12–31–08 Wednesday Vol. 73 No. 251 Dec. 31, 2008
Pages 80289–80700
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Contents Federal Register Vol. 73, No. 251
Wednesday, December 31, 2008
Agency for Healthcare Research and Quality Commerce Department NOTICES See Foreign-Trade Zones Board Agency Information Collection Activities; Proposals, See International Trade Administration Submissions, and Approvals, 80410–80412 See National Oceanic and Atmospheric Administration
Agriculture Department Commodity Futures Trading Commission See Cooperative State Research, Education, and Extension NOTICES Service Request to exempt certain over-the-counter swaps from See Federal Crop Insurance Corporation certain of the requirements imposed by Commission See Forest Service Regulation 35.2; Reopening of comment period, 80367– See Natural Resources Conservation Service 80368
Air Force Department Cooperative State Research, Education, and Extension NOTICES Service Privacy Act; Systems of Records, 80372–80379 NOTICES Alcohol, Tobacco, Firearms, and Explosives Bureau Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 80361–80362 Commerce in Explosives; List of Explosive Materials, Defense Department 80428–80430 See Air Force Department Antitrust Division See Navy Department NOTICES NOTICES Agency Information Collection Activities; Proposals, National Cooperative Research and Production Act Submissions, and Approvals, 80368–80369 Notifications: Announcement of Federal Funding Opportunity, 80369– Cooperative Research Group on Development and 80371 Evaluation of Gas Chromatograph Testing Protocol, 80430 Drug Enforcement Administration Network Centric Operations Industry Consortium, Inc., NOTICES 80430 Applications: Open DeviceNet Vendor Association, Inc., 80430 Norac Inc., 80431 Open SystemC Initiative, 80431 Importer of Controlled Substances Application, 80431– Petroleum Environmental Research Forum, 80431 80432 Importer of Controlled Substances Registration, 80432 Centers for Disease Control and Prevention NOTICES Education Department Board of Scientific Counselors, National Center for Injury PROPOSED RULES Prevention and Control; Charter Amendment, 80412 Establishment of Negotiated Rulemaking Committees, 80314–80317 Centers for Medicare & Medicaid Services NOTICES RULES Agency Information Collection Activities; Proposals, Medicare Program: Submissions, and Approvals, 80382–80383 Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2009, etc.; Energy Department Corrections, 80302–80305 See Federal Energy Regulatory Commission NOTICES Privacy Act; Systems of Records, 80412–80417 Environmental Protection Agency RULES Coast Guard Clean Air Act Prevention of Significant Deterioration (PSD) RULES Construction Permit Program: Drawbridge Operation Regulations: Interpretation of Regulations That Determine Pollutants Curtis Creek in Baltimore MD, Maintenance, 80299 Covered by the Federal PSD Permit Program, 80300– Raritan River, Arthur Kill, and their tributaries, NJ, 80301 80298–80299 Tolerance Actions: Salvage and Marine Firefighting Requirements; Vessel 2, 4-D, Bensulide, Chlorpyrifos, DCPA, Desmedipham, Response Plans for Oil, 80618–80654 Dimethoate, Fenamiphos, Metolachlor, Phorate, NOTICES Sethoxydim, Terbufos, etc.; Technical Amendment, Meetings: 80301–80302 Delaware River and Bay Oil Spill Advisory Committee, PROPOSED RULES 80418–80419 Proposed Tolerance Actions: Houston / Galveston Navigation Safety Advisory Azinphos-methyl, Disulfoton, Esfenvalerate, Ethylene Committee, 80419–80420 Oxide, Fenvalerate, et al., 80317–80332
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NOTICES Federal Railroad Administration Availability of Preliminary Residual Designation of Certain PROPOSED RULES Storm Water Discharges in State of Maine, 80388– Qualification and Certification of Locomotive Engineers; 80389 Miscellaneous Revisions, 80349–80360 Filing of Pesticide Petition on Food Contact Surfaces, NOTICES 80389–80390 Application for Approval of Discontinuance of Modification Meetings: of a Railroad Signal System or Relief from the Farm, Ranch, and Rural Communities Committee, 80390 Requirements, 80509 Receipt of Request to Voluntarily Cancel Pesticide Petition for Waiver of Compliance: Registrations: Suffolk, VA, 80509–80510 Fomesafen, 80390–80392 Standards of Performance for New Stationary Sources, Federal Trade Commission National Emission Standards for Hazardous Air NOTICES Pollutants, and the Stratospheric Ozone Protection Granting of Request for Early Termination of the Waiting Program Period Under the Premerger