensuring adequate power is an important consideration.
(Response) We agree that power analysis is critical to ensure that participants' time is used wisely and that the research meets high standards of rigor. We have conducted power analyses to do this.
(Comment 3) One comment questioned whether the understanding of composite scores is more applicable to print or video ads and suggested that we ensure we are delivering the sample ad in the medium consumers will be most likely to use.
(Response) Because this is the first study to our knowledge that specifically examines the understanding of composite scores, we have chosen to examine them in the context of magazine ads. Magazine ads for prescription drugs are common. Pending the results of the current research, we may examine the issues in video format.
(Comment 4) One comment mentioned that we have not addressed the issue of non-response.
(Response) We will perform a non-response analysis to determine whether respondents were biased in the direction of any demographic characteristics.
(Comment 5) The comment suggested that because FDA conducted focus groups on the understanding of composite scores there is no need to conduct quantitative research.
(Response) FDA respectfully disagrees. Focus groups are small, qualitative interviews among a group of individuals. Focus groups are composed of individuals who are not representative of any population, and the number of people queried is too small to draw firm conclusions. The value of focus group research is the exploration of topics for potential future study, to determine what language people use to discuss topics, and to strengthen the details of future quantitative research that may be conducted by FDA. What we learned from the focus groups on composite scores is that there is a need for research to determine how widespread misconceptions are and whether there are methods available to remedy them. To gain confidence in our qualitative findings, more quantitative measures are necessary.
(Comment 6) This comment suggested that because a health care professional is involved in the prescribing of prescription drugs, the misunderstanding of composite scores is mitigated.
(Response) We agree that the health care professional is the prescriber and that the consumer or patient has a layer of protection before consuming prescription drugs. However, direct-to-consumer advertising is directed at consumers before they talk to their health care professionals—in fact, driving consumers to their health care professionals is a primary goal of DTC ads. If sponsors choose to communicate with consumers in such a manner, then it makes sense to examine the understandability of their messages.
(Comment 7) This comment stated that because the meaning of composite scores in serious medical conditions may differ from that in allergy situations, FDA should take care in not generalizing beyond what the results suggest in the nasal allergy category.
(Response) We agree. Because we have designed only two studies to examine this issue, we have by necessity chosen one medical condition for each. We will be cautious in applying the findings of our research.
(Comment 8) This comment suggested leveraging the brief summary to improve consumer understanding of composite scores. They suggest including a signal, such as an asterisk, to information in the brief summary about composite scores. They also suggest that the brief summary draft guidance could include language about what the proper
(Response) This comment appears to address the draft guidance “Brief Summary: Disclosing Risk Information in Consumer-Directed Print Advertisements,” and is thus beyond the scope of this project. We encourage the commenter to consider submitting comments to the docket for that guidance, Docket No. 2004D-0042. Comments can be made to any guidance at any time.
(Comment 9) This comment requests that FDA publish a strategic plan that clearly shows which studies are independent and which are connected to each other. This comment also suggests that FDA publish in a timely manner the results of studies posted on the Office of Prescription Drug Promotion Web page.
(Response) We agree that timely results should be made available to the public. In the last few years, we have had an increase in the number of research studies and they are all in various states of development. We will publicize them as results become available. We agree the Web page should be updated and are constantly working to make that happen. Please note that this study is the first to explore composite scores and does not build on any prior research from our office.
(Comment 10) This comment suggests that an assessment of drug effectiveness and risk recall is outside the scope of the stated interest in the study and that information on this study is being collected elsewhere.
(Response) Assessment of effectiveness and risk information are within the scope of our stated interests in composite scores. Anything that is included in a DTC ad has the potential to influence the balance of risks and benefits that must be considered when a consumer makes the decision to speak with their health care professional about a prescription drug. Perceptions of effectiveness are central to issues of understanding composite scores because inappropriate presentations of composite scores overstate the efficacy of the drug. FDA is always concerned about the communication of risks in DTC promotion. Therefore, it is important to understand if variations in the presentation of composite scores influence the understanding of risks as well. Nonetheless, we are not collecting information on how composite scores may affect risk and benefit accuracy in other studies.
(Comment 11) This comment requests that the results of this study, which address print ads, not be broadly applied to other forms of advertising such as Web sites, smart phones, and social media.
(Response) We have chosen to investigate the concept of composite scores in a static print medium. The concepts we are exploring in this research apply to any similar medium, including static elements of Web sites.
FDA estimates the burden of this collection of information as follows:
The following references have been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, and are available electronically at
1. Lipsky, M. S. and L. K. Sharp, “From Idea to Market: The Drug Approval Process,”
2. Rutan, G. H., R.cH. McDonald, and L. H. Kuller, “A Historical Perspective of Elevated Systolic vs. Diastolic Blood Pressure From an Epidemiological and Clinical Trial Viewpoint,”
3. The Physician Consortium for Performance Improvement (PCPI) convened by the American Medical Association, “Measures Development, Methodology, and Oversight Advisory Committee: Recommendations to PCPI Work Groups on Composite Measures,” (
4. Fagerlin, A., and E. Peters, “Quantitative Information,” In: B. Fishoff, N.T. Brewer, and J.S. Downs (Eds.),
5. Peters, E., D. Vastfijall, P. Slovic, et al., “Numeracy and Decision Making,”
6. Gurmankin, A. D., J. Baron, and K. Armstrong, “The Effects of Numerical Statements of Risk on Trust and Comfort With Hypothetical Physician Risk Communication,”
7. Edwards, A., R. Thomas, R. Williams, et al., “Presenting Risk Information to People With Diabetes: Evaluating Effects and Preferences for Different Formats by a Web-Based Randomized Controlled Trial,”
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry and FDA staff entitled “Best Practices for Conducting and Reporting Pharmacoepidemiologic Safety Studies Using Electronic Healthcare Data.” The guidance is intended to describe best practices pertaining to conducting and documenting pharmacoepidemiologic safety studies that use electronic healthcare data. The guidance includes recommendations for documenting the design, analysis, and results of such studies to optimize FDA's review of protocols and final reports that are submitted to the Agency.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993-0002, or the Office of Communication, Outreach and Development (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 301-827-1800. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the guidance to
FDA is announcing the availability of a guidance for industry and FDA staff entitled “Best Practices for Conducting and Reporting Pharmacoepidemiologic Safety Studies Using Electronic Healthcare Data.” The primary goals of this guidance are to provide the following:
• Consistent guidance for industry and FDA to use when designing, conducting, and analyzing pharmacoepidemiologic safety studies;
• A framework for industry to use when submitting pharmacoepidemiologic safety study protocols and final reports to FDA; and
• A framework for FDA reviewers to use when reviewing and interpreting pharmacoepidemiologic safety study protocols and final reports.
This guidance does not address real-time active safety surveillance studies, as this field is still rapidly evolving, and it is not possible at this time to recommend sound best practices. The guidance is not intended to be prescriptive with regard to choice of study design or type of analysis and does not endorse any particular type of data resource or methodology. Finally, the guidance does not provide a framework for determining the appropriate weight of evidence to be given to studies from this data stream in the overall assessment of drug safety, as this appraisal represents a separate aspect of the regulatory decision-making process and is best accomplished in the context of the specific safety issue under investigation.
In the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on best practices for conducting and reporting pharmacoepidemiologic safety studies using electronic healthcare data. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either electronic comments regarding this document to
This guidance provides best practices for reporting pharmacoepidemiologic safety studies using electronic healthcare data. The reports referenced in the guidance would be submitted under 21 CFR 314.81, 314.98, and 601.70. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and are approved under OMB control numbers 0910-0001 and 0910-0338.
Persons with access to the Internet may obtain the document at
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR Part 404.7(a)(1)(i), that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of a start-up exclusive commercial license agreement to practice the inventions embodied in International PCT Application S/N PCT/US03/23317 (HHS Ref. No. E-113-2003/0-PCT-02) filed July 23, 2003, which published as WO 2004/068104 on August 12, 2004, now expired; U.S. Patent No. 7,709,047 (HHS Ref. No. E-113-2003/0-US-03) issued May 4, 2010; U.S. Patent Application S/N 12/753,566 (HHS Ref. No. E-113-2003/0-US-07) filed April 2, 2010; U.S. Patent No. 7,695,752 (HHS Ref. No. E-113-2003/1-US-01) issued April 13, 2010; U.S. Patent Application S/N 12/713,105 (HHS Ref. No. E-113-2003/1-US-02) filed February 25, 2010; Australian Patent No. 2003256803 (HHS Ref. No. E-113-2003/0-AU-04) issued January 21, 2010; Australian Patent Application S/N 2009250964 (HHS Ref. No. E-113-2003/0-AU-06) filed July 23, 2009; and Canadian Patent Application S/N 2513646 (HHS Ref. No. E-113-2003/0-CA-05) filed July 23, 2003, all entitled; “Target Activated Microtransfer;” and all continuing applications and foreign counterparts to xMD Diagnostics, LLC, a company having a place of business in Maryland. The patent rights in these inventions have been assigned to the Government of the United States of America.
The prospective exclusive license territory may be “worldwide”, and the field of use may be limited to the following below.
“Devices, systems, kits and related consumables, and methods using devices, systems, kits and related consumables, for micro-dissection of biological specimens, as covered by the Licensed Patents Rights (the “Exclusive Field”). xMD Diagnostics, LLC (xMD) shall be the only entity granted rights in the Exclusive Field for commercial or other “for-profit purposes. Methods, kits, and related consumables that are used independent of the devices or systems by individual researchers employed at non-profit and academic institutions, if such kits were built by the researchers themselves from component parts and used for their own individual research purposes, shall not infringe xMD's rights. Diagnostic services performed using devices, systems, kits and related consumables purchased from xMD (or xMD's authorized distributor(s)) by those persons employed at non-profit and academic institutions that purchased the devices, systems, kits and related consumables used in the diagnostic services, shall not infringe xMD's rights.”
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before May 29, 2013 will be considered.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: Kevin W. Chang, Ph.D., Senior Licensing and Patenting Manager, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; Telephone: (301) 435-5018; Facsimile: (301) 402-0220; Email:
The subject technologies are methods, devices, and kits for target activated transfer of a target from a biological sample such as a tissue section, comprising: contacting the biological sample with a reagent that selectively acts on the target within the biological sample; placing a transfer surface adjacent the biological sample, wherein the reagent produces a change in the transfer surface by heating the target; heating the target to produce a change in the transfer surface and selectively adhere the target to the transfer surface, or to selectively increase permeability of the transfer surface to the target; and selectively removing the target from the biological sample by removing the transfer surface and the adhered target from the biological sample, or by moving the target through the transfer surface.
The prospective start-up exclusive commercial license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR Part 404.7. The prospective start-up exclusive commercial license may be granted unless within fifteen (15) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR Part 404.7.
Applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Heart, Lung, and Blood Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
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/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, June 26, 2013, 06:00 p.m. to June 27, 2013, 03:00 p.m., Holiday Inn Express, 1775 Rockville Pike, Rockville, MD 20852 which was published in the
This notice is being amended to change the location from Holiday Inn Express, 1775 Rockville Pike, Rockville, MD 20852 to Hilton Washington, DC/Rockville, 1750 Rockville Pike, Rockville, MD 20852. 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 a meeting of the National Advisory Council on Minority Health and Health Disparities.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
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/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus.
All visitor vehicles, including taxis, hotel, and airport shuttles, will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
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 of the Board of Scientific Counselors, National Eye Institute. The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended, for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Eye Institute, including consideration of personnel qualifications and performances, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting date due to scheduling conflicts.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
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 because the premature disclosure of program documents—PAC and the discussions would likely to significantly frustrate implementation of recommendations.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, May 23, 2013, 11:30 a.m. to May 23, 2013, 03:30 p.m., National Cancer Institute—Shady Grove, 9609 Medical Center Drive, Room 7W032, Rockville, MD 20850 which was published in the
This notice is being amended due to a change in the meeting date and time from 11:30 a.m. to 3:30 p.m. on May 23, 2013 to 12:00 p.m. to 3:00 p.m. on May 22, 2013. 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 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the Clinical Aging Review Committee, June 12, 2013, 3:00 p.m. to June 13, 2013, 12:00 p.m., Courtyard Long Beach Downtown, 500 East First Street, Long Beach, CA 90802, which was published in the
The dates of the meeting have changed from June 12-13, 2013 to starting June 13, 2013 at 3:00 p.m. and ending June 14, 2013 at 12:00 p.m. The meeting is closed to the public.
National Protection and Programs Directorate, DHS.
Committee Management; Notice of Partially Closed Federal Advisory Committee Meeting.
The President's National Security Telecommunications Advisory Committee (NSTAC) will meet on Wednesday, May 22, 2013, in Washington, DC. The meeting will be partially closed to the public.
The NSTAC will meet in a closed session on Wednesday, May 22, 2013, from 9:40 a.m. to 11:50 a.m. and
The meeting will be held at the Eisenhower Executive Office Building, Washington, DC. Due to limited seating, the public portion of the meeting will be streamed via webcast at
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A public comment period will be held during the open portion of the meeting on Wednesday, May 22, 2013, from 2:25 p.m. to 2:55 p.m., and speakers are requested to limit their comments to three minutes. Please note that the public comment period may end before the time indicated, following the last call for comments. Contact Helen Jackson at 703-235-5321 to register as a speaker by close of business on May 15, 2013.
Michael Echols, NSTAC Alternate Designated Federal Officer, Department of Homeland Security, telephone (703) 235-5469.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The NSTAC advises the President on matters related to national security and emergency preparedness (NS/EP) telecommunications policy.
The committee will meet in a closed session to hear a classified briefing regarding cybersecurity threats and to discuss future studies based on Government's security priorities and perceived vulnerabilities.
The first of these agenda items, the classified briefing, will provide members with context on nation-state capabilities and strategic threats. Such threats target national communications infrastructure and impact industry's long-term competitiveness and growth, as well as the Government's ability to mitigate threats. Disclosure of these threats would provide criminals who wish to intrude into commercial and Government networks with information on potential vulnerabilities and mitigation techniques, weakening existing cybersecurity defense tactics. This briefing will be classified at the Top Secret level, thereby exempting disclosure of the content by statute. Therefore, this portion of the meeting is required to be closed pursuant to 5 U.S.C. § 552b(c)(1)(A).
The second agenda item, the discussion of potential NSTAC study topics, will address areas of critical cybersecurity vulnerabilities and priorities for Government. Government officials will share data with NSTAC members on initiatives, assessments, and future security requirements across public and private networks. The data to be shared includes specific vulnerabilities within cyberspace that affect the nation's communications and information technology infrastructures and proposed mitigation strategies. Disclosure of this information to the public would provide criminals with an incentive to focus on these vulnerabilities to increase attacks on our cyber and communications networks. Therefore, this portion of the meeting is likely to significantly frustrate implementation of proposed DHS actions and is required to be closed pursuant to 5 U.S.C. 552b(c)(9)(B).
The FACA requires that notices of meetings of advisory committees be announced in the
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection: 1651-0091.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security 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: Andean Trade Preferences Act. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This information collection was previously published in the
Written comments should be received on or before June 13, 2013.
Interested persons are invited to submit written comments on this information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for U.S. Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L.104-13). Your comments should address one 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/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components 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 collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
The ATPA declaration format is provided for by19 CFR Part 10.201-10.207. The type of information collected includes the processing operations performed on articles, the material produced in a beneficiary country or in the U.S., and a description of those processing operations. CBP Form 17, Andean Trade Preference Act (ATPA) Declaration, may be used when claiming preferential treatment under ATPA. This form is accessible at:
ATPDEA is provided for by 19 CFR 10.251-10.257. Claims under ATPDEA are submitted using CBP Form 449, Andean Trade Promotion and Drug Eradication Act (ATPDEA) Certificate of Origin. This form can be used only when claiming ATPDEA preferential treatment on the goods listed on the back of the form. CBP Form 449 is accessible at:
Bureau of Land Management, Interior.
Notice.
The plats of survey of the following described lands are scheduled to be officially filed in the Bureau of Land Management, Oregon State Office, Portland, Oregon, 30 days from the date of this publication.
A copy of the plats may be obtained from the Public Room at the Bureau of Land Management, Oregon State Office, 333 SW. 1st Avenue, Portland, Oregon 97204, upon required payment.
Kyle Hensley, (503) 808-6132, Branch of Geographic Sciences, Bureau of Land Management, 333 SW. 1st Avenue, Portland, Oregon 97204. Persons who
A person or party who wishes to protest against this survey must file a written notice with the Oregon State Director, Bureau of Land Management, stating that they wish to protest. A statement of reasons for a protest may be filed with the notice of protest and must be filed with the Oregon State Director within thirty days after the protest is filed. If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed or otherwise resolved.
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.
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
Notice of Filing of Plats of Survey; Alaska.
The plat of survey described above is scheduled to be officially filed in the Alaska State Office, Bureau of Land Management, Anchorage, Alaska, June 13, 2013.
Bureau of Land Management, Alaska State Office; 222 W. 7th Ave., Stop 13; Anchorage, AK 99513-7599.
Michael H. Schoder, Chief Cadastral Surveyor, Branch of Cadastral Survey, BLM-Alaska State Office; 222 W. 7th Ave., Stop 13; Anchorage, AK 99513-7599; Tel: 907-271-5481; fax: 907-271-4549; email:
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The survey plat and field notes will be available for inspection in the Public Information Center, Alaska State Office, Bureau of Land Management, 222 West 7th Avenue, Anchorage, Alaska, 99513-7599; telephone (907) 271-5960. Copies may be obtained from this office for a minimum recovery fee.
If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed.
A person or party who wishes to protest against this survey must file a written response with the Alaska State Director, Bureau of Land Management, stating that they wish to protest.
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.
A statement of reasons for a protest may be filed with the notice of protest to the State Director; the statement of reasons must be filed with the State Director within thirty days after the protest is filed.
43 U.S.C. 3; 53.
Bureau of Land Management, Interior.
Notice.
The purpose of this notice is to request public nominations for upcoming vacancies on the Bureau of Land Management (BLM) Utah Resource Advisory Council (RAC) which has four members with terms expiring on January 12, 2014. The RAC provides advice and recommendations to the BLM on land use planning and management of the National System of Public Lands within Utah. The BLM will accept public nominations for 45 days after the publication of this notice.
All nominations must be received no later than June 28, 2013.
Nominations and completed applications for the Utah RAC should be sent to Sherry Foot, Special Programs Coordinator, BLM Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, UT 84101.
Sherry Foot at the address listed in the
The Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by the BLM. Section 309 of FLPMA (43 U.S.C. 1739) directs the Secretary to establish 10- to 15-member, citizen-based advisory councils that are consistent with the Federal Advisory Committee Act (FACA). As required by FACA, RAC membership must be balanced and representative of the
• Category One—Holders of Federal grazing permits and representatives of organizations associated with energy and mineral development, timber industry, transportation or rights-of-way, developed outdoor recreation, off-highway vehicle use, and commercial recreation;
• Category Two—Representatives of nationally or regionally recognized environmental organizations, archaeological and historic organizations, dispersed recreation activities, and wild horse and burro organizations; and
• Category Three—Representatives of State, county, or local elected office employees of a State agency responsible for management of natural resources, representatives of Indian tribes within or adjacent to the area for which the council is organized, representatives of academia who are employed in natural sciences, and the public-at-large.
Individuals may nominate themselves or others. Nominees must be Utah residents. The BLM will evaluate nominees based on their education, training, experience, and knowledge of the geographical area of the RAC. Nominees should demonstrate a commitment to collaborative resource decision-making. The Obama Administration prohibits individuals who are currently federally registered lobbyists from being appointed or re-appointed to FACA and non-FACA boards, committees, or councils.
The following must accompany all nominations:
Simultaneous with this notice, BLM Utah will issue a press release providing additional information for submitting nominations and specifics about the categories of member positions available.
National Park Service, Interior.
Notice of Record of Decision.
Pursuant to § 102(2)(C) of the National Environmental Policy Act of 1969 and the regulations promulgated by the Council on Environmental Quality (40 CFR Part 1505), the Department of the Interior, National Park Service, has prepared the Record of Decision (ROD) for the Final Environmental Impact Statement (Final EIS) for the subject non-native ungulates management plan. The ROD includes a statement of the decision made, a summary of other alternatives considered, discussion of the environmental consequences and measures to minimize harm, the basis for the decision, and a summary of public and agency involvement in the environmental decision-making process. The requisite no-action “wait period” was initiated on January 25, 2013, with the Environmental Protection Agency's
Interested parties desiring to review the Record of Decision may obtain a copy by contacting the Superintendent, Hawaii Volcanoes National Park, P.O. Box 52, Hawaii National Park, HI 96718-0052 or via telephone request at (808) 985-6098.
National Park Service, Interior.
Meeting notice.
This notice sets forth the dates of meetings of the Acadia National Park Advisory Commission occurring in 2013.
The schedule for future public meetings of the Acadia National Park Advisory Commission is as follows:
1. June 3, 2013, at 1:00PM (EASTERN).
2. September 9, 2013, at 1:00PM (EASTERN).
For the June 3, 2013, meeting the commission members will meet at Headquarters, Acadia National Park, Bar Harbor, Maine 04609. For the September 9, 2013, meeting the commission members will meet at Schoodic Education and Research Center Institute (SERCI), Winter Harbor, Maine 04693.
Commission meeting will consist of the following:
Further information concerning the meeting may be obtained from the Sheridan Steele, Superintendent, Acadia National Park, P.O. Box 177, Bar
The meeting is open to the public. Interested persons may make oral/written presentations to the Commission or file written statements. Such requests should be made to the Superintendent at least seven days prior to the meeting. 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.
On May 7, 2013, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Puerto Rico in the lawsuit entitled
The proposed consent decree resolves claims against Victor Roberto Fernandez Ramos and Carmen Aurea Fernandez Ramos for violations of the Safe Drinking Water Act (SDWA) and the Surface Water Treatment Rule, promulgated under the SDWA. Under the terms of the consent decree, Victor Roberto Fernandez Ramos and Carmen Aurea Fernandez Ramos will transfer their property interest in a public water system to an association that has assumed operation of the public water system and to pay $8,000 into an escrow account to be used by the association for future operation and maintenance of the public water system.
The publication of this notice opens a period of public comment on the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Department of Justice Web site:
Please enclose a check in the amount of $9.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Mine Safety and Health Administration, Labor.
Request for public comments.
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 continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA). This program helps to assure 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 Mine Safety and Health Administration is soliciting comments concerning the proposed information collection for developing and updating a cleanup program for accumulations of coal and float coal dusts, loose coal, and other combustibles in underground coal mines.
All comments must be postmarked or received by midnight Eastern Standard Time on July 15, 2013.
Comments concerning the information collection requirements of this notice must be clearly identified with “OMB 1219-NEW” and sent to the Mine Safety and Health Administration (MSHA) by any of the methods listed below.
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Sheila McConnell, Deputy Director, Office of Standards, Regulations, and Variances, MSHA, at
A program for regular cleanup and removal of accumulations of coal and float coal dusts, loose coal, and other combustibles is essential to protect miners from explosions. Effective and frequent rock dust application is necessary to protect miners from the potential of a float coal dust explosion or, if one occurs, to reduce its propagation. Rock dust standards were published (35 FR 17097, November 20, 1970) as part of a final rule that implemented requirements contained in the 1969 Federal Coal Mine Health and Safety Act.
Section 75.400-2 requires that mine operators establish and maintain a “program for regular cleanup and removal of accumulations of coal and float coal dusts, loose coal, and other combustibles.” In addition, the cleanup program must be available to the Secretary or authorized representative (AR).
On September 23, 2010, MSHA issued an emergency temporary standard (ETS) on the maintenance of incombustible content of rock dust. The ETS, which became a final rule on June 21, 2011, increased the total incombustible
Based on its investigation of the April 5, 2010 explosion at the Upper Big Branch mine (UBB), MSHA issued a report on December 6, 2011, in which the Agency concluded that accumulations of coal and float coal dusts, and loose coal were contributing factors to the explosion. In response to the UBB explosion, MSHA determined that it is necessary to place more emphasis on improved rock dusting in underground coal mines, including improved operators' cleanup programs. A written cleanup program documents how an operator plans to conduct regular cleanup and removal of accumulations of coal and float coal dust, loose coal and other combustibles to better protect miners from the hazard of coal dust explosions.
The standard for mine operators to establish and maintain a cleanup program predates the PRA, and MSHA discovered that it lacked OMB approval. This collection of information provides the required OMB clearance under the PRA.
The Mine Safety and Health Administration (MSHA) is soliciting comments concerning the proposed information collection related to the Cleanup Program for Accumulations of Coal and Float Coal Dusts, Loose Coal, and Other Combustibles. MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
• Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Address 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), to minimize the burden of the collection of information on those who are to respond.
OMB clearance requests are available on MSHA's Web site at
The public also may examine publicly available documents at MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, VA 22209-3939.
Questions about the information collection requirements may be directed to the person listed in the
The information obtained from mine operators is used by MSHA during inspections to determine compliance with safety and health standards. MSHA has used 2012 data for the number of respondents and responses, as well as the total burden hours and burden costs supporting this information collection request.
MSHA does not intend to publish the results from this information collection and is not seeking approval to either display or not display the expiration date for the OMB approval of this information collection.
There are no certification exceptions identified with this information collection and the collection of this information does not employ statistical methods.
Comments submitted in response to this notice will be summarized and 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.
44 U.S.C. 3506(c)(2)(A).
National Capital Planning Commission.
Notice of Members of Senior Executive Service Performance Review Board.
Section 4314(c) of Title 5, U.S.C. (as amended by the Civil Service Reform Act of 1978) requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more Performance Review Boards (PRB) to review, evaluate and make a final recommendation on performance appraisals assigned to individual members of the agency's Senior Executive Service. The PRB established for the National Capital Planning Commission also makes recommendations to the agency head regarding SES performance awards, rank awards and bonuses. Section 4314(c)(4) requires that notice of appointment of Performance Review Board members be published in the
The following persons have been appointed to serve as members of the Performance Review Board for the National Capital Planning Commission: Deidre Flippen, Mary Johnson, Jeff Thomas and Richard E. Tontodonato from August 01, 2013 to August 01, 2015.
Deborah Young, Administrative Officer, National Capital Planning Commission, 401 Ninth Street NW., Suite 500, Washington, DC 20576, (202) 482-7228.
10:00 a.m., Thursday, May 16, 2013.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
Open.
1. Board Briefing on Appraisals for Higher-Priced Mortgage Loans.
2. NCUA's Rules and Regulations, Technical Amendments.
3. NCUA's Rules and Regulations, Derivatives.
11:00 a.m.
11:15 a.m., Thursday, May 16, 2013.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed.
1. Consideration of Supervisory Activities (2). Closed pursuant to some or all of the following exemptions: (8), (9)(i)(B) and (9)(ii).
2. Appeal under NCUA's Rules and Regulations. Closed pursuant to Exemptions (6) and (8).
Mary Rupp, Secretary of the Board, Telephone: 703-518-6304
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of Meetings
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that sixteen meetings of the Arts Advisory Panel to the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue NW., Washington, DC 20506 as follows (ending times are approximate):
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506;
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 15, 2012, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code.
Nuclear Regulatory Commission.
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment about our intention to request the OMB's approval for renewal of an existing information collection that is summarized below. We are required to publish this notice in the
Information pertaining to the requirement to be submitted:
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Submit, by July 15, 2013, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
The public may examine and have copied for a fee publicly available documents, including the draft supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The OMB clearance requests are available at the NRC' Web site:
The document will be available on the NRC's home page site for 60 days after the signature date of this notice. Comments submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. Comments submitted should reference Docket No. NRC-2013-0085. You may submit your comments by any of the following methods: Electronic comments: Go to
Questions about the information collection requirements may be directed to the NRC Clearance Officer, Tremaine Donnell (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258, or by email to
For the Nuclear Regulatory Commission.
Office of Information Services.
Southern Nuclear Operating Company (SNC or Licensee) is the holder of License Nos. NPF-2 and NPF-8, issued by the U.S. Nuclear Regulatory Commission (NRC) pursuant to Part 50 of Title 10 of the
This Confirmatory Order is the result of an agreement reached during an alternative dispute resolution (ADR) mediation session conducted on March 15, 2013.
On July 3, 2012, the NRC's Office of Investigations (OI) completed an investigation (OI Case No. 2-2011-018) regarding activities at the Farley Nuclear Plant. Based on the evidence developed during the investigation, the NRC issued a letter to FNP dated January 9, 2013, which documented an apparent violation that occurred during calendar years 2010 and 2011.
Specifically, FNP Technical Specification 5.4.1.a, Procedures, requires in part, written procedures to be established, implemented and maintained covering the applicable procedures recommended in Regulatory Guide (RG) 1.33, Revision 2, Appendix A, February 1978. Section 7.e of Appendix A to RG 1.33 requires procedures for training workers in radiation protection. Farley procedure FNP-0-AP-42, Access Control, requires individuals badged as Unescorted Radiation Workers to undergo annual radiation worker training (RWT) to maintain radiation controlled area (RCA) access authorization. Licensee procedure NMP-TR-208, “Examination and Examination Security” requires examinees to remove or store reference material in such a way that it would not compromise the exam, to take the exam in an uninterrupted session, and for proctors to ensure all rules are followed while an examination is being administered. If cheating is observed the proctor is required to stop the exam.
The NRC's letter further stated that, during calendar years 2010 and 2011, FNP security personnel proctoring the annual RWT exams failed to ensure exams were not compromised as required by SNC procedure NMP-TR-208. Specifically, proctors compromised the integrity of the RWT exams by helping other security officers cheat on the exams by either suggesting or giving answers, or taking the exam in place of the security officers.
On March 15, 2013, the NRC and SNC met in an ADR session mediated by a professional mediator, arranged through Cornell University's Institute on
1. NRC and FNP agreed that the issue described above represents a violation of regulatory requirements, with the following clarifications: Based on the results of FNP's investigation into the incidents as described in the NRC's letter of January 9, 2013, FNP confirmed that one security officer inappropriately proctored annual RWT exams and failed to ensure that exams were not compromised, as required by SNC procedure NMP-TR-208 and Technical Specifications. In addition, FNP confirmed that one security officer received inappropriate assistance on RWT exams. Based on a review of the range of elapsed times it took for security officers and other plant employees to complete exams, FNP could not conclude that other security officers received inappropriate assistance. The NRC acknowledges and accepts FNP's explanation with respect to the elapsed times for taking RWT exams, and considers the explanation plausible and credible.
2. During the ADR, FNP described the corrective actions and enhancements completed in response to the issues described in the NRC's January 9, 2013, letter. These actions included but were not limited to the following:
a. In August 2012 and again in February 2013, FNP management briefed all Security Department personnel on pride, professionalism and personal accountability with a specific focus on training processes, exams procedures and expectations, and professional integrity.
b. FNP management re-tested all current Security Department personnel whose most-recent RWT exams were proctored by the individual who admitted to assisting security officers with their exams. All such employees passed their exams.
c. FNP management imposed a requirement that all Security Department training and test taking be performed in a training lab to minimize distractions during the training and evaluation processes.
d. FNP management established, as part of the Security Human Behavior Program, a monitoring program to ensure that supervision will conduct random observations of Security Department personnel during computer-based training requalification exams. The monitoring program requires that the observations be reviewed by the FNP Security Manager each month. This action will continue until December 31, 2014, at which time it will be assessed to determine whether continuation is necessary.
e. SNC conducted a thorough investigation of this matter (including interviews of 41 employees), which led to findings of certain violations of NMP-TR-208, “Examination and Examination Security,” and irregularities in the exam processes by FNP Security Department personnel.
f. FNP management issued appropriate levels of discipline for employees involved in violations and improper behavior, ranging from coaching to written discipline to termination.
g. Actions specifically related to FNP included:
i. SNC disqualified all FNP computer-based training proctors and retrained them on the requirements of NMP-TR-208.
ii. SNC performed an additional review of the results of the most recent FNP Safety Culture assessment in order to determine whether—in light of the RWT exam incident—there were areas of concern that had not been identified when the results were initially reviewed. The additional review of the Safety Culture assessment did not reveal indications of problems with training and test-taking practices.
h. SNC has also completed a Fleet-Wide Action consisting of a formal review of the “Examination and Examination Security” Procedure (NMP-TR-208) by the Training Department, to ensure adequate guidance is provided for examination oversight. As a result, revisions to the procedure were made to clarify the proctoring requirements.
3. Based on SNC's review of the incident and the NRC's concerns with respect to precluding recurrence of the violation, SNC agrees to the following corrective actions and enhancements:
a. SNC's Licensing Department conducted an assessment of opportunities for improvement for all proctored exams. As a result, SNC initiated a Condition Report for Fleet Security to evaluate the testing environment for the Security Departments at all three sites. The results of this evaluation will be assessed to determine whether corrective actions need to be implemented.
b. As a result of the review conducted in Paragraph III.3.a, SNC also issued a Fleet-wide Condition Report to evaluate the testing environment and compliance with NMP-TR-208 at Corporate and the three operating sites. The results of this evaluation will be assessed to determine whether corrective actions need to be implemented.
c. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, SNC will review other procedures referenced in NMP-TR-208 that relate to proctoring and determine whether revisions are needed to clarify any aspects of the procedures pertaining to proctoring.
d. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, SNC will issue a company-wide communication regarding the revisions and clarifications that have been made to NMP-TR-208 and other procedures referenced in NMP-TR-208 to the extent there were revisions to any procedure identified in Paragraph III.3.c.
e. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, senior management will communicate through various effective means such as, but not limited to, video, on a fleet-wide basis. Messages will clearly articulate that willful misconduct is incompatible with safe nuclear construction and operation. The communication will provide recent public examples, including those documented in EA-12-240 and EA-12-230, and the impacts when there is a loss of integrity and trustworthiness.
f. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, the senior management communication will be followed by a Fleet-wide stand-down with all employees to address integrity and trustworthiness. A similar stand-down will be conducted for operating fleet contractors. For Vogtle 3 and 4, the briefing will be tailored to the unique management structure of the construction project.
g. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, SNC will modify its guidance involving investigations based on allegations to include an initial evaluation of potential nuclear safety implications and to identify any appropriate immediate mitigating measures to be taken while the investigation is ongoing.
h. By August 31, 2014, SNC will conduct an effectiveness review of all corrective actions taken under the Confirmatory Order.
i. By October 30, 2013, SNC will evaluate and implement appropriate actions to reinforce the messages of
j. Upon completion of the terms of Paragraph III.3.a through III.3.h of the Confirmatory Order, SNC will provide the NRC with a letter discussing its basis for concluding that the Order has been satisfied.
4. The NRC considers the corrective actions and enhancements discussed in Paragraph III.2 and III.3 above to be appropriately prompt and comprehensive to address the causes which gave rise to the incident discussed in the NRC's letter of January 9, 2013.
5. In consideration of the commitments delineated above, the NRC agrees to refrain from proposing a civil penalty or issuing a Notice of Violation for all matters discussed in the NRC's letter to FNP of January 9, 2013 (EA-12-145). The resulting Confirmatory Order will not be considered an escalated enforcement action by the NRC for any future assessment of FNP.
6. This agreement is binding upon successors and assigns of SNC.
On April 29, 2013, the Licensee consented to issuance of this Order with the commitments, as described in Section V below. The Licensee further agreed that this Order is to be effective upon issuance and that it has waived its right to a hearing.
Since the Licensee has agreed to take actions to address the violation as set forth in Section V, the NRC has concluded that its concerns can be resolved through issuance of this Order.
I find that the Licensee's commitments as set forth in Section V are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that public health and safety require that the Licensee's commitments be confirmed by this Order. Based on the above and the Licensee's consent, this Order is effective upon issuance.
Accordingly, pursuant to Sections 104b., 161b., 161i., 161o., 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR Parts 50 and 52, IT IS HEREBY ORDERED, THAT LICENSE NOS. NPF-2 AND NPF-8 IS MODIFIED AS FOLLOWS:
a. SNC's Licensing Department conducted an assessment of opportunities for improvement for all proctored exams. As a result, SNC initiated a Condition Report for Fleet Security to evaluate the testing environment for the Security Departments at all three sites. SNC will assess the results of this evaluation to determine whether corrective actions need to be implemented.
b. As a result of the review conducted in Paragraph V.a, SNC also issued a Fleet-wide Condition Report to evaluate the testing environment and compliance with NMP-TR-208 at Corporate and the three operating sites. SNC will assess the results of this evaluation to determine whether corrective actions need to be implemented.
c. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, SNC will review other procedures referenced in NMP-TR-208 that relate to proctoring and determine whether revisions are needed to clarify any aspects of the procedures pertaining to proctoring.
d. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, SNC will issue a company-wide communication regarding the revisions and clarifications that have been made to NMP-TR-208 and other procedures referenced in NMP-TR-208 to the extent there were revisions to any procedure identified in Paragraph V.c.
e. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, senior management will communicate through various effective means such as, but not limited to, video, on a fleet-wide basis. Messages will clearly articulate that willful misconduct is incompatible with safe nuclear construction and operation. The communication will provide recent public examples, including those documented in EA-12-240 and EA-12-230, and the impacts when there is a loss of integrity and trustworthiness.
f. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, the senior management communication will be followed by a Fleet-wide stand-down with all employees to address integrity and trustworthiness. A similar stand-down will be conducted for operating fleet contractors. For Vogtle 3 and 4, the briefing will be tailored to the unique management structure of the construction project.
g. By the later of either June 15, 2013, or 90 days after the date of issuance of the Confirmatory Order, SNC will modify its guidance involving investigations based on allegations to include an initial evaluation of potential nuclear safety implications and to identify any appropriate immediate mitigating measures to be taken while the investigation is ongoing.
h. By August 31, 2014, SNC will conduct an effectiveness review of all corrective actions taken under the Confirmatory Order.
i. By October 30, 2013, SNC will evaluate and implement appropriate actions to reinforce the messages of Paragraph V.e and V.f above annually until December 31, 2015.
j. Upon completion of the terms of Paragraph V.a through V.h of the Confirmatory Order, SNC will provide the NRC with a letter discussing its basis for concluding that the Order has been satisfied.
The Regional Administrator, NRC Region II, may relax or rescind, in writing, any of the above conditions upon a showing by SNC of good cause.
Any person adversely affected by this Order, other than SNC, may submit a written answer and/or request a hearing on this Order within 30 days from the date of this Order. Where good cause is shown, consideration will be given to extending the time to answer or request a hearing. A request for extension of time must be directed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and include a statement of good cause for the extension.
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
All documents filed in the NRC adjudicatory proceedings, including a request for a 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
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 a hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contracting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an extension 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 using E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is available to the public at
If a person other than the licensee requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 30 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section V shall be final when the extension expires if a hearing request has not been received.
For the Nuclear Regulatory Commission.
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the
This biweekly notice includes all notices of amendments issued, or proposed to be issued from April 18, 2013 to May 1, 2013. The last biweekly notice was published on April 30, 2013 (78 FR 25310).
You may submit comment by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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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-2013-0084 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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Please include Docket ID NRC-2013-0084 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 posts 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.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in Section 50.92 of Title 10 of the
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 identify 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, 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 NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC's public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by
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 the 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.
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
Divider barrier integrity is necessary to minimize bypassing of the ice condenser by the hot steam and air mixture released into the lower compartment during a Design Basis Accident (DBA). This ensures that most of the gases pass through the ice bed, which condenses the steam and limits pressure and temperature during the accident transient. Limiting the pressure and temperature reduces the release of fission product radioactivity from containment to the environment in the event of a DBA.
Conducting periodic physical property tests on divider barrier seal test coupons provides assurance that the seal material has not degraded in the containment environment, including the effects of irradiation with the reactor at power. The proposed change to Technical Specification Surveillance Requirement 3.6.14.4 results in the correct tensile strength units being listed in this surveillance requirement. This is considered an editorial change to the Technical Specifications.
Thus, based on the above, the proposed changes do 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?
Response: No.
The proposed change does not involve a change in the operational limits or the design capabilities of the containment or containment systems. The proposed change does not change the function or operation of plant equipment or introduce any new failure mechanisms. The technical evaluation that supports this License Amendment Request included a review of the containment divider barrier seal capability to which this change is bounded. The proposed change does not introduce any new or different types of failure mechanisms; plant equipment will continue to respond as designed and analyzed.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident situation. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The performance of the fuel cladding, the reactor coolant system and the containment system will not be adversely impacted by the proposed change since the ability of the divider barrier to mitigate an analyzed accident has not been adversely impacted by the proposed change.
Thus, it is concluded that the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes do not involve the modification of any plant equipment or affect plant operation. The proposed changes will have no impact on any safety related structures, systems, or components. The reporting requirements proposed for deletion are not required because the requirements are adequately addressed by 10 CFR 50.72 and 10 CFR 50.73, or other regulatory requirements, or are available on site for NRC review, and are no longer warranted.
Therefore, the proposed changes do 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?
Response: No.
The proposed changes have no impact on the design, function or operation of any plant structure, system or component. The proposed changes do not affect plant equipment or accident analyses. The reporting requirements proposed for deletion are not required because the requirements are adequately addressed by 10 CFR 50.72 and 10 CFR 50.73, or other regulatory requirements, or are available on site for NRC review, and are no longer warranted.
Therefore, the proposed changes do 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?
Response: No.
The proposed changes do not adversely affect existing plant safety margins or the reliability of the equipment assumed to operate in the safety analyses. There is no change being made to safety analysis assumptions, safety limits or limiting safety system settings that would adversely affect plant safety as a result of the proposed changes. Margins of safety are unaffected by deletion of the reporting requirements.
Therefore, the proposed changes do 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 proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The plant vent noble gas indicators are not an initiator of or a precursor to any accident or transient. The proposed change to the Emergency Plan to delete the backup (R45) noble gas indicators does not impact any design function of the Salem Radiation Monitoring System. The backup (R45) plant vent radiation monitors do not perform any accident mitigating function. The modification of the R45 noble gas indicators does not alter or modify the function of systems used to mitigate the consequences of any design basis accident.
Therefore, the proposed change 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?
Response
The proposed changes to the Emergency Plan to delete the backup plant vent noble gas indicators (R45) does not introduce any new accident precursors and does not involve any physical plant alterations or changes in the methods governing normal plant operation that could initiate a new or different kind of accident. The R45 noble gas indicators only provide indication of the effluent release through the plant vent release path.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Margin of safety is related to the ability of the fission product barriers (fuel cladding, reactor coolant system, and primary containment) to perform their design functions during and following postulated accidents. The proposed amendment does not alter setpoints or limits established or assumed by the accident analyses. The R45 plant vent radiation monitor provides indication only. The elimination of the backup R45 noble gas indicator does not reduce the margin of safety since the remaining R41 noble gas indicator will continue to provide the accident indication capability. The accident sampling capability of the R45 will remain.
Therefore, the proposed change 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.
“Containment average air temperature shall be <125 °F.”
To support this proposed change, the licensee revised the accident analyses that were impacted by the increase in initial containment air temperature or increase in safety injection accumulator temperature, which are located in the Ginna containment, and are expected to be at the same temperature as containment air. The impact of the change in the containment air temperature was addressed by revising the Loss of Coolant Accident (LOCA) and a Main Steam Line break containment response analyses. The change in SI accumulator temperature was reflected in the re-evaluated core response to a large break LOCA (LBLOCA) and a small break LOCA. The combined impact on the post-LOCA long term cooling analyses was also re-assessed.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to increase the containment average air temperature limit to 125 °F, from 120 °F, does not alter the assumed initiators to any analyzed event. The probability of an accident previously evaluated will not be increased by this proposed change. This proposed change will not affect radiological dose consequence analyses. The radiological dose consequence analyses assume a certain containment atmosphere leak rate based on the maximum allowable containment leakage rate, which is not affected by the change in allowable average containment air temperature resulting in a higher calculated peak containment pressure. The 10 CFR Part 50, Appendix J containment leak rate testing program will continue to ensure that containment leakage remains within the leakage rate assumed in the offsite dose consequence analyses. The acceptable leakage corresponds to the peak allowable containment pressure of 60 psig. The radiological dose consequence analyses assume a certain source term, which is not affected by the change in allowable average containment air temperature. All core limitations set forth in 10 CFR 50.46 continue to be met. The consequences of an accident previously evaluated will not be increased by this proposed change.
Therefore, operation of the facility in accordance with the proposed change to the containment average air temperature limit will not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change provides for a higher allowable containment average air temperature to that currently in the TS Section 3.6.5. The calculated peak containment temperature and pressure remain below the containment design temperature and pressure of 286 °F and 60 psig. This change does not involve any alteration in the plant configuration (no new or different type of equipment will be installed) or make changes in the methods governing normal plant operation. The change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, operation of the facility in accordance with the proposed change to TS Section 3.6.5 would not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The calculated peak containment pressure and temperature remain below the containment design pressure and temperature of 60 psig and 286 °F, respectively. The penalties applied to the BE [best estimate] LBLOCA analysis result in the limitations set forth in 10 CFR 50.46 continuing to be met. Since the radiological consequence analyses are based on the maximum allowable containment leakage rate, which is not being revised, the change in the calculated peak containment pressure and temperature and changes in core response do not represent a significant change in the margin of safety. The longterm impact of the peak containment temperature following a design basis accident exceeding the EQ profile by 2 °F with respect to the current licensing basis is negligible.
Therefore, operation of the facility in accordance with the proposed change to increase the allowable containment average air temperature from 120 °F to 125 °F 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 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The proposed amendment is consistent with TSTF-510, Revision 2, “Revision to Steam Generator Program Inspection Frequencies and Tube Sample Selection.”
In addition, this proposed amendment corrects the indenting for FNP TS Section 5.5.9.a at the top of page 5.5-6. This change is purely administrative, and has no technical impact on the TS.
1. Does the proposed license amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises the Steam Generator (SG) Program to modify the frequency of verification of SG tube integrity and SG tube sample selection. A steam generator tube rupture (SGTR) event is one of design basis accidents that are analyzed as part of a plant's licensing basis. The proposed SG tube inspection frequency and sample selection criteria will continue to ensure that the SG tubes are inspected such that the probability a SGTR is not increased. The consequences of a SGTR are bounded by the conservative assumptions in the design accident analysis. The proposed change will not cause the consequences of a SGTR to exceed those assumptions.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any previously evaluated?
Response: No.
The proposed changes to the SG Program will not introduce any adverse changes to the plant design basis or postulated accidents resulting from potential tube degradation. The proposed change does not affect the
Therefore, it is concluded that this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The SG tubes in pressurized water reactors are an integral part of the reactor coolant pressure boundary and, as such, are relied upon to maintain the primary system's pressure and inventory. As part of the reactor coolant pressure boundary, the SG tubes are unique in that they are also relied upon as a heat transfer surface between the primary and secondary systems such that residual heat can be removed from the primary system. In addition, the SG tubes also isolate the radioactive fission products in the primary coolant from the secondary system. In summary, the safety function of a SG is maintained by ensuring the integrity of its tubes. Steam generator tube integrity is a function of the design, environment, and the physical condition of the tube. The proposed change does not affect tube design or operating environment. The proposed change will continue to require monitoring of the physical condition of the SG tubes such that there will not be a reduction in the margin of safety compared to the current requirements.
Therefore, it is concluded that the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed change presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
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.
The proposed amendment is consistent with TSTF-510, Revision 2, “Revision to Steam Generator Program Inspection Frequencies and Tube Sample Selection.”
1. Does the proposed license amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises the Steam Generator (SG) Program to modify the frequency of verification of SG tube integrity and SG tube sample selection. A steam generator tube rupture (SGTR) event is one of design basis accidents that are analyzed as part of a plant's licensing basis. The proposed SG tube inspection frequency and sample selection criteria will continue to ensure that the SG tubes are inspected such that the probability a SGTR is not increased. The consequences of a SGTR are bounded by the conservative assumptions in the design accident analysis. The proposed change will not cause the consequences of a SGTR to exceed those assumptions.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any previously evaluated?
Response: No.
The proposed changes to the SG Program will not introduce any adverse changes to the plant design basis or postulated accidents resulting from potential tube degradation. The proposed change does not affect the design of the SGs or their method of operation. In addition, the proposed change does not impact any other plant system or component.
Therefore, it is concluded that this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The SG tubes in pressurized water reactors are an integral part of the reactor coolant pressure boundary and, as such, are relied upon to maintain the primary system's pressure and inventory. As part of the reactor coolant pressure boundary, the SG tubes are unique in that they are also relied upon as a heat transfer surface between the primary and secondary systems such that residual heat can be removed from the primary system. In addition, the SG tubes also isolate the radioactive fission products in the primary coolant from the secondary system. In summary, the safety function of a SG is maintained by ensuring the integrity of its tubes. Steam generator tube integrity is a function of the design, environment, and the physical condition of the tube. The proposed change does not affect tube design or operating environment. The proposed change will continue to require monitoring of the physical condition of the SG tubes such that there will not be a reduction in the margin of safety compared to the current requirements.
Therefore, it is concluded that the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed change presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
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 proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
Design verification provides a final check of the adequacy of the Human System Interface (HSI) Resources and Operation and Control Centers System (OCS) design. The changes do not affect the plant itself, and so there is no change to the probability or consequences of an accident previously evaluated. Changing the design verification plan does not affect prevention and mitigation of abnormal events, e.g., accidents, anticipated operational occurrences, earthquakes, floods and turbine missiles, or their safety or design analyses as the purpose of the plan is simply to verify implementation of design criteria. The Probabilistic Risk Assessment is not affected. No safety-related structure, system, component (SSC) or function is adversely affected. The change does not involve nor interface with any SSC accident initiator or initiating sequence of events, and thus, the probabilities of the accidents evaluated in the UFSAR are not affected. Because the changes do not involve any safety-related SSC or function used to mitigate an accident, the consequences of the accidents evaluated in the UFSAR are not affected.
Therefore, there is no 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?
Response: No.
Design verification provides a final check of the adequacy of the HSI Resources and Operation and Control Centers System design. The changes do not affect the plant itself, and so there is no new or different kind of accident from any accident previously evaluated. Therefore, the changes do not affect safety-related equipment, nor does it affect equipment which, if it failed, could initiate an accident or a failure of a fission product barrier. No analysis is adversely affected. No system or design function or equipment qualification is adversely affected by the changes. This activity will not allow for a new fission product release path, nor will it result in a new fission product barrier failure mode, nor create a new sequence of events that would result in significant fuel cladding failures. In addition, the changes do not result in a new failure mode, malfunction or sequence of events that could affect safety or safety-related equipment.
Therefore, this activity 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?
Response: No.
The changes to the design verification plan provide a final check of the adequacy of the HSI Resources and Operation and Control Centers System design. The changes do not affect the assessments or the plant itself. The changes do not affect safety-related equipment or equipment whose failure could initiate an accident, nor does it adversely interface with safety-related equipment or fission product barriers. No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the requested change.
Therefore, there is no 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 proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The HFE Task Support Verification Plan is one of several verification and validation (V&V) activities performed on human-system interface (HSI) resources and the Operation and Control Centers System (OCS), where applicable. The Task Support Verification Plan is used to assess and verify displays and activities related to normal and emergency operation. The changes are to the Task Support Verification Plan to clarify the scope and amend the details of the methodology. The Task Support Verification Plan does not affect the plant itself. Changing the Plan does not affect prevention and mitigation of abnormal events, e.g., accidents, anticipated operational occurrences, earthquakes, floods and turbine missiles, or their safety or design analyses. The Probabilistic Risk Assessment is not affected. No safety-related structure, system, component (SSC) or function is adversely affected. The change does not involve nor interface with any SSC accident initiator or initiating sequence of events, and thus, the probabilities of the accidents evaluated in the UFSAR are not affected. Because the changes do not involve any safety-related SSC or function used to mitigate an accident, the consequences of the accidents evaluated in the UFSAR are not affected.
Therefore, there is no 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?
Response: No.
The changes to the Task Support Verification Plan change information related to validation and verification on Human System Interface and Operational Control Centers. Therefore, the changes do not affect the safety-related equipment itself, nor do they affect equipment which, if it failed, could initiate an accident or a failure of a fission product barrier. No analysis is adversely affected. No system or design function or equipment qualification will be adversely affected by the changes. This activity will not allow for a new fission product release path, nor will it result in a new fission product barrier failure mode, nor create a new sequence of events that would result in significant fuel cladding failures. In addition, the changes do not result in a new failure mode, malfunction or sequence of events that could affect safety or safety-related equipment.
Therefore, this activity 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?
Response: No.
The changes to the Task Support Verification Plan affect the validation and verification on the Human System Interface and the Operational Control Centers. Therefore, the changes do not affect the plant itself. These changes do not affect the design or operation of safety-related equipment or equipment whose failure could initiate an accident, nor does it adversely interface with safety-related equipment or fission product barriers. No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the requested change.
Therefore, the changes do 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 proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The HFE Discrepancy Resolution Process is used to capture and resolve Human Engineering Discrepancies (HEDs) identified during the Human Factors Engineering (HFE) verification and validation (V&V) activities. These discrepancy resolution process activities are used to support the final check of the adequacy of the HFE design of the Human-System Interface (HSI) resources and the Operation and Control Centers Systems (OCS) design. The discrepancy resolution process activities are performed as part of the V&V activities against the final configuration and control documentation, simulator or installed target system. The changes are to the Discrepancy Resolution Process to clarify the scope and amend the details of the methodology. The Discrepancy Resolution Process does not affect the plant itself. Changing the Discrepancy Resolution Process does not affect prevention and mitigation of abnormal events, e.g., accidents, anticipated operational occurrences, earthquakes, floods and turbine missiles, or their safety or design analyses. No safety-related structure, system, component (SSC) or function is adversely affected. The document revision does not involve nor interface with any SSC accident initiator or initiating sequence of events, and thus the probabilities of the accidents evaluated in the Updated Final Safety Analysis Report (UFSAR) are not affected. Because the changes do not involve any safety-related SSC or function used to mitigate an accident, the consequences of the accidents evaluated in the UFSAR are not affected.
Therefore, there is no 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?
Response: No.
The changes to the Discrepancy Resolution Process information are related to discrepancy resolution of HEDs during the HFE V&V activities on the HSI and the OCS. Therefore, the changes do not affect the safety-related equipment itself, nor do they affect equipment which, if it failed, could initiate an accident or a failure of a fission product barrier. No analysis is adversely affected. No system or design function or equipment qualification will be adversely affected by the changes. This activity will not allow for a new fission product release path, nor will it result in a new fission product barrier failure mode, nor create a new sequence of events that would result in significant fuel cladding failures. In addition, the changes do not result in a new failure mode, malfunction or sequence of events that could affect safety or safety-related equipment.
Therefore, this activity does not create the possibility of a new or different kind of accident than any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The changes to the Discrepancy Resolution Process affect discrepancy resolution of HEDs during the HFE V&V activities on the HSI and the OCS. Therefore, the changes do not affect the assessments or the plant itself. These changes do not affect the design or operation of safety-related equipment or equipment whose failure could initiate an accident, nor does it adversely interface with safety-related equipment or fission product barriers. No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the requested change.
Therefore, the changes do 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.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the NRC's Public Document Room (PDR), located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through the Agencywide Documents Access and Management System (ADAMS) in the NRC Library at
The Commission's related evaluation of this amendment is contained in a Safety Evaluation dated April 26, 2013.
March 8, 2013.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 18, 2013.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 23, 2013.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 24, 2013.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 25, 2013.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission, [NRC-2013-0001].
Weeks of May 13, 20, 27, June 3, 10, 17, 2013.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of May 13, 2013.
9:30 a.m. Briefing on Human Capital and Equal Employment Opportunity (EEO) (Public Meeting) (Contact: Kristin Davis, 301-287-0707).
This meeting will be webcast live at the Web address—
10:00 a.m. Briefing on Security Issues (Closed—Ex. 1).
9:00 a.m. Briefing on Results of the Agency Action Review Meeting (AARM) (Public Meeting) (Contact: Rani Franovich, 301-415-1868).
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of June 3, 2013.
There are no meetings scheduled for the week of June 10, 2013.
There are no meetings scheduled for the week of June 17, 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.
Design-Specific Review Standard (DSRS) for the mPower
The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comment on the Design-Specific Review Standard (DSRS) for the mPower
Submit comments by August 16, 2013. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comment by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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•
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Ms. Yanely Malave, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1519 or email at
Please refer to Docket ID NRC-2013-0089 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-2013-0089 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 posts 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.
In 2010, the Commission provided direction to the staff on the preparation for, and review of, small modular reactor (SMR) applications, with a near-term focus on integral pressurized water reactor (iPWR) designs. The Commission directed the staff to more fully integrate the use of risk insights into pre-application activities and the review of applications and, consistent with regulatory requirements and Commission policy statements, to align the review focus and resources to risk-significant structures, systems, and components and other aspects of the design that contribute most to safety in order to enhance the effectiveness and efficiency of the review process. The Commission directed the staff to develop a design-specific, risk-informed review plan for each SMR design to address pre-application and application review activities. An important part of this review plan is the Design-Specific Review Standard. This DSRS for the mPower
As part of the mPower
The NRC staff is issuing this notice to solicit public comment on the mPower
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to update Exchange Rule 9.21, “Options Communications.” The text of the proposed rule change is provided below. (additions are
(a) Definitions. For purposes of this Rule and any interpretation thereof, “options communications” consist of:
(i) [Advertisements. The term “advertisements” shall include any material concerning options, other than an independently prepared reprint and institutional sales material, that is published, or used in any electronic or other public media, including any Web site, newspaper, magazine or other periodical, radio, television, telephone or tape recording, video tape display, motion picture, billboards, signs or telephone directories (other than routine listings).
(ii) Sales Literature. The term “sales literature” shall include any written or electronic communication concerning options other than an advertisement, independently prepared reprint, institutional sales material and correspondence, that is generally available to customers or the public, including circulars, research reports, performance reports or summaries, worksheets, form letters, telemarketing scripts, seminar texts, reprints (that are not independently prepared reprints) or excerpts of any other advertisement, sales literature or published article and press release concerning a Trading Permit Holder's products or services.
(iii)] Correspondence. The term “correspondence” shall include any written [letter,]
[(iv)]
(iii)
[(v) Public Appearances. The term “public appearance” shall include any participation in a seminar, forum (including an interactive electronic forum), radio, television or print media interview, or other public speaking activity, or the writing of a print media article, concerning options.
(vi) Independently Prepared Reprints. The term “independently prepared reprints” shall include any reprint or excerpt of an article issued by a publisher concerning options, provided that: the publisher is not an affiliate of the Trading Permit Holder using the reprint or any underwriter or issuer of a security mentioned in the reprint or excerpt that the Trading Permit Holder is promoting; neither the Trading Permit Holder using the reprint or excerpt nor any underwriter or issuer of a security mentioned in the reprint or excerpt has commissioned the reprint or excerpted article; and the Trading Permit Holder using the reprint or excerpt has not materially altered its contents except as necessary to make the reprint or excerpt consistent with applicable regulatory standards or to correct factual errors.]
(b) Approval by Registered Options Principal.
(i) All
(ii) Correspondence need not be approved by a Registered Options Principal prior to use[, unless such correspondence is distributed to 25 or more existing retail customers within any 30 calendar-day period and makes any financial or investment recommendation or otherwise promotes a product or service of the Trading Permit Holder]. All correspondence is subject to the supervision and review requirements of Rule 9.8.
(iii) Institutional
(iv) No change.
(c) Exchange Approval Required. In addition to the approval required by paragraph (b) of this Rule, [all advertisements, sales literature and independently prepared reprints]
(i) Options communications submitted to another self-regulatory organization having comparable standards pertaining to such communications and
(ii) communications in which the only reference to options is contained in a listing of the services of the TPH organization[.]
(iii) the ODD; and
(iv) the prospectus.
(d) General Rule. No Trading Permit Holder or member organization or associated person shall use any options communication which:
(i)-(iv) No change.
(v) Fails to reflect the risks attendant to options transactions and the complexities of certain options investment strategies. [Any statement referring to the potential opportunities presented by options shall be balanced by a statement of the corresponding risks. The risk statement shall reflect the same degree of specificity as the statement of opportunities, and broad generalities must be avoided.]
(vi-vii) No change.
(viii)
Paragraphs (vi) and (vii) shall not apply to institutional
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to update Rule 9.21, “Options Communications,” to conform with changes recently made by the Financial Industry Regulatory Authority, Inc. (“FINRA”) to its corresponding rule.
First, the proposed rule change would amend the language in Exchange Rule 9.21(a). Specifically, the proposed rule change would reduce the number of defined categories of communication from six (in the current rule) to three. The proposed three categories of communications are: retail communications, correspondence, and institutional communications. Current definitions of “sales literature,” “advertisement,” and “independently prepared reprint” would be combined into a single category of “retail communications.” Thus, the Exchange is proposing to define “retail communication” as “any written (including electronic) communication that is distributed or made available to more than 25 retail investors within any 30 calendar-day period.” The Exchange will also update the current definition of “correspondence” to “any written (including electronic) communication distributed or made available by a Trading Permit Holder to 25 or fewer retail customers within any 30 calendar-day period.” Finally, in the proposed rule filing, “institutional communication” would include written (including electronic) communications that are distributed or made available only to institutional investors. The Exchange believes the proposed changes to the definitions in Rule 9.21(a) to create a more concise and descriptive rule which benefits investors by clarifying the terms.
Next, the Exchange is proposing to amend Rule 9.21(b), “Approval by Registered Options Principal.” More specifically, the Exchange is proposing to replace the phrase “advertisements, sales literature, and independently prepared reprints” in Rule 9.21(b)(i) with the new proposed term, “retail communications.” This proposed change will make the Rule more consistent with the other proposed changes.
Under proposed rule 9.21(b)(ii), correspondence would “need not be approved by a Registered Options Principal prior to use” but would be subject to the supervision and review requirements of Rule 9.8. The Exchange is proposing to delete the requirement for principal approval of correspondence that is distributed to 25 or more existing retail customers within a 30 calendar-day period that makes any financial or investment recommendation or otherwise promotes
Next, the Exchange is proposing to modify the required approvals of “Institutional communications.” More specifically, the Exchange is proposing to add that a TPH shall “establish written procedures that are appropriate to its business, size, structure, and customers for review by a Registered Options Principal of institutional communications used by the Trading Permit Holder or TPH organization.” The Exchange is proposing these changes to conform its rule with the current FINRA rule.
The Exchange is also proposing to amend Rule 9.21(c). More specifically, the Exchange is proposing to, again, replace the phrase “advertisements, sales literature, and independently prepared reprints” with the new proposed term “retail communications.” The Exchange is also proposing to further exempt options disclosure documents and prospectuses from Exchange review as these documents have other further requirements under the Securities Act of 1933. The Exchange is proposing these changes to conform its rule with the current FINRA rule.
The Exchange is proposing to specify in Rule 9.21(d) that Exchange TPHs may not use any options communications that “constitute a prospectus” unless such communications would meet the requirements of the Securities Act of 1933. The Exchange believes this change will put TPHs on notice that all documents that may constitute a prospectus will be required to comply with the Securities Act of 1933 as such. Finally, the Exchange is proposing to move and slightly modify Rule 9.21(d) to state that any statement made referring to “potential opportunities or advantages presented by options” must also be accompanied by a statement identifying the potential risks posed. The Exchange believes that moving the language to the end of paragraph (d) will alert the public of potential risks associated with options, as well as the advantages, which will create more awareness of the potential harms that may arise in the participation of such securities. The Exchange is proposing these changes to conform its rule with the current FINRA rule. The Exchange believes the proposed rule changes will provide greater clarity to TPHs and the public regarding the Exchange's rules. In addition, the Exchange believes that the proposed rule change will help ensure that investors are protected from potentially false or misleading communications with the public distributed by Exchange TPHs.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule changes will provide greater clarity to TPHs and the public regarding the Exchange's rules. In addition, the Exchange believes that the proposed rule change will help ensure that investors are protected from potentially false or misleading communications with the public distributed by Exchange TPHs.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the proposed rule change will bring clarity and consistency to Exchange Rules. The Exchange does not believe the proposed rule change will impose any burden on any intramarket competition as it applies to all TPHs. In addition, the Exchange does not believe the proposed rule filing will bring any unnecessary burden on intermarket competition as it is consistent with the FINRA “Options Communications” rule.
The Exchange neither solicited nor received 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.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Rule 6.74A. The text of the proposed rule change is provided below.
(Additions are
Notwithstanding the provisions of Rule 6.74, a Trading Permit Holder that represents agency orders may electronically execute an order it represents as agent (“Agency Order”) against principal interest or against a solicited order provided it submits the Agency Order for electronic execution into the AIM auction (“Auction”) pursuant to this Rule.
(a) No change
(b) Auction Process. Only one Auction may be ongoing at any given time in a series and Auctions in the same series may not queue or overlap in any manner. The Auction may not be cancelled and shall proceed as follows:
(1) Auction Period and Request for Responses (RFRs).
(A) To initiate the Auction, the Initiating Trading Permit Holder must mark the Agency Order for Auction processing, and specify (i) a single price at which it seeks to cross the Agency Order (with principal interest or a solicited order) (a “single-price submission”), including whether the Initiating Trading Permit Holder elects to have last priority in allocation, or (ii) that it is willing to automatically match (“
(B)-(I) No change
(2)-(3) No change
* * *
.01-.08 No change
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend Rule 6.74A related to the Automated Improvement Mechanism (“AIM”). AIM allows a Trading Permit Holder (the “Initiating Trading Permit Holder”) to submit an order it represents as agent (the “Agency Order”) along with a contra-side second order (a principal order or a solicited order for the same size as the Agency Order) into an auction (an “Auction”) for electronic execution.
Rule 6.74A(b)(1)(A) currently allows an Initiating Trading Permit Holder to enter its contra-side second order in one of two formats: (1) A single price or (2) a non-price specific commitment to auto-match all Auction responses received during the Auction. In this second case, the Initiating Trading Permit Holder would have no control over the match price. The Exchange is proposing to provide Initiating Trading Permit Holders with the additional option to auto-match competing prices from other market participants up to a designated limit price. The Initiating Trading Permit Holder will still not be able to cancel the auto-match instruction after an Auction commences and will have no control over the prices at which it receives an allocation of the Auction other than the outside boundary established by the designated limit price.
The Exchange notes that when an Initiating Trading Permit Holder selects the auto-match feature prior to the start of an Auction (with or without a designated limit price), the available liquidity at improved prices increases, and the competitive final pricing is out of the Initiating Trading Permit Holder's control. The Exchange believes this proposed rule change will incent more Trading Permit Holders to initiate Auctions, because the additional flexibility encourages Trading Permit Holders willing to trade with Agency Orders at a price better than the NBBO, but only up to a certain price, to initiate an Auction. Additionally, this proposal provides the possibility that other TPHs may receive increased order allocations through AIM, which the Exchange believes could increase participation in Auctions. As a result, the Exchange expects the proposal will increase the number of Auctions, which would enhance competition in the Auctions and ultimately provide additional opportunities for price improvement over the NBBO for the Exchange's customers.
In support of this proposed rule change, the Exchange notes that each of the Automated Improvement Mechanism (“C2 AIM”) of C2 Options Exchange, Incorporated (“C2”),
The Exchange will provide the Commission with the following data: (1) The percentage of trades effected through AIM in which the Initiating Trading Permit Holder submitted an Agency Order with an auto-match instruction that included a designated limit price and the percentage that did not include a designated limit price; and (2) the average amount of price improvement provided to Agency Orders when the Initiating Trading Permit Holder submitted an auto-match instruction that included a designated limit price and the average amount that did not include a designated limit price, versus the average amount of price improvement provided to Agency Orders when the Initiating Trading Permit Holder submitted a single price (with no auto-match instruction).
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change is a reasonable modification designed to provide additional flexibility for Trading Permit Holders to obtain executions on behalf of their customers while continuing to provide meaningful, competitive Auctions. The Exchange also believes that the proposed rule change will increase the number of and participation in Auctions, which will ultimately enhance competition in the Auctions and provide customers with additional opportunities for price improvement. The proposed rule change is consistent with the rules of other exchanges related to price improvement auctions and thus serves to remove impediments to and to perfect the mechanism for a free and open market and a national market system.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. All Trading Permit Holders that represent Agency Orders may initiate an Auction and have the option to auto-match up to a
CBOE believes that the proposed rule change will in fact relieve any burden on, or otherwise promote, competition. The Exchange believes the proposed rule change is procompetitive because it would provide Initiating Trading Permit Holders with the same flexibility as the rules at other exchanges that also permit initiating participants to elect to auto-match up to a designated limit price in those exchanges' price improvement auctions.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not:
i. Significantly affect the protection of investors or the public interest;
ii. impose any significant burden on competition; and
iii. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 8, 2013 The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-OCC-2013-03 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of the proposed rule change is to add provisions to the By-Laws governing the OCC's Stock Loan/Hedge Program to facilitate the use of the Stock Loan/Hedge Program by Canadian Clearing Members.
OCC's Stock Loan/Hedge Program is provided for in Article XXI of the By-Laws and Chapter XXII of the Rules, and provides a means for OCC clearing members to submit broker-to-broker stock loan transactions
Currently, for OCC clearing members to participate in OCC's Stock Loan/Hedge Program, they must be members of the Depository Trust Company (“DTC”) and maintain accounts to facilitate Delivery Orders (“DOs”) to approved counterparties for stock loan transactions. Canadian Clearing Members (who are otherwise eligible to participate in the Stock Loan/Hedge Program) are not participants of DTC. For purposes of settling transactions in U.S. equity securities, Canadian Clearing Members ordinarily rely on the services of CDS Clearing and Depository Services Inc. (“CDS”),
OCC is amending Interpretation .07 to Section 1 of Article V of the By-Laws to allow participation by Canadian Clearing Members in the Stock Loan/Hedge Program by permitting them to appoint CDS to act as their agent in effecting DOs for stock loan transactions through DTC under arrangements similar to those used for deliveries under options and futures.
Under the amended Interpretation .07 to Section 1 of Article V of the By-Laws, a Canadian Clearing Member that appoints CDS to act for it in connection with the Stock Loan/Hedge Program will be required to agree with OCC that the clearing member remains responsible to OCC in respect of its stock loan and borrow positions regardless of any non-performance by CDS, that OCC may treat any failure of CDS to complete delivery or payment required to close an open stock loan or borrow position as a failure by such Canadian Clearing Member, thereby triggering OCC's buy-in and sell-out procedures and such other procedures and remedies as are provided under OCC's Rules, including recourse to the collateral deposited by the clearing member. Accordingly, OCC believes that it will have no credit exposure to CDS as the result of a failure by CDS to perform. OCC will seek acknowledgement of CDS and DTC with respect to these arrangements. If, for any reason, CDS ceases to act for one or more Canadian Clearing Members,
In order to accommodate the participation by Canadian Clearing Members in the Stock Loan/Hedge Program, OCC will make certain conforming changes to its Non-U.S. Clearing Member Agreement.
Finally, for ease of reference throughout the proposed addition to Interpretation .07 to Section 1 of Article V of the By-Laws, OCC is amending Section 1 of Article I of the By-Laws to define a Canadian Clearing Member approved to participate in the Stock Loan/Hedge Program as a “Canadian Hedge Clearing Member.”
Section 19(b)(2)(C) of the Act
By facilitating the inclusion of Canadian Clearing Members in OCC's Stock Loan/Hedge Program, the rule change serves to broaden the scope of OCC clearing members that are able to participate in stock loan transactions and thereby further promotes the prompt and accurate clearance and settlement of stock loan transactions, and also fosters cooperation and coordination with persons engaged in the clearance and settlement of stock loan transactions. The rule change achieves these objectives while also
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (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.
Currently, Footnote 1 of the Exchange's fee schedule provides that Members may qualify for the Mega Tier rebate of $0.0035 per share for all liquidity posted on EDGX where Members add or route at least 2 million shares of average daily volume (“ADV”) prior to 9:30 a.m. or after 4:00 p.m. (includes all flags except 6) and add a minimum of 35 million shares of ADV on EDGX in total, including during both market hours and pre- and post-trading hours (hereinafter referred to as the “$0.0035 Mega Tier Rebate”). Members also may qualify for the Mega Tier but will earn a rebate of $0.0032 per share for all liquidity posted on EDGX if they add or route at least 4 million shares of ADV prior to 9:30 a.m. or after 4:00 p.m. (includes all flags except 6) and add a minimum of .20% of the Total Consolidated Volume (“TCV”) on a daily basis measured monthly, including during both market hours and pre- and post-trading hours (hereinafter referred to as the “$0.0032 Mega Tier Rebate”). Currently, for meeting the aforementioned criteria (the $0.0035 Mega Tier Rebate or the $0.0032 Mega Tier Rebate), Members will pay a reduced rate for removing liquidity of $0.0029 per share for Flags N, W, 6, BB, PI, and ZR (hereinafter referred to as the $0.0029 Reduced Rate). Where a Member does not meet the criteria for either the $0.0035 Mega Tier Rebate or $0.0032 Mega Tier Rebate, then a removal rate of $0.0030 per share applies.
The Exchange proposes to amend Footnote 1 of its fee schedule to provide that if Members qualify for the $0.0035 Mega Tier Rebate, they can also qualify for a separate reduced rate for removing and/or routing liquidity of $0.0020 per share for Flags N, W, 6, 7, BB, PI, RT, and ZR (hereinafter referred to as the $0.0020 Reduced Rate). The Exchange proposes to append Footnote 1 to Flags 7 and RT (the routing flags) to signify a rate change from the routing rates of $0.0030 per share if the criteria of Footnote 1 is met. Footnote 1 is already appended to the other above-mentioned flags.
The Exchange notes that Members that qualify for the $0.0035 Mega Tier Rebate would no longer qualify for the $0.0029 Reduced Rate and may only qualify for the $0.0020 Reduced Rate. The Exchange also proposes to add the following language to the end of the paragraph regarding the $0.0035 Mega Tier Rebate: Where a Member does not meet the aforementioned criteria, then a rate of $0.0030 per share applies.
In addition, the Exchange proposes to separate out the criteria for the $0.0035 Mega Tier Rebate and the $0.0032 Mega Tier Rebate by separating out the tiers and accompanying reduced rates into their own paragraphs. Lastly, the Exchange proposes to add “per share” following the amount of the reduced rate in the paragraph regarding the $0.0032 Mega Tier Rebate, as well as to use the term “aforementioned” instead of “for the Mega Tier.” Therefore, the final two sentences in the paragraph will now read as follows: “In addition, for meeting the aforementioned criteria, Members will pay a reduced rate for removing liquidity of $0.0029 per share for Flags N, W, 6, BB, PI, and ZR. Where a Member does not meet the aforementioned criteria, then a removal rate of $0.0030 per share applies.”