Notification Rules, 80409– Posting to the Applicability Determination Index (ADI) 80410 Database System of Agency Applicability Determinations, etc., 80392–80407 Fish and Wildlife Service NOTICES Endangered and Threatened Species Permit Applications, Executive Office of the President 80420–80421 See Presidential Documents Final Comprehensive Conservation Plan and Finding of No See Trade Representative, Office of United States Significant Impact: Mattamuskeet National Wildlife Refuge, Hyde County, Federal Aviation Administration NC, 80421–80423 RULES Airworthiness Directives: Foreign Assets Control Office CFM International, S. A. CFM56 5B Series Turbofan NOTICES Engines, 80296–80297 Additional Designation of Entities Pursuant to Executive Order 13382, 80513–80514 Federal Communications Commission Foreign-Trade Zones Board RULES NOTICES Television Broadcasting Services: Grant of Authority for Subzone Status: Columbus, GA, 80305 Haliburton Energy Services, Inc. (Barite Milling), New Augusta, GA, 80305–80306 Orleans, LA, 80363 PROPOSED RULES Grants of Authority for Subzone Status: Implementation of Short-term Analog Flash and Emergency Haliburton Energy Services, Inc. (Barite Milling), Readiness Act: Westlake, LA, 80363–80364 Establishment of DTV Transition ‘‘Analog Nightlight’’ Hawker Beechcraft Corp. (Aircraft Manufacturing), Program, 80332–80349 Wichita and Salina, KS, 80364 NOTICES Agency Information Collection Activities; Proposals, Forest Service Submissions, and Approvals, 80407–80408 RULES National Forest System Land Management Planning; Federal Crop Insurance Corporation Correction, 80299–80300 RULES Health and Human Services Department Common Crop Insurance Regulations, Coverage See Agency for Healthcare Research and Quality Enhancement Option Provisions; Corrections, 80295 See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services Federal Energy Regulatory Commission See National Institutes of Health NOTICES Applications: Homeland Security Department Richard Moss, 80383–80384 See Coast Guard Combined Notice of Filings, 80384–80386 See U.S. Citizenship and Immigration Services Filings: Southwestern Power Administration, 80386–80387 Housing and Urban Development Department Public Notice: RULES Records Governing Off-the Record Communications, Standards for Mortgagor’s Investment in Mortgaged 80387 Property: Request Under Blanket Authorization: Compliance with Court Order Vacating Final Rule, Crossroads Pipeline Co., 80387–80388 80297–80298 NOTICES Federal Property Suitable as Facilities to Assist the Federal Maritime Commission Homeless, 80420 NOTICES Ocean Transportation Intermediary License Applicants, Interior Department 80408–80409 See Fish and Wildlife Service
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See Land Management Bureau National Library of Medicine, 80418 See National Park Service National Oceanic and Atmospheric Administration International Trade Administration RULES NOTICES Fisheries of the Exclusive Economic Zone Off Alaska: Antidumping: Revised Management Authority for Dark Rockfish in the Certain Cased Pencils from the People’s Republic of Bering Sea and Aleutian Islands Management Area China, 80364–80365 and the Gulf of Alaska, 80307–80312 Certain Pasta from Italy, 80365 Fisheries of the Northeastern United States: Circular Welded Non Alloy Steel Pipe from the Republic Atlantic Sea Scallop Fishery; Closure of the Limited of Korea, 80365–80366 Access General Category Scallop Fishery to Lined Paper Products from China, 80366–80367 Individual Fishing Quota Scallop Vessels, 80306– 80307 International Trade Commission PROPOSED RULES NOTICES Magnuson-Stevens Act Provisions: Investigation: Fisheries off West Coast States; Pacific Coast Groundfish Certain Ground Fault Circuit Interrupters and Products Fishery; 2009-2010 Biennial Specifications and Containing Same, 80426–80427 Management Measures, 80516–80577 NOTICES Justice Department Marine Mammals: See Alcohol, Tobacco, Firearms, and Explosives Bureau Issuance of Permit Amendment, 80367 See Antitrust Division Meetings: See Drug Enforcement Administration North Pacific Fishery Management Council, 80367 NOTICES Stipulated Orders: National Park Service Commonwealth Utilities Corporation and the NOTICES Commonwealth of the Northern Mariana Islands, Meetings: 80427 Native American Graves Protection and Repatriation Review Committee, 80423–80424 Labor Department National Register of Historic Places: See Mine Safety and Health Administration Notification of Pending Nominations and Related NOTICES Actions, 80425–80426 