The Exchange proposes to implement this amendment to its fee schedule on May 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 provide that if Members
In particular, the $0.0035 Mega Tier rebate is reasonable in that it is competitive with Nasdaq's Routable Order Program (“ROP”),
Because retail orders are more likely to reflect long-term investment intentions than the orders of proprietary traders, they promote price discovery and dampen volatility. Accordingly, their presence on the EDGX Book has the potential to benefit all market participants. For this reason, EDGX believes that it is equitable to provide significant financial incentives to encourage greater retail participation in the market in general and on EDGX in particular. EDGX further believes that the proposed program is not discriminatory because it is offered to all Members, whether or not they represent retail customers, that provide significant levels of liquidity, and is therefore complementary to existing incentives that already aim to encourage greater retail participation, such as EDGX's Retail Order Tier
The Exchange also believes that the criteria for the $0.0035 Mega Tier Rebate also represents an equitable allocation of reasonable dues, fees, and other charges since higher rebates and proposed reduced fees for removal of liquidity and/or routing are directly correlated with more stringent criteria.
For example, in order for a Member to qualify for the $0.0035 Mega Tier Rebate, the Member would have to add or route at least 2 million shares of ADV during pre- and post-trading hours and add a minimum of 35 million shares of ADV on EDGX in total, including during both market hours and pre- and post-trading hours in order to obtain the $0.0020 Reduced Rate for routing and/or removal of liquidity fees. The criteria for this tier is the most stringent of all other tiers on the Exchange's fee schedule as fewer Members generally trade during pre- and post-trading hours because of the limited time parameters associated with these trading sessions, which generally results in less liquidity. In addition, the Exchange assigns a higher value to this resting liquidity because liquidity received prior to the regular trading session typically remains resident on the EDGX Book throughout the remainder of the entire trading day. Furthermore, liquidity received during pre- and post-trading hours is an important contributor to price discovery and acts as an important indication of price for the market as a whole
In order to qualify for the next best tier after the Mega Tier (at $0.0033), the Market Depth Tier, a Member would receive a rebate of $0.0033 per share for displayed liquidity added on EDGX if they post greater than or equal to 0.50% of the TCV in ADV on EDGX in total, where at least 2 million shares of which are Non-Displayed Orders that yield Flag HA. Assuming a TCV of 6 billion shares for March 2013, this would amount to 30 million shares, at least 2 million shares of which are Non-Displayed Orders. The criteria for this tier is less stringent then the volume thresholds for the $0.0035 Mega Tier Rebate because Members must add a minimum of 35 million shares of ADV in addition to adding or routing at least 2 million shares of ADV during pre- and post-trading hours to earn a rebate of $0.0035 per share and be eligible for lower removal and/or routing fees ($0.0020 Reduced Rate). As discussed, the criteria for the Mega Tier is the most stringent as fewer Members generally trade during pre- and post-trading hours because of the limited time parameters associated with these trading sessions, which generally results in less liquidity.
The Exchange believes that it is reasonable to lower removal and/or routing fees using liquidity provision patterns. First, the lower removal and/or routing rates are similar to the Exchange's Step-up Take Tier in Footnote 2 of its fee schedule
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.
This proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe these changes represent a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. Additionally, Members may opt to disfavor EDGX's pricing if they believe that alternatives offer them better value. Accordingly, EDGX does not believe that the proposed changes will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets.
The Exchange believes its proposal will increase intermarket competition and possibly encourage the Exchange's competitors to make competitive responses. The Exchange believes the proposal will increase intermarket competition because it is comparable in financial incentives and criteria to Nasdaq's ROP, as described above, in that both require the addition of 35 million shares or more per day on average of liquidity, at least 2 million shares per day on average must be provided during pre and post-trading hours. The Exchange believes that its proposal will have no burden on intramarket competition because the rate applies uniformly to all Members.
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 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”),
NASDAQ is proposing to amend the fees assessed under Rule 7015(h). On May 3, 2013, NASDAQ filed Amendment No. 1 to add additional clarifications to statutory basis discussion. NASDAQ implemented the amended fees effective on May 1, 2013.
The text of the proposed rule change is below. Proposed new language is italicized; proposed deletions are in brackets.
The following charges are assessed by Nasdaq for connectivity to systems operated by NASDAQ, including the Nasdaq Market Center, the FINRA/NASDAQ Trade Reporting Facility, and FINRA's OTCBB Service. The following fees are not applicable to the NASDAQ Options Market LLC. For related options fees for Access Services refer to Chapter XV, Section 3 of the Options Rules.
(a)-(g) No change.
(h) VTE Terminal Fees
• Each ID is subject to a minimum commission fee of $
• Each ID receiving market data is subject to pass-through fees for use of these services. Pricing for these services is determined by the exchanges and/or market center.
• Each ID that is given web access is subject to a $
In its filing with the Commission, NASDAQ included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NASDAQ is proposing to increase the fees assessed members under Rule 7015(h) for use of VTE terminals. A VTE terminal is a basic front-end user interface used by NASDAQ members to connect to, and enter orders in, The Nasdaq Market Center. Members using VTE terminals pay the exchanges and market centers separately for data feeds and services provided by NASDAQ, other exchanges or market centers through VTE. Such fees are filed with the SEC and separately assessed by the exchanges and market centers at the same rate irrespective of the method of accessing the data feeds. These data feeds provide information that is necessary for users to enter orders through VTE. The two fees assessed under Rule 7015(h) relate to optional web access and commissions.
Rule 7015(h) currently assesses monthly a minimum commission fee of $125 per ID for users executing orders totaling less than 100,000 shares per month, and a web access fee of $125 per ID. NASDAQ last increased fees assessed under Rule 7015(h) in 2011 when it raised the fee for access to the terminal via the web from $100 monthly to $125 monthly, and raised the minimum commission fee for users executing orders totaling less than 100,000 shares per month from $100 monthly to $125 monthly.
NASDAQ notes that web connectivity is one option available to NASDAQ users for accessing the VTE terminal. Another option is access through extranet connectivity, where a user contracts directly with a third-party extranet provider and pays fees to that provider. With respect to minimum commission fees, members that execute total orders above the 100,000 share threshold will continue to not be assessed a commission fee.
Based on NASDAQ's operation of the VTE since it was acquired from INET, NASDAQ believes that the pricing changes are warranted in order to
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
NASDAQ 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. The proposed fees merely allow NASDAQ to recapture the increasing platform, overhead and technology infrastructure costs it incurs in support of the service, which are magnified on a per subscription basis given a declining subscriber base. The fees are applied uniformly among subscribing member firms, which are not compelled to subscribe to the service and may access the information provided through other means. For these reasons, any burden arising from the fees is necessary in the interest of promoting the equitable allocation of a reasonable fee.
Written comments were neither solicited nor received.
The foregoing 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 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.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that Alpine Investors IV SBIC, LP, 3 Embarcadero Center, Suite 2330, San Francisco, CA, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and
The financing is brought within the purview of § 107.730(a) of the Regulations because an Associate of Alpine Investors IV SBIC, LP, as defined in Sec. 105.50 of the regulations, has an ownership interest in GrowthFire, LLC of 10 percent.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment and Innovation, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
U.S. Small Business Administration (SBA).
Notice of Federal advisory committee meeting conference call.
Pursuant to the Federal Advisory Committee Act and its implementing regulations, SBA is issuing this notice to announce the date, time, and agenda for the first meeting of the SBA Council on Underserved Communities. The meeting will be open to the public.
This conference call will be held on Tuesday, May 21, 2013 from 2:30 p.m. to 3:30 p.m. Eastern Daylight Savings Time.
The meeting is open to the public however advance notice of attendance is requested. For further questions about the Council on Underserved Communities may be directed to Dan Jones, telephone (202) 205-7583, fax (202) 481-6536, email
Pursuant to its authority in section 8(b)(13) of the Small Business Act (15 U.S.C. 637(b)), SBA is re-establishing the Council on Underserved Communities. This discretionary committee is being re-established in accordance with the provisions of the Federal Advisory Committee Act, as amended (5 U.S.C. App.).
The Council provides advice, ideas and opinions on SBA programs and services and issues of interest to small businesses in underserved communities. Its members provide an essential connection between SBA and small businesses in inner city and rural communities. The Council's scope of activities includes reviewing SBA current programs and policies, while working towards creating new and insightful place-based initiatives to spur economic growth, job creation, competiveness, and sustainability.
Council members bring a number of important points of views to the Council: an understanding of the barriers to success for small business owners in underserved communities; experience working in and operating businesses in urban and rural underserved communities; challenges regarding access to capital; knowledge and experience in training and counseling entrepreneurs in underserved communities; and associations representing owners of small business in underserved communities.
The Council has a total of twenty (20) members, 19 members-at-large and one Chair. Members consist of current or former small business owners, community leaders, officials from small business trade associations, and academic institutions. Members represent the interests of underserved communities across the country, both rural and urban.
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 Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
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 description of the exhibit object, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
By virtue of the authority vested in the Secretary of State by the laws and authorities of the United States, including 22 U.S.C. 2651a; the Debt Collection Improvement Act of 1996, Public Law 104-134 (1996); the Office of Management and Budget's Determination with Respect to Transfer of Functions Pursuant to Public Law 104-316 (December 17, 1996); the Travel and Transportation Reform Act of 1998, Public Law 105-264 (1998); 5 U.S.C. §§ 4108, 5379, 5514, 5522, 5524a, 5705, 5922, and 8707; 22 U.S.C. §§ 2671, 2716, 4047 and 4071; and 31 U.S.C. chapter 37, and delegated to me by Delegation of Authority No. 198, dated September 16, 1992, I hereby delegate, to the extent authorized by law, the duties, functions and responsibilities for the administrative collection, compromise, suspension, termination of Department collection, advance decision, settlement, and waiver of claims of or against debtors of the Department of State, pursuant to the above-mentioned authorities, to the Comptroller of the Department of State.
(a) Notwithstanding any provision of this Delegation of Authority, the Secretary of State, the Deputy Secretary, the Deputy Secretary for Management and Resources, or the Under Secretary for Management may at any time exercise any function delegated by this delegation of authority. Functions delegated herein may be redelegated, to the extent authorized by law.
(b) Any reference in this delegation of authority to any act, executive order, determination, delegation of authority, regulation, or procedure shall be deemed to be a reference to such act, executive order, determination, delegation of authority, regulation, or procedure as amended from time to time.
(c) Delegation of Authority 266-1, dated October 22, 2003, is hereby revoked.
(d) This Delegation of Authority shall be published in the
Federal Aviation Administration (FAA), DOT.
Notification of criteria used to evaluate the Black Sky Training, Inc. (BST) safety approval application.
The FAA issued BST a safety approval, subject to the provisions of Title 51 U.S.C Subtitle V, ch. 509, and the orders, rules and regulations issued under it. Pursuant to Title 14 Code of Federal Regulations (14 CFR) § 414.35, this Notice publishes the criteria that were used to evaluate the safety approval application.
• Understand fundamental principles of the atmosphere and how it relates to the human body.
• Understand the fundamentals of respiratory physiology and how it relates to hypoxia.
• Show competence in the identification of the many different symptoms and physical signs of hypoxia.
• Show advanced competence in the phenomena of neurological impairment (time of useful consciousness) due to hypoxia.
• Understand the effects of prolonged oxygen use.
• Understand the difference between decompression illness and hypoxia.
• Demonstrate using different scenarios the difference between slow decompression and rapid decompression.
• Identify personal symptoms of hypoxia and demonstrate donning of oxygen mask and ability to perform within a hypobaric chamber.
For questions about the performance criteria, you may contact Randal Maday, Licensing and Evaluation Division (AST-200), FAA Office of Commercial Space Transportation (AST), 800 Independence Avenue SW., Room 331, Washington, DC 20591, telephone (202) 267-8652; Email
Federal Aviation Administration (FAA), DOT.
Notice of Extension to Order.
This action amends the Order Limiting Operations at John F. Kennedy International Airport (JFK) that published on January 18, 2008, and was amended on February 14, 2008, October 7, 2009, and April 4, 2011. The Order remains effective until the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014.
This amendment is effective on May 14, 2013.
For technical questions concerning this Order contact: Patricia Bynum, Surface Operations Office, Air Traffic Organization, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 385-7073; facsimile: (202) 385-7433; email:
For legal questions concerning this Order contact: Robert Hawks, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-7143; facsimile: (202) 267-7971; email:
You may obtain an electronic copy using the Internet by:
(1) Searching the Federal eRulemaking Portal (
(2) Visiting the FAA's Regulations and Policies Web page at
(3) Accessing the Government Printing Office's Web page at
You also may obtain a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.
From 1968, the FAA had limited the number of arrivals and departures at JFK during the peak afternoon demand period (corresponding to transatlantic arrival and departure banks) through the implementation of the High Density Rule (HDR).
Under the Order, as amended, the FAA (1) maintains the current hourly limits on 81 scheduled operations at JFK during the peak period; (2) imposes an 80 percent minimum usage requirement for Operating Authorizations (OAs) with defined exceptions; (3) provides a mechanism for withdrawal of OAs for FAA operational reasons; (4) establishes procedures to allocate withdrawn, surrendered, or unallocated OAs; and (5) allows for trades and leases of OAs for consideration for the duration of the Order. The reasons for issuing the Order have not changed appreciably since it was implemented. Without the operational limitations imposed by this Order, the FAA expects severe congestion-related delays would occur at JFK and at other airports throughout the NAS.
The FAA is engaged in an effort to implement a long-term rule at LaGuardia Airport (LGA), JFK, and Newark Liberty International Airport (EWR). The FAA is developing a notice of proposed rulemaking for Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport (RIN 2120-AJ89), which currently is under review. At this time, the FAA is unable to predict the date on which that rule would become effective. Accordingly, the FAA has concluded it is necessary to extend the expiration date of this Order until the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014. This expiration date coincides with the expiration dates for the Orders limiting scheduled operations at EWR and LGA, as also amended by notices in today's
The FAA finds that notice and comment procedures under 5 U.S.C. section 553(b) are impracticable and contrary to the public interest. The FAA further finds that good cause exists to make this Order effective in less than 30 days.
The Order, as amended, is recited below in its entirety.
1. This Order assigns operating authority to conduct an arrival or a departure at JFK during the affected hours to the U.S. air carrier or foreign air carrier identified in the appendix to this Order. The FAA will not assign operating authority under this Order to any person or entity other than a certificated U.S. or foreign air carrier with appropriate economic authority and FAA operating authority under 14 CFR part 121, 129, or 135. This Order applies to the following:
a. All U.S. air carriers and foreign air carriers conducting scheduled operations at JFK as of the date of this Order, any U.S. air carrier or foreign air carrier that operates under the same designator code as such a carrier, and
b. All U.S. air carriers or foreign air carriers initiating scheduled or regularly conducted commercial service to JFK while this Order is in effect.
c. The Chief Counsel of the FAA, in consultation with the Vice President, System Operations Services, is the final decisionmaker for determinations under this Order.
2. This Order governs scheduled arrivals and departures at JFK from 6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.
3. This Order takes effect on March 30, 2008, and will expire when the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014.
4. Under the authority provided to the Secretary of Transportation and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we hereby order that:
a. No U.S. air carrier or foreign air carrier initiating or conducting scheduled or regularly conducted commercial service at JFK may conduct such operations without an Operating Authorization assigned by the FAA.
b. Except as provided in the appendix to this Order, scheduled U.S. air carrier and foreign air carrier arrivals and departures will not exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.
c. The Administrator may change the limits if he determines that capacity exists to accommodate additional operations without a significant increase in delays.
5. For administrative tracking purposes only, the FAA will assign an identification number to each Operating Authorization.
6. A carrier holding an Operating Authorization may request the Administrator's approval to move any arrival or departure scheduled from 6 a.m. through 10:59 p.m. to another half hour within that period. Except as provided in paragraph seven, the carrier must receive the written approval of the Administrator, or his delegate, prior to conducting any scheduled arrival or departure that is not listed in the appendix to this Order. All requests to move an allocated Operating Authorization must be submitted to the FAA Slot Administration Office, facsimile (202) 267-7277 or email
7. For the duration of this Order, a carrier may enter into a lease or trade of an Operating Authorization to another carrier for any consideration. Notice of a trade or lease under this paragraph must be submitted in writing to the FAA Slot Administration Office, facsimile (202) 267-7277 or email
8. A carrier may not buy, sell, trade, or transfer an Operating Authorization, except as described in paragraph seven.
9. Historical rights to Operating Authorizations and withdrawal of those rights due to insufficient usage will be determined on a seasonal basis and in accordance with the schedule approved by the FAA prior to the commencement of the applicable season.
a. For each day of the week that the FAA has approved an operating schedule, any Operating Authorization not used at least 80% of the time over the time-frame authorized by the FAA under this paragraph will be withdrawn by the FAA for the next applicable season except:
i. The FAA will treat as used any Operating Authorization held by a carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.
ii. The Administrator of the FAA may waive the 80% usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the carrier and which affects carrier operations for a period of five consecutive days or more.
b. Each carrier holding an Operating Authorization must forward in writing to the FAA Slot Administration Office a list of all Operating Authorizations held by the carrier along with a listing of the Operating Authorizations and:
i. The dates within each applicable season it intends to commence and complete operations.
A. For each winter scheduling season, the report must be received by the FAA no later than August 15 during the preceding summer.
B. For each summer scheduling season, the report must be received by the FAA no later than January 15 during the preceding winter.
ii. The completed operations for each day of the applicable scheduling season:
A. No later than September 1 for the summer scheduling season.
B. No later than January 15 for the winter scheduling season.
iii. The completed operations for each day of the scheduling season within 30 days after the last day of the applicable scheduling season.
10. In the event that a carrier surrenders to the FAA any Operating Authorization assigned to it under this Order or if there are unallocated Operating Authorizations, the FAA will determine whether the Operating Authorizations should be reallocated. The FAA may temporarily allocate an Operating Authorization at its discretion. Such temporary allocations will not be entitled to historical status for the next applicable scheduling season under paragraph 9.
11. If the FAA determines that an involuntary reduction in the number of allocated Operating Authorizations is required to meet operational needs, such as reduced airport capacity, the FAA will conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations. The FAA will provide at least 45 days' notice unless otherwise required by operational needs. Any Operating Authorization that is withdrawn or temporarily suspended will, if reallocated, be reallocated to the carrier from which it was taken, provided that the carrier continues to operate scheduled service at JFK.
12. The FAA will enforce this Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not a small business as defined in the Small Business Act, 15 U.S.C. 632, will be liable for a civil penalty of up to $25,000 for every day that it violates the limits set forth in this Order. A carrier that is a small business as defined in the Small Business Act will be liable for a civil penalty of up to $10,000 for every day that it violates the limits set forth in this Order. The FAA also could file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any air carrier from violating the terms of this Order.
13. The FAA may modify or withdraw any provision in this Order on its own
Federal Aviation Administration (FAA), DOT.
Notice of Extension to Order.
This action amends the Order Limiting Operations at New York LaGuardia Airport (LGA) that published on December 27, 2006, and was amended on November 8, 2007, August 19, 2008, October 7, 2009, April 4, 2011, and May 23, 2012. The Order remains effective until the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014.
This amendment is effective on May 14, 2013.
For technical questions concerning this Order contact: Patricia Bynum, Surface Operations Office, Air Traffic Organization, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 385-7073; facsimile: (202) 385-7433; email:
For legal questions concerning this Order contact: Robert Hawks, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-7143; facsimile: (202) 267-7971; email:
You may obtain an electronic copy using the Internet by:
(1) Searching the Federal eRulemaking Portal (
(2) Visiting the FAA's Regulations and Policies Web page at
(3) Accessing the Government Printing Office's Web page at
You also may obtain a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.
Due to LGA's limited runway capacity, the airport cannot accommodate the number of flights that airlines and others would like to operate without causing significant congestion. The FAA has long limited the number of arrivals and departures at LGA during peak demand periods through the implementation of the High Density Rule (HDR).
In anticipation of the HDR's expiration, the FAA proposed a long-term rule that would limit the number of scheduled and unscheduled operations at LGA.
Under the Order, as amended, the FAA (1) Maintains the current hourly limits on scheduled (71) and unscheduled (three) operations at LGA during the peak period; (2) imposes an 80 percent minimum usage requirement for Operating Authorizations (OAs) with defined exceptions; (3) provides a mechanism for withdrawal of OAs for FAA operational reasons; (4) provides for a lottery to reallocate withdrawn, surrendered, or unallocated OAs; and (5) allows for trades and leases of OAs for consideration for the duration of the Order. The reasons for issuing the Order have not changed appreciably since it was implemented. Without the operational limitations imposed by this Order, the FAA expects severe congestion-related delays would occur at LGA and at other airports throughout the National Airspace System (NAS).
The FAA is engaged in an effort to implement a long-term rule at LGA, John F. Kennedy International Airport (JFK), and Newark Liberty International Airport (EWR). The FAA is developing a notice of proposed rulemaking for Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport (RIN 2120-AJ89), which currently is under review. At this time, the FAA unable to predict the date on which that rule would become effective. Accordingly, the FAA has concluded it is necessary to extend the expiration date of this Order until the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014. This expiration date coincides with the expiration dates for the Orders limiting scheduled operations at JFK and EWR, as also amended by notices in today's
The FAA finds that notice and comment procedures under 5 U.S.C. section 553(b) are impracticable and contrary to the public interest. The FAA further finds that good cause exists to make this Order effective in less than 30 days.
In consideration of the foregoing, the Order, as amended, is recited below in its entirety:
With respect to scheduled operations at LaGuardia:
1. The final Order governs scheduled arrivals and departures at LaGuardia from 6 a.m. through 9:59 p.m., Eastern Time, Monday through Friday and from
2. The final Order takes effect on January 1, 2007, and will expire when the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014.
3. The FAA will assign operating authority to conduct an arrival or a departure at LaGuardia during the affected hours to the air carrier that holds equivalent slot or slot exemption authority under the High Density Rule of FAA slot exemption rules as of January 1, 2007; to the primary marketing air carrier in the case of AIR-21 small hub/nonhub airport slot exemptions; or to the air carrier operating the flights as of January 1, 2007, in the case of a slot held by a non carrier. The FAA will not assign operating authority under the final Order to any person or entity other than a certificated U.S. or foreign air carrier with appropriate economic authority under 14 CFR part 121, 129 or 135. The Chief Counsel of the FAA will be the final decision maker regarding the initial assignment of Operating Authorizations.
4. For administrative tracking purposes only, the FAA will assign an identification number to each Operating Authorization.
5. An air carrier may lease or trade an Operating Authorization to another carrier for any consideration, not to exceed the duration of the Order. Notice of a trade or lease under this paragraph must be submitted in writing to the FAA Slot Administration Office, facsimile (202) 267-7277 or email
6. Each air carrier holding an Operating Authorization must forward in writing to the FAA Slot Administration Office a list of all Operating Authorizations held by the carrier along with a listing of the Operating Authorizations actually operated for each day of the two-month reporting period within 14 days after the last day of the two-month reporting period beginning January 1 and every two months thereafter. Any Operating Authorization not used at least 80 percent of the time over a two-month period will be withdrawn by the FAA except:
A. The FAA will treat as used any Operating Authorization held by an air carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.
B. The FAA will treat as used any Operating Authorization obtained by an air carrier through a lottery under paragraph 7 for the first 120 days after allocation in the lottery.
C. The Administrator of the FAA may waive the 80 percent usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the air carrier and which affects carrier operations for a period of five consecutive days or more.
7. In the event that Operating Authorizations are withdrawn for nonuse, surrendered to the FAA or are unassigned, the FAA will determine whether any of the available Operating Authorizations should be reallocated. If so, the FAA will conduct a lottery using the provisions specified under 14 CFR 93.225. The FAA may retime an Operating Authorization prior to reallocation in order to address operational needs. When the final Order expires, any Operating Authorizations reassigned under this paragraph, except those assigned to new entrants or limited incumbents, will revert to the FAA for reallocation according to the reallocation mechanism prescribed in the final rule that succeeds the final Order.
8. If the FAA determines that a reduction in the number of allocated Operating Authorizations is required to meet operational needs, such as reduced airport capacity, the FAA will conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations. The FAA will provide at least 45 days' notice unless otherwise required by operational needs. Any Operating Authorization that is withdrawn or temporarily suspended will, if reallocated, be reallocated to the air carrier from which it was taken, provided that the air carrier continues to operate scheduled service at LaGuardia.
9. The FAA will enforce the final Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). An air carrier that is not a small business as defined in the Small Business Act, 15 U.S.C. 632, would be liable for a civil penalty of up to $25,000 for every day that it violates the limits set forth in the final Order. An air carrier that is a small business as defined in the Small Business Act would be liable for a civil penalty of up to $10,000 for every day that it violates the limits set forth in the final Order. The FAA also could file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any air carrier from violating the terms of the final Order.
With respect to unscheduled flight operations at LaGuardia, the FAA adopts the following:
1. The final order applies to all operators of unscheduled flights, except helicopter operations, at LaGuardia from 6 a.m. through 9:59 p.m., Eastern Time, Monday through Friday and from 12 noon through 9:59 p.m., Eastern Time, Sunday.
2. The final Order takes effect on January 1, 2007, and will expire when the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014.
3. No person can operate an aircraft other than a helicopter to or from LaGuardia unless the operator has received, for that unscheduled operation, a reservation that is assigned by the David J. Hurley Air Traffic Control System Command Center's Airport Reservation Office (ARO). Additional information on procedures for obtaining a reservation will be available via the Internet at
4. Three (3) reservations are available per hour for unscheduled operations at
5. The ARO receives and processes all reservation requests. Reservations are assigned on a “first-come, first-served” basis, determined as of the time that the ARO receives the request. A cancellation of any reservation that will not be used as assigned would be required.
6. Filing a request for a reservation does not constitute the filing of an instrument flight rules (IFR) flight plan, as separately required by regulation. After the reservation is obtained, an IFR flight plan can be filed. The IFR flight plan must include the reservation number in the “remarks” section.
7. Air Traffic Control will accommodate declared emergencies without regard to reservations. Nonemergency flights in direct support of national security, law enforcement, military aircraft operations, or public use aircraft operations will be accommodated above the reservation limits with the prior approval of the Vice President, System Operations Services, Air Traffic Organization. Procedures for obtaining the appropriate reservation for such flights are available via the Internet at
8. Notwithstanding the limits in paragraph 4, if the Air Traffic Organization determines that air traffic control, weather, and capacity conditions are favorable and significant delay is not likely, the FAA can accommodate additional reservations over a specific period. Unused operating authorizations can also be temporarily made available for unscheduled operations. Reservations for additional operations are obtained through the ARO.
9. Reservations cannot be bought, sold, or leased.
Federal Aviation Administration (FAA), DOT.
Notice of Extension to Order.
This action amends the Order Limiting Operations at Newark Liberty International Airport (EWR) that published on May 21, 2008, and was amended on October 7, 2009, and April 4, 2011. The Order remains effective until the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014.
This amendment is effective on May 14, 2013.
For technical questions concerning this Order contact: Patricia Bynum, Surface Operations Office, Air Traffic Organization, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 385-7073; facsimile: (202) 385-7433; email:
For legal questions concerning this Order contact: Robert Hawks, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-7143; facsimile: (202) 267-7971; email:
You may obtain an electronic copy using the Internet by:
(1) Searching the Federal eRulemaking Portal (
(2) Visiting the FAA's Regulations and Policies Web page at
(3) Accessing the Government Printing Office's Web page at
You also may obtain a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.
EWR has become one of the most delay-prone airports in the country. In 2007, demand during peak hours approached or exceeded the average runway capacity, resulting in significant volume-related delays. In May 2008, the FAA placed temporary limits on scheduled operations at EWR to mitigate persistent congestion and delays at the airport.
Under the Order, as amended, the FAA (1) maintains the current hourly limits on 81 scheduled operations at EWR during the peak period; (2) imposes an 80 percent minimum usage requirement for Operating Authorizations (OAs) with defined exceptions; (3) provides a mechanism for withdrawal of OAs for FAA operational reasons; (4) establishes procedures to allocate withdrawn, surrendered, or unallocated OAs; and (5) allows for trades and leases of OAs for consideration for the duration of the Order. The reasons for issuing the Order have not changed appreciably since it was implemented. Without the operational limitations imposed by this Order, the FAA expects severe congestion-related delays would occur at EWR and at other airports throughout the National Airspace System (NAS).
The FAA is engaged in an effort to implement a long-term rule at LaGuardia Airport (LGA), JFK, and EWR. The FAA is developing a notice of proposed rulemaking for Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport (RIN 2120-AJ89), which currently is under review. At this time, the FAA is unable to predict the date on which that rule would become effective. Accordingly, the FAA has concluded it is necessary to extend the expiration date of this Order until the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24,
The FAA finds that notice and comment procedures under 5 U.S.C. section 553(b) are impracticable and contrary to the public interest. The FAA further finds that good cause exists to make this Order effective in less than 30 days.
The Order, as amended, is recited below in its entirety.
1. This Order assigns operating authority to conduct an arrival or a departure at EWR during the affected hours to the U.S. air carrier or foreign air carrier identified in the appendix to this Order. The FAA will not assign operating authority under this Order to any person or entity other than a certificated U.S. or foreign air carrier with appropriate economic authority and FAA operating authority under 14 CFR part 121, 129, or 135. This Order applies to the following:
a. All U.S. air carriers and foreign air carriers conducting scheduled operations at EWR as of the date of this Order, any U.S. air carrier or foreign air carrier that operates under the same designator code as such a carrier, and any air carrier or foreign-flag carrier that has or enters into a codeshare agreement with such a carrier.
b. All U.S. air carriers or foreign air carriers initiating scheduled or regularly conducted commercial service to EWR while this Order is in effect.
c. The Chief Counsel of the FAA, in consultation with the Vice President, System Operations Services, is the final decisionmaker for determinations under this Order.
2. This Order governs scheduled arrivals and departures at EWR from 6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.
3. This Order takes effect at 6 a.m., Eastern Time, on June 20, 2008, and will expire when the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 24, 2014.
4. Under the authority provided to the Secretary of Transportation and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we hereby order that:
a. No U.S. air carrier or foreign air carrier initiating or conducting scheduled or regularly conducted commercial service at EWR may conduct such operations without an Operating Authorization assigned by the FAA.
b. Except as provided in the appendix to this Order, scheduled U.S. air carrier and foreign air carrier arrivals and departures will not exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.
c. The Administrator may change the limits if he determines that capacity exists to accommodate additional operations without a significant increase in delays.
5. For administrative tracking purposes only, the FAA will assign an identification number to each Operating Authorization.
6. A carrier holding an Operating Authorization may request the Administrator's approval to move any arrival or departure scheduled from 6 a.m. through 10:59 p.m. to another half hour within that period. Except as provided in paragraph seven, the carrier must receive the written approval of the Administrator, or his delegate, prior to conducting any scheduled arrival or departure that is not listed in the appendix to this Order. All requests to move an allocated Operating Authorization must be submitted to the FAA Slot Administration Office, facsimile (202) 267-7277 or email
7. For the duration of this Order, a carrier may enter into a lease or trade of an Operating Authorization to another carrier for any consideration. Notice of a trade or lease under this paragraph must be submitted in writing to the FAA Slot Administration Office, facsimile (202) 267-7277 or email
8. A carrier may not buy, sell, trade, or transfer an Operating Authorization, except as described in paragraph seven.
9. Historical rights to Operating Authorizations and withdrawal of those rights due to insufficient usage will be determined on a seasonal basis and in accordance with the schedule approved by the FAA prior to the commencement of the applicable season.
a. For each day of the week that the FAA has approved an operating schedule, any Operating Authorization not used at least 80% of the time over the period authorized by the FAA under this paragraph will be withdrawn by the FAA for the next applicable season except:
i. The FAA will treat as used any Operating Authorization held by a carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.
ii. The Administrator of the FAA may waive the 80% usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the carrier and which affects carrier operations for a period of five consecutive days or more.
b. Each carrier holding an Operating Authorization must forward in writing to the FAA Slot Administration Office a list of all Operating Authorizations held by the carrier and for each Operating Authorization, along with a listing of the Operating Authorizations and:
i. The dates within each applicable season on which it intends to commence and to cease scheduled operations.
A. For each winter scheduling season, the report must be received by the FAA no later than August 15 during the preceding summer.
B. For each summer scheduling season, the report must be received by the FAA no later than January 15 during the preceding winter.
ii. The completed operations for each day of the applicable scheduling season:
A. No later than September 1 for the summer scheduling season.
B. No later than January 15 for the winter scheduling season.
iii. A final report of the completed operations for each day of the scheduling season within 30 days after the last day of the applicable scheduling season.
10. In the event that a carrier surrenders to the FAA any Operating Authorization assigned to it under this Order or if there are unallocated Operating Authorizations, the FAA will determine whether the Operating Authorizations should be reallocated. The FAA may temporarily allocate an
11. If the FAA determines that an involuntary reduction in the number of allocated Operating Authorizations is required to meet operational needs, such as reduced airport capacity, the FAA will conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations. The FAA will provide at least 45 days' notice unless otherwise required by operational needs. Any Operating Authorization that is withdrawn or temporarily suspended will, if reallocated, be reallocated to the carrier from which it was taken, provided that the carrier continues to operate scheduled service at EWR.
12. The FAA will enforce this Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not a small business as defined in the Small Business Act, 15 U.S.C. 632, will be liable for a civil penalty of up to $25,000 for every day that it violates the limits set forth in this Order. A carrier that is a small business as defined in the Small Business Act will be liable for a civil penalty of up to $10,000 for every day that it violates the limits set forth in this Order. The FAA also could file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any air carrier from violating the terms of this Order.
13. The FAA may modify or withdraw any provision in this Order on its own or on application by any carrier for good cause shown.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by the California Department of Transportation (Caltrans), pursuant to 23 U.S.C. 327, U.S. Army Corps of Engineers (USACE), and U.S. Fish and Wildlife Service (USFWS).
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans, USACE and USFWS that are final within the meaning of 23 U.S.C. 139(
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(
For Caltrans: G. William “Trais” Norris, III, Senior Environmental Planner, California Department of Transportation (Caltrans), 855 “M” Street, Suite 200, Fresno, CA 93721; weekdays 8:00 a.m. to 5:00 p.m. (Pacific time); telephone (559) 445-6447, email:
Effective July 1, 2007, the FHWA assigned, and Caltrans assumed environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that Caltrans has taken final agency actions subject to 23 U.S.C. 139(
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Environmental Assessment (EA)/Finding of No Significant Impact (FONSI) for the project, approved on
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; and Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128].
2. Air: Clean Air Act [42 U.S.C. 7401-7671(q)].
3. Land: Landscape and Scenic Enhancement (Wildflowers) [23 U.S.C. 319].
4. Wetlands and Water Resources: Safe Drinking Water Act [42 U.S.C. 300(f) -300(j)(6)]; and Wetlands Mitigation [23 U.S.C. 103(b)(6)(m) and 133(b)(11)].
5. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)]; and Migratory Bird Treaty Act [16 U.S.C. 703-712].
6. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.]; Archaeological and Historic Preservation Act [16 U.S.C. 469-469c]; Archaeological Resources Protection Act of 1979 [16 U.S.C. 470aa et seq]; and Native American Graves Protection and Repatriation Act [25 U.S.C. 3001-3013].
7. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)]; Farmland Protection Policy Act [7 U.S.C. 4201-4209]; and The Uniform Relocation Assistance and Real Property Acquisition Act of 1970, as amended.
8. Hazardous Materials: Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601-9675]; Superfund Amendments and Reauthorization Act of 1986; and Resource Conservation and Recovery Act [42 U.S.C. 6901-6992(k)].
9. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O.12898 Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of the Cultural Environment; E.O. 13007 Indian Sacred Sites; E.O. 13287 Preserve America; 13175 Consultation and Coordination with Indian Tribal Governments; E.O. 11514 Protection and Enhancement of Environmental Quality; and E.O. 13112 Invasive Species.
23 U.S.C. § 139(
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated January 8, 2013, the Pickens Railway Company (PICK) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR Part 223, Safety Glazing Standards—Locomotives, Passenger Cars and Cabooses. FRA assigned the petition Docket Number FRA-2013-0006.
PICK seeks the subject relief for its 80-ton GE Switcher/Locomotive (PICK #10), which was manufactured in 1955. Prior to PICK's acquisition of PICK #10, the engine was used only in private industry where FRA-certified glazing was not required. PICK #10 is currently equipped only with safety glass. PICK now intends to operate PICK #10 on its shortline railway in Anderson, SC, for maintenance-of-way purposes, and plans to put the engine in service in the near future upon the approval of the subject relief.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by June 28, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as is practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by an undated document, which was received by the Federal Railroad Administration (FRA) on March 26, 2013, the North Shore Railroad Company (NSHR) has petitioned FRA for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 215, Railroad Freight Car Safety Standards. FRA assigned the petition Docket Number FRA-2013-0031.
Specifically, NSHR seeks exemption from the requirements for stenciling of restricted cars described in 49 CFR 215.203(a) that are set forth in 49 CFR 215.303 for its caboose, Car Number NSHR 61312 (NSHR 61312).
NSHR states that stenciling the caboose to meet the requirements of Part 215 would detract from the historical and educational impression that this car is intended to preserve. NSHR further states that NSHR 61312 was built in 1952 and has Type 1 FRA glazing at all window locations with a sound car body, including ABDX service and ABDX emergency airbrakes. NSHR 61312 also has 5
NSHR plans to operate NSHR 61312 in excursion, VIP, and shipper service on approximately 170 miles of track that is owned by the Susquehanna Economic Development Authority-Council of Governments' (SEDA-COG) Joint Rail Authority. Rail lines of the SEDA-COG Joint Rail Authority over which NSHR 61312 will operate include the Nittany & Bald Eagle Railroad (72 miles), the Lycoming Valley Railroad (34 miles), the North Shore Railroad (38 miles), and the Shamokin Valley Railroad (25 miles). NSHR will also operate NSHR 61312 in excursion, VIP, and shipper service on approximately 15 miles of track on the Union County Industrial Railroad. The West Shore Railroad Corporation owns approximately 5 miles on the Milton Branch and the Lewisburg & Buffalo Creek Railroad owns approximately 10 miles on the Winfield Branch.
NSHR 61312 will be operated at a maximum timetable track speed authorized by all of the railroads listed above, not to exceed 50 mph.
As information, NSHR also requests a Special Approval to continue NSHR 61312 in service in accordance with 49 CFR 205.203(c).
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by June 28, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated April 11, 2013, Canadian Pacific Railway (CP) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 232, Brake System Safety Standards for Freight and Other NonPassenger Trains and Equipment; End-of-Train Devices. FRA assigned the petition Docket Number FRA-2013-0040.
Specifically, CP requests relief from 49 CFR 232.205(c)(1)(ii)(B),
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by June 28, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as is practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated February 22, 2013, the Mid-Continent Railway Historical Society, Inc. (MCRY) has petitioned the Federal Railroad Administration (FRA) for an extension of a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 223, Safety Glazing Standards—Locomotives, Passenger Cars and Cabooses, and 49 CFR part 231, Railroad Safety Appliance Standards. FRA assigned the petition Docket Number FRA-2006-26300.
Specifically, MCRY has petitioned FRA to grant an extension of relief from the requirements of 49 CFR 223.9(a) and 49 CFR 231.30(c)(ii). In addition, MCRY requests the continuation of a maximum operating speed of 15 mph for operations on MCRY's property. MCRY seeks an extension of the requested
On November 3, 2008, FRA granted MCRY a waiver of compliance from the safety glazing provisions of 49 CFR 223.9(a) and from the requirements of 49 CFR 231.30(c)(ii) for MCRY 1256. FRA also approved a maximum operating speed of 15 mph for the operation of MCRY 1256 on MCRY's property. MCRY states that since FRA granted the waiver, it has complied with all of the conditions of the waiver and that there have been no accidents or incidents involving MCRY 1256.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by June 28, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as is practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
Federal Transit Administration, DOT.
Notice of meeting.
This notice announces a public meeting of the Transit Rail Advisory Committee for Safety (TRACS). TRACS is a Federal Advisory Committee established by the U.S. Secretary of Transportation (the Secretary) in accordance with the Federal Advisory Committee Act to provide information, advice, and recommendations to the Secretary and the Federal Transit Administrator on matters relating to the safety of public transportation systems.
The TRACS meeting will be held on May 29, 2013, from 8:30 a.m. to 5 p.m. (EST), and May 30, 2013, from 8:30 a.m. to 5 p.m. (EST). Contact Bridget Zamperini (see contact information below) by 5 p.m. (EST) on May 22, if you wish to be added to the visitor list to gain access to the Transport Workers Union of America's Quill Room.
The meeting will be held at the Transport Workers Union of America (TWU), Quill Room, 501 3rd Street NW., Washington, DC 20001. Attendees who are on the visitor list can access the building by presenting a valid photo ID. Although this meeting is open to the public, the meeting facility is a secure building. Attendees who have not pre-registered with FTA must be cleared by TWU personnel on site.
This notice is provided in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2). As noted above, TRACS is a Federal Advisory Committee established to provide information, advice, and recommendations to the Secretary and the Administrator of the Federal Transit Administration (FTA) on matters relating to the safety of public transportation systems. TRACS is composed of 24 members representing a broad base of expertise necessary to discharge its responsibilities. The first meeting of TRACS was held September 9-10, 2010, the second meeting of TRACS was held April 27-28, 2011, the third meeting was held February 23-24, 2012 and the fourth meeting of TRACS was held September 20-21, 2012. The tentative agenda for the fifth meeting of TRACS is set forth below:
As previously noted, this meeting will be open to the public; however, the Transport Workers Union of America Quill Room is a secured facility and persons wishing to attend must contact Bridget Zamperini, Office of Safety and Oversight, Federal Transit Administration, (202) 366-0306; or at
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Maritime Administration's (MARAD's) intention to request extension of approval for three years of a currently approved information collection.
Comments should be submitted on or before July 15, 2013.
Dennis Brennan, Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202-366-1029 or email:
49 CFR 1.93.
By Order of the Maritime Administrator.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Maritime Administration's (MARAD's) intention to request extension of approval for three years of a currently approved information collection.
Comments should be submitted on or before July 15, 2013.
Albert Bratton, Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-5769; or email:
49 CFR 1.93.
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration, DOT.
Grant of Petition.
Volkswagen Group of America, Inc. (Volkswagen),
Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule implementing those provisions at 49 CFR Part 556, Volkswagen has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety. Notice of receipt of the petition was published, with a 30-day public comment period, on February 9, 2012 in the
Volkswagen argues that this noncompliance is inconsequential to motor vehicle safety because the noncompliant vehicle placards do not create an unsafe condition and all other labeling requirements have been met.
In summation, Volkswagen believes that the described noncompliance of its tire and loading information labels to meet the requirements of FMVSS No. 110 is inconsequential to motor vehicle safety, and that its petition, to exempt from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
S4.2.1.2 The vehicle normal load on the tire shall not be greater than 94 percent of the load rating at the vehicle manufacturer's recommended cold inflation pressure for that tire.
The subject vehicles have a fully loaded vehicle weight of 4,078.1 pounds with the right rear tire bearing the most weight at 1,062.6 pounds (considered “worst case” loading for one tire). If calculated at 34 psi (which the labels should have specified), the 205/55R16 tire is rated to support 1,257 pounds. At 33 psi (which the labels mistakenly specify) the tire is rated to support 1,235 pounds, exceeding the “worst case” loading scenario by 172.4 pounds. The subject vehicles have a maximum GVWR of 4299 pounds. The 205/55R16 tire inflated at 33 psi has a capacity rating that exceeds this GVWR value by 88.5 pounds.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the 463 vehicles that Volkswagen no longer controlled at the time it determined that a noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)
National Highway Traffic Safety Administration, DOT.
Grant of Petition.
Nissan North America, Inc. (Nissan), has determined that certain model year 2008 through 2010 Nissan Titan trucks do not fully comply with the requirements of paragraph S19.2.2(b) of Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule implementing those provision at 49 CFR Part 556, Nissan has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
Notice of receipt of Nissan's petition was published, with a 30 day public comment period, on December 21, 2010, in the
Nissan believes the noncompliance is inconsequential to motor vehicle safety for the following reasons:
1. The passenger air bag system on the subject vehicles operates as designed and automatically deactivates the passenger air bag when it is appropriate in accordance with the requirements in S19.2 of FMV55 No. 208. That is, the system requires no input from the operator to perform its intended function. Further, the front passenger airbag status telltale operates correctly and illuminates when the passenger air bag is deactivated as required by the standard.
2. The meaning of the air bag status telltale alone (without the identifying words) is unequivocal to the vehicle occupants. The telltale remains off when the passenger air bag is in the normal mode. When the passenger air bag is deactivated, the telltale is illuminated, showing an icon representing an air bag with an X drawn over it. This clearly represents a deactivated air bag. Nissan notes that in certain other markets, the telltale alone is deemed sufficient with no identifying words required next to the telltale. The identifying words “passenger side air bag” (without the word “OFF”) do not confuse the otherwise clear and readily apparent meaning of the telltale.
3. Information provided in several locations in the vehicle owner's manual further reduces any possibility of operator confusion. If the meaning of telltale is unclear, the operator can refer to multiple explanations in the owner's manual.
4. Telltale Function is also described in Quick Reference Guide.
5. There have been no customer complaints, injuries, or accidents related to the word “OFF” missing from the label. Nissan has searched its databases and has found no cases of misunderstanding the telltale.
6. Nissan conducted an informal survey at Nissan's National Headquarters Building in Franklin, Tennessee. The building houses mostly business personnel (sales marketing, finance) and not design engineers that would have special understanding of the air bag systems. As employees were approaching the building to begin their workday, they were asked to participate in a survey regarding the Titan and that the survey would take about 30 seconds of their time. The participants represented a good cross-section of the general population by age, gender and race. The subject Titan pickup truck was equipped with the required yellow passenger side air bag status telltale that contained the “no air bag” symbol, but did not display the word “OFF”. The passenger air bag telltale was illuminated. Survey participants were asked to describe the meaning of the telltale. Sixty people participated in the survey. Of the sixty people, 58 responded correctly that the telltale indicated the passenger side airbag was in suppressed mode. The survey shows that people understand the meaning of the passenger air bag telltale even with the word “OFF” missing. We note also that adding the word “OFF” did not help the two respondents to understand the meaning of the telltale. They would have needed to consult the Owner's Manual. Nissan acknowledges that this was an ad hoc survey that may not meet rigid statistical standards, nevertheless, we believe it is predictive of the results that would be obtained from a larger, controlled survey.
7. A decision to grant this petition would be consistent with arguably similar prior requests related to labeling issues. For example, NHTSA has previously granted petitions related to certain tire and tire placard labeling errors.
Nissan also states that it has taken steps to correct the non-compliance in future production.
Supported by the above stated reasons, Nissan believes that the described FMVSS No. 208 noncompliance is inconsequential to motor vehicle safety, and that its petition, to exempt it from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120, should be granted.
S19.2.2 The vehicle shall be equipped with at least one telltale which emits light whenever the passenger air bag system is deactivated and does not emit light whenever the passenger air bag system is activated, except that the telltale(s) need not illuminate when the passenger seat is unoccupied. Each telltale: * * *
(b) Shall have the identifying words “PASSENGER AIR BAG OFF” or “PASS AIR BAG OFF” on the telltale or within 25 mm (1.0 in) of the telltale; and * * *
In consideration of the foregoing, NHTSA has determined that Nissan has met its burden of persuasion that the subject FMVSS No. 208 telltale noncompliance is inconsequential to motor vehicle safety. Accordingly, Nissan's petition is hereby granted, and Nissan is exempted from the obligation of providing notification of, and a remedy for, the subject noncompliance under 49 U.S.C. 30118 and 30120.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to approximately 102,254 vehicles that Nissan no longer controlled at the time that it determined that a noncompliance existed in the subject vehicles. However, the granting of this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Nissan notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at CFR 1.95 and 501.8)
Surface Transportation Board, DOT.
Notice of exemption.
The Board is granting an exemption under 49 U.S.C. 10502 from the prior approval requirements at 49 U.S.C. 11323-25 for Grand Trunk Western Railroad Company (GTW), an indirect, wholly owned subsidiary of Canadian National Railway Company, to acquire from CSX Transportation, Inc. (CSXT) an exclusive, perpetual, non-assignable railroad operating easement over:
1. The location of the railroad at-grade crossing, at or near Leewood, between CSXT at milepost 00F Z 371.26 and Illinois Central Railroad Company (IC) at milepost 387.85, including the underlying right-of-way extending 50 feet on either side of the centerline of the CSXT tracks to IC's existing right-of-way and 75 feet on either side of the centerline of the IC tracks, together with appurtenances (other than the CSXT tracks outside the crossing) and related interlocking (Leewood Crossing); and
2. The location of the railroad at-grade crossing, at or near Aulon, between CSXT at milepost 0NI 224.05 and IC at milepost 390.0, including the underlying right-of-way extending approximately 50 feet on either side of the centerline of the CSXT track to IC's existing right-of-way and 50 feet on either side of the centerline of the IC tracks, together with appurtenances (other than the CSXT tracks outside the crossing) and related interlocking (Aulon Crossing).
This acquisition is related to the Board's February 8, 2013 decision in this docket granting GTW's petition for exemption under 49 U.S.C. 10502 from the prior approval requirements at 49 U.S.C. 11323-25 to acquire from CSXT an operating easement over approximately 2.1 miles of CSXT's Memphis Terminal Subdivision between Leewood, Tenn., and Aulon, Tenn. After the Board served that decision, CSXT and GTW realized that they had unintentionally failed to seek authority permitting the operating easement to span the Aulon and Leewood Crossings. By a decision served on May 9, 2013, the Board is granting GTW's petition for supplemental authority and allowing it to expand its operating easement over these crossings.
This exemption will be effective on June 8, 2013. Petitions to stay must be filed by May 20, 2013. Petitions to reopen must be filed by May 29, 2013.
Send an original and 10 copies of all filings referring to Docket No. FD 35661 to: Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, send one copy of pleadings to David A. Hirsch, Harkins Cunningham LLP, 1700 K Street NW., Suite 400, Washington, DC 20006-3804.
Scott M. Zimmerman, (202) 245-0386. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.
Additional information is contained in the Board's decision served May 9, 2013, which is available on our Web site at
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Mulvey.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury 's Office of Foreign Assets Control (“OFAC”) is publishing the names of eight individuals whose property and interests in property have been blocked pursuant to the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”) (21 U.S.C. 1901-1908, 8 U.S.C. 1182).
The designation by the Director of OFAC of the eight individuals identified in this notice pursuant to section 805(b) of the Kingpin Act is effective on May 7, 2013.
Assistant Director, Sanctions Compliance & Evaluation, Office of Foreign Assets Control, U.S. Department of the Treasury, Washington, DC 20220, Tel: (202) 622-2490.
This document and additional information concerning OFAC are available on OFAC's Web site at
The Kingpin Act became law on December 3, 1999. The Kingpin Act establishes a program targeting the activities of significant foreign narcotics traffickers and their organizations on a worldwide basis. It provides a statutory framework for the imposition of sanctions against significant foreign narcotics traffickers and their
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Secretary of the Treasury, in consultation with the Attorney General, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security may designate and block the property and interests in property, subject to U.S. jurisdiction, of persons who are found to be: (1) Materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; or (3) playing a significant role in international narcotics trafficking.
On May 7, 2013, the Director of OFAC designated the following eight individuals whose property and interests in property are blocked pursuant to section 805(b) of the Kingpin Act.
1. FLORES PACHECO, Cenobio (a.k.a. CASTRO VILLA, Luis Fernando; a.k.a. “CHECO”; a.k.a. “CHEKO”); DOB 13 Nov 1974; citizen Mexico (individual) [SDNTK].
2. LOPEZ AISPURO, Armando; DOB 27 Oct 1969; POB Culiacan, Sinaloa, Mexico; citizen Mexico (individual) [SDNTK].
3. NIEBLAS NAVA, Guillermo (a.k.a. NIEBLA GONZALEZ, Adelmo; a.k.a. “EL M”; a.k.a. “EL MEMO”); DOB 21 Dec 1958; citizen Mexico (individual) [SDNTK].
4. PAEZ SOTO, Ramon Ignacio (a.k.a. “EL MORENO”; a.k.a. “PAEZ Nachillo”; a.k.a. “PAEZ, Nacho”); DOB 31 Jul 1973; POB Culiacan, Sinaloa, Mexico; citizen Mexico (individual) [SDNTK].
5. RASCON RAMIREZ, Jose Javier (a.k.a. “EL KHADAFI”); DOB 24 Jul 1966; citizen Mexico (individual) [SDNTK].
6. SABORI CISNEROS, Raul (a.k.a. “EL NEGRO”); DOB 07 Jul 1963; POB Baja California Norte, Mexico; citizen Mexico (individual) [SDNTK].
7. SALAZAR RAMIREZ, Jesus Alfredo (a.k.a. “INDIO”; a.k.a. “MUNE”); DOB 24 Mar 1974; POB Chihuahua, Mexico; citizen Mexico (individual) [SDNTK].
8. SOSA CANISALES, Felipe de Jesus (a.k.a. “EL GIGIO”; a.k.a. “GIO”); DOB 16 Jul 1968; citizen Mexico (individual) [SDNTK].
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”') is publishing the names of eight individuals and one entity whose property and interests in property have been unblocked pursuant to Executive Order 13288 of March 6, 2003, “Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe” as amended by Executive Order 13391 of November 22, 2005, “Blocking Property of Additional Persons Undermining Democratic Processes or Institutions in Zimbabwe.”
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) of the eight individuals and one entity identified in this notice whose property and interests in blocked pursuant to Executive 13288 of March 6, 2003, as amended by Executive Order 13391 of November 22, 2005, is effective on May 2, 2013.
Assistant Director, Sanctions Compliance and Evaluation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, Tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On March 6, 2003, the President, invoking the authority of,
On November 22, 2005, in order to take additional steps with respect to the continued actions and policies of certain persons who undermine Zimbabwe's democratic processes and with respect to the national emergency described and declared in Executive Order 13288, the President, invoking the authority of,
Executive Order 13288, as amended by Executive Order 13991, also
On May 2, 2013, the Director of OFAC, in consultation with the State Department, determined that circumstances no longer warrant the inclusion of the individuals and entity listed below in the Annex to Executive Order 13288, as replaced and superseded by the Annex to Executive Order 13391, and that the property and interests in property of the individuals and entity listed below are therefore no longer blocked pursuant to section 1(a) of Executive Order 13288, as amended by Executive Order 13391, and accordingly removed them from the SDN List.
1. CHIGUDU, Tinaye Elisha Nzirasha; DOB 13 Aug 1942; Passport AD000013 (Zimbabwe); Manicaland Provincial Governor (individual) [ZIMBABWE].
2. CHINDORI-CHININGA, Edward; DOB 14 Mar 1955; Passport AN388694 (Zimbabwe); Member of Parliament for Guruve South (individual) [ZIMBABWE].
3. KARIMANZIRA, David; DOB 25 May 1947; Harare Provincial Governor & Politburo Secretary for Finance (individual) [ZIMBABWE].
4. MANDIZHA, Barbara; DOB 24 Oct 1959; Deputy Police Commissioner (individual) [ZIMBABWE].
5. MUDENGE, Isack Stan Gorerazvo, 31 St. Brelades Road, Borrowdale, Harare, Zimbabwe; DOB 17 Dec 1948; Passport AD000964 (Zimbabwe); Minister of Higher and Tertiary Education (individual) [ZIMBABWE].
6. MUJURU, Solomon Tapfumaneyi Ruzambo (a.k.a. “NANGO, Rex”); DOB 01 May 1949; Passport ZD001348 (Zimbabwe); Politburo Senior Committee Member (individual) [ZIMBABWE].
7. PATEL, Khantibhal; DOB 28 Oct 1928; Politburo Deputy Secretary for Finance (individual) [ZIMBABWE].
8. TAWENGWA, Solomon; DOB 15 Jun 1940; Former Executive Mayor of Harare; Deceased (individual) [ZIMBABWE].
1. CALGARY FARM, Mazowe, Zimbabwe [ZIMBABWE].
Office of Foreign Assets Control, Treasury.
Notice; correction.
On April 25, 2013, the Treasury Department's Office of Foreign Assets Control (“OFAC”) published a notice in the
The removal of this individual from the SDN List was effective as of Thursday, April 18, 2013.
Assistant Director, Sanctions Compliance & Evaluation, Office of Foreign Assets Control, Department of the Treasury, 1500 Pennsylvania Avenue NW. (Treasury Annex), Washington, DC 20220, Tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
In the notice published in the
On April 29, 2011, the President issued Executive Order 13572, “Blocking Property of Certain Persons with Respect to Human Rights Abuses in Syria,” (the “Order”) pursuant to,
The following designation is removed from the SDN List:
AL-KUZBARI, Nabil Rafik (a.k.a. AL-KOUZBARI, Nabil; a.k.a. AL-KUZBARI, Nabil; a.k.a. AL-KUZBARI, Nabil Rafiq; a.k.a. KUSBARI, Nabil; a.k.a. KUZBARI, Ahmad; a.k.a. KUZBARI, Ahmad Nabil; a.k.a. KUZBARI, Nabil R.); DOB 20 Sep 1936; POB Damascus, Syria; citizen Syria; alt. citizen Austria; Passport P3002721 (Austria) (individual) [SYRIA].
The removal of this individual from the SDN List is effective as of Thursday, April 18, 2013. All property and interests in property of the individual that are in or hereafter come within the United States or the possession or control of United States persons are now unblocked.
United States Institute of Peace.
Notice.
The Agency announces its Annual Grant Competition, which offers support for research, education and training, and the dissemination of information on international peace and conflict resolution. The Annual Grant Competition is open to any project that falls within the Institute's broad mandate of international conflict resolution.
Submission of Application: October 1, 2013; Notification Date: Early April 2014.
United States Institute of Peace, 2301 Constitution Avenue NW., Washington, DC 20037, (202) 429-3842 (phone), (202) 833-1018 (fax), (202) 457-1719 (TTY), Email:
The Grant Program • Annual Grant Competition, Phone (202) 429-3842, Email:
United States Institute of Peace.
Notice.
The Agency announces its ongoing Priority Grant Competition. The Priority Grant Competition focuses on countries and themes as they relate to USIP's mandate. The Priority Grant Competition is restricted to projects that fit the topics identified for each priority area.
This year the Priority Grant Competition's themes and topics are:
• Afghanistan
• Iraq
• Pakistan
• Horn of Africa
• Arab World Political Transformation
The specific focus for each priority area may be found at our Web site at:
If you are unable to access our Web site, you may submit an inquiry to: United States Institute of Peace, Grant Program • Priority Grant Competition, 2301 Constitution Avenue NW, Washington, DC 20037, (202) 429-3842 (phone), (202) 833-1018 (fax), (202) 457-1719 (TTY), Email:
The Grant Program, Phone (202) 429-3842, Email:
Department of Veterans Affairs (VA).
Notice with request for comments.
The Secretary, Department of Veterans Affairs (VA) established the Gulf War Veterans' Illnesses Task Force (GWVI-TF) in August 2009 to conduct a comprehensive review of VA's approach to and programs addressing 1990-1991 Gulf War Veterans' illnesses. The third Gulf War Veterans' Illnesses Task Force Draft Written Report is now complete. VA is inviting public comments on this draft report.
Written comments must be received on or before June 13, 2013.
Although VA prefers electronic submission of public comments through
Comments may also be viewed online during the comment period, through the Federal Docket Management System (FDMS) at
John Kent, GWVI-TF Secretary, OSVA, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, at (202) 461-4814.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App., that the date and/or location changes have been made for the following panel meetings of the of the Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board as previously announced in the
Gastroenterology will meet on May 30, 2013, at the U.S. Access Board and not on May 30-31, 2013;
Pulmonary Medicine will meet on May 30, 2013, at the Sheraton Crystal City Hotel and not on May 30-31, 2013;
Neurobiology-E will meet on June 4, 2013, at the Sheraton Crystal City Hotel, and not via a teleconference meeting at the VA Central Office;
Endocrinology-B will meet on June 5, 2013, at the Sheraton Crystal City Hotel and not on June 4, 2013; and
Neurobiology-F will conduct a teleconference meeting on June 12, 2013, at VA Central Office which was not previously reported.
The addresses of the meeting sites are:
The purpose of the Board is to provide advice on the scientific quality, budget, safety and mission relevance of investigator-initiated research proposals submitted for VA merit review consideration. Proposals submitted for review by the Board involve a wide range of medical specialties within the general areas of biomedical, behavioral and clinical science research.
The panel meetings will be open to the public for approximately one-half hour at the start of each meeting to discuss the general status of the program. The remaining portion of each panel meeting will be closed to the public for the review, discussion, and evaluation of initial and renewal research proposals.
The closed portion of each meeting involves discussion, examination, reference to staff and consultant critiques of research proposals. During this portion of each meeting, discussions will deal with scientific merit of each proposal and qualifications of personnel conducting the studies, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, as well as research information, the premature disclosure of which could significantly frustrate implementation of proposed agency action regarding such research proposals. As provided by subsection 10(d) of Public Law 92-463, as amended, closing portions of these panel meetings is in accordance with title 5 U.S.C., 552b(c) (6) and (9)(B).
Those who plan to attend the general session or would like to obtain a copy of the minutes from the panel meetings and rosters of the members of the panels should contact Alex Chiu, Ph.D., Manager, Merit Review Program (10P9B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, at (202) 443-5672 or email at
By Direction of the Secretary.
(b) Agencies shall implement the requirements of the Open Data Policy and shall adhere to the deadlines for specific actions specified therein. When implementing the Open Data Policy, agencies shall incorporate a full analysis of privacy, confidentiality, and security risks into each stage
(a) Within 30 days of the issuance of the Open Data Policy, the CIO and CTO shall publish an open online repository of tools and best practices to assist agencies in integrating the Open Data Policy into their operations in furtherance of their missions. The CIO and CTO shall regularly update this online repository as needed to ensure it remains a resource to facilitate the adoption of open data practices.
(b) Within 90 days of the issuance of the Open Data Policy, the Administrator for Federal Procurement Policy, Controller of the Office of Federal Financial Management, CIO, and Administrator of OIRA shall work with the Chief Acquisition Officers Council, Chief Financial Officers Council, Chief Information Officers Council, and Federal Records Council to identify and initiate implementation of measures to support the integration of the Open Data Policy requirements into Federal acquisition and grant-making processes. Such efforts may include developing sample requirements language, grant and contract language, and workforce tools for agency acquisition, grant, and information management and technology professionals.
(c) Within 90 days of the date of this order, the Chief Performance Officer (CPO) shall work with the President's Management Council to establish a Cross-Agency Priority (CAP) Goal to track implementation of the Open Data Policy. The CPO shall work with agencies to set incremental performance goals, ensuring they have metrics and milestones in place to monitor advancement toward the CAP Goal. Progress on these goals shall be analyzed and reviewed by agency leadership, pursuant to the GPRA Modernization Act of 2010 (Public Law 111-352).
(d) Within 180 days of the date of this order, agencies shall report progress on the implementation of the CAP Goal to the CPO. Thereafter, agencies shall report progress quarterly, and as appropriate.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Nothing in this order shall compel or authorize the disclosure of privileged information, law enforcement information, national security information, personal information, or information the disclosure of which is prohibited by law.
(e) Independent agencies are requested to adhere to this order.
U.S. Office of Personnel Management (OPM).
Notice.
As required by section 3132(b) (4) of title 5, United States Code, this gives notice of all positions in the Senior Executive Service (SES) that were “career reserved” i.e., SES positions that could only be encumbered by career Federal employees during calendar year 2012.
Demetrice Douglas, Senior Executive Resources Services, Senior Executive Service and Performance Management, Employee Services, 202-606-2246.
Below is a list of titles of SES positions that were career reserved at any time during calendar year 2012, regardless of whether those positions were still career reserved as of December 31, 2012. Section 3132(b)(4) of title 5, United States Code, requires that the head of each agency publish such lists by March 1 of the following year. OPM is publishing this consolidated list for all agencies.
5 U.S.C. 3132.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS received an application from Shell Gulf of Mexico Inc. (Shell) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment only, incidental to a marine surveys program in the Chukchi Sea, Alaska, during the open water season of 2013. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to Shell to take, by Level B harassment, 13 species of marine mammals during the specified activity.
Comments and information must be received no later than June 13, 2013.
Comments on the application should be addressed to P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
The application used in this document may be obtained by visiting the internet at:
Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”].
NMFS received an application on January 2, 2013, from Shell for the taking, by harassment, of marine mammals incidental to a marine surveys program in the Beaufort and Chukchi seas, Alaska, during the open-water season of 2013. Subsequently, Shell revised its proposed marine surveys program and limited its proposed activities to the Chukchi Sea, and resubmitted an IHA application on March 25, 2013. Based on NMFS comments, Shell further revised its IHA application and submitted its final IHA application on April 2, 2013. Shell's proposed activities discussed here are based on its April 2, 2013, IHA application.
Shell plans to complete a marine surveys program and conduct its equipment recovery and maintenance activity, during the 2013 open-water season in the Chukchi Sea. A total of three vessels would be utilized for the proposed open-water activities: the proposed marine surveys would be conducted from a single vessel, a second vessel would be used for equipment recovery and maintenance activity at Burger A, and a third vessel may be used to provide logistical support to either and/or both operations. Overall, Shell's proposed 2013 open-water marine surveys program includes the following three components:
• Chukchi Sea Offshore Ice Gouge Surveys;
• Chukchi Sea Offshore Site Clearance and Shallow Hazards Survey; and
• Equipment Recovery and Maintenance
Detailed locations of these activities are shown in Figures 1-1 through 1-3 of Shell's IHA application.
Ice and weather conditions will influence when and where the open-water marine surveys will be conducted. For initial planning purposes, Shell states that the offshore marine surveys and equipment recovery and maintenance would be conducted within the time frame of July through October 2013.
Ice gouge information is required for the design of potential pipelines and pipeline trenching and installation equipment. Ice gouges are created by ice keels that project from the bottom of ice, and gouge the seafloor sediment as the ice moves with the wind or currents. Ice gouge features can be mapped and surveyed, and by surveying the same
Shell plans to conduct ice gouge surveys along approximately 621 mi (1,000 km) of tracklines in the Chukchi Sea in 2013, within the area denoted in Figure 1-1 of the IHA application. These surveys will: (a) resurvey selected tracklines for ice gouge features to determine the rate or frequency of new ice gouges; and (b) map seafloor topography and characterize the upper 34 ft (10 m) of the seabed (seafloor and sub-seafloor) using acoustic methods. The ice gouge surveys will be conducted using the conventional survey method where the acoustic instrumentation will be towed behind the survey vessel. These acoustic instrumentation includes dual-frequency side scan sonar, single-beam bathymetric sonar, multi-beam bathymetric sonar, shallow sub-bottom profiler, and magnetometer.
Due to the low intensity and high frequency acoustic sources being used for the proposed ice gouge surveys (see below), this activity is not expected to result in takes of marine mammals.
The proposed site clearance and shallow hazards surveys are to gather data on: (1) Bathymetry, (2) seabed topography and other seabed characteristics (e.g., ice gouges), (3) potential shallow geohazards (e.g., shallow faults and shallow gas zones), and (4) the presence of any possible archeological features (prehistoric or historic, e.g., middens, shipwrecks). Marine surveys for site clearance and shallow hazard surveys can be accomplished by one vessel with acoustic sources.
Shell plans to conduct site clearance and shallow hazards surveys along approximately 3,200 kilometers (km) of tracklines in the Chukchi Sea in 2013 (see Figure 1-2 of the IHA application). These surveys would characterize the upper 1,000 meters (m) (3,128 feet [ft]) of the seabed and sub seafloor topography and measure water depths of potential exploratory drilling locations using acoustic methods. The site clearance and shallow hazard surveys would be conducted using the conventional survey method where the acoustic instrumentation will be towed behind the survey vessel. The acoustic instrumentation used in site clearance and shallow hazards surveys is largely the same as those for the offshore ice gouge surveys, but also includes a 4 × 10 cubic inch (in
Shell's proposed equipment recovery and maintenance activities would occur at the Burger A well site in the Chukchi Sea (see Figure 1-3 of the IHA application). The equipment recovery and maintenance activity would be accomplished by one vessel operating in dynamic positioning (DP) mode for an extended period over the drilling site. The vessel may be resupplied during the activity by vessel or aircraft.
Work would be conducted subsea within the mudline cellar (MLC; ~ 20 ft wide by 40 ft. deep excavation dug for the Burger A wellhead during 2012 drilling at this well site) with a suite of Remotely Operated Vehicles (ROV) and divers that would recover equipment left sub-mudline on the well head during the 2012 open water drilling season. The survey vessel would be dynamically positioned at the well site for up to ~28 days while subsurface equipment recovery and maintenance occurs, however Shell anticipates this work being accomplished in less than 28 days. During this planned work scope the state and integrity of the well would not be changed since no form of entry will be made into the well.
For the proposed site clearance and shallow hazards surveys, Shell plans to use the same 4 × 10 in
Sound source characteristics that would be used during the site clearance and shallow hazard surveys and ice gouge surveys include single-beam bathymetric sonar, multi-beam bathymetric sonar, dual frequency side-scan sonar, shallow sub-bottom profiler, and an ultra-short baseline acoustic positioning system. Representative source characteristics of these acoustic instrumentation were measured during Statoil's 2011 marine survey program in the Chukchi Sea (Warner and McCrodan 2011), and are listed in Table 2.
For Shell's proposed equipment recovery and maintenance at the Burger A well site where drilling took place in 2012, a vessel would be deployed at or near the well site using dynamic positioning thrusters while remotely operated vehicles or divers are used to perform the required activities. Sounds produced by the vessel while in dynamic positioning mode would be non-impulsive in nature and are thus evaluated at the ≥120 dB (rms) re 1 μPa.
In 2011, Statoil conducted geotechnical coring operations in the Chukchi Sea using the vessel
Acoustic measurements of the
The vessel from which equipment recovery and maintenance would be conducted has not yet been determined. Under most circumstances, sounds from dynamic positioning thrusters are expected to be well below 120 dB (rms) re 1 μPa at distances greater than 10 km (6 mi). However, since some of the activities conducted by the
The schedule for the activities in the Chukchi Sea will depend on ice conditions and other factors. The vessels will sail from south of the Chukchi Sea and transit through the Bering Strait into the Chukchi Sea on or after 1 July or later depending on ice conditions. The July entry is responsive to concerns voiced by the local communities of Wainwright and Point Lay; these communities have requested that entry into the Chukchi Sea be delayed until after the walrus and beluga whale hunts.
Given that access to the proposed areas where Shell plans to conduct activities is dependent on ice, weather, and coordinated avoidance of potential impacts to subsistence activities, Shell has estimated a broader range of time to conduct these activities than if the activities were not constrained. For example, without any of the above constraints to conducting the proposed activities, the duration of time necessary to complete offshore ice gouge surveys could be as few as 13 days in the Chukchi Sea. Likewise, the duration of time necessary to complete site clearance and shallow hazard surveys in the Chukchi Sea could be on the order of over 50 days. However, these time estimates do not include transit between survey locations, potential stand-by time due to ice and/or weather, or crew changes and re-supply. Therefore, Shell requests an IHA to cover its incidental take between July 1 and October 31, 2013.
The marine mammal species under NMFS jurisdiction most likely to occur in the seismic survey area include nine cetacean species, beluga whale (
The bowhead, fin, and humpback whales are listed as “endangered”, and the ringed and bearded seals are listed as “threatened” under the Endangered Species Act (ESA) and as depleted under the MMPA. Certain stocks or populations of gray and beluga whales and spotted seals are also listed under the ESA, however, none of those stocks
Shell's application contains information on the status, distribution, seasonal distribution, and abundance of each of the species under NMFS jurisdiction mentioned in this document. Please refer to the application for that information (see
Operating active acoustic sources such as airgun arrays, pinger systems, and vessel activities have the potential for adverse effects on marine mammals.
The effects of sounds from airgun pulses might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, and temporary or permanent hearing impairment or non-auditory effects (Richardson
Marine mammals may behaviorally react to sound when exposed to anthropogenic noise. These behavioral reactions are often shown as: changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, and reproduction. Some of these potential significant behavioral modifications include:
• Drastic change in diving/surfacing patterns (such as those thought to be causing beaked whale stranding due to exposure to military mid-frequency tactical sonar);
• Habitat abandonment due to loss of desirable acoustic environment; and
• Cease feeding or social interaction.
For example, at the Guerreo Negro Lagoon in Baja California, Mexico, which is one of the important breeding grounds for Pacific gray whales, shipping and dredging associated with a salt works may have induced gray whales to abandon the area through most of the 1960s (Bryant
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
Currently NMFS uses 160 dB re 1 μPa (rms) at received level for impulse noises (such as airgun pulses) as the threshold for the onset of marine mammal behavioral harassment.
In addition, behavioral disturbance is also expressed as the change in vocal activities of animals. For example, there is one recent summary report indicating that calling fin whales distributed in one part of the North Atlantic went silent for an extended period starting soon after the onset of a seismic survey in the area (Clark and Gagnon 2006). It is not clear from that preliminary paper whether the whales ceased calling because of masking, or whether this was a behavioral response not directly involving masking (i.e., important biological signals for marine mammals being “masked” by anthropogenic noise; see below). Also, bowhead whales in the Beaufort Sea may decrease their call rates in response to seismic operations, although movement out of the area might also have contributed to the lower call detection rate (Blackwell
Some baleen whales show considerable tolerance of seismic pulses. However, when the pulses are strong enough, avoidance or other behavioral changes become evident. Because the responses become less obvious with diminishing received sound level, it has been difficult to determine the maximum distance (or minimum received sound level) at which reactions to seismic activity become evident and, hence, how many whales are affected.
Studies of gray, bowhead, and humpback whales have determined that received levels of pulses in the 160-170 dB re 1 μPa (rms) range seem to cause obvious avoidance behavior in a substantial fraction of the animals exposed (McCauley
Data on short-term reactions by cetaceans to impulsive noises are not necessarily indicative of long-term or biologically significant effects. It is not known whether impulsive sounds affect reproductive rate or distribution and habitat use in subsequent days or years. However, gray whales have continued to migrate annually along the west coast of North America despite intermittent seismic exploration (and much ship traffic) in that area for decades (Appendix A in Malme
Dolphins and porpoises are often seen by observers on active seismic vessels, occasionally at close distances (e.g., bow riding). Marine mammal monitoring data during seismic surveys often show that animal detection rates drop during the firing of seismic airguns, indicating that animals may be avoiding the vicinity of the seismic area (Smultea
There are almost no specific data on responses of beaked whales to seismic surveys, but it is likely that most if not all species show strong avoidance. There is increasing evidence that some beaked whales may strand after exposure to strong noise from tactical military mid-frequency sonars. Whether they ever do so in response to seismic survey noise is unknown. Northern bottlenose whales seem to continue to call when exposed to pulses from distant seismic vessels.