Agency Information Collection Activities; Proposals, Weekly Listing of Historic Properties, 80424–80425 Submissions, and Approvals, 80432–80433 Natural Resources Conservation Service Land Management Bureau NOTICES NOTICES Agency Information Collection Activities; Proposals, Alaska Native Claims Selections, 80423 Submissions, and Approvals, 80362–80363 Proposed Reinstatement of Terminated Oil and Gas Leases (OKNM 117608 and OKNM 117609), 80423 Navy Department NOTICES Maritime Administration Privacy Act; Systems of Records, 80379–80382 NOTICES Agency Information Collection Activities; Proposals, Nuclear Regulatory Commission Submissions, and Approvals, 80510 NOTICES Consideration of Issuance of Amendment to Facility Mine Safety and Health Administration Operating License: RULES STP Nuclear Operating Co., 80437–80440 Flame-Resistant Conveyor Belt, Fire Prevention and Environmental Impact Statements; Availability, etc.: Detection, and Use of Air from the Belt Entry, 80580– Indian Point Nuclear Generating Unit Nos. 2 and 3, 80616 Buchanan, NY; License Renewal and Public Meeting, Refuge Alternatives for Underground Coal Mines, 80656– 80440 80700 Omaha Public Power District, Fort Calhoun Station Unit NOTICES No. 1, Washington County, NE, 80441–80442 Petitions for Modification of Existing Mandatory Safety Standards, 80433–80436 Office of United States Trade Representative See Trade Representative, Office of United States National Archives and Records Administration NOTICES Personnel Management Office Records Schedules; Availability and Request for Comments, NOTICES 80436–80437 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 80445–80447 National Institutes of Health NOTICES Presidential Documents Meetings: PROCLAMATIONS Center for Scientific Review, 80417–80418 Trade: Eunice Kennedy Shriver National Institue of Child Health Oman Free Trade Agreement; implementation (Proc. and Human Development, 80418 8332), 80289–80291
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ADMINISTRATIVE ORDERS United States - Antidumping Measures on Polyethylene Democratic Republic of Congo, Rwanda, and Uganda; Retail Carrier Bags from Thailand, 80443–80444 unexpected urgent humanitarian needs (Presidential WTO Dispute Settlement Proceedings Regarding United Determination) States: No. 2009-9 of December 18, 2008, 80293 Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, 80444–80445 Securities and Exchange Commission PROPOSED RULES Transportation Department Records Services, Fee Schedule, 80313–80314 NOTICES See Federal Aviation Administration Agency Information Collection Activities; Proposals, See Federal Railroad Administration Submissions, and Approvals, 80447–80450 See Maritime Administration Application and Temporary Order: See Surface Transportation Board Citigroup Global Markets Inc., et al., 80450–80452 NOTICES UBS Securities LLC, et al., 80452–80454 Applications for Certificate Authority: Applications: Baltia Airlines, Inc., 80507 AdvisorShares Investments, LLC and AdvisorShares Applications for Certificates of Public Convenience and Trust, 80454–80457 Necessity and Foreign Air Carrier Permits Filed Under Grail Advisors, LLC and Grail Advisors’ Alpha ETF Subpart B (Formerly Subpart Q), 80507–80508 Trust, 80457–80464 Aviation Proceedings, Agreements filed, 80508–80509 Sun Life Assurance Company of Canada (U.S.), et al., 80464–80468 Treasury Department Self-Regulatory Organizations; Proposed Rule Changes: See Foreign Assets Control Office Boston Stock Exchange, Inc., 80468–80481 NOTICES Depository Trust Co., 80481–80482 List of Countries Requiring Cooperation with an Financial Industry Regulatory Authority, Inc., 80482– International Boycott, 80513 80483 Meetings: International Securities Exchange, LLC, 80484–80485 Advisory Committee on the Ten-Year Framework for NASDAQ Stock Market LLC, 80485–80488 Energy and Environment, 80513 New York Stock Exchange LLC, 80488–80494 NYSE Alternext US LLC, 80494–80504 U.S. Citizenship and Immigration Services NYSE Arca, Inc., 80504–80505 NOTICES Agency Information Collection Activities; Proposals, Social Security Administration Submissions, and Approvals, 80420 NOTICES Agreement on Social Security Between the United States and the Czech Republic; Entry Into Force, 80505–80506 Separate Parts In This Issue Rate for Assessment on Direct Payment Fees to Representatives (2009), 80506 Part II State Department Commerce Department, National Oceanic and Atmospheric NOTICES Administration, 80516–80577 List of Participating Countries and Entities Under the Clean Diamond