For delphinids, and possibly the Dall's porpoise, the available data suggest that a ≥170 dB re 1 μPa (rms) disturbance criterion (rather than ≥160 dB) would be appropriate. With a medium-to-large airgun array, received levels typically diminish to 170 dB within 1-4 km, whereas levels typically remain above 160 dB out to 4-15 km (e.g., Tolstoy
Due to their relatively higher frequency hearing ranges when compared to mysticetes, odontocetes may have stronger responses to mid- and high-frequency sources such as sub-bottom profilers, side scan sonar, and echo sounders than mysticetes (Richardson
Early observations provided considerable evidence that pinnipeds are often quite tolerant of strong pulsed sounds. During seismic exploration off Nova Scotia, gray seals exposed to noise from airguns and linear explosive charges reportedly did not react strongly (J. Parsons in Greene
In summary, visual monitoring from seismic vessels has shown only slight (if any) avoidance of airguns by pinnipeds, and only slight (if any) changes in behavior. These studies show that many pinnipeds do not avoid the area within a few hundred meters of an operating airgun array. However, based on the studies with large sample size, or observations from a separate monitoring vessel, or radio telemetry, it is apparent that some phocid seals do show localized avoidance of operating
Masking occurs when noise and signals (that animal utilizes) overlap at both spectral and temporal scales. Chronic exposure to elevated sound levels could cause masking at particular frequencies for marine mammals, which utilize sound for important biological functions. Masking can interfere with detection of acoustic signals used for orientation, communication, finding prey, and avoiding predators. Marine mammals that experience severe (high intensity and extended duration) acoustic masking could potentially suffer reduced fitness, which could lead to adverse effects on survival and reproduction.
For the airgun noise generated from the proposed marine seismic survey, these are low frequency (under 1 kHz) pulses with extremely short durations (in the scale of milliseconds). Lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. There is little concern regarding masking due to the brief duration of these pulses and relatively longer silence between airgun shots (9-12 seconds) near the noise source, however, at long distances (over tens of kilometers away) in deep water, due to multipath propagation and reverberation, the durations of airgun pulses can be “stretched” to seconds with long decays (Madsen
Although masking effects of pulsed sounds on marine mammal calls and other natural sounds are expected to be limited, there are few specific studies on this. Some whales continue calling in the presence of seismic pulses and whale calls often can be heard between the seismic pulses (e.g., Richardson
Among the odontocetes, there has been one report that sperm whales ceased calling when exposed to pulses from a very distant seismic ship (Bowles
Pinnipeds have best hearing sensitivity and/or produce most of their sounds at frequencies higher than the dominant components of airgun sound, but there is some overlap in the frequencies of the airgun pulses and the calls. However, the intermittent nature of airgun pulses presumably reduces the potential for masking.
Marine mammals are thought to be able to compensate for masking by adjusting their acoustic behavior such as shifting call frequencies, and increasing call volume and vocalization rates, as discussed earlier (e.g., Miller et al. 2000; Parks
Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak
TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter 1985). While experiencing TTS, the hearing threshold rises and a sound must be stronger in order to be heard. It is a temporary phenomenon, and (especially when mild) is not considered to represent physical damage or “injury” (Southall
The magnitude of TTS depends on the level and duration of noise exposure, and to some degree on frequency, among other considerations (Kryter 1985; Richardson
For toothed whales, experiments on a bottlenose dolphin (
Finneran
However, the assumption that, in marine mammals, the occurrence and magnitude of TTS is a function of cumulative acoustic energy (SEL) is probably an oversimplification. Kastak
For baleen whales, there are no data, direct or indirect, on levels or properties of sound that are required to induce TTS. The frequencies to which baleen whales are most sensitive are lower than those to which odontocetes are most sensitive, and natural ambient noise levels at those low frequencies tend to be higher (Urick 1983). As a result, auditory thresholds of baleen whales within their frequency band of best hearing are believed to be higher (less sensitive) than are those of odontocetes at their best frequencies (Clark and Ellison 2004). From this, it is suspected that received levels causing TTS onset may also be higher in baleen whales. However, no cases of TTS are expected given the small size of the airguns proposed to be used and the strong likelihood that baleen whales (especially migrating bowheads) would avoid the approaching airguns (or vessel) before being exposed to levels high enough for there to be any possibility of TTS.
In pinnipeds, TTS thresholds associated with exposure to brief pulses (single or multiple) of underwater sound have not been measured. Initial evidence from prolonged exposures suggested that some pinnipeds may incur TTS at somewhat lower received levels than do small odontocetes exposed for similar durations (Kastak
Most cetaceans show some degree of avoidance of seismic vessels operating an airgun array (see above). It is unlikely that these cetaceans would be exposed to airgun pulses at a sufficiently high level for a sufficiently long period to cause more than mild TTS, given the relative movement of the vessel and the marine mammal. TTS would be more likely in any odontocetes that bow- or wake-ride or otherwise linger near the airguns. However, while bow- or wake-riding, odontocetes would be at the surface and thus not exposed to strong sound pulses given the pressure release and Lloyd Mirror effects at the surface. But if bow- or wake-riding animals were to dive intermittently near airguns, they would be exposed to strong sound pulses, possibly repeatedly.
If some cetaceans did incur mild or moderate TTS through exposure to airgun sounds in this manner, this would very likely be a temporary and reversible phenomenon. However, even a temporary reduction in hearing sensitivity could be deleterious in the event that, during that period of reduced sensitivity, a marine mammal needed its full hearing sensitivity to detect approaching predators, or for some other reason.
Some pinnipeds show avoidance reactions to airguns, but their avoidance reactions are generally not as strong or consistent as those of cetaceans. Pinnipeds occasionally seem to be attracted to operating seismic vessels. There are no specific data on TTS thresholds of pinnipeds exposed to single or multiple low-frequency pulses. However, given the indirect indications of a lower TTS threshold for the harbor seal than for odontocetes exposed to impulse sound (see above), it is possible that some pinnipeds close to a large airgun array could incur TTS.
NMFS currently typically includes mitigation requirements to ensure that cetaceans and pinnipeds are not exposed to pulsed underwater noise at received levels exceeding, respectively, 180 and 190 dB re 1 µPa (rms). The 180/190 dB acoustic criteria were taken from recommendations by an expert panel of the High Energy Seismic Survey (HESS) Team that performed an assessment on noise impacts by seismic airguns to marine mammals in 1997, although the HESS Team recommended a 180-dB limit for pinnipeds in California (HESS 1999). The 180 and 190 dB re 1 μPa (rms) levels have not been considered to be the levels above which TTS might occur. Rather, they were the received levels above which, in the view of a panel of bioacoustics specialists convened by NMFS before TTS measurements for marine mammals started to become available, one could not be certain that there would be no injurious effects, auditory or otherwise, to marine mammals. As summarized above, data that are now available imply that TTS is unlikely to occur in various odontocetes (and probably mysticetes as well) unless they are exposed to a sequence of several airgun pulses stronger than 190 dB re 1 μPa (rms). On the other hand, for the harbor seal, harbor porpoise, and perhaps some other species, TTS may occur upon exposure to one or more airgun pulses whose received level equals the NMFS “do not exceed” value of 190 dB re 1 μPa (rms). That criterion corresponds to a single-pulse SEL of 175-180 dB re 1
It has been shown that most large whales and many smaller odontocetes (especially the harbor porpoise) show at least localized avoidance of ships and/or seismic operations. Even when avoidance is limited to the area within a few hundred meters of an airgun array, that should usually be sufficient to avoid TTS based on what is currently known about thresholds for TTS onset in cetaceans. In addition, ramping up airgun arrays, which is standard operational protocol for many seismic operators, may allow cetaceans near the airguns at the time of startup (if the sounds are aversive) to move away from the seismic source and to avoid being exposed to the full acoustic output of the airgun array. Thus, most baleen whales likely will not be exposed to high levels of airgun sounds provided the ramp-up procedure is applied. Likewise, many odontocetes close to the trackline are likely to move away before the sounds from an approaching seismic vessel become sufficiently strong for there to be any potential for TTS or other hearing impairment. Hence, there is little potential for baleen whales or odontocetes that show avoidance of ships or airguns to be close enough to an airgun array to experience TTS. Nevertheless, even if marine mammals were to experience TTS, the magnitude of the TTS is expected to be mild and brief, only in a few decibels for minutes.
When PTS occurs, there is physical damage to the sound receptors in the ear. In some cases, there can be total or partial deafness, whereas in other cases, the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter 1985). Physical damage to a mammal's hearing apparatus can occur if it is exposed to sound impulses that have very high peak pressures, especially if they have very short rise times. (Rise time is the interval required for sound pressure to increase from the baseline pressure to peak pressure.)
There is no specific evidence that exposure to pulses of airgun sound can cause PTS in any marine mammal, even with large arrays of airguns. However, given the likelihood that some mammals close to an airgun array might incur at least mild TTS (see above), there has been further speculation about the possibility that some individuals occurring very close to airguns might incur PTS (e.g., Richardson
Relationships between TTS and PTS thresholds have not been studied in marine mammals, but are assumed to be similar to those in humans and other terrestrial mammals (Southall
Some factors that contribute to onset of PTS, at least in terrestrial mammals, are as follows:
• exposure to a single very intense sound,
• fast rise time from baseline to peak pressure,
• repetitive exposure to intense sounds that individually cause TTS but not PTS, and
• recurrent ear infections or (in captive animals) exposure to certain drugs.
Cavanagh (2000) reviewed the thresholds used to define TTS and PTS. Based on this review and SACLANT (1998), it is reasonable to assume that PTS might occur at a received sound level 20 dB or more above that inducing mild TTS. However, for PTS to occur at a received level only 20 dB above the TTS threshold, the animal probably would have to be exposed to a strong sound for an extended period, or to a strong sound with a rather rapid rise time.
More recently, Southall
Sound impulse duration, peak amplitude, rise time, number of pulses, and inter-pulse interval are the main factors thought to determine the onset and extent of PTS. Ketten (1994) has noted that the criteria for differentiating the sound pressure levels that result in PTS (or TTS) are location and species specific. PTS effects may also be influenced strongly by the health of the receiver's ear.
As described above for TTS, in estimating the amount of sound energy required to elicit the onset of TTS (and PTS), it is assumed that the auditory effect of a given cumulative SEL from a series of pulses is the same as if that amount of sound energy were received as a single strong sound. There are no data from marine mammals concerning the occurrence or magnitude of a potential partial recovery effect between pulses. In deriving the estimates of PTS
It is unlikely that an odontocete would remain close enough to a large airgun array for sufficiently long to incur PTS. There is some concern about bowriding odontocetes, but for animals at or near the surface, auditory effects are reduced by Lloyd's mirror and surface release effects. The presence of the vessel between the airgun array and bow-riding odontocetes could also, in some but probably not all cases, reduce the levels received by bow-riding animals (e.g., Gabriele and Kipple 2009). The TTS (and thus PTS) thresholds of baleen whales are unknown but, as an interim measure, assumed to be no lower than those of odontocetes. Also, baleen whales generally avoid the immediate area around operating seismic vessels, so it is unlikely that a baleen whale could incur PTS from exposure to airgun pulses. The TTS (and thus PTS) thresholds of some pinnipeds (e.g., harbor seal) as well as the harbor porpoise may be lower (Kastak
Non-auditory physical effects might occur in marine mammals exposed to strong underwater pulsed sound. Possible types of non-auditory physiological effects or injuries that theoretically might occur in mammals close to a strong sound source include neurological effects, bubble formation, and other types of organ or tissue damage. Some marine mammal species (i.e., beaked whales) may be especially susceptible to injury and/or stranding when exposed to intense sounds. However, there is no definitive evidence that any of these effects occur even for marine mammals in close proximity to large arrays of airguns, and beaked whales do not occur in the proposed project area. In addition, marine mammals that show behavioral avoidance of seismic vessels, including most baleen whales, some odontocetes (including belugas), and some pinnipeds, are especially unlikely to incur non-auditory impairment or other physical effects.
Therefore, it is unlikely that such effects would occur during Shell's proposed marine surveys given the brief duration of exposure, the small sound sources, and the planned monitoring and mitigation measures described later in this document.
Additional non-auditory effects include elevated levels of stress response (Wright
Marine mammals close to underwater detonations can be killed or severely injured, and the auditory organs are especially susceptible to injury (Ketten
However, in numerous past IHA notices for seismic surveys, commenters have referenced two stranding events allegedly associated with seismic activities, one off Baja California and a second off Brazil. NMFS has addressed this concern several times, and, without new information, does not believe that this issue warrants further discussion. For information relevant to strandings of marine mammals, readers are encouraged to review NMFS' response to comments on this matter found in 69 FR 74906 (December 14, 2004), 71 FR 43112 (July 31, 2006), 71 FR 50027 (August 24, 2006), and 71 FR 49418 (August 23, 2006).
It should be noted that strandings related to sound exposure have not been recorded for marine mammal species in the Chukchi or Beaufort seas. NMFS notes that in the Beaufort and Chukchi seas, aerial surveys have been conducted by BOEM (previously MMS) and industry during periods of industrial activity (and by BOEM during times with no activity). No strandings or marine mammals in distress have been observed during these surveys and none have been reported by North Slope Borough inhabitants. In addition, there are very few instances that seismic surveys in general have been linked to marine mammal strandings, other than those mentioned above. As a result, NMFS does not expect any marine mammals will incur serious injury or mortality in the Arctic Ocean or strand as a result of the proposed marine survey.
A variety of active acoustic instrumentation would be used during Shell's proposed marine surveys program. Source characteristics and propagation distances to 160 (rms) dB re 1 µPa by comparable instruments are listed in Table 2. In general, the potential effects of this equipment on marine mammals are similar to those from the airgun, except the magnitude of the impacts is expected to be much less due to the lower intensity and higher frequencies. In some cases, due to the fact that the operating frequencies of some of this equipment (e.g., Multi-beam bathymetric sonar: frequency at 220-240 kHz) are above the hearing ranges of marine mammals, they are not expected to have any impacts to marine mammals.
In addition to the noise generated from seismic airguns and active sonar systems, various types of vessels will be used in the operations, including source vessel and vessels used for equipment recovery and maintenance and logistic support. Sounds from boats and vessels have been reported extensively (Greene and Moore 1995; Blackwell and Greene 2002; 2005; 2006). Numerous measurements of underwater vessel sound have been performed in support of recent industry activity in the Chukchi and Beaufort Seas. Results of these measurements were reported in various 90-day and comprehensive reports since 2007 (e.g., Aerts
The primary sources of sounds from all vessel classes are propeller cavitation, propeller singing, and propulsion or other machinery. Propeller cavitation is usually the dominant noise source for vessels (Ross 1976). Propeller cavitation and singing are produced outside the hull, whereas propulsion or other machinery noise originates inside the hull. There are additional sounds produced by vessel activity, such as pumps, generators, flow noise from water passing over the hull, and bubbles breaking in the wake. Source levels from various vessels would be empirically measured before the start of marine surveys, and during equipment recovery and maintenance while operating the DP system.
The primary potential impacts to marine mammals and other marine species are associated with elevated sound levels produced by airguns and vessels operating in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.
With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga
The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas
Investigations of fish behavior in relation to vessel noise (Olsen
Further, during the seismic survey only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the seismic activity ceases (McCauley
Some mysticetes, including bowhead whales, feed on concentrations of zooplankton. Some feeding bowhead whales may occur in the Alaskan Beaufort Sea in July and August, and others feed intermittently during their westward migration in September and October (Richardson and Thomson [eds.] 2002; Lowry
Subsistence hunting is an essential aspect of Inupiat Native life, especially in rural coastal villages. The Inupiat participate in subsistence hunting activities in and around the Chukchi Sea. The animals taken for subsistence provide a significant portion of the food that will last the community through the year. Marine mammals represent on the order of 60-80% of the total subsistence harvest. Along with the nourishment necessary for survival, the subsistence activities strengthen bonds within the culture, provide a means for educating the young, provide supplies for artistic expression, and allow for important celebratory events.
The communities closest to the project area are the villages of Wainwright and Barrow. Shell's proposed ice gouge surveys would occur offshore Wainwright but would be approximately 30 km from Barrow and 48 km from Point Lay. The closest point for Shell's proposed site clearance and shallow hazards surveys and equipment recovery and maintenance activities would be approximately 120 km to Wainwright and 150 km to Point Lay, and much farther away to Barrow.
NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as: “. . . an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.”
Shell's planned surveys would have no or negligible effects on bowhead whale harvest activities. Noise and general activity associated with marine surveys and operation of vessels has the potential to harass bowhead whales. However, though temporary diversions of the swim path of migrating whales have been documented, the whales have generally been observed to resume their initial migratory route. The proposed open-water marine surveys and vessel noise could in some circumstances affect subsistence hunts by placing the animals further offshore or otherwise at a greater distance from villages thereby increasing the difficulty of the hunt or retrieval of the harvest, or creating a safety risk to the whalers. Residents of Barrow hunt bowheads during the spring and fall migration. However, bowhead hunts by residents of Wainwright, Point Lay and Point Hope take place almost exclusively in the spring and are typically curtailed when ice begins to break up which is prior to the date Shell would commence the 2013 activities. From 1974 through 2009, bowhead harvests by these Chukchi Sea villages occurred only in the spring between early April and mid-June (Suydam and George, 2012). A Wainwright whaling crew harvested the first fall bowhead in 90 years or more on October 8, 2010, and again in October of 2011. Fall whaling by Chukchi Sea villages may occur in the future, particularly if bowhead quotas are not completely filled during the spring hunt, and fall weather is accommodating.
During the survey period most marine mammals are expected to be dispersed throughout the area, except during the peak of the bowhead whale migration through the Chukchi Seas, which occurs from late August into October. Bowhead whales are expected to be in the Canadian Beaufort Sea during much of the time, and therefore are not expected to be affected by the proposed marine surveys and vessel noise prior to the start of the fall subsistence hunt. After the conclusion of the subsistence hunt, bowheads may travel in proximity to the survey area and hear sounds from sonar, high resolution profilers, and associated vessel sounds; and may be displaced by these activities.
Belugas typically do not represent a large proportion of the subsistence harvests by weight in the communities of Wainwright and Barrow, the nearest communities to Shell's planned 2013 activities in the Chukchi Sea. Barrow residents hunt beluga in the spring normally after the bowhead hunt) in leads between Point Barrow and Skull Cliffs in the Chukchi Sea primarily in April-June, and later in the summer (July-August) on both sides of the barrier island in Elson Lagoon/Beaufort Sea (MMS 2008), but harvest rates indicate the hunts are not frequent. Wainwright residents hunt beluga in April-June in the spring lead system, but this hunt typically occurs only if there are no bowheads in the area. Communal hunts for beluga are conducted along the coastal lagoon system later in July-August.
Belugas typically represent a much greater proportion of the subsistence harvest in Point Lay and Point Hope. Point Lay's primary beluga hunt occurs from mid-June through mid-July, but can sometimes continue into August if early success is not sufficient. Point Hope residents hunt beluga primarily in the lead system during the spring (late March to early June) bowhead hunt, but also in open water along the coastline in July and August. Belugas are harvested in coastal waters near these villages, generally within a few miles from shore. The southern extent of Shell's proposed surveys is Icy Cape which lies over 30 miles (48 km) to the north of Point Lay, and therefore NMFS considers that the surveys would have no or negligible effect on beluga hunts.
The survey vessel may be resupplied via another vessel from onshore support facilities and may traverse areas that are sometimes used for subsistence hunting of belugas. Disturbance associated with vessel and potential aircraft traffic could therefore potentially affect beluga hunts. However, all of the beluga hunt by Barrow residents in the Chukchi Sea, and much of the hunt by Wainwright residents would likely be completed before Shell activities would commence.
Seals are an important subsistence resource and ringed seals make up the bulk of the seal harvest. Most ringed and bearded seals are harvested in the winter or in the spring before Shell's 2013 activities would commence, but some harvest continues during open water and could possibly be affected by Shell's planned activities. Spotted seals are also harvested during the summer. Most seals are harvested in coastal waters, with available maps of recent and past subsistence use areas indicating seal harvests have occurred only within 30-40 mi (48-64 km) off the coastline. Shells planned offshore surveys, equipment recovery and maintenance would occur outside state waters and are not likely to have an impact on subsistence hunting for seals. Resupply vessel and air traffic between land and the operations vessels could potentially disturb seals and, therefore, subsistence hunts for seals, but any such effects would be minor due to the small number of supporting vessels and the fact that most seal hunting is done during the winter and spring.
As stated earlier, the proposed seismic survey would take place between July and October. The closest extension of the proposed site clearance and shallow hazards surveys located approximately 120 km to Wainwright and 150 km to Point Lay, and much farther to Barrow. Potential impact from the planned activities is expected mainly from sounds generated by the vessel and during active airgun deployment. Due to the timing of the project and the distance from the surrounding communities, it is anticipated to have no effects on spring harvesting and little or no effects on the occasional summer harvest of beluga whale, subsistence seal hunts (ringed and spotted seals are primarily harvested in winter while bearded seals are hunted during July—September in the Beaufort Sea), or the fall bowhead hunt.
In addition, Shell has developed and proposes to implement a number of mitigation measures which include a proposed Marine Mammal Monitoring and Mitigation Plan (4MP), employment of subsistence advisors in the villages, and implementation of a Communications Plan (with operation of Communication Centers). Shell is also preparing a Plan of Cooperation (POC) under 50 CFR 216.104 Article 12 of the MMPA to address potential impacts on subsistent seal hunting activities. Shell will meet with the Alaska Eskimo Whaling Commission (AEWC) and communities' Whaling Captains' Associations as part of the POC development, to establish avoidance guidelines and other mitigation measures to be followed where the proposed activities may have an impact on subsistence.
Finally, to ensure that there will be no conflict from Shell's proposed open-water marine surveys and equipment recovery and maintenance to subsistence activities, NMFS encourages Shell to sign a Conflict Avoidance Agreement with the local subsistence communities. The CAA identifies what measures have been or will be taken to minimize adverse impacts of the planned activities on subsistence harvesting.
In order to issue an incidental take authorization under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
For the proposed Shell open-water marine surveys and equipment recovery and maintenance activities in the Chukchi Sea, Shell worked with NMFS and proposed the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity as a result of the marine seismic survey activities. The primary purpose of these mitigation measures is to detect marine mammals within, or about to enter designated exclusion zones and to initiate immediate shutdown or power down of the airgun(s), therefore it's very unlikely potential injury or TTS to marine mammals would occur, and Level B behavioral of marine mammals would be reduced to the lowest level practicable.
Under current NMFS guidelines, the “exclusion zone” for marine mammal exposure to impulse sources is customarily defined as the area within which received sound levels are ≥180 dB (rms) re 1 μPa for cetaceans and ≥190 dB (rms) re 1 μPa for pinnipeds. These safety criteria are based on an assumption that SPL received at levels lower than these will not injure these animals or impair their hearing abilities, but that at higher levels might have some such effects. Disturbance or behavioral effects to marine mammals from underwater sound may occur after exposure to sound at distances greater than the exclusion zones (Richarcdson
Exclusion and disturbance radii for the sound levels produced by the 40 in
This proposed mitigation measures apply to all vessels that are part of the Chukchi Sea marine surveys and equipment recovery and maintenance activities, including crew transfer vessels.
• Avoid concentrations or groups of whales by all vessels under the direction of Shell. Operators of support vessels should, at all times, conduct their activities at the maximum distance possible from such concentrations of whales.
• Vessels in transit shall be operated at speeds necessary to ensure no physical contact with whales occurs. If any vessel approaches within 1.6 km (1 mi) of observed bowhead whales, except when providing emergency assistance to whalers or in other emergency situations, the vessel operator will take reasonable precautions to avoid potential interaction with the bowhead whales by taking one or more of the following actions, as appropriate:
○ Reducing vessel speed to less than 5 knots within 300 yards (900 feet or 274 m) of the whale(s);
○ Steering around the whale(s) if possible;
○ Operating the vessel(s) in such a way as to avoid separating members of a group of whales from other members of the group;
○ Operating the vessel(s) to avoid causing a whale to make multiple changes in direction; and
○ Checking the waters immediately adjacent to the vessel(s) to ensure that no whales will be injured when the propellers are engaged.
• When weather conditions require, such as when visibility drops, adjust vessel speed accordingly to avoid the likelihood of injury to whales.
• In the event that any aircraft (such as helicopters) are used to support the planned survey, the mitigation measures below would apply:
○ Under no circumstances, other than an emergency, shall aircraft be operated at an altitude lower than 1,000 feet above sea level (ASL) when within 0.3 mile (0.5 km) of groups of whales.
○ Helicopters shall not hover or circle above or within 0.3 mile (0.5 km) of groups of whales.
The primary role for airgun mitigation during the site clearance and shallow hazards surveys is to monitor marine mammals near the airgun array during all daylight airgun operations and during any nighttime start-up of the airguns. During the site clearance and shallow hazards surveys PSOs will monitor the pre-established exclusion zones for the presence of marine mammals. When marine mammals are observed within, or about to enter, designated safety zones, PSOs have the authority to call for immediate power down (or shutdown) of airgun operations as required by the situation. A summary of the procedures associated with each mitigation measure is provided below.
A ramp up of an airgun array provides a gradual increase in sound levels, and
During the proposed shallow hazards survey program, the seismic operator will ramp up the airgun arrays slowly. Full ramp ups (i.e., from a cold start after a shut down, when no airguns have been firing) will begin by firing a single airgun in the array (i.e., the mitigation airgun). A full ramp up, after a shut down, will not begin until there has been a minimum of 30 min of observation of the safety zone by PSOs to assure that no marine mammals are present. The entire safety zone must be visible during the 30-minute lead-in to a full ramp up. If the entire safety zone is not visible, then ramp up from a cold start cannot begin. If a marine mammal(s) is sighted within the safety zone during the 30-minute watch prior to ramp up, ramp up will be delayed until the marine mammal(s) is sighted outside of the safety zone or the animal(s) is not sighted for at least 15-30 minutes: 15 minutes for small odontocetes (harbor porpoise) and pinnipeds, or 30 minutes for baleen whales and large odontocetes (including beluga and killer whales and narwhal).
Throughout the seismic survey, particularly during turning movements, and short transits, Shell will employ the use of a small-volume airgun (i.e., 10 in
During turns or brief transits (e.g., less than three hours) between seismic tracklines, one mitigation airgun will continue operating. The ramp-up procedure will still be followed when increasing the source levels from one airgun to the full airgun array. However, keeping one airgun firing will avoid the prohibition of a “cold start” during darkness or other periods of poor visibility. Through use of this approach, site clearance and shallow hazards surveys using the full array may resume without the 30 minute observation period of the full exclusion zone required for a “cold start”. PSOs will be on duty whenever the airguns are firing during daylight, during the 30 minute periods prior to ramp-ups.
A power down is the immediate reduction in the number of operating energy sources from all firing to some smaller number (e.g., single mitigation airgun). A shut down is the immediate cessation of firing of all energy sources. The array will be immediately powered down whenever a marine mammal is sighted approaching close to or within the applicable safety zone of the full array, but is outside the applicable safety zone of the single mitigation source. If a marine mammal is sighted within or about to enter the applicable safety zone of the single mitigation airgun, the entire array will be shut down (i.e., no sources firing).
Shell plans to conduct 24-hour operations. PSOs will not be on duty during ongoing seismic operations during darkness, given the very limited effectiveness of visual observation at night (there will be no periods of darkness in the survey area until mid-August). The proposed provisions associated with operations at night or in periods of poor visibility include the following:
• If during foggy conditions, heavy snow or rain, or darkness (which may be encountered starting in late August), the full 180 dB exclusion zone is not visible, the airguns cannot commence a ramp-up procedure from a full shut-down.
• If one or more airguns have been operational before nightfall or before the onset of poor visibility conditions, they can remain operational throughout the night or poor visibility conditions. In this case ramp-up procedures can be initiated, even though the exclusion zone may not be visible, on the assumption that marine mammals will be alerted by the sounds from the single airgun and have moved away.
Regulations at 50 CFR 216.104(a)(12) require IHA applicants for activities that take place in Arctic waters to provide a Plan of Cooperation (POC) or information that identifies what measures have been taken and/or will be taken to minimize adverse effects on the availability of marine mammals for subsistence purposes.
Shell is preparing a POC, which relies upon the Chukchi Sea Communication Plans to identify the measures that Shell has developed in consultation with North Slope subsistence communities and will implement during its planned 2013 activities to minimize any adverse effects on the availability of marine mammals for subsistence uses. In addition, the POC will detail Shell's communications and consultations with local subsistence communities concerning its planned 2013 program, potential conflicts with subsistence activities, and means of resolving any such conflicts. Shell states that it continues to document its contacts with the North Slope subsistence communities, as well as the substance of its communications with subsistence stakeholder groups.
The POC will be, and has been in the past, the result of numerous meetings and consultations between Shell, affected subsistence communities and stakeholders, and federal agencies. The POC identifies and documents potential conflicts and associated measures that will be taken to minimize any adverse effects on the availability of marine mammals for subsistence use. Outcomes of POC meetings are typically included in updates attached to the POC as addenda and distributed to federal, state, and local agencies as well as local stakeholder groups that either adjudicate or influence mitigation approaches for Shell's open-water programs.
Meetings for Shell's 2013 drilling and open-water marine surveys programs in the Beaufort and Chukchi Seas occurred in Kaktovik, Nuiqsut Barrow, Wainwright, and Point Lay, during October of 2012. Shell met with the marine mammal commissions and committees including the Alaska Eskimo Whaling Commission (AEWC), Eskimo Walrus Commission (EWC), Alaska Beluga Whale Committee (ABWC), Alaska Ice Seal Committee (AISC), and the Alaska Nanuuq Commission (ANC) on December 17 and 18, 2012 in a co-management meeting. In March 2013, Shell revised its 2013 program to suspend plans for drilling, delete the proposed geotechnical program entirely, and remove survey activities from the Beaufort Sea. As a result, Shell has revised the proposed open-water marine surveys program for 2013, thereby necessitating the additional community meetings that must be held this spring in Chukchi Sea villages to present changes to the 2013 season. Shell plans to conduct POC meetings in Chukchi Sea villages May 20-23 and May 29-31, 2013, dependent on abilities to schedule meetings around subsistence activities. Shell will update NMFS promptly after completing the village POC visits.
Following the 2013 season, Shell intends to have a post-season co-management meeting with the commissioners and committee heads to discuss results of mitigation measures and outcomes of the preceding season. The goal of the post-season meeting is to build upon the knowledge base, discuss successful or unsuccessful outcomes of mitigation measures, and possibly refine plans or mitigation measures if necessary.
In addition, Shell indicated that it will continue to attend 2013 Conflict Avoidance Agreement (CAA) negotiation meetings in support of its 2013 activities in the Chukchi Sea.
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• the manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; and
• the practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
The monitoring plan proposed by Shell can be found in its Marine Mammal Monitoring and Mitigation Plan (4MP). The plan may be modified or supplemented based on comments or new information received from the public during the public comment period. A summary of the primary components of the plan follows.
Monitoring will provide information on the numbers of marine mammals potentially affected by the exploration operations and facilitate real time mitigation to prevent injury of marine mammals by industrial sounds or activities. These goals will be accomplished in the Chukchi Sea during 2013 by conducting vessel-based monitoring from all ships with sound sources and an acoustic monitoring program to document underwater sounds and the vocalizations of marine mammals in the region.
Visual monitoring by Protected Species Observers (PSOs) during active marine survey operations, and periods when these surveys are not occurring, will provide information on the numbers of marine mammals potentially affected by these activities and facilitate real time mitigation to prevent impacts to marine mammals by industrial sounds or operations. Vessel-based PSOs onboard the survey vessel will record the numbers and species of marine mammals observed in the area and any observable reaction of marine mammals to the survey activities in the Chukchi Sea. Additionally, monitoring by PSOs aboard the vessel utilized for equipment recovery and maintenance activities at the Burger A well site will ensure that there are no interactions between marine mammals and these operations. PSOs aboard the vessel will monitor adjacent areas while the vessel operates from a stationary position in DP mode.
The acoustics monitoring program will characterize the sounds produced by marine surveys and will document the potential reactions of marine mammals in the area to those sounds and activities. Recordings of ambient sound levels and vocalizations of marine mammals along the Chukchi Sea coast and offshore will also be used to interpret potential impacts to marine mammals around the marine survey and equipment recovery and maintenance activity, in addition to subsistence use areas closer to shore. Although these monitoring programs were designed primarily to understand the impacts of exploratory drilling in the Chukchi Sea they will also provide valuable information about the potential impacts of the 2013 marine surveys on marine mammals in the area.
The visual-based marine mammal monitoring will be implemented by a team of experienced PSOs, including both biologists and Inupiat personnel. PSOs will be stationed aboard the marine survey vessel and the vessel used to facilitate equipment recovery and maintenance work at the Burger A exploratory well site through the duration of the projects. The vessel-based marine mammal monitoring will provide the basis for real-time mitigation measures as discussed in the Proposed Mitigation section. In addition, monitoring results of the vessel-based monitoring program will include the estimation of the number of “takes” as stipulated in the IHA.
Vessel-based monitoring for marine mammals will be done by trained PSOs throughout the period of survey activities. The observers will monitor the occurrence of marine mammals near the survey vessel during all daylight periods during operation, and during most daylight periods when operations are not occurring. PSO duties will include watching for and identifying marine mammals; recording their numbers, distances, and reactions to the survey operations; and documenting “take by harassment”.
A sufficient number of PSOs will be required onboard the survey vessel to meet the following criteria:
• 100% monitoring coverage during all periods of survey operations in daylight;
• maximum of 4 consecutive hours on watch per PSO; and
• maximum of ~12 hours of watch time per day per PSO.
PSO teams will consist of Inupiat observers and experienced field biologists. An experienced field crew leader will supervise the PSO team onboard the survey vessel. The total number of PSOs may decrease later in the season as the duration of daylight decreases.
Crew leaders and most PSOs will be individuals with experience as observers during recent seismic, site clearance and shallow hazards, and other monitoring projects in Alaska or other offshore areas in recent years.
Biologist-observers will have previous marine mammal observation experience, and field crew leaders will be highly
PSOs will complete a two or three-day training and refresher session on marine mammal monitoring, to be conducted shortly before the anticipated start of the 2013 open-water season. Any exceptions will have or receive equivalent experience or training. The training session(s) will be conducted by qualified marine mammalogists with extensive crew-leader experience during previous vessel-based seismic monitoring programs.
A PSO's Handbook will be prepared for Shell's 2013 vessel-based monitoring program. Handbooks contain maps, illustrations, and photographs, as well as text, and are intended to provide guidance and reference information to trained individuals who will participate as PSOs. The following topics will be covered in the PSO Handbook for the Shell project:
• summary overview descriptions of the project, marine mammals and underwater noise, the marine mammal monitoring program (vessel roles, responsibilities), and the Marine Mammal Protection Act;
• monitoring and mitigation objectives and procedures, including radii for exclusion zones;
• responsibilities of staff and crew regarding the marine mammal monitoring plan;
• instructions for ship crew regarding the marine mammal monitoring plan;
• data recording procedures: codes and coding instructions, PSO coding mistakes, electronic database; navigational, marine physical, field data sheet;
• list of species that might be encountered: identification, natural history;
• use of specialized field equipment (reticle binoculars, NVDs, etc.);
• reticle binocular distance scale;
• table of wind speed, Beaufort wind force, and sea state codes; and
• data quality-assurance/quality-control, delivery, storage, and backup procedures.
The PSOs will watch for marine mammals from the best available vantage point on the survey vessels, typically the bridge. The PSOs will scan systematically with the unaided eye and 7 × 50 reticle binoculars, supplemented with 20 × 60 image-stabilized Zeiss Binoculars or Fujinon 25 × 150 “Big-eye” binoculars, and night-vision equipment when needed. Personnel on the bridge will assist the marine mammal observer(s) in watching for marine mammals.
PSOs aboard the stationary vessel used to conduct equipment recovery and maintenance activity will focus their attention on areas immediately adjacent to the vessel and where active operations are occurring to ensure these areas are clear of marine mammals and that there are no direct interactions between animals and equipment or project personnel. The observer(s) aboard the marine survey vessel will give particular attention to the areas within the marine mammal exclusion zones around the source vessel. These zones are the maximum distances within which received levels may exceed 180 dB (rms) re 1 μPa (rms) for cetaceans, or 190 dB (rms) re 1 μPa for other marine mammals. Information to be recorded by PSOs will include the same types of information that were recorded during recent monitoring programs associated with Industry activity in the Arctic (e.g., Ireland
• Species, group size, age/size/sex categories, behavior when first sighted and after initial sighting, heading, bearing and distance from observer, apparent reaction to activities (e.g., none, avoidance, approach, paralleling, etc.), closest point of approach, and pace.
• Time, location, speed, and activity of the vessel, sea state, ice cover, visibility, and sun glare.
• The positions of other vessel(s) in the vicinity of the observer location.
Distances to nearby marine mammals will be estimated with binoculars (Fujinon 7 × 50 binoculars) containing a reticle to measure the vertical angle of the line of sight to the animal relative to the horizon. Observers may use a laser rangefinder to test and improve their abilities for visually estimating distances to objects in the water.
When a marine mammal is seen approaching or within the exclusion zone applicable to that species, the marine survey crew will be notified immediately so that mitigation measures called for in the applicable authorization(s) can be implemented.
Night-vision equipment (Generation 3 binocular image intensifiers or equivalent units) will be available for use when/if needed. Past experience with night-vision devices (NVDs) in the Chukchi Sea and elsewhere has indicated that NVDs are not nearly as effective as visual observation during daylight hours (e.g., Harris et al. 1997, 1998; Moulton and Lawson 2002).
PSOs will record their observations directly into computers running a custom designed software package. Paper datasheets will be available as backup if necessary. The accuracy of the data entry will be verified in the field by computerized validity checks as the data are entered, and by subsequent manual checking of the database printouts. These procedures will allow initial summaries of data to be prepared during and shortly after the field season, and will facilitate transfer of the data to statistical, graphical or other programs for further processing. Quality control of the data will be facilitated by (1) The start-of-season training session, (2) subsequent supervision by the onboard field crew leader, and (3) ongoing data checks during the field season.
The data will be sent off of the ship to Anchorage each day (if possible) and backed up regularly onto CDs and/or USB disks, and stored at separate locations on the vessel. If possible, data sheets will be photocopied daily during the field season. Data will be secured further by having data sheets and backup data CDs carried back to the Anchorage office during crew rotations.
The objectives of the sound source measurements planned for 2013 will be (1) to measure the distances at which broadband received levels reach 190, 180, 170, 160, and 120 dB (rms) re 1 μPa during marine surveys and equipment recovery and maintenance activity at the Burger A exploratory well site, and from vessels used during these activities. The measurements of airguns and other marine survey equipment will be made by an acoustics contractor at the beginning of the surveys. Data from survey equipment will be previewed in the field immediately after download
Acoustic studies that were undertaken from 2006 through 2012 in the Chukchi Sea as part of the Joint Monitoring Program will be continued by Shell during its proposed open-water marine survey and equipment recovery and maintenance activity in 2013. The acoustic “net” array used during the 2006-2012 field seasons in the Chukchi Sea was designed to accomplish two main objectives. The first was to collect information on the occurrence and distribution of marine mammals (including beluga whale, bowhead whale, walrus and other species) that may be available to subsistence hunters near villages located on the Chukchi Sea coast and to document their relative abundance, habitat use, and migratory patterns. The second objective was to measure the ambient soundscape throughout the eastern Chukchi Sea and to record received levels of sounds from industry and other activities further offshore in the Chukchi Sea.
The basic components of this effort consist of autonomous acoustic recorders deployed widely across the US Chukchi Sea through the open water season and then the winter season. These precisely calibrated systems will sample at 16 kHz with 24-bit resolution, and are capable of recording marine mammal sounds and making anthropogenic noise measurements. The net array configuration will include a regional array of 24 Autonomous Multichannel Acoustic Recorders (AMAR) deployed July-October off the four main transect locations: Cape Lisburne, Point Hope, Wainwright and Barrow. These will be augmented by six AMARs deployed August 2013-August 2014 at Hanna Shoal. Six additional AMAR recorders will be deployed in a hexagonal geometry at 16 km from the nominal Burger A exploratory well location to monitor directional variations of equipment recovery/maintenance and support vessel sounds in addition to examining marine mammal vocalization patterns in the vicinity of these activities. One new recorder will be placed 32 km northwest of the Burger A well site to monitor for sound propagation toward the south side of Hanna Shoal, which acoustic and satellite tag monitoring has identified as frequented by walrus in August. Marine survey activities will occur in areas within the coverage of the net array. All of these offshore systems will capture marine survey and equipment recovery/maintenance sounds, where present, over large distances to help characterize the sound transmission properties in the Chukchi Sea. They will continue to provide a large amount of information related to marine mammal distributions in the Chukchi Sea.
In early October, all of the regional recorders will be retrieved except for the six Hanna Shoal recorders, which will continue to record on a duty cycle until August 2014. An additional set of nine Aural winter recorders will be deployed at the same time at the same locations that were instrumented in winter 2012-2013. These recorders will sample at 16 kHz on a 17% duty cycle (40 minutes every 4 hours). The winter recorders deployed in previous years have provided important information about bowhead, beluga, walrus and several seal species migrations in fall and spring.
The MMPA requires that monitoring plans be independently peer reviewed “where the proposed activity may affect the availability of a species or stock for taking for subsistence uses” (16 U.S.C. 1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing regulations state, “Upon receipt of a complete monitoring plan, and at its discretion, [NMFS] will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan” (50 CFR 216.108(d)).
NMFS convened an independent peer review panel to review Shell's mitigation and monitoring plan in its IHA application for taking marine mammals incidental to the proposed open-water marine surveys and equipment recovery and maintenance in the Chukchi Sea during 2013. The panel met on January 8 and 9, 2013, and provided their final report to NMFS on March 5, 2013. The full panel report can be viewed at:
NMFS provided the panel with Shell's monitoring and mitigation plan and asked the panel to address the following questions and issues for Shell's plan:
• Will the applicant's stated objectives effectively further the understanding of the impacts of their activities on marine mammals and otherwise accomplish the goals stated below? If not, how should the objectives be modified to better accomplish the goals above?
• Can the applicant achieve the stated objectives based on the methods described in the plan?
• Are there technical modifications to the proposed monitoring techniques and methodologies proposed by the applicant that should be considered to better accomplish their stated objectives?
• Are there techniques not proposed by the applicant (i.e., additional monitoring techniques or methodologies) that should be considered for inclusion in the applicant's monitoring program to better accomplish their stated objectives?
• What is the best way for an applicant to present their data and results (formatting, metrics, graphics, etc.) in the required reports that are to be submitted to NMFS (i.e., 90-day report and comprehensive report)?
The peer review panel report contains recommendations that the panel members felt were applicable to the Shell's monitoring plans. Overall the panel feels that the proposed methods for visual monitoring are adequate and appropriate as the primary means of assessing the acute near-field impacts of the proposed marine surveys. The panel also cautions that there should be realistic expectations regarding the limitations of these surveys to provide scientific-level measurements of distribution and density, but in terms of meeting the monitoring requirements, the panel finds the proposed methods adequate and appreciate the improvements and modifications (e.g., in terms of PSO training, field data collection methods) made over the past few years. Nevertheless, the panel also provides several recommendations concerning improving night-time monitoring, passive acoustic monitoring, and data analysis and presentation.
NMFS has reviewed the report and evaluated all recommendations made by the panel. NMFS has determined that there are several measures that Shell can incorporate into its 2013 open-water marine surveys and equipment recovery and maintenance program. Additionally, there are other recommendations that NMFS has determined would also result in better data collection, and could potentially be implemented by oil and gas industry applicants, but which likely could not
The following subsections lay out measures that NMFS recommends for implementation as part of the 2013 open-water marine surveys and equipment recovery and maintenance program by Shell and those that are recommended for future programs.
The peer review panel's report contains several recommendations regarding visual monitoring during low-visibility and presentation of data in reports, which NMFS agrees that Shell should incorporate:
(1) Visual monitoring during low-visibility
• Shell should use the best available technology to improve detection capability during periods of fog and other types of inclement weather. Such technology might include night-vision goggles or binoculars as well as other instruments that incorporate infrared technology; presently the efficacy of these technologies appears limited but the panel and NMFS encourage continued consideration of their applicability as it continues to evolve.
(2) Data analysis and presentation
• Shell should apply appropriate statistical procedures for probability estimation of marine mammals missed, based on observational data acquired during some period of time before and after night or fog events.
• Shell should provide useful summaries and interpretations of results of the various elements of the monitoring results. A clear timeline and spatial (map) representation/summary of operations and important observations should be given. Any and all mitigation measures (e.g., vessel course deviations for animal avoidance, operational shut down) should be summarized. Additionally, an assessment of the efficacy of monitoring methods should be provided.
In addition to these recommendations, Shell also agrees to produce a weekly GIS application that would be available on the web for regulators to view for every observation and mitigation measure implemented.
• Shell should integrate the acoustic information from the net array to the greatest extent possible to assess the aggregate known activities, at least those from Shell operations but more broadly as possible, to assess patterns of marine mammal vocal activities and how that might be used to investigate potentially broader impacts from overlapping/interacting activities.
• Shell should consider integration of visual and acoustic data from the Chukchi monitoring program and the Joint Monitoring Program to produce estimates of bowhead, beluga, and walrus density using methods developed in the Density Estimation for Cetacean from Passive Acoustic Fixed Sensors (DECAF) project by the Center for Research into Ecological and Environmental Modeling (CREEM) at the University of St. Andrews in Scotland.
After discussion with Shell, NMFS decided not to implement these two recommendations in full during Shell's 2013 open-water marine surveys and equipment recovery and maintenance program because the systematic and comprehensive analyses of these acoustic datasets would require far more time and effort than what would be needed to assess marine mammal takes under the MMPA. However, Shell agrees that it will provide data from net arrays supported in part, or in whole, by Shell and will participate in the integration of acoustic arrays to assess the sound field of the lease areas in the Chukchi and Beaufort seas for the purposes of assessing patterns of marine mammal distribution and behavior and for assessing the impacts of multiple activities/factors. In addition, Shell will evaluate the potential of the DECAF project and efforts will be made to assess the applicability of the data collection infrastructure established in the Shell monitoring program to these and similar studies.
A report on the preliminary results of the sound source verification measurements, including the measured 190, 180, 160, and 120 dB (rms) radii of the airgun sources, would be submitted within 14 days after collection of those measurements at the start of the field season. This report will specify the distances of the exclusion zones that were adopted for the survey.
Throughout the survey program, PSOs will prepare a report each day or at such other intervals, summarizing the recent results of the monitoring program. The reports will summarize the species and numbers of marine mammals sighted. These reports will be provided to NMFS and to the survey operators.
The results of Shell's 2013 vessel-based monitoring, including estimates of “take” by harassment, would be presented in the “90-day” and Final Technical reports, if the IHA is issued and the proposed open-water marine surveys and equipment recovery and maintenance program is conducted. The Technical Reports should be submitted to NMFS within 90 days after the end of the seismic survey. The Technical Reports will include:
(a) Summaries of monitoring effort (e.g., total hours, total distances, and marine mammal distribution through the study period, accounting for sea state and other factors affecting visibility and detectability of marine mammals);
(b) analyses of the effects of various factors influencing detectability of marine mammals (e.g., sea state, number of observers, and fog/glare);
(c) species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;
(d) To better assess impacts to marine mammals, data analysis should be separated into periods when a seismic airgun array (or a single mitigation airgun) is operating and when it is not. Final and comprehensive reports to NMFS should summarize and plot:
• Data for periods when a seismic array is active and when it is not; and
• The respective predicted received sound conditions over fairly large areas (tens of km) around operations;
(e) sighting rates of marine mammals during periods with and without airgun activities (and other variables that could affect detectability), such as:
• initial sighting distances versus airgun activity state;
• closest point of approach versus airgun activity state;
• observed behaviors and types of movements versus airgun activity state;
• numbers of sightings/individuals seen versus airgun activity state;
• distribution around the survey vessel versus airgun activity state; and
• estimates of take by harassment;
(f) Reported results from all hypothesis tests should include estimates of the associated statistical power when practicable;
(g) Estimate and report uncertainty in all take estimates. Uncertainty could be expressed by the presentation of confidence limits, a minimum-maximum, posterior probability distribution, etc.; the exact approach would be selected based on the sampling method and data available;
(h) The report should clearly compare authorized takes to the level of actual estimated takes; and
In addition, NMFS would require Shell to notify NMFS' Office of Protected Resources and NMFS' Stranding Network within 48 hours of sighting an injured or dead marine mammal in the vicinity of marine survey operations. Shell shall provide NMFS with the species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).
In the event that an injured or dead marine mammal is found by Shell that is not in the vicinity of the proposed open-water marine survey program, Shell would report the same information as listed above as soon as operationally feasible to NMFS.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Only take by Level B behavioral harassment is anticipated as a result of the proposed open water marine survey program. Anticipated impacts to marine mammals are associated with noise propagation from the survey airgun(s) used in the shallow hazards survey.
The full suite of potential impacts to marine mammals was described in detail in the “Potential Effects of the Specified Activity on Marine Mammals” section found earlier in this document. The potential effects of sound from the proposed open water marine survey programs might include one or more of the following: masking of natural sounds; behavioral disturbance; non-auditory physical effects; and, at least in theory, temporary or permanent hearing impairment (Richardson
For impulse sounds, such as those produced by airgun(s) used in the site clearance and shallow hazards surveys, NMFS uses the 160 dB (rms) re 1 μPa isopleth to indicate the onset of Level B harassment. For non-impulse sounds, such as those produced by vessel's DP thrusters during the proposed equipment recovery and maintenance program, NMFS uses the 120 dB (rms) re 1 μPa isopleth to indicate the onset of Level B harassment. Shell provided calculations for both the 160- and 120-dB isopleths produced by these activities and then used those isopleths to estimate takes by harassment. NMFS used the calculations to make the necessary MMPA preliminary findings. Shell provided a full description of the methodology used to estimate takes by harassment in its IHA application, which is also provided in the following sections.
The estimated takes by harassment is calculated in this section by multiplying the expected densities of marine mammals that may occur near the planned activities by the area of water likely to be exposed to impulse sound levels of ≥160 dB (rms) re 1 μPa and non-impulse sound levels ≥120 dB (rms) re 1 μPa.
Marine mammal occurrence near the operation is likely to vary by season and habitat, mostly related to the presence or absence of sea ice. Although current NMFS' noise exposure standards state that Level B harassment occurs at exposure levels ≥160 dB (rms) re 1 μPa by impulse sources and exposure levels ≥120 dB (rms) re 1 μPa by non-impulse sources, there is no evidence that avoidance at these received sound levels would have significant biological effects on individual animals. Any changes in behavior caused by sounds at or near the specified received levels would likely fall within the normal variation in such activities that would occur in the absence of the planned operations. However, these received levels are currently used to set the threshold for Level B behavioral harassment.
Marine mammal density estimates in the Chukchi Sea have been derived for two time periods, the summer period covering July and August, and the fall period including September and October. Animal densities encountered in the Chukchi Sea during both of these time periods will further depend on the habitat zone within which the operations are occurring: open water or ice margin. Vessel and equipment limitations will result in very little activity occurring in or near sea ice; however, if ice is present near the areas of activity some sounds produced by the activities may remain above disturbance threshold levels in ice margin habitats. Therefore, open water densities have been used to estimate potential “take by harassment” in 90 percent of the area expected to be ensonified above disturbance thresholds while ice margin densities have been used in the remaining 10 percent of the ensonified area.
For a few marine mammal species, several density estimates were available. In those cases, the mean and maximum estimates were determined from the reported densities or survey data. In other cases, no applicable estimate was available, so correction factors were used to arrive density estimates. These are described in detail in the following sections.
Detectability bias, quantified in part by f(0), is associated with diminishing sightability with increasing lateral distance from the survey trackline. Availability bias, g(0), refers to the fact that there is <100 percent probability of sighting an animal that is present along the survey trackline.
Nine cetacean and four pinniped species under NMFS jurisdiction are known to occur in the planned project area in the Chukchi Sea. Five of them (bowhead, fin, and humpback whales, and ringed and bearded seals) are listed as “endangered” or “threatened” under the ESA.
Summer densities of belugas in offshore waters are expected to be low, with somewhat higher densities in ice-margin and nearshore areas. Aerial surveys have recorded few belugas in the offshore Chukchi Sea during the
In the fall, beluga whale densities offshore in the Chukchi Sea are expected to be somewhat higher than in the summer because individuals of the eastern Chukchi Sea stock and the Beaufort Sea stock will be migrating south to their wintering grounds in the Bering Sea (Allen and Angliss 2012). Densities derived from survey results in the northern Chukchi Sea in Clarke and Ferguson (in prep) were used as the average density for open-water fall season estimates. Clarke and Ferguson (in prep) reported 3 beluga sightings (6 individuals) during 10,036 km of on-transect effort in water depths 36-50 m. The mean group size of those three sightings is 2. A f(0) value of 2.841 and g(0) value of 0.58 from Harwood
By July, most bowhead whales are northeast of the Chukchi Sea, within or migrating toward their summer feeding grounds in the eastern Beaufort Sea. No bowheads were reported during 6,640 mi (10,686 km) of on-transect effort in the Chukchi Sea by Moore
During the fall, bowhead whales that summered in the Beaufort Sea and Amundsen Gulf migrate west and south to their wintering grounds in the Bering Sea making it more likely that bowheads will be encountered in the Chukchi Sea at this time of year. Moore
Gray whale densities are expected to be much higher in the summer months than during the fall. Moore
In the fall, gray whales may be dispersed more widely through the northern Chukchi Sea (Moore
Harbor Porpoise densities were estimated from industry data collected during 2006-2010 activities in the Chukchi Sea. Prior to 2006, no reliable estimates were available for the Chukchi Sea and harbor porpoise presence was expected to be very low and limited to nearshore regions. Observers on industry vessels in 2006-2010, however, recorded sightings throughout the Chukchi Sea during the summer and early fall months. Density estimates from 2006-2010 observations during non-seismic periods and locations in July-August ranged from 0.0034/mi
The remaining five cetacean species that could be encountered in the Chukchi Sea during Shell's planned marine survey program include the humpback whale, killer whale, minke whale, fin whale, and narwhal. Although there is evidence of the occasional occurrence of these animals in the Chukchi Sea, it is unlikely that more than a few individuals will be encountered during the planned marine survey activities. Clarke
Ringed seal and bearded seals summer ice-margin densities were available in Bengtson
Little information on spotted seal densities in offshore areas of the Chukchi Sea is available. Spotted seal densities in the summer were estimated by multiplying the ringed seal densities by 0.02. This was based on the ratio of the estimated Chukchi populations of the two species. Chukchi Sea spotted seal abundance was estimated by assuming that 8 percent of the Alaskan population of spotted seals is present in the Chukchi Sea during the summer and fall (Rugh
Four ribbon seal sightings were reported during industry vessel operations in the Chukchi Sea in 2006-2010 (Hartin
As described earlier, Shell's proposed site clearance and shallow hazards surveys would occur in three survey areas of the Chukchi Sea Lease Area. These three survey areas are the Burger prospect (Survey Area 2), Crackerjack prospect (Survey Area 1), and an area northeast of Burger (Survey Area 3; Figure 1-2 of the IHA application). The precise survey sites within the survey areas at these prospects have not yet been determined, but there are five notional locations at Burger, three at Crackerjack, and one northeast of Burger. The five potential survey sites at Burger range in size from 23 km
Shell plans to use the same 4 x 10 in
Shell's operations plan calls for site clearance and shallow hazards surveys to begin at the Burger prospect. Adding the 2.25 km 160 dB (rms) radius to the perimeter of all five of the notional survey grids at that site results in a total area at Burger of 477 km
As described earlier, Shell's proposed equipment recovery and maintenance at the Burger A well site where drilling took place in 2012 would involve a vessel engaging with DP thrusters while remotely operated vehicles or divers are used to perform the required work. Sounds produced by the vessel while in dynamic positioning mode will be non-impulse in nature and are thus evaluated at the ≥120 dB (rms) level.
The vessel from which equipment recovery and maintenance will be conducted has not yet been determined. Various sound measurements were conducted from vessels during DP operations and during drilling activities (which may include DP operations) in the Chukchi Sea in the past two years. Under most circumstances, sounds from dynamic positioning thrusters are expected to be well below 120 dB (rms) at distances greater than 10 km (6 mi). Among those measurements, the drilling activities conducted by the
The equipment recovery and maintenance work at the well site may occur during either or both of the seasonal periods and may take place over as many as 28 days. Therefore, the entire area potentially exposed to continuous sounds ≥120 dB (rms) from dynamic positioning thrusters has been applied to densities of marine mammals during both seasonal periods.
As stated earlier, the estimates of potential Level B takes of marine mammals by noise exposure are based on a consideration of the number of marine mammals that might be present during operations in the Chukchi Sea and the anticipated area exposed to those sound pressure levels (SPLs) above 160 dB re 1 µPa for impulse sources (seismic aregun during site clearance and shallow hazards surveys) and SPLs above 120 dB re 1 µPa for non-impulse sources (vessel's DP operation during equipment recovery and maintenance program).
The number of individuals of each species potentially exposed to received levels was estimated by multiplying the anticipated area to be ensonified to the specified SPLs in each season (summer and fall) and habitat zone (open water and ice margin) to which a density applies, by the expected species density. The numbers of individuals potentially exposed were then summed for each species across the two seasons and habitat zones.
An additional calculation was made that assumes the entire population of marine mammals within the 531 km
Some of the animals estimated to be exposed, particularly migrating bowhead whales, might show avoidance reactions before being exposed to sounds at the specified threshold levels. Thus, these calculations actually estimate the number of individuals potentially exposed to the specified sounds levels that would occur if there were no avoidance of the area ensonified to that level.
As described above, vessel and equipment limitations will result in very little activity occurring in or near sea ice; however, if ice is present near the areas of activity, some sounds produced by the activities may remain above disturbance threshold levels in ice margin habitats. Therefore, open water densities have been used to estimate potential “take by harassment” in 90 percent of the area expected to be ensonified above disturbance thresholds while ice margin densities have been used in the remaining 10 percent of the ensonified area. Species with an estimated average number of individuals exposed equal to zero are included below for completeness, but are not likely to be encountered.
Numbers of marine mammals that might be present and potentially taken are summarized in Table 4 based on calculation described above.
Some of the animals estimated to be exposed, particularly migrating bowhead whales, might show avoidance reactions before being exposed to ≥160 dB (rms) re 1 μPa. Thus, these calculations actually estimate the number of individuals potentially exposed to specific SPLs, i.e., ≥160 dB (rms) re 1 μPa for impulse noise and ≥120 dB (rms) re 1 μPa for non-impulse noise, that would occur if there were no avoidance of the area ensonified to that level.
Because beluga whales may form groups, additional takes were added on top of the density-based take calculation in the event a large group is encountered during the survey. For marine mammal species that are rare and for which no density estimates are available in the vicinity of the proposed project area (such as humpback, fin, minke, and killer whales and narwhal), a small number of takes have been requested in case they are encountered (Table 4).
Effects on marine mammals are generally expected to be restricted to avoidance of the area around the planned activities and short-term changes in behavior, falling within the MMPA definition of “Level B harassment”.
Cetaceans—The average estimates without a daily multiplier for the stationary operations suggest a total of 209 bowhead whales may be exposed to sounds at or above the specified levels. This number is approximately 1.98% of the BCB population of 10,545 assessed in 2001 (Allen and Angliss 2011) and is assuming to be increasing at an annual growth rate of 3.4% (Zeh and Punt 2005), which is supported by a 2004 population estimate of 12,631 by Koski et al. (2010). Including a daily multiplier brings the average estimate up to 209 individual bowhead whales with the daily multiplier (Table 4). The total estimated number of gray whales that may be exposed to sounds from the activities ranges up to 270 with the daily multiplier (Table 4). Fewer beluga whales and harbor porpoises are likely to be exposed to sounds during the activities. The small numbers of other whale species that may occur in the Chukchi Sea are unlikely to be present around the planned operations but chance encounters may occur. The few individuals would represent a very small proportion of their respective populations.
Pinnipeds—Ringed seal is by far the most abundant species expected to be encountered during the planned operations. The best estimate of the numbers of ringed seals exposed to sounds at the specified received levels during the planned activities is 727 not including a daily multiplier, and 5,096 if a daily multiplier is included. Both of these numbers represent <3 percent of the estimated Alaska population. Fewer individuals of other pinniped species are estimated to be exposed to sounds at the specified received levels, also representing small proportions of their populations. Pinnipeds are unlikely to react to non-impulse sounds until received levels are much stronger than 120 dB (rms), so it is probable that a smaller number of these animals would actually be appreciably disturbed.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of Shell's proposed 2013 marine surveys and equipment recovery and maintenance program in the Chukchi Sea, and none are proposed to be authorized. The proposed site clearance and shallow hazards surveys would use a very small 40 in
In addition, animals in the area are not expected to incur hearing impairment (i.e., TTS or PTS) or non-auditory physiological effects. The modeled isopleths at 160 dB and 120 dB, based on prior measurements, are expected to be approximately 1.8 km and 13km from the airgun array and DP-operating vessel, respectively. Takes will be limited to Level B behavioral harassment. Although it is possible that some individuals of marine mammals may be exposed to sounds from the proposed site clearance and shallow hazard surveys and equipment recovery and maintenance activities more than once, the expanse of these multi-exposures are expected to be less extensive since either the animals or the vessels conducting the marine surveys will be moving constantly in and out of the survey areas.
Most of the bowhead whales encountered will likely show overt disturbance (avoidance) only if they receive airgun sounds with levels ≥ 160 dB re 1 μPa. Odontocete reactions to seismic airgun pulses are usually assumed to be limited to shorter distances from the airgun(s) than are those of mysticetes, probably in part because odontocete low-frequency hearing is assumed to be less sensitive than that of mysticetes. However, at least when in the Canadian Beaufort Sea
Although the stationary nature of the vessel that conducts equipment recovery and maintenance could affect different individuals of marine mammals during the operations, the relatively short period (28 days) of this activity precludes the take of large numbers of marine mammals. In addition, the noise levels generated from DP thrusters are much lower than the levels from the airgun array, and the modeled 120 dB isopleths is expected to be 13 km at the maximum, resulting an ensonified area of 531 km
Taking into account the mitigation measures that are planned, effects on marine mammals are generally expected to be restricted to avoidance of a limited area around Shell's proposed open-water activities and short-term changes in behavior, falling within the MMPA definition of “Level B harassment”. The many reported cases of apparent tolerance by cetaceans of seismic exploration, vessel traffic, and some other human activities show that co-existence is possible. Mitigation measures such as controlled vessel speed, dedicated marine mammal observers, non-pursuit, and shut downs or power downs when marine mammals are seen within defined ranges will further reduce short-term reactions and minimize any effects on hearing sensitivity. In all cases, the effects are expected to be short-term, with no lasting biological consequence.
Of the thirteen marine mammal species likely to occur in the proposed marine survey area, bowhead, fin, and humpback whales and ringed and bearded seals are listed as endangered or threatened under the ESA. These species are also designated as “depleted” under the MMPA. Despite these designations, the Bering-Chukchi-Beaufort stock of bowheads has been increasing at a rate of 3.4 percent annually for nearly a decade (Allen and Angliss 2010). Additionally, during the 2001 census, 121 calves were counted, which was the highest yet recorded. The calf count provides corroborating evidence for a healthy and increasing population (Allen and Angliss 2010). The occurrence of fin and humpback whales in the proposed marine survey areas is considered very rare. There is no critical habitat designated in the U.S. Arctic for the bowhead, fin, and humpback whales. The Alaska stock of bearded seals, part of the Beringia distinct population segment (DPS), and the Arctic stock of ringed seals, have recently been listed by NMFS as threatened under the ESA. None of the other species that may occur in the project area are listed as threatened or endangered under the ESA or designated as depleted under the MMPA.
Potential impacts to marine mammal habitat were discussed previously in this document (see the “Anticipated Effects on Habitat” section). Although some disturbance is possible to food sources of marine mammals, the impacts are anticipated to be minor enough as to not affect rates of recruitment or survival of marine mammals in the area. Based on the vast size of the Arctic Ocean where feeding by marine mammals occurs versus the localized area of the marine survey activities, any missed feeding opportunities in the direct project area would be minor based on the fact that other feeding areas exist elsewhere.
The estimated takes proposed to be authorized represent 1.43% of the Eastern Chukchi Sea population of approximately 3,710 beluga whales, 3.18% of Aleutian Island and Bering Sea stock of approximately 314 killer whales, 0.07% of Bering Sea stock of approximately 48,215 harbor porpoises, 1.41% of the Eastern North Pacific stock of approximately 19,126 gray whales, 1.98% of the Bering-Chukchi-Beaufort population of 10,545 bowhead whales, 1.07% of the Western North Pacific stock of approximately 938 humpback whales, 0.18% of the Northeast Pacific stock of approximately 5,700 fin whales, and 1.43% of the Alaska stock of approximately 810 minke whales. The take estimates presented for ringed, bearded, spotted, and ribbon seals represent 2.44, 0.07, 0.17, and 0.02% of U.S. Arctic stocks of each species, respectively. The percentage of Level B behavioral take of 4 individual narwhals among its percentage is unknown as narwhal are not regularly sighted in the U.S. Chukchi Sea. Nevertheless, it is reasonable to believe that the number of narwhal estimated to be taken is very low among its population. The mitigation and monitoring measures (described previously in this document) proposed for inclusion in the IHA (if issued) are expected to reduce even further any potential disturbance to marine mammals.
In addition, no important feeding and reproductive areas are known in the vicinity of the Shell's proposed marine surveys at the time the proposed surveys are to take place. No critical habitat of ESA-listed marine mammal species occurs in the Chukchi Sea.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that Shell's proposed 2013 open-water marine surveys in the Chukchi Sea may result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the marine surveys will have a negligible impact on the affected species or stocks.
NMFS has preliminarily determined that Shell's proposed 2013 open-water marine surveys in the Chukchi Sea will not have an unmitigable adverse impact on the availability of species or stocks for taking for subsistence uses. This preliminary determination is supported by information contained in this document and Shell's draft POC. Shell has adopted a spatial and temporal strategy for its Chukchi Sea open-water marine surveys that should minimize impacts to subsistence hunters. Due to the timing of the project and the distance from the surrounding communities (the proposed site clearance and shallow hazards surveys and equipment recovery and maintenance activities would be approximately 120 km to Wainwright and 150 km to Point Lay), it is anticipated to have no effects on spring harvesting and little or no effects on the occasional summer harvest of beluga whale, subsistence seal hunts (ringed and spotted seals are primarily harvested in winter while bearded seals are hunted during July-September in the Beaufort Sea), or the fall bowhead hunt.
In addition, based on the measures described in Shell's Draft POC, the proposed mitigation and monitoring measures (described earlier in this document), and the project design itself, NMFS has determined preliminarily that there will not be an unmitigable adverse impact on subsistence uses from Shell's 2013 open-water marine surveys in the Chukchi Sea.
This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
(1) This Authorization is valid from July 1, 2013, through October 30, 2013.
(2) This Authorization is valid only for activities associated with open-water marine surveys and related activities in the Chukchi Sea. The specific areas where Shell's surveys will be conducted are within the Chukchi Sea, Alaska, as shown in Figures 1-1, 1-2, and 1-3 of Shell's IHA application.
(3)(a) The species authorized for incidental harassment takings, Level B harassment only, are: beluga whales (
(3)(b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:
(i) 40 in
(ii) Non-airgun active acoustic sources for ice gouge surveys;
(iii) Vessel activities related to open-water marine surveys listed in (i) and (ii); and
(iv) Vessel activities related to equipment recovery and maintenance at Burger A well site.
(3)(c) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the Alaska Regional Administrator (907-586-7221) or his designee in Anchorage (907-271-3023), National Marine Fisheries Service (NMFS) and the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401, or his designee (301-427-8418).
(4) The holder of this Authorization must notify the Chief of the Permits and Conservation Division, Office of Protected Resources, at least 48 hours prior to the start of collecting seismic data (unless constrained by the date of issuance of this Authorization in which case notification shall be made as soon as possible).
(5) Prohibitions
(a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 1 (attached). The taking by Level A harassment, injury or death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this Authorization.
(b) The taking of any marine mammal is prohibited whenever the required source vessel protected species observers (PSOs), required by condition 7(a)(i), are not onboard in conformance with condition 7(a)(i) of this Authorization.
(a) Establishing Exclusion and Disturbance Zones
(i) Establish and monitor with trained PSOs a preliminary exclusion zone for cetaceans surrounding the airgun array on the source vessel where the received level would be 180 dB (rms) re 1 µPa. For purposes of the field verification test, described in condition 7(e)(i), this radius is estimated to be 160 m from the seismic source for the 40 in
(ii) Establish and monitor with trained PSOs a preliminary exclusion zone for pinnipeds surrounding the airgun array on the source vessel where the received level would be 190 dB (rms) re 1 µPa. For purposes of the field verification test described in condition 7(e)(i), this radius is estimated to be 50 m from the seismic source for the 640 in
(iii) Establish a zone of influence (ZOI) for cetaceans and pinnipeds surrounding the airgun array on the source vessel where the received level would be 160 dB (rms) re 1 µPa. For purposes of the field verification test described in condition 7(e)(i), this radius is estimated to be 1,800 m from the seismic source for the 40 in
(iv) Establish a ZOI for cetaceans and pinnipeds surrounding the vessel while operating dynamic positioning (DP) thruster where the received level would be 120 dB (rms) re 1 µPa. For purposes of the field verification test described in condition 7(b)(i), this radius is estimated to be 13 km from the DP thruster source for equipment recovery and maintenance operations.
(v) Immediately upon completion of data analysis of the field verification measurements required under condition 7(e)(i) below, the new 120-dB, 160-dB, 180-dB, and 190-dB marine mammal ZOIs and exclusion zones shall be established based on the sound source verification.
(b) Vessel and Helicopter Movement Mitigation:
(i) Avoid concentrations or groups of whales by all vessels under the direction of Shell. Operators of support vessels should, at all times, conduct their activities at the maximum distance possible from such concentrations of whales.
(ii) Vessels in transit shall be operated at speeds necessary to ensure no physical contact with whales occurs. If any vessel approaches within 1.6 km (1 mi) of observed bowhead whales, except when providing emergency assistance to whalers or in other emergency situations, the vessel operator will take reasonable precautions to avoid potential interaction with the bowhead whales by taking one or more of the following actions, as appropriate:
(A) Reducing vessel speed to less than 5 knots within 300 yards (900 feet or 274 m) of the whale(s);
(B) Steering around the whale(s) if possible;
(C) Operating the vessel(s) in such a way as to avoid separating members of a group of whales from other members of the group;
(D) Operating the vessel(s) to avoid causing a whale to make multiple changes in direction; and
(E) Checking the waters immediately adjacent to the vessel(s) to ensure that no whales will be injured when the propellers are engaged.
(iii) When weather conditions require, such as when visibility drops, adjust vessel speed accordingly to avoid the likelihood of injury to whales.
(iv) In the event that any aircraft (such as helicopters) are used to support the planned survey, the mitigation measures below would apply:
(A) Under no circumstances, other than an emergency, shall aircraft be operated at an altitude lower than 1,000 feet above sea level (ASL) when within 0.3 mile (0.5 km) of groups of whales.
(B) Helicopters shall not hover or circle above or within 0.3 mile (0.5 km) of groups of whales.
(i) Ramp-up:
(A) A ramp up, following a cold start, can be applied if the exclusion zone has been free of marine mammals for a consecutive 30-minute period. The entire exclusion zone must have been visible during these 30 minutes. If the entire exclusion zone is not visible, then ramp up from a cold start cannot begin.
(B) If a marine mammal(s) is sighted within the exclusion zone during the 30-minute watch prior to ramp up, ramp up will be delayed until the marine mammal(s) is sighted outside of the exclusion zone or the animal(s) is not
(C) If, for any reason, electrical power to the airgun array has been discontinued for a period of 10 minutes or more, ramp-up procedures shall be implemented. Only if the PSO watch has been suspended, a 30-minute clearance of the exclusion zone is required prior to commencing ramp-up. Discontinuation of airgun activity for less than 10 minutes does not require a ramp-up.
(D) The seismic operator and PSOs shall maintain records of the times when ramp-ups start and when the airgun arrays reach full power.
(ii) Power-down/Shutdown:
(A) The airgun array shall be immediately powered down whenever a marine mammal is sighted approaching close to or within the applicable exclusion zone of the full array, but is outside the applicable exclusion zone of the single mitigation airgun.
(B) If a marine mammal is already within the exclusion zone when first detected, the airguns shall be powered down immediately.
(C) Following a power-down, firing of the full airgun array shall not resume until the marine mammal has cleared the exclusion. The animal will be considered to have cleared the exclusion zone if it is visually observed to have left the exclusion zone of the full array, or has not been seen within the zone for 15 minutes (pinnipeds or small toothed whales) or 30 minutes (baleen whales or large toothed whales).
(D) If a marine mammal is sighted within or about to enter the 190 or 180 dB (rms) applicable exclusion zone of the single mitigation airgun, the airgun array shall be shutdown.
(E) Firing of the full airgun array or the mitigation gun shall not resume until the marine mammal has cleared the exclusion zone of the full array or mitigation gun, respectively. The animal will be considered to have cleared the exclusion zone as described above under ramp up procedures.
(iii) Poor Visibility Conditions:
(A) If during foggy conditions, heavy snow or rain, or darkness, the full 180 dB exclusion zone is not visible, the airguns cannot commence a ramp-up procedure from a full shut-down.
(B) If one or more airguns have been operational before nightfall or before the onset of poor visibility conditions, they can remain operational throughout the night or poor visibility conditions. In this case ramp-up procedures can be initiated, even though the exclusion zone may not be visible, on the assumption that marine mammals will be alerted by the sounds from the single airgun and have moved away.
(A) Throughout the seismic survey, particularly during turning movements, and short transits, Shell will employ the use of a small-volume airgun (i.e., 10 in
(B) During turns or brief transits (e.g., less than three hours) between seismic tracklines, one mitigation airgun will continue operating. The ramp-up procedure will still be followed when increasing the source levels from one airgun to the full airgun array. However, keeping one airgun firing will avoid the prohibition of a “cold start” during darkness or other periods of poor visibility. Through use of this approach, site clearance and shallow hazards surveys using the full array may resume without the 30 minute observation period of the full exclusion zone required for a “cold start”. PSOs will be on duty whenever the airguns are firing during daylight, during the 30 minute periods prior to ramp-ups.
(d) Mitigation Measures for Subsistence Activities:
(i) For the purposes of reducing or eliminating conflicts between subsistence whaling activities and Shell's survey program, the holder of this Authorization will participate with other operators in the Communication and Call Centers (Com-Center) Program. The Com-Centers will be operated 24 hours/day during the 2013 fall subsistence bowhead whale hunt.
(ii) The appropriate Com-Center shall be notified if there is any significant change in plans.
(iii) Upon notification by a Com-Center operator of an at-sea emergency, the holder of this Authorization shall provide such assistance as necessary to prevent the loss of life, if conditions allow the holder of this Authorization to safely do so.
(a) Vessel-based Visual Monitoring:
(i) Vessel-based visual monitoring for marine mammals shall be conducted by NMFS-approved protected species observers (PSOs) throughout the period of survey activities.
(ii) PSOs shall be stationed aboard the marine survey vessel and the vessel used to facilitate equipment recovery and maintenance work at the Burger A exploratory well site through the duration of the projects.
(iii) A sufficient number of PSOs shall be onboard the survey vessel to meet the following criteria:
(A) 100% monitoring coverage during all periods of survey operations in daylight;
(B) maximum of 4 consecutive hours on watch per PSO; and
(C) maximum of 12 hours of watch time per day per PSO.
(iv) The vessel-based marine mammal monitoring shall provide the basis for real-time mitigation measures as described in (6)(c) above.
(v) Results of the vessel-based marine mammal monitoring shall be used to calculate the estimation of the number of “takes” from the marine surveys and equipment recovery and maintenance program.
(i) PSO teams shall consist of Inupiat observers and NMFS-approved field biologists.
(ii) Experienced field crew leaders shall supervise the PSO teams in the field. New PSOs shall be paired with experienced observers to avoid situations where lack of experience impairs the quality of observations.
(iii) Crew leaders and most other biologists serving as observers in 2013 shall be individuals with experience as observers during recent seismic or shallow hazards monitoring projects in Alaska, the Canadian Beaufort, or other offshore areas in recent years.
(iv) Resumes for PSO candidates shall be provided to NMFS for review and acceptance of their qualifications. Inupiat observers shall be experienced in the region and familiar with the marine mammals of the area.
(v) All observers shall complete a NMFS-approved observer training course designed to familiarize individuals with monitoring and data collection procedures. The training course shall be completed before the anticipated start of the 2013 open-water season. The training session(s) shall be conducted by qualified marine mammalogists with extensive crew-leader experience during previous vessel-based monitoring programs. A marine mammal observers' handbook, adapted for the specifics of the planned survey program will be reviewed as part of the training.
(vi) Training for both Alaska native PSOs and biologist PSOs shall be conducted at the same time in the same room. There shall not be separate training courses for the different PSOs.
(vii) Crew members should not be used as primary PSOs because they have other duties and generally do not have the same level of expertise, experience, or training as PSOs, but they could be stationed on the fantail of the vessel to observe the near field, especially the area around the airgun array and implement a rampdown or shutdown if a marine mammal enters the safety zone (or exclusion zone).
(viii) If crew members are to be used as PSOs, they shall go through some basic training consistent with the functions they will be asked to perform. The best approach would be for crew members and PSOs to go through the same training together.
(ix) PSOs shall be trained using visual aids (e.g., videos, photos), to help them identify the species that they are likely to encounter in the conditions under which the animals will likely be seen.
(x) Shell shall train its PSOs to follow a scanning schedule that consistently distributes scanning effort according to the purpose and need for observations. All PSOs should follow the same schedule to ensure consistency in their scanning efforts.
(xi) PSOs shall be trained in documenting the behaviors of marine mammals. PSOs should simply record the primary behavioral state (i.e., traveling, socializing, feeding, resting, approaching or moving away from vessels) and relative location of the observed marine mammals.
(c) PSO Handbook: A PSO's Handbook shall be prepared for Shell's 2013 vessel-based monitoring program. Handbooks contain maps, illustrations, and photographs, as well as text, and are intended to provide guidance and reference information to trained individuals who will participate as PSOs. The following topics shall be covered in the PSO Handbook for the Shell project:
(i) summary overview descriptions of the project, marine mammals and underwater noise, the marine mammal monitoring program (vessel roles, responsibilities), and the Marine Mammal Protection Act;
(ii) monitoring and mitigation objectives and procedures, including radii for exclusion zones and zones of influence (ZOIs);
(iii) responsibilities of staff and crew regarding the marine mammal monitoring plan;
(iv) instructions for ship crew regarding the marine mammal monitoring plan;
(v) data recording procedures: codes and coding instructions, PSO coding mistakes, electronic database; navigational, marine physical, field data sheet;
(vi) list of species that might be encountered: identification, natural history;
(vii) use of specialized field equipment (reticle binoculars, nigh vision devices, etc.);
(viii) table of wind speed, Beaufort wind force, and sea state codes; and
(ix) data quality-assurance/quality-control, delivery, storage, and backup procedures.
(i) PSOs shall watch for marine mammals from the best available vantage point on the survey vessels, typically the bridge.
(ii) Observations by the PSOs on marine mammal presence and activity shall begin a minimum of 30 minutes prior to the estimated time that the seismic source is to be turned on and/or ramped-up.
(iii) PSOs shall scan systematically with the unaided eye and 7 x 50 reticle binoculars, supplemented with 20 x 60 image-stabilized Zeiss Binoculars or Fujinon 25 x 150 “Big-eye” binoculars, and night-vision equipment when needed.
(iv) Personnel on the bridge shall assist the marine mammal observer(s) in watching for marine mammals.
(v) PSOs aboard the marine survey vessel shall give particular attention to the areas within the marine mammal exclusion zones around the source vessel, as noted in (6)(a)(i) and (ii). They shall avoid the tendency to spend too much time evaluating animal behavior or entering data on forms, both of which detract from their primary purpose of monitoring the exclusion zone.
(vi) Monitoring shall consist of recording of the following information:
(A) the species, group size, age/size/sex categories (if determinable), the general behavioral activity, heading (if consistent), bearing and distance from seismic vessel, sighting cue, behavioral pace, and apparent reaction of all marine mammals seen near the seismic vessel and/or its airgun array (e.g., none, avoidance, approach, paralleling, etc);
(B) the time, location, heading, speed, and activity of the vessel (shooting or not), along with sea state, visibility, cloud cover and sun glare at (I) any time a marine mammal is sighted (including pinnipeds hauled out on barrier islands), (II) at the start and end of each watch, and (III) during a watch (whenever there is a change in one or more variable);
(C) the identification of all vessels that are visible within 5 km of the seismic vessel whenever a marine mammal is sighted and the time observed;
(D) any identifiable marine mammal behavioral response (sighting data should be collected in a manner that will not detract from the PSO's ability to detect marine mammals);
(E) any adjustments made to operating procedures; and
(F) visibility during observation periods so that total estimates of take can be corrected accordingly.
(vii) Distances to nearby marine mammals will be estimated with binoculars (Fujinon 7 x 50 binoculars) containing a reticle to measure the vertical angle of the line of sight to the animal relative to the horizon. Observers may use a laser rangefinder to test and improve their abilities for visually estimating distances to objects in the water.
(viii) PSOs shall understand the importance of classifying marine mammals as “unknown” or “unidentified” if they cannot identify the animals to species with confidence. In those cases, they shall note any information that might aid in the identification of the marine mammal sighted. For example, for an unidentified mysticete whale, the observers should record whether the animal had a dorsal fin.
(ix) Additional details about unidentified marine mammal sightings, such as “blow only”, mysticete with (or without) a dorsal fin, “seal splash”, etc., shall be recorded.
(x) When a marine mammal is seen approaching or within the exclusion zone applicable to that species, the marine survey crew shall be notified immediately so that mitigation measures described in (6) can be promptly implemented.
(xi) Shell shall use of the best available technology to improve detection capability during periods of fog and other types of inclement weather. Such technology might include night-vision goggles or binoculars as well as other instruments that incorporate infrared technology.
(i) PSOs shall record their observations directly into computers running a custom designed software package. Paper datasheets shall be available as backup if necessary.
(ii) The accuracy of the data entry shall be verified in the field by computerized validity checks as the data are entered, and by subsequent manual checking of the database printouts.
(A) the start-of-season training session,
(B) subsequent supervision by the onboard field crew leader, and
(C) ongoing data checks during the field season.
(iv) Data will be sent off of the ship to Anchorage each day and backed up regularly onto CDs and/or USB disks, and stored at separate locations on the vessel. Data shall be secured further by having data sheets and backup data CDs carried back to the Anchorage office during crew rotations.
(i) Sound Source Measurements: Using a hydrophone system, the holder of this Authorization is required to conduct sound source verification tests for seismic airgun array(s) and other marine survey equipment that are involved in the open-water marine surveys.
(A) Sound source verification shall consist of distances where broadside and endfire directions at which broadband received levels reach 190, 180, 170, 160, and 120 dB re 1 μPa (rms) for the airgun array(s). The configurations of airgun arrays shall include at least the full array and the operation of a single source that will be used during power downs.
(B) The test results shall be reported to NMFS within 5 days of completing the test.
(A) Shell will use an acoustic net array to (I) collect information on the occurrence and distribution of marine mammals (including beluga whale, bowhead whale, walrus and other species) that may be available to subsistence hunters near villages located on the Chukchi Sea coast and to document their relative abundance, habitat use, and migratory patterns; and (II) measure the ambient soundscape throughout the eastern Chukchi Sea and to record received levels of sounds from industry and other activities further offshore in the Chukchi Sea.
(a) Estimation of potential takes or exposures shall be improved for times with low visibility (such as during fog or darkness) through interpolation or possibly using a probability approach. Those data could be used to interpolate possible takes during periods of restricted visibility.
(b) To better assess impacts to marine mammals, data analysis shall be separated into periods when a seismic airgun array (or a single mitigation airgun) is operating and when it is not. Final and report to NMFS should summarize and plot:
(i) Data for periods when a seismic array is active and when it is not; and
(ii) The respective predicted received sound conditions over fairly large areas (tens of km) around operations.
(c) To help evaluate the effectiveness of PSOs and more effectively estimate take, if appropriate data are available, Shell shall perform analysis of sightability curves (detection functions) for distance-based analyses.
(d) To better understand the potential effects of oil and gas activities on marine mammals and to facilitate integration among companies and other researchers, the following data should be obtained and provided electronically in the 90-day report:
(i) the location and time of each vessel-based sighting or acoustic detection;
(ii) position of the sighting or acoustic detection relative to ongoing operations (i.e., distance from sightings to seismic operation, DP operation, etc.), if known;
(iii) the nature of activities at the time (e.g., seismic on/off);
(iv) any identifiable marine mammal behavioral response (sighting data should be collected in a manner that will not detract from the PSO's ability to detect marine mammals); and
(v) adjustments made to operating procedures.
(e) Shell shall provide useful summaries and interpretations of results of the various elements of the monitoring results, which shall include a clear timeline and spatial (map) representation/summary of operations and important observations. Any and all mitigation measures (e.g., vessel course deviations for animal avoidance, operational shut down) should be summarized. Additionally, an assessment of the efficacy of monitoring methods should be provided.
(f) Shell shall provide data from net arrays supported in part, or in whole, by Shell and will participate in the integration of acoustic arrays to assess the sound field of the lease areas in the Chukchi and Beaufort seas for the purposes of assessing patterns of marine mammal distribution and behavior and for assessing the impacts of multiple activities/factors.
(9) Reporting:
(a) Sound Source Verification Report: A report on the preliminary results of the sound source verification measurements, including the measured 190, 180, 160, and 120 dB (rms) radii of the airgun sources and other acoustic survey equipment, shall be submitted within 14 days after collection of those measurements at the start of the field season. This report will specify the distances of the exclusion zones that were adopted for the survey.
(b) Shell shall produce a weekly GIS application that would be available on the web for regulators to view for every observation and mitigation measure implemented.
(c) Seismic Vessel Monitoring Program: A draft report will be submitted to the Director, Office of Protected Resources, NMFS, within 90 days after the end of Shell's 2013 open-water marine surveys in the Chukchi Seas. The report will describe in detail:
(i) summaries of monitoring effort (e.g., total hours, total distances, and marine mammal distribution through the study period, accounting for sea state and other factors affecting visibility and detectability of marine mammals);
(ii) analyses of the effects of various factors influencing detectability of marine mammals (e.g., sea state, number of observers, and fog/glare);
(iii) species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;
(iv) to better assess impacts to marine mammals, data analysis should be separated into periods when an airgun array (or a single airgun) is operating and when it is not. Final and comprehensive reports to NMFS should summarize and plot: (A) Data for periods when a seismic array is active and when it is not; and (B) The respective predicted received sound conditions over fairly large areas (tens of km) around operations.
(v) sighting rates of marine mammals during periods with and without airgun activities (and other variables that could affect detectability), such as: (A) initial sighting distances versus airgun activity state; (B) closest point of approach versus airgun activity state; (C) observed behaviors and types of movements versus airgun activity state; (D) numbers of sightings/individuals seen versus airgun activity state; (E) distribution around the survey vessel versus airgun activity state; and (F) estimates of take by harassment.
(vi) reported results from all hypothesis tests should include estimates of the associated statistical power when practicable.
(vii) estimate and report uncertainty in all take estimates. Uncertainty could be expressed by the presentation of confidence limits, a minimum-maximum, posterior probability distribution, etc.; the exact approach would be selected based on the sampling method and data available.
(viii) The report should clearly compare authorized takes to the level of actual estimated takes.
(d) The draft report will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. The draft report will be considered the final report for this activity under this Authorization if NMFS has not provided comments and recommendations within 90 days of receipt of the draft report.
(10)(a) In the unanticipated event that survey operations clearly cause the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A harassment), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), Shell shall immediately cease survey operations and immediately report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
(i) time, date, and location (latitude/longitude) of the incident;
(ii) the name and type of vessel involved;
(iii) the vessel's speed during and leading up to the incident;
(iv) description of the incident;
(v) status of all sound source use in the 24 hours preceding the incident;
(vi) water depth;
(vii) environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);
(viii) description of marine mammal observations in the 24 hours preceding the incident;
(ix) species identification or description of the animal(s) involved;
(x) the fate of the animal(s); and
(xi) photographs or video footage of the animal (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with Shell to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Shell may not resume their activities until notified by NMFS via letter, email, or telephone.
(b) In the event that Shell discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), Shell will immediately report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to
(c). In the event that Shell discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in Condition 3 of this Authorization (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Shell shall report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to
(11) Activities related to the monitoring described in this Authorization do not require a separate scientific research permit issued under section 104 of the Marine Mammal Protection Act.
(12) The Plan of Cooperation outlining the steps that will be taken to cooperate and communicate with the native communities to ensure the availability of marine mammals for subsistence uses, must be implemented.
(13) This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, or if there is an unmitigable adverse impact on the availability of such species or stocks for subsistence uses.
(14) A copy of this Authorization and the Incidental Take Statement must be in the possession of each seismic vessel operator taking marine mammals under the authority of this Incidental Harassment Authorization.
(15) Shell is required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion.
The bowhead, fin, and humpback whales and ringed and bearded seals are the only marine mammal species currently listed as endangered or threatened under the ESA that could occur during Shell's proposed marine surveys during the Arctic open-water season. NMFS' Permits and Conservation Division has initiated consultation with NMFS' Protected Resources Division under section 7 of the ESA on the issuance of an IHA to Shell under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA.
NMFS is currently preparing an Environmental Assessment, pursuant to NEPA, to determine whether or not this proposed activity may have a significant effect on the human environment. This analysis will be completed prior to the issuance or denial of the IHA.
As a result of these preliminary determinations, NMFS proposes to authorize the take of marine mammals incidental to Shell's 2013 open-water marine surveys in the Alaskan Chukchi Sea, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Federal Housing Finance Agency; Office of Federal Housing Enterprise Oversight.
Interim final rule; request for comments.
The Federal Housing Finance Agency (FHFA) is issuing an interim final rule with request for comments that sets forth requirements and processes with respect to compensation provided to executive officers by the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Home Loan Banks, and the Federal Home Loan Bank System's Office of Finance, consistent with the safety and soundness responsibilities of FHFA under the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as amended by the Housing and Economic Recovery Act of 2008.
The interim final rule is effective on June 13, 2013. FHFA will accept written comments on this interim final rule on or before July 15, 2013. For additional information see
You may submit your comments on this interim final rule, identified by regulatory identifier number “RIN 2590-AA12,” by any one of the following methods:
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Alfred M. Pollard, General Counsel, (202) 649-3050,
FHFA invites comments on all aspects of the interim final rule and will take all comments into consideration before issuing the final regulation. Copies of all comments will be posted without change, including any personal information you provide, such as your name, address, email address, and telephone number, on the FHFA internet Web site at
FHFA published a proposed rulemaking with request for comments on Executive Compensation on June 5, 2009 (74 FR 26989). The public notice and comment period closed on August 4, 2009. This interim final rule, when effective, will supersede the Office of Federal Housing Enterprise Oversight (OFHEO) Executive Compensation rule, 12 CFR part 1770.
FHFA issued the proposed rule to implement sections 1113 and 1117 of the Housing and Economic Recovery Act of 2008 (HERA), Public Law 110-289, 122 Stat. 2654. Section 1113, which amended section 1318 of the Federal Housing Enterprises Financial Safety and Soundness Act (Safety and Soundness Act) (12 U.S.C. 4518), provides authority to the Director to prohibit and withhold compensation of executive officers of the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation (collectively, the Enterprises), and the Federal Home Loan Banks (Banks) (collectively, the regulated entities). Section 1117, which amended the Enterprises' charter acts and the Federal Home Loan Bank Act, provided the Director with temporary authority to approve, disapprove, or modify the executive compensation of the regulated entities.
The proposed rule also was issued to continue the requirement under the charter acts of the Enterprises that the Director approve any agreements or contracts of executive officers that provide compensation in connection with termination of employment.
Additionally, the proposed rule was issued to ensure that the regulated entities and the Office of Finance (OF) comply with processes used by FHFA in its oversight of executive compensation. The processes require the submission of relevant information by the regulated entities and OF on a timely basis, in a format deemed appropriate by FHFA, to enable FHFA to efficiently carry out its executive compensation functions. For reasons noted above, as with the Enterprises, information required to be submitted to FHFA for its review and consideration by the Banks includes information relating to compensation for services during employment and to termination benefits for their executive officers.
FHFA has determined to issue this rule as an interim final rule with request for comments for a number of reasons. This approach will allow provisions upon which FHFA has received and considered comments to become effective, while also providing an opportunity for additional comment in view of certain revisions to the proposed rule which, although they are a logical outgrowth of the proposed rule and are aligned with existing agency practice which the regulated entities are familiar with, may be of interest to potential commenters. Given the passage of time since the comment period closed (August 4, 2009), and the executive compensation review processes currently in place, FHFA also believes that publishing this interim final rule will promote clarity and transparency. Further details of the revisions in response to comments and other changes, can be found below.
In addition to the Director's authority under section 1113 of HERA to prohibit and withhold compensation of executive officers of the regulated entities (as implemented in this interim final rule), section 1114 of HERA further amended section 1318 of the Safety and Soundness Act (12 U.S.C. 4518) to authorize the Director to prohibit or limit golden parachute payments and indemnification payments by the Enterprises and the Banks to entity-affiliated parties. FHFA issued an interim final rule
FHFA received comments from a few individuals (consumers), private businesses, the 12 Banks, the Chairs of the 12 Banks, OF, a retirement service, a number of state bankers associations and state community bankers associations, several banks that are Bank members and stockholders, and the American Bankers Association.
FHFA considered all of the comments submitted. Some of them, as described below, requested changes in the proposed rule that would conflict with the agency's statute. In response to the other comments, FHFA either made the requested or a similar change, or explains below why it is not doing so.
In general, the consumers commented that executive compensation is too high. FHFA acknowledges widespread public concern that executive compensation is unreasonably high. Concerns about amounts and composition of executive compensation and their effect on safety and soundness underlie many recent legislative and regulatory initiatives. This regulation is a means for addressing that concern, as prescribed by Congress. Section 1318 of the Safety and Soundness Act, as amended by section 1113 of HERA, and this interim final rule prohibit executive compensation that is excessive, in that it is higher than is reasonable, or than is comparable to that paid by similar companies.
One consumer stated that the proposed rule provides too much discretion on the part of the Director regarding oversight of an executive officer's compensation. He referred to language in regulatory provisions,
The same commenter stated that the proposed rule provides too little discretion to the Director with respect to setting compensation for an executive officer. He requested modifying the prohibition set forth in § 1230.3(d) to provide the Director with the authority to prescribe or set a specific level or range of compensation. However, such a modification would be contrary to the statutory prohibition against setting of compensation by the Director (12 U.S.C. 4518(d)). A final comment by the consumer was that affirmative, not discretionary, language should be added to § 1230.7 “Compliance” of the proposed rule in order to provide adequate consequences for failure to comply with the rule. For the reasons described below in response to other comments, FHFA has determined to remove that section of the proposed rule and therefore is not making the requested change.
Except for the consumers, all commenters identified above requested that FHFA provide full consideration to
Those commenters uniformly stated their belief that FHFA review, as proposed, would be unduly prescriptive for two reasons. First, they claimed that the proposed rule usurps to FHFA the authority and responsibilities for establishing Bank executive compensation from each Bank's compensation committee or board of directors. Second, they claimed that the proposal violates the statutory prohibition on FHFA setting Bank compensation noted above (12 U.S.C. 4518(d)).
As bases for these concerns, the commenters noted that the Supplementary Information to the proposed rule contained a statement that “FHFA may consider the Federal Reserve Banks and the Farm Credit Banks as examples of appropriate comparators to assess the reasonableness and comparability of executive compensation provided by the Banks.”
The commenters argued that the effect of FHFA's identifying particular comparator institutions is to impose a presumptive cap on compensation by reference to those institutions, which would prescribe or set a specific level or range of compensation. While HERA imposes certain limitations on compensation (
The commenters stated that the existing Executive Compensation rule does not include a specific presumptive percentage cap relative to comparator institution compensation that would apply to the Enterprises' executive compensation determinations. Nor does the existing rule, or the
The commenters argued that, under 12 U.S.C. 4518, FHFA may not mandate a specified benchmarking level for compensation by establishing a presumption that Banks must pay compensation at or below the median compensation. They also pointed out that, as reflected in the Form 10-Ks filed by the Banks, although many of the Banks' boards of directors have chosen to utilize the median level, others look to the 65th percentile or the 75th percentile. They argued that the proposed rule ignores the reality of the benchmarking process and requested that FHFA delete the language under the definition of the term “comparable,” stating that “comparable” benefits are those at or below the median for similar institutions.
FHFA agrees with the commenters that the board of directors has the responsibility to set compensation for an executive officer, which the Director will review for reasonableness and comparability, including whether the structure of such compensation encourages excessive risk-taking or aligns management's incentives with those of safety and soundness.
As is required by HERA,
FHFA does not agree that calling attention to certain classes of institutions—the Farm Credit Banks and the Federal Reserve Banks—as relevant to assessing Federal Home Loan Bank compensation constitutes “set[ting] a specific level or range of compensation” under the Safety and Soundness Act. FHFA continues to believe that those institutions are relevant points of reference in assessing the reasonableness and comparability of Federal Home Loan Bank compensation, because they have certain points in common with the Federal Home Loan Banks: They are government-sponsored financial institutions; they have some measure of government backing and therefore a potentially different risk profile than non-government-sponsored institutions;
In order to address the commenters' expressed concerns that the language in the proposed rule results in a presumptive cap with respect to benefit levels, and after further consideration of the need to describe comparable “benefit levels” and “similar institutions,” FHFA has determined to delete paragraphs (i) and (ii) under the definition of “comparable,” which were the paragraphs addressing the relationship between “comparable” benefits and median levels at other institutions, and providing that FHFA may communicate particular comparable institutions or types of institutions to the regulated entities from time to time. Instead, FHFA is replacing the term “similar institutions” in the first paragraph of the definition of “comparable” with “institutions of similar size and function.”
Second, in response to concerns regarding FHFA oversight of Banks' executive compensation, as was noted in the proposed rule, FHFA will address differences in aspects of executive compensation between the Enterprises and the Banks by establishing policies for appropriate compensation packages and termination benefits, and will provide routine guidance to the regulated entities.
FHFA has considered, and will continue to consider, by guidance and discussion with the Banks, the differences related to the factors set forth in 12 U.S.C. 4513(f). However, both the Enterprises and the Banks, as “regulated entities,” are subject to the same statutory requirements with respect to oversight of their executive compensation by the Director, and FHFA believes that that mandate is fairly and reasonably implemented by establishing an equivalent process and the same high-level concept of reasonableness and comparability for the Banks as for the Enterprises.
FHFA received additional comment from the Banks expressing concern that the definition of “reasonable and comparable” in the proposed rule refers to compensation taken “in whole or in part.” The Banks stated their belief that if an executive's compensation package taken as a whole is reasonable and comparable to compensation at similar institutions for similar duties, FHFA should not be permitted to reject a discrete element of an executive's compensation as excessive. They requested that the wording “in whole or in part” be replaced with “taken as a whole” in the interim final rule.
In its ongoing oversight of an executive's overall compensation, FHFA reviews all components that compose the broadly defined term “compensation.” If any component's value is determined to be an outlier, it may still be acceptable given the compensation taken as a whole. On the other hand, it may also be deemed excessive by itself if it creates questionable incentives. FHFA will advise the entity if it finds the aggregate compensation package to be excessive. FHFA may specifically note that a particular component appears to be the source of the problem and should be reassessed by the entity in order to align the total package with the reasonable and comparable standard. For these reasons, FHFA has determined to retain the language in the interim final rule.
The Banks requested that FHFA revise paragraph (1)(iv) of the definition of “reasonable” compensation to clarify that the factors being reviewed by FHFA include not only corporate and individual performance, but also the performance of a division, department, or unit of a regulated entity. FHFA considers this request to be well founded, and has determined to revise the paragraph to add the language “or one of the entity's significant components.”
The Banks also requested that FHFA revise paragraph (1)(iv) noted above to delete the reference to “guidance.” They stated that, while compliance with FHFA regulations and orders, and written agreements is mandatory and subject to enforcement action by FHFA, “guidelines” issued by FHFA do not constitute the basis for an FHFA enforcement action. They also stated that the advisory status of “guidance” or “guidelines” should not form the basis for an evaluation of executive compensation.
The Banks are correct that guidance, because it is often not adopted through notice-and-comment rulemaking, occupies a lesser status than regulations as a supervisory tool. Failure to follow guidance cannot
FHFA has also determined that the substance of paragraphs (1)(i) and (1)(ii) of the definition of “reasonable” in the proposed rule can be combined into one paragraph. In addition, FHFA has removed references to comparability from the definition of “reasonable,” leaving these concepts to be covered by the definition of “comparable.” As a result of these amendments, paragraph (1)(iii) of the proposed rule's definition of “reasonable” now appears as paragraph (1)(ii); and the preceding changes discussed with regard to paragraph (1)(iv) of that definition are set forth in paragraph (1)(iii) of the interim final rule.
The Banks expressed concerns that the proposal would put a Bank executive officer at risk with respect to all compensation the officer may have received or earned, thereby making it difficult for the Banks to attract or retain highly qualified executive officers. As the bases for these concerns, they cited proposed § 1230.3, “Prohibition and withholding of executive compensation,” and proposed § 1230.7, “Compliance.” Specifically, they referred to the Director's authority to withhold compensation of an executive officer during the Director's review of its reasonableness and comparability under § 1230.3, and the possibility that FHFA could take corrective or remedial action, including an enforcement action, to require a Bank executive officer to make restitution or reimbursement of “excessive compensation” under § 1230.7. Under these provisions, the
FHFA's authority to withhold compensation to an executive officer, or to place such compensation in an escrow account during its review under the reasonable and comparable standard under § 1230.3, was mandated by Congress in section 1113 of HERA. A description of how that authority would be exercised is provided below. With respect to FHFA's compliance authority under § 1230.7, FHFA has considered the merits of the commenters' arguments and has removed proposed § 1230.7 from the interim final rule. Proposed § 1230.7 was derived from statutory enforcement provisions not specific to executive compensation. Those enforcement provisions authorize FHFA to obtain restitution or reimbursement from entity-affiliated parties who have been unjustly enriched by a regulatory violation,
The Banks commented extensively on proposed § 1230.3(c) “Withholding of compensation” and § 1230.3(e) “Prohibition of payment or agreement by regulated entity.” They sought clarification as to the relationship between the two paragraphs and the circumstances in which they would apply. They also questioned the relationship between subsections of paragraph (e). The Banks recommended that paragraphs (c) and (e) be combined to eliminate any potential conflict or ambiguity.
After considering the comments received, and further reflecting on the appropriate interaction between FHFA and the regulated entities and OF with respect to review of executive compensation actions, FHFA has reorganized paragraphs (c) and (e) which appear as paragraphs (d) and (e) of the interim final rule, and has revised their substantive content. Rather than identify a set of compensation actions that cannot be taken while under FHFA review, regardless of how long that review takes, FHFA has identified sets of compensation actions that require prescribed advance notice to FHFA, and which cannot be executed until that review period, or any extension thereof, has passed, unless the regulated entity or OF receives notice of approval or non-objection by the Director earlier.
Specifically, paragraph (d) of § 1230.3 of the interim final rule requires 60 days' advance notice of incentive compensation plans; 30 days' advance notice of term employment agreements, termination arrangements (except that, because of a pre-existing statutory requirement, termination arrangements of the Enterprises must be approved in advance), and changes to annual compensation, payments under pay for performance or other incentive plan, or any other element of compensation; and five business days' advance notice of compensation commitments being made to executive officers who are being newly hired. In the interim final rule, FHFA reserves the right to extend the review period as necessary, in its discretion, which it may exercise if, for example, it has questions about a proposed compensation arrangement or proposed incentive plan goals. The Director may also require that the compensation be withheld or paid into escrow pending further review, with respect to the types of actions specifically identified in this section of the rule or any other executive compensation actions.
FHFA has adopted this regime as balancing the importance of appropriate review for important executive compensation actions, while recognizing the need of business organizations to be able to move forward with compensation decisions without being restrained by a review period that could be indefinite. At the same time, in situations where more review is required, the Director retains the ability to extend the review period and, if necessary, under paragraph (e) to require that compensation be withheld or paid into escrow even beyond the periods prescribed, as well as with respect to compensation actions other than those specified in paragraph (d).
The Banks requested that FHFA modify the definition of the term “executive officer” with respect to a Bank to correspond more closely to the definition of “executive officer” as defined in Exchange Act Rule 3b-7 (17 CFR 240.3b-7), which covers the president, any vice president in charge of a principal business unit, division or function, any other officer who performs a policy-making function or any other person who performs similar policy-making functions. They noted that the definition seems to provide the basis for the definition of an “executive officer” for the Enterprises under the section. Because the Banks are SEC registrants, they stated their belief that a similar definition would be appropriate. They further stated that, given the nature of Bank boards of directors, the positions of chairman and vice chairman should not be included in the definition of executive officer for the Banks. Also, they commented that the definition of “executive officer” should not be based solely on an officer's reporting relationship, such as a senior vice president that reports to the president or chief operating officer, but instead, should be based only on whether such officer is in charge of a principal business unit, division or function. Moreover, the Banks stated that the Director should be required to inform the Banks of those officers covered by the definition of executive officer as he is required to notify the Enterprises under the proposal.
As noted earlier, the Director recognizes that there are differences between the Enterprises and the Banks in size, complexity, and function. Therefore, as was stated in the proposed rule, the approach by FHFA to oversight of executive compensation may differ in certain aspects between the Enterprises and the Banks. For example, it was noted that “in consideration of the Banks' size and structure, the Director's oversight of compensation may cover a smaller number of positions in comparison to covered executive officer positions for the Enterprises.”
Based on comments received and after further consideration, FHFA has determined to revise the definition of the term “executive officer” for the Enterprises, Banks, and OF in the interim final rule. FHFA believes that the revised definition is more appropriate to their organizational structure, position responsibilities, and other relevant factors. An “executive officer” of an Enterprise continues to
Because the Banks are much smaller than the Enterprises, and because the rule states clearly who is an executive officer, it is not necessary for the Director to tell the Banks who their NEOs are, although the Director retains the ability to identify additional executive officers.
The Banks observed that proposed § 1230.3(b) provides that, in determining whether compensation provided by a Bank to an executive officer is not reasonable and comparable, the Director may take into consideration any factors that the FHFA Director considers relevant, but that the section specifies only one factor that the FHFA Director might consider relevant to such a determination: “any wrongdoing on the part of the executive officer, such as any fraudulent act or omission, breach of trust or fiduciary duty, violation of law, rule, regulation, order, or written agreement, and insider abuse with respect to the regulated entity or the Office of Finance.” The Banks requested that FHFA modify the rule to provide more specificity as to the types of factors that would be deemed relevant in supporting a determination by the FHFA Director that an executive officer's compensation is not reasonable and comparable.
In response, FHFA notes that HERA amended the Director's authorities under section 1318 of the Safety and Soundness Act to prohibit and withhold executive compensation by adding paragraph (b) of that section, and the language of the regulation is taken directly from that statutory language. Congress recognized the need to provide the Director with the broad ability to consider
The Banks commented that proposed § 1230.3(b) would not offer an executive officer who is the subject of a compensation review based on, among other things, a potential claim of wrongdoing, any notice and opportunity to present his or her views or defenses with respect to either the factors that the Director is considering or the amount and form of compensation that may be potentially withheld. They further stated that § 1230.3(b) does not provide any standard as to the degree of proof of a claim of wrongdoing or other conduct that would be required to support a decision by the Director to order a Bank to permanently withhold compensation that had been earned by an executive officer. The Banks argued that § 1230.3(b), as proposed, raises significant due process concerns.
The Banks argued that the importance of protecting due process rights was recognized by the Federal Housing Finance Board (Finance Board) when it issued an order that established a process for the suspension or removal of a Bank director or officer.
The Director's authorities with respect to oversight of executive compensation resulted from Congressional concern, both at the time of original enactment of the Safety and Soundness Act and at the time of HERA, that compensation provided by the regulated entities to an executive officer be reasonable and comparable. To that end, Congress mandated that the Director review the compensation arrangements for any executive officer and prohibit the entity from providing compensation to any such executive that is excessive, based on the factors deemed relevant by the Director. Under the statutory mandate, the process is between the Director and the entity, not between the Director and the executive officer, because it is the entity's decisions with respect to compensation that are being reviewed. FHFA anticipates that, under that process, decisions that compensation is excessive will be communicated in writing, with an opportunity for the entity to respond by letter or to request a meeting.
FHFA appreciates that its directive to a regulated entity prohibiting or to withhold compensation of an executive officer impacts the executive financially. For that reason, any such decision is made only after thorough review and full understanding of the facts on a case-by-case basis, and the application to the facts of its authorities mandated by Congress. FHFA's decision regarding compensation does not result in either the suspension or removal of the executive officer, unlike the Finance Board Order referenced by the Banks, and therefore does not implicate the due process considerations that the Finance Board addressed in that Order. FHFA believes implementing a process incorporating notice and a hearing is unnecessary in light of the extent of communication that will occur before making a decision that executive compensation is excessive, and would unduly delay corrective action. Accordingly, FHFA has determined to retain proposed § 1230.3(b) in the interim final rule.
FHFA received a number of comments on the information-submission requirements of proposed § 1230.5(b). After considering that subject, FHFA has determined that the level of detail appropriate to it, combined with the possible need for flexibility with respect to changing compensation practices, makes the subject of information-submission requirements more appropriate to a data collection order under section 1314 of the Safety and Soundness Act than to a regulation, which can be modified only through notice-and-comment rulemaking. Consequently, FHFA is not including proposed § 1230.5 in the
FHFA here responds to comments it received on proposed § 1230.5, and gives an indication of how the issues presented would be expected to be addressed in the anticipated order on the same subject.
First, the Banks commented that the one-week timeframe for submissions set forth in proposed § 1230.5(b) is inadequate. They stated that, as a matter of corporate practice, board minutes and resolutions often are not officially approved until the next board or committee meeting, which typically does not occur until well after one week following a board or committee meeting. They requested that the proposed rule should be revised to recognize this factor.
Proposed § 1230.5(b) provided for submission of materials after they have received final, official approval. The intent of the section was to ensure that the materials were received promptly after official action, which normally means within five business days. In its forthcoming order, FHFA plans to direct that materials be submitted promptly after official action. With respect to submission of any proposed compensation action that is subject to FHFA review, all compensation-related information should be submitted to FHFA well in advance of any planned board decision on it.
The Banks objected to the requirement in proposed § 1230.5(b) that there be no redactions in materials that are submitted to FHFA for the Director's review of executive compensation for reasonableness and comparability. They requested that the requirement should be deleted, as they asserted there would be
To be fully informative and useful to FHFA, and to ensure that key information is not omitted, these materials need to be complete. The anticipated order will likely require that resolutions and minutes and all supporting materials relating to executive compensation be submitted to FHFA without redactions or omissions, except as necessary to preserve particularized claims of attorney-client communication privilege. FHFA expects that each particularized redaction or omission and the assertion of privilege supporting it will be identified on a privilege log submitted simultaneously with the non-privileged material. FHFA believes that these requirements strike the proper balance between preserving the regulated entities' legal privileges and FHFA's need for complete and reliable information in performing its responsibilities to supervise and regulate the regulated entities. This approach leaves open the possibility FHFA may require the production of particularized information that is asserted to be privileged, should a need arise or the assertion of privilege be found lacking. Consequently any such privilege log should describe each separate redaction and omission and assertion of privilege in sufficient detail to allow FHFA to determine whether a further need for the information justifies demanding its production and whether the assertion of privilege is well founded.
The Banks observed that proposed § 1230.5(b)(4) required the submission of general benefit plans applicable to executive officers to FHFA. They sought clarification as to whether “general benefit plans applicable to executive officers” included all benefits applicable to all employees (including executive officers) or only those benefit plans meant to apply primarily to executive officers. FHFA intends that any plan that provides compensation to an executive officer should be submitted, as it is not possible to evaluate whether compensation is excessive without understanding all of its components. This would include general benefit plans applicable to all employees, as well as so-called “top hat” plans that provide special benefits to executive officers.
The Banks observed that proposed § 1230.5(b)(5) required submission to FHFA of any study conducted by or on behalf of a Bank with respect to compensation of executive officers, when delivered. They stated that this requirement could result in a Bank having to submit such studies to FHFA before the board of directors has had an opportunity to review or approve the study. They requested that the board of directors have the opportunity to review and comment on such a study prior to submission to FHFA. FHFA's expectation is that submission would apply at the time the study has been finalized. If the Bank (such as its compensation committee or board of directors) plans to review and comment on the study, submission would be required subsequent thereto.
The Banks argued that compensation arrangements with their executive officers that are in effect prior to the effective date of the final rule should not be subject to action by FHFA under 12 U.S.C. 4518 or under the final rule; that existing arrangements should be grandfathered. In this regard, they noted that Congress, in amending the charter acts of the Enterprises to include certain restrictions on the payment of termination benefits by the Enterprises to their executive officers, provided that such restrictions should be applied prospectively only to agreements entered into after the date of the enactment of the Safety and Soundness Act. The Banks requested that FHFA not apply its oversight of executive compensation to compensation arrangements with Bank executive officers that were entered into prior to the date that the final rule becomes effective. They argued that such an approach would help avoid possible legal issues or challenges that might arise if the rule were applied to pre-existing compensation arrangements.
The grandfathering requested by the Banks is much broader than that ever provided by Congress. Section 1318 of the Safety and Soundness Act, as originally enacted by Congress in 1992, did not contain any language imposing a grandfathering restriction on agency oversight of the reasonableness and comparability of executive compensation provided by the Enterprises to their executive officers. If Congress had intended to limit oversight under section 1318 to compensation arrangements entered into after the effective date of the legislation, it would have included such language in the statute. This is confirmed by the fact that, with respect to agency authority over termination benefits, Congress expressly stated in the statutory amendments to the Enterprises' charter acts that such benefits entered into before enactment of the Safety and Soundness Act are not retroactively subject to approval or disapproval by the Director. When amending the Safety and Soundness Act in HERA, Congress expanded agency oversight authority over executive compensation under section 1318, but, for the second time,
Nevertheless, FHFA recognizes that compensation agreements in place prior to HERA's enactment deserve consideration, and it is FHFA's intention to consider all the facts and circumstances in reviewing existing agreements.
Proposed § 1230.6, which addressed certain powers provided by section 1117 of HERA to the Director in connection with executive compensation, has been deleted from the interim final rule. The powers were temporary in nature and are no longer effective.
The OF argued that the final rule should not apply to it, asserting that Congress intended that the executive compensation provisions in section 1318 (12 U.S.C. 4518) of the Safety and Soundness Act, as amended by section 1113 of HERA, apply only to a “regulated entity” or “regulated entities” and not to OF. The OF asserted that the clear intent of Congress was to exclude OF from the reach of these provisions.
FHFA acknowledges, as it did when proposing this rule, that OF is not directly covered by section 1318 of the Safety and Soundness Act. However, OF is subject to the Director's “general regulatory authority” under section 1311(b)(2) of the Safety and Soundness Act (12 U.S.C. 4511(b)(2)), as amended by HERA. Excessive compensation is a threat to safety and soundness and is appropriately within the agency's general regulatory authority. Therefore, in order to ensure safety and soundness, the Director's authority to prohibit excessive compensation continues to apply to OF in the interim final rule.
Subsequent to FHFA's issuance of its proposed rule on Executive Compensation, the Stop Trading on Congressional Knowledge Act (the “STOCK Act”) was enacted.
On March 9, 2012, FHFA announced new executive compensation programs for the Enterprises, in its capacity as conservator.
FHFA made additional changes to the proposed rule based on findings from current practice. Section 1230.3(e)(2) of the proposed rule required prior review and non-objection for certain types of compensation for the president at the Banks, and the chief executive officer at each of the Enterprises. The correlated provision of this interim final rule expands this requirement of prior review both in scope of compensation and in the number of executives to which it applies. Specifically, § 1230.3(d)(3) of the interim final rule states that a regulated entity or OF shall not, without providing the Director at least 30 days' advance written notice, pay, disburse, or transfer to any executive officer, annual compensation (where the annual amount has changed), pay for performance or other incentive pay, or any other element of compensation.
FHFA has concluded that it is beneficial to provide prior review of all compensation arrangements for all executive officers for several reasons. First, prior approval promotes clarity in pay practices for the regulated entities and OF. In view of FHFA's statutory obligation to prohibit compensation to any executive officer that is not reasonable and comparable, prior review and non-objection rather than review after-the-fact can help set expectations and avoid the need for later remedial action. Prior review provides the regulated entities and OF before-the-fact notice of any objections and an opportunity to address FHFA's concerns and obtain its non-objection. Additionally, prior approval for all executive officers of each Bank was the original design for incentive compensation review by FHFA, and is a practice FHFA has consistently followed since 2008.
Given that prior review of all compensation actions for all executive officers has been FHFA's consistent practice, FHFA also believes that this change from the language of the proposed rule will not impose any new or additional burden on the regulated entities or their executive officers. Nonetheless, FHFA is specifically requesting comment on these changes to the scope of the advance notice requirement.
The interim final rule does not contain any information collection requirement that requires the approval of OMB under the Paperwork Reduction Act (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Compensation, Confidential business information, Government-sponsored enterprises, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Reporting and recordkeeping requirements.
Accordingly, for the reasons stated in the
12 U.S.C. 1427, 1431(l)(5), 1452(h), 1455(l)(5), 4502(6), 4502(12), 4513, 4514, 4517, 4518, 4518a, 4526, 4631, 4632, 4636, 1719(g)(5), and 1723a(d).
The purpose of this part is to implement requirements relating to the supervisory authority of FHFA under the Safety and Soundness Act with respect to compensation provided by the regulated entities and the Office of Finance to their executive officers. This part also establishes a structured process for submission of relevant information by the regulated entities and the Office of Finance, in order to facilitate and enhance the efficiency of FHFA's oversight of executive compensation.
The following definitions apply to the terms used in this part:
(1) With respect to an Enterprise:
(i) The chairman of the board of directors, chief executive officer, chief financial officer, chief operating officer, president, vice chairman, any executive vice president, any senior vice president, any individual in charge of a principal business unit, division, or function, and any individual who performs functions similar to such positions whether or not the individual has an official title; and
(ii) Any other officer as identified by the Director;
(2) With respect to a Bank:
(i) The president, the chief financial officer, and the three other most highly compensated officers; and
(ii) Any other officer as identified by the Director.
(3) With respect to the Office of Finance:
(i) The chief executive officer, chief financial officer, and chief operating officer; and
(ii) Any other officer identified by the Director.
(1)
(i) The duties and responsibilities of the position;
(ii) Compensation factors that indicate added or diminished risks, constraints, or aids in carrying out the responsibilities of the position; and
(iii) Performance of the regulated entity, the specific employee, or one of the entity's significant components with respect to achievement of goals, consistency with guidance and internal rules of the entity, and compliance with applicable law and regulation.
(2)
(a)
(b)
(c)
(d)
(2) A regulated entity or the Office of Finance shall not, without providing the Director at least 30 days' advance written notice, enter into any written arrangement that:
(i) Provides an executive officer a term of employment for a term of six months or more; or
(ii) In the case of a Bank or the Office of Finance, provides compensation to any executive officer in connection with the termination of employment, or establishes a policy of compensation in connection with the termination of employment.
(3) A regulated entity or the Office of Finance shall not, without providing the Director at least 30 days' advance written notice, pay, disburse, or transfer to any executive officer, annual compensation (where the annual amount has changed), pay for performance or other incentive pay, or any other element of compensation.
(4) Notwithstanding the foregoing review periods, a regulated entity or the Office of Finance shall provide five business days' advance written notice to the Director before committing to pay compensation of any amount or type to an executive officer who is being newly hired.
(5) The Director reserves the right to extend any of the foregoing review periods, and may do so in the Director's discretion, upon notice to the regulated entity or the Office of Finance. Any such notice shall set forth the number of business or calendar days by which the review period is being extended.
(e)
(a)
(b)
(c)
(1) Whether the benefits provided under the agreement or contract are comparable to benefits provided under such agreements or contracts for officers of other public or private entities involved in financial services and housing interests who have comparable duties and responsibilities;
(2) The factors set forth in § 1230.3(b); and
(3) Such other information as deemed appropriate by the Director.
(d)
(e)
(f)
In support of the reviews and decisions provided for in this part, the Director may issue guidance, orders, or notices on the subject of information submissions by the regulated entities and the Office of Finance.
Federal Housing Finance Agency.
Proposed rule; request for comments.
The Federal Housing Finance Agency (FHFA) is re-proposing the Golden Parachute and Indemnification Payments proposed rule that was published in the
Written comments on this proposed rule must be received on or before July 15, 2013. For additional information, see
You may submit your comments on this proposed rule, identified by regulatory information number “RIN 2590-AA08,” by any one of the following methods:
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Alfred M. Pollard, General Counsel, (202) 649-3050,
FHFA invites comments on all aspects of the Re-proposal and will take all comments into consideration before issuing the final regulation. Copies of all comments will be posted without change, including any personal information you provide, such as your name, address, email address, and telephone number, on the FHFA internet Web site at
Section 1114 of the Housing and Economic Recovery Act of 2008 (HERA) amended section 1318(e) of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) (12 U.S.C. 4518(e)) to provide explicit authorities to FHFA in addressing golden parachute payments and indemnification payments. FHFA published an interim final regulation on Golden Parachute and Indemnification Payments in the
As noted in the Summary, this Re-proposal only addresses issues as well as comments received that relate to golden parachute payments. Comments received on indemnification payments will be addressed in the final rule on Golden Parachute and Indemnification Payments.
FHFA published a final regulation on Golden Parachute Payments in the
The Proposal (74 FR 30975-30981), which among other things, would have set forth the standards that the Director will take into consideration in determining whether to limit or prohibit golden parachute payments that its regulated entities and the Office of Finance (OF) may make to entity-affiliated parties.
FHFA received comments on the golden parachute provisions of the Proposal from the following: each of the 12 Federal Home Loan Banks (Banks); the Chairs of the 12 Banks; OF; and the Chair and Vice-Chair of the Bank of Boston.
In the Supplementary Information published with the Proposal, FHFA stated its intention to apply the golden parachute provisions to agreements entered into by a regulated entity or OF with an entity-affiliated party on or after the date the regulation would be effective.
With respect to severance plans, FHFA intends to allow the entities three months from the effective date of the final rule within which they may submit for FHFA review severance plans that would be excepted under the terms of the regulation but for their having been adopted or modified at a time when the entity either was in, or was in contemplation of, a condition (“triggering event”) specified in paragraph (1)(ii) of the definition of the term “golden parachute payment.” After that three-month period, severance plans outside of the severance-plan exception to the term “golden parachute payment” must be reviewed by FHFA if the entity is subject to a triggering event.
FHFA notes that certain comments expressed concern that retirement plans could be affected by the regulation, contrary to the intent of the Proposal. In response to the uncertainty about the applicability of the Proposal's definition of “golden parachute payment,” FHFA summarizes below the status of different arrangements.
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The Proposal's definition of “golden parachute payment,” including the definition of “bona fide deferred compensation plan or arrangement” and other exceptions, substantially adopts that of the FDIC's regulation on this subject, which was developed after careful review of industry practice with respect to retirement plans.
FHFA notes that, while the statute permits FHFA to prohibit or limit golden parachute agreements when a regulated entity is subject to a triggering event, the statute does not require FHFA to do so. It is FHFA's intention to consider all facts and circumstances in exercising this discretionary authority, including the degree to which a proposed golden parachute payment represents a reasonable payment for services rendered over the period of employment.
The reconsideration of the treatment to be afforded golden parachute arrangements does not affect indemnification arrangements. As to those arrangements, FHFA reaffirms its intent
All of the commenters sought clarification as to when the golden parachute prohibitions apply and whether approval by the Director of FHFA (the “Director”) would be required. Their concern related to the triggering events listed in the Proposal in paragraphs (1)(ii)(A) through (D) in the definition of the term “golden parachute payment” in proposed § 1231.2. Their inquiries related to the timing of a triggering event and its effect on the ability of a regulated entity or OF to enter into an agreement with or pay an entity-affiliated party. The inquiries focused on one of the triggering events: a determination by FHFA that the regulated entity is in a troubled condition (paragraph (1)(ii)(C) of the term “golden parachute payment” in proposed § 1231.2). The following responds to the specific inquiries:
i. A regulated entity or OF need not obtain the approval of the Director to enter into an agreement with or to pay an entity-affiliated party under the following circumstances:
• A regulated entity or OF is not subject to any of the triggering events listed in paragraphs (1)(ii)(A) through (D) of the term “golden parachute payment” in proposed § 1231.2;
• A regulated entity or OF is no longer subject to a triggering event (
• An entity-affiliated party begins to receive payments under an agreement prior to the occurrence of a triggering event that continue after the triggering event, if the entity-affiliated party's employment was not terminated in contemplation of the triggering event.
ii. A regulated entity or OF, when subject to a triggering event, must obtain the permission of the Director in order to pay, or enter into an agreement to pay, an entity-affiliated party if it:
• Terminates an entity-affiliated party's employment;
• Enters into an agreement with an entity-affiliated party providing a golden parachute payment;
• Amends an employment contract containing golden parachute provisions with an entity-affiliated party;
• Renews an employment agreement (including automatic renewal) with an entity-affiliated party that contains severance provisions; or
• Makes a payment related to a change in control (not resulting from conservatorship or receivership).
In any circumstance in which an agreement that provides for a golden parachute payment has been approved by the Director, an additional approval by the Director is required in order to make such a payment under the agreement if the entity is subject to a triggering event. The FHFA regulation, similar to the statute it implements (HERA), limits a regulated entity that is subject to a triggering event from making golden parachute payments or entering into agreements to make golden parachute payments. As a consequence, FHFA may review a golden parachute payment at the time it is being made, notwithstanding a prior approval of the particular golden parachute agreement. This “double approval” process mirrors the practice of the FDIC for institutions subject to its golden parachute payments regulation.
The double approval process is supported by the following considerations. First, an agreement containing provisions that the regulator considers unreasonable for an entity subject to a triggering event should be disapproved without waiting for payments to be made under it, so that the regulated entity can develop an alternative acceptable arrangement and so that executives will not be relying on an agreement under which they will not, in the event, be able to receive payments. Further, subsequent to the approval of a golden parachute agreement, there is a serious concern with potential further deterioration of a regulated entity or OF and the effect that a golden parachute payment could have on its safety and soundness. To address that concern, FHFA believes that a review of the golden parachute payment, and the circumstances of the Bank during the period in which the payment is actually being made, is necessary. For that reason, proposed § 1231.6 contains procedures for a regulated entity or OF to apply for the consent of the Director to make a golden parachute payment by submission of a letter application. Among factors that must be addressed in the filing seeking approval of the payment are the cost of the payment and the effect that the payment will have on the capital and earnings of the regulated entity (proposed § 1231.6(c)(4)). In addition, the regulation would require FHFA, among other factors, to determine the degree to which the proposed payment represents a reasonable payment for services rendered over the period of employment (proposed § 1231.3(b)(2)(ii)). FHFA recognizes that this factor could be viewed very differently at the time an individual finishes employment than at the time the individual began employment.
Having noted above specific instances that would require the Director's approval, FHFA emphasizes that under § 1231.3 of the Proposal, a regulated entity or OF may agree to make or may make a golden parachute payment that the Director determines is permissible. A regulated entity or OF always may apply for a determination under this exception if a golden parachute payment is not otherwise permissible.
In making the determination to permit a golden parachute agreement or payment, the Director may consider the factors set forth in proposed § 1231.3(b)(2)(i) through (iii), which include consideration of the case-specific facts and circumstances surrounding the golden parachute payment. For example, the Director may consider mitigating factors in determining whether to permit a golden parachute payment. Such mitigating factors may include, among others, the individual's history of beneficial contribution to the regulated entity, and cooperation with FHFA's relevant remediation efforts.
Importantly, the presence of any of the negative factors enumerated in proposed § 1231.3(b)(2) is not an absolute bar to the approval of a golden parachute payment. Absent mitigating factors, there would be a presumption if any of those factors were present that the golden parachute application should be denied, however, that presumption can be overcome and the Director has discretion to do so.
Eleven Banks and OF noted that in paragraph (1) of the term “golden parachute payment” in proposed § 1231.2, that term is defined to mean “[a]ny payment (or any agreement to make any payment)
The Safety and Soundness Act provision on golden parachute payments, the Federal Deposit Insurance Act provision on which it is based, and the FDIC rule on which FHFA's Proposal is based, all define a golden parachute payment as being “in the nature of compensation,” but none defines the term “compensation.” The FDIC included the qualifying phrase “in the nature of compensation” in its final regulation to make clear that the FDIC did not intend to restrict institutions, even those that are troubled, from paying terminating employees accrued but unused benefits, such as vacation. FDIC also noted that the qualifying phrase is used to show that a certain payment should be treated as a golden parachute because the regulators have historically treated it as compensation,
Against the statutory background, and the treatment of the concept by the FDIC in its regulation, FHFA understands “compensation” to be payment for employment or services rendered by individuals. So understood, the concept does not include the various types of payments from a Bank to members that the commenters expressed concern about: payments of advance proceeds, dividends, deposit account withdrawals, and AHP funds; nor does it include debt service payments from Banks to OF.
Members of the regulated entities' boards of directors fall within the definition of “entity-affiliated party” as stated in the statute and the rule. They are responsible for the governance and oversight of management of the regulated entity, and FHFA believes that there is no reason to exclude them from the rule.
Eleven Banks and OF commented on the exception to the term “golden parachute payment” for nondiscriminatory severance plans. That exception requires that the severance plan provide payments for all eligible employees upon involuntary termination, that it provide no more than 12 months' severance, and that it have been approved by the Director if it was adopted by the regulated entity when it was subject to a triggering event. The commenters requested that FHFA modify this exception in the final rule to provide that a Bank's agreement to pay severance to a rank-and-file employee (an employee who is not an “executive officer” under FHFA regulations) in an amount not exceeding compensation paid to the employee during the 12 (or, as seven Banks requested, six) months preceding a negotiated termination of his or her employment be excluded from the definition of “golden parachute payment,” and thus not require FHFA approval even if a triggering event were in effect with regard to the Bank. They stated that such an exclusion would ensure that the Bank retain the flexibility to conduct its ordinary-course personnel operations without the need for FHFA approval of customary limited payments in connection with negotiated terminations.
The exception for nondiscriminatory severance plans, as drafted in the Proposal, derives from two aspects of the statute. First, Congress chose a definition of “entity-affiliated party” that has broader coverage than the term “executive officer” as defined in section 4502(12) of the Safety and Soundness Act (12 U.S.C. 4502(12)) with respect to the Director's authority to prohibit and withhold executive compensation under section 1318(a) of the Safety and Soundness Act (12 U.S.C. 4518(a)). The definition that Congress enacted includes rank-and-file employees. Second, the statute excepts “nondiscriminatory benefit plans,” an exception that FHFA has determined includes nondiscriminatory severance plans. Because the plan must be nondiscriminatory, individually negotiated severance arrangements do not fall within the exception. Like most of the rest of the Proposal, this provision is based on the FDIC's rule, which contains the same exception for nondiscriminatory severance plans. Banks and thrifts have been operating under that rule for the past 15 years.
After further review of the exception for nondiscriminatory severance pay plans, FHFA has determined to make a different modification to that exception, revising it to limit its effect to executives whose salary does not exceed $300,000. FHFA believes that compensation of such top executives may be so high that the payment of a full year's severance may be inappropriate, when their institution is in a troubled condition. However, FHFA notes that whether the recipient of severance pay is a rank-and-file employee or a top executive, the Director continues to have discretion to approve payment under the regulator's approval exception discussed earlier (proposed § 1231.3(b)(1)(i)).
Nine Banks and OF noted that, under paragraph (3)(i) of the definition of “bona fide deferred compensation plan or arrangement” in proposed § 1231.2, a plan or arrangement that would otherwise qualify for an exclusion from treatment as a golden parachute payment would not qualify for such treatment if the plan or arrangement were not in effect at least one year prior to the occurrence of a triggering event. Furthermore, they noted that under paragraph (3)(ii) of the “bona fide deferred compensation plan or arrangement” definition, an increase in benefits payable under a qualifying plan or arrangement pursuant to an amendment made during the one-year period prior to the occurrence of a triggering event would appear not to be excluded from the definition of a “golden parachute payment.”
The commenters requested that paragraphs (3)(i) and (ii) of the definition of “bona fide deferred compensation plan or arrangement” in proposed § 1231.2 either be modified to provide that these one-year rules are subject to waiver by the Director on a case-by-case basis, or that FHFA clarify that a Bank could apply for approval to make a payment with respect to the plan or increased benefits under proposed §§ 1231.3(b)(1)(i) and 1231.6. In response, as noted earlier, FHFA is providing a blanket grandfathered status to all deferred compensation plans in place as of the Re-proposal's publication date. Moreover, FHFA confirms that a regulated entity or OF always may apply for a waiver by the Director on a case-specific basis for bona fide deferred compensation plans or arrangements that are not grandfathered.
Additionally, the commenters requested that FHFA except amendments to nonqualified deferred compensation plans and supplemental retirement plans that are made to comply with law. In response, FHFA has added the following language to the end of paragraph (3)(ii) of the definition of the term “bona fide deferred compensation plan or arrangement”: “provided that changes required by law should be disregarded in determining whether a plan provision has been in effect for one year.”
Ten Banks and OF commented that the definition of “bona fide deferred compensation plan or arrangement” in proposed § 1231.2 permits payments from plans that segregate or otherwise set aside assets in a trust that may only be used to pay plan and other benefits. They requested that FHFA amend paragraphs (1)(ii) and (3)(vi) of the definition in the final rule to include “and related expenses” after “benefits” in order to account for the fact that rabbi trusts often pay certain expenses. FHFA
Nine Banks, OF, and the Chairs of the Banks requested that FHFA modify the circumstances that constitute one of the triggering events set forth in the definition of the term “golden parachute payment” (paragraphs (1)(ii)(A) through (D) of the term “golden parachute payment” in proposed § 1231.2). The event that was the subject of concern is contained in paragraph (1)(ii)(D): when a Bank or OF is assigned a composite rating of 3 or 4 by FHFA.
The commenters noted that the Federal Housing Finance Board Office of Supervision Examination Manual (Manual) draws a sharp distinction between a composite 3- and a composite 4-rating. The Manual provides that the general policy in regard to a composite 3-rated Bank is that supervisory action will be taken to address identified deficiencies or weaknesses. In contrast, the Manual provides that the general policy in regard to a composite 4-rated Bank is that a formal enforcement action will be taken to address identified deficiencies or weaknesses. They stated that the restrictions of the golden parachute rule should not be triggered in circumstances that are not viewed as being serious enough to require formal enforcement action. For this reason, they requested that the portion of proposed paragraph (l)(ii)(D) of the definition of “golden parachute payment” in proposed § 1231.2, which reads “or the Federal Home Loan Bank or the Office of Finance is assigned a composite rating of 3 or 4 by FHFA” should be revised to delete “3 or.”
In the meantime, FHFA has adopted an examination rating system that results in a composite rating from 1 to 5, analogous to that used by the Federal banking agencies.
Eight Banks and OF requested that FHFA modify the definition of the term “nondiscriminatory” in the final rule. The term relates to the exception from the golden parachute restrictions for a nondiscriminatory severance plan or arrangement (paragraph (2)(v) of the term “golden parachute payment” in proposed § 1231.2). As proposed, “nondiscriminatory” is defined to mean:
In recognition of the difference in employee size between the Banks and the entities regulated by the FDIC, the commenters requested that FHFA delete the provision prohibiting a variance in benefits of more than plus or minus ten percent in the final regulation. They also requested that FHFA reduce the 33 percent threshold to 20 percent, and reduce the “1000 employees” to 50 employees or to such other smaller percentage and number that FHFA determines is appropriate in light of the relatively small size of the Banks' and OF's staffs.
In response to this request for modification, FHFA notes that entities regulated by the FDIC under its golden parachute payments regulation are not confined to large holding companies and banks with a correspondingly large number of employees. FDIC-regulated entities also include mid- and small-size banks and thrifts that have correspondingly small numbers of employees. The FDIC has implemented the criteria contained in the term “nondiscriminatory” under its regulation effective for all the covered entities since 1996, regardless of the differences in size and employee base. FHFA believes that the Banks' size and number of employees is not dissimilar to many of the entities regulated by the FDIC. For this reason, FHFA has determined not to modify the definition of “nondiscriminatory” in the final rule.
The OF requested that the final rule be modified so that it does not apply to OF or any parties associated with it. The OF asserted that Congress intended that the golden parachute provisions in section 1318(e) (12 U.S.C. 4518(e)) of the Safety and Soundness Act, as amended by section 1114 of HERA, apply only to golden parachute payments made by a “regulated entity.” The OF asserted that the clear intent of Congress was to exclude OF from the reach of the provisions.
In response to OF's request, FHFA notes, as it did when proposing this rule,
Moreover, as FHFA stated in the Proposal, although OF is not directly covered by section 1318(e), it is subject to the Director's “general regulatory authority” under section 1311(b)(2) of the Safety and Soundness Act (12 U.S.C. 4511(b)(2)), as amended by HERA. The Director is required to exercise that authority as necessary to ensure that the purposes of the Safety and Soundness Act, the authorizing statutes, and other applicable laws are carried out. Because of the unique nature of OF and the interrelationship between it and the Banks, FHFA believes that the purposes underlying the limitations on golden parachute payments can best be carried out if the limitations are consistent
Subsequent to FHFA's issuance of the Proposal, the Stop Trading on Congressional Knowledge Act of 2012, S. 2038 (the “STOCK Act”) was enacted.
Section 1313(f) of the Safety and Soundness Act (12 U.S.C. 4513(f)), as amended by section 1201 of HERA, requires the Director, when promulgating regulations relating to the Banks, to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability. The Director may also consider any other differences that are deemed appropriate. In preparing the Re-proposal, the Director considered the differences between the Banks and the Enterprises as they relate to the above factors. The Director requests comments from the public about whether differences related to these factors should result in a revision of the Re-proposal as it relates to the Banks.
This proposed rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Golden parachutes, Government-sponsored enterprises, Indemnification.
Accordingly, for reasons stated in the
12 U.S.C. 4518(e), 4518a, 4526.
The purpose of this part is to implement section 1318(e) of the Safety and Soundness Act (12 U.S.C. 4518(e)) by setting forth the standards that the Director will take into consideration in determining whether to limit or prohibit golden parachute payments and by setting forth prohibited and permissible indemnification payments that regulated entities and the Office of Finance may make to entity-affiliated parties.
The additions and revisions read as follows:
(1) An entity-affiliated party voluntarily elects to defer all or a portion of the reasonable compensation, wages or fees paid for services rendered which otherwise would have been paid to such party at the time the services were rendered (including a plan that provides for the crediting of a reasonable investment return on such elective deferrals) and the regulated entity or the Office of Finance either:
(i) Recognizes compensation expense and accrues a liability for the benefit payments according to generally accepted accounting principles (GAAP); or
(ii) Segregates or otherwise sets aside assets in a trust which may only be used to pay plan and other benefits and related expenses, except that the assets of such trust may be available to satisfy claims of creditors of the regulated entities or the Office of Finance in the case of insolvency; or
(2) A regulated entity or the Office of Finance establishes a nonqualified deferred compensation or supplemental retirement plan, other than an elective deferral plan described in paragraph (1) of this definition:
(i) Primarily for the purpose of providing benefits for certain entity-affiliated parties in excess of the limitations on contributions and benefits imposed by sections 401(a)(17), 402(g), 415, or any other applicable provision of the Internal Revenue Code of 1986 (26 U.S.C. 401(a)(17), 402(g), 415); or
(ii) Primarily for the purpose of providing supplemental retirement benefits or other deferred compensation for a select group of directors,
(3) In the case of any nonqualified deferred compensation or supplemental retirement plans as described in paragraphs (1) and (2) of this definition, the following requirements shall apply:
(i) The plan was in effect at least one year prior to any of the events described in paragraph (1)(ii) of the term
(ii) Any payment made pursuant to such plan is made in accordance with the terms of the plan as in effect no later than one year prior to any of the events described in paragraph (1)(ii) of the term
(iii) The entity-affiliated party has a vested right, as defined under the applicable plan document, at the time of termination of employment to payments under such plan;
(iv) Benefits under such plan are accrued each period only for current or prior service rendered to the employer (except that an allowance may be made for service with a predecessor employer);
(v) Any payment made pursuant to such plan is not based on any discretionary acceleration of vesting or accrual of benefits which occurs at any time later than one year prior to any of the events described in paragraph (1)(ii) of the term
(vi) The regulated entity or the Office of Finance has previously recognized compensation expense and accrued a liability for the benefit payments according to GAAP or segregated or otherwise set aside assets in a trust which may only be used to pay plan benefits and related expenses, except that the assets of such trust may be available to satisfy claims of the regulated entity's creditors in the case of insolvency; and
(vii) Payments pursuant to such plans shall not be in excess of the accrued liability computed in accordance with GAAP.
(1) With respect to the Office of Finance, any director, officer, or management of the Office of Finance; and
(2) With respect to a regulated entity:
(i) Any director, officer, employee, or controlling stockholder of, or agent for, a regulated entity;
(ii) Any shareholder, affiliate, consultant, or joint venture partner of a regulated entity, and any other person, as determined by the Director (by regulation or on a case-by-case basis) that participates in the conduct of the affairs of a regulated entity, provided that a member of a Federal Home Loan Bank shall not be deemed to have participated in the affairs of that Federal Home Loan Bank solely by virtue of being a shareholder of, and obtaining advances from, that Federal Home Loan Bank;
(iii) Any independent contractor for a regulated entity (including any attorney, appraiser, or accountant) if:
(A) The independent contractor knowingly or recklessly participates in any violation of any law or regulation, any breach of fiduciary duty, or any unsafe or unsound practice; and
(B) Such violation, breach, or practice caused, or is likely to cause, more than a minimal financial loss to, or a significant adverse effect on, the regulated entity;
(iv) Any not-for-profit corporation that receives its principal funding, on an ongoing basis, from any regulated entity.
(1) Any payment (or any agreement to make any payment) in the nature of compensation by any regulated entity or the Office of Finance for the benefit of any current or former entity-affiliated party pursuant to an obligation of such regulated entity or the Office of Finance that:
(i) Is contingent on, or by its terms is payable on or after, the termination of such party's primary employment or affiliation with the regulated entity or the Office of Finance; and
(ii) Is received on or after, or is made in contemplation of, any of the following events:
(A) The insolvency (or similar event) of the regulated entity which is making the payment;
(B) The appointment of any conservator or receiver for such regulated entity;
(C) The regulated entity is in a troubled condition; or
(D) The regulated entity is assigned a composite rating of 4 or 5 by FHFA.
(2)
(i) Any payment made pursuant to a pension or retirement plan that is qualified (or is intended within a reasonable period of time to be qualified) under section 401 of the Internal Revenue Code of 1986 (26 U.S.C. 401) or pursuant to a pension or other retirement plan that is governed by the laws of any foreign country;
(ii) Any payment made pursuant to a “benefit plan” as that term is defined in this section;
(iii) Any payment made pursuant to a “bona fide deferred compensation plan or arrangement” as that term is defined in this section;
(iv) Any payment made by reason of death or by reason of termination caused by the disability of an entity-affiliated party; or
(v) Any payment made pursuant to a nondiscriminatory severance pay plan or arrangement that provides for payment of severance benefits to all eligible employees upon involuntary termination other than for cause, voluntary resignation, or early retirement; provided that:
(A) No employee shall receive any such payment that exceeds the base compensation paid to such employee during the 12 months (or such longer period or greater benefit as the Director shall consent to) immediately preceding termination of employment, resignation, or early retirement, and such severance pay plan or arrangement shall not have been adopted or modified to increase the amount or scope of severance benefits at a time when the regulated entity or the Office of Finance is in a condition specified in paragraph (1)(ii) of the term
(B) If an employee's salary exceeds $300,000, the exception provided under this paragraph (2)(v) shall not apply to that employee; or
(vi) Any severance or similar payment that is required to be made pursuant to a state statute or foreign law that is applicable to all employers within the appropriate jurisdiction (with the exception of employers that may be exempt due to their small number of employees or other similar criteria.
(1) Any direct or indirect transfer of any funds or any asset;
(2) Any forgiveness of any debt or other obligation;
(3) The conferring of any benefit, including but not limited to stock options and stock appreciation rights; and
(4) Any segregation of any funds or assets, the establishment or funding of any trust or the purchase of or arrangement for any letter of credit or other instrument, for the purpose of making, or pursuant to any agreement to make, any payment on or after the date on which such funds or assets are segregated, or at the time of or after such trust is established or letter of credit or other instrument is made available, without regard to whether the obligation to make such payment is contingent on:
(i) The determination, after such date, of the liability for the payment of such amount; or
(ii) The liquidation, after such date, of the amount of such payment.
(1) Is subject to a cease-and-desist order or written agreement issued by FHFA that requires action to improve the financial condition of the regulated entity or is subject to a proceeding initiated by the Director, which contemplates the issuance of an order that requires action to improve the financial condition of the regulated entity, unless otherwise informed in writing by FHFA; or
(2) Is informed in writing by the Director that it is in a troubled condition for purposes of the requirements of this part on the basis of the most recent report of examination or other information available to FHFA, on account of its financial condition, risk profile, or management deficiencies.
5. Section 1231.3 is added to read as follows:
(a)
(b)
(i) The Director determines that such a payment or agreement is permissible; or
(ii) Such an agreement is made in order to hire a person to become an entity-affiliated party either at a time when the regulated entity or the Office of Finance satisfies, or in an effort to prevent it from imminently satisfying, any of the criteria set forth in paragraph (1)(ii) of the term
(iii) Such a payment is made pursuant to an agreement which provides for a reasonable severance payment, not to exceed 12 months salary, to an entity-affiliated party in the event of a change in control of the regulated entity; provided, however, that a regulated entity shall obtain the consent of the Director prior to making such a payment, and this paragraph (b)(1)(iii) shall not apply to any change in control of a regulated entity that results from the regulated entity being placed into conservatorship or receivership; and
(iv) A regulated entity or the Office of Finance making a request pursuant to paragraphs (b)(1)(i) through (iii) of this section shall demonstrate that it does not possess and is not aware of any information, evidence, documents, or other materials that would indicate that there is a reasonable basis to believe, at the time such payment is proposed to be made, that:
(A) The entity-affiliated party has committed any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse with regard to the regulated entity or the Office of Finance that is likely to have a material adverse effect on the regulated entity or the Office of Finance;
(B) The entity-affiliated party is substantially responsible for the insolvency of, the appointment of a conservator or receiver for, or the troubled condition of the regulated entity;
(C) The entity-affiliated party has materially violated any applicable Federal or State law or regulation that has had or is likely to have a material effect on the regulated entity or the Office of Finance; and
(D) The entity-affiliated party has violated or conspired to violate sections 215, 657, 1006, 1014, or 1344 of title 18 of the United States Code, or section 1341 or 1343 of such title affecting a “financial institution” as the term is defined in title 18 of the United States Code (18 U.S.C. 20).
(2) In making a determination under paragraphs (b)(1)(i) through (iii) of this section, the Director may consider:
(i) Whether, and to what degree, the entity-affiliated party was in a position of managerial or fiduciary responsibility;
(ii) The length of time the entity-affiliated party was affiliated with the regulated entity or the Office of Finance, and the degree to which the proposed payment represents a reasonable payment for services rendered over the period of employment; and
(iii) Any other factor the Director determines relevant to the facts and circumstances surrounding the golden parachute payment, including any fraudulent act or omission, breach of fiduciary duty, violation of law, rule, regulation, order, or written agreement, and the level of willful misconduct, breach of fiduciary duty, and malfeasance on the part of the entity-affiliated party.
The provisions of this part, or any consent or approval granted under the provisions of this part by FHFA, shall not in any way bind any receiver of a regulated entity in receivership. Any consent or approval granted under the provisions of this part by FHFA shall not in any way obligate FHFA or receiver to pay any claim or obligation pursuant to any golden parachute, severance, indemnification, or other agreement. Nothing in this part may be construed to permit the payment of salary or any liability or legal expense of an entity-affiliated party contrary to section 1318(e)(3) of the Safety and Soundness Act (12 U.S.C. 4518(e)(3)).
(a)
(b)
(c)
(1) The reasons why the regulated entity or the Office of Finance seeks to make the payment;
(2) An identification of the entity-affiliated party who will receive the payment;
(3) A copy of any contract or agreement regarding the subject matter of the filing;
(4) The cost of the proposed payment and its impact on the capital and earnings of the regulated entity;
(5) The reasons why the consent to the payment should be granted; and
(6) Certification and documentation as to each of the factors listed in § 1231.3(b)(1)(iv).
(d)
(e)