Trade Act of 2003 and Section 2 of Executive Part III Order (13312), 80506–80507 Labor Department, Mine Safety and Health Administration, 80580–80616 Surface Transportation Board NOTICES Part IV Abandonment Exemption: Homeland Security Department, Coast Guard, 80618–80654 CSX Transportation, Inc.; Niagara County, NY, 80510– 80511 Part V Intra-Corporate Family Transaction Exemption: Labor Department, Mine Safety and Health Administration, National Express Corp., 80511–80512 80656–80700 Lease and Operation Exemption: U S Rail Corporation; Winamac Southern Railway Company and Kokomo Grain Co., Inc., 80512 Operation Exemption: Reader Aids Morristown & Erie Railway Inc., d/b/a Stourbridge Consult the Reader Aids section at the end of this issue for Railway; Stourbridge Railroad Co., 80512–80513 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Trade Representative, Office of United States NOTICES To subscribe to the Federal Register Table of Contents WTO Dispute Settlement Proceeding: LISTSERV electronic mailing list, go to http:// United States - Anti-Dumping Administrative Reviews listserv.access.gpo.gov and select Online mailing list and Other Measures Related to Imports of Certain archives, FEDREGTOC-L, Join or leave the list (or change Orange Juice from Brazil, 80442–80443 settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Proclamations: 8332...... 80289 Administrative Orders: Presidential Determinations: No. 2009-9 of December 18, 2008 ...... 80293 7 CFR 457...... 80295 14 CFR 39...... 80296 17 CFR Proposed Rules: 200...... 80313 24 CFR 203...... 80297 30 CFR 6...... 80580 7...... 80656 14...... 80580 18...... 80580 48...... 80580 75 (2 documents) ...... 80580, 80656 33 CFR 117 (2 documents) ...... 80298, 80299 155...... 80618 34 CFR Proposed Rules: Ch. VI...... 80314 36 CFR 219...... 80299 40 CFR 52...... 80300 180...... 80301 Proposed Rules: 180...... 80317 42 CFR 405...... 80302 409...... 80302 410...... 80302 411...... 80302 413...... 80302 414...... 80302 415...... 80302 423...... 80302 424...... 80302 485...... 80302 486...... 80302 489...... 80302 47 CFR 73 (2 documents) ...... 80305 Proposed Rules: 73...... 80332 49 CFR Proposed Rules: 240...... 80349 50 CFR 648...... 80306 679...... 80307 Proposed Rules: 660...... 80516
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Federal Register Presidential Documents Vol. 73, No. 251
Wednesday, December 31, 2008
Title 3— Proclamation 8332 of December 29, 2008
The President To Implement The United States-Oman Free Trade Agree- ment
By the President of the United States of America
A Proclamation 1. On January 19, 2006, the United States entered into the United States- Oman Free Trade Agreement (the ‘‘Agreement’’). The Congress approved the Agreement in section 101(a) of the United States-Oman Free Trade Agreement Implementation Act (the ‘‘Implementation Act’’) (Public Law 109– 283, 120 Stat. 1191) (19 U.S.C. 3805 note). 2. Section 105(a) of the Implementation Act authorizes the President to establish or designate within the Department of Commerce an office that shall be responsible for providing administrative assistance to panels estab- lished under chapter 20 of the Agreement. 3. Section 201 of the Implementation Act authorizes the President to proclaim such modifications or continuation of any duty, such continuation of duty- free or excise treatment, or such additional duties, as the President determines to be necessary or appropriate to carry out or apply Articles 2.3, 2.5, 2.6, 3.2.8, and 3.2.9, and the schedule of duty reductions with respect to Oman set forth in Annex 2–B of the Agreement. 4. Consistent with section 201(a)(2) of the Implementation Act, Oman is to be removed from the enumeration of designated beneficiary developing countries eligible for the benefits of the Generalized System of Preferences (GSP) on the date the Agreement entered into force. Further, consistent with section 604 of the Trade Act of 1974, as amended (the ‘‘1974 Act’’) (19 U.S.C. 2483), I have determined that other technical and conforming changes to the Harmonized Tariff Schedule of the United States (HTS) are necessary to reflect that Oman is no longer eligible to receive the benefits of the GSP. 5. Section 202 of the Implementation Act sets forth certain rules for deter- mining whether a good is an originating good for the purpose of implementing preferential tariff treatment provided for under the Agreement. I have decided that it is necessary to include these rules of origin, together with particular rules applicable to certain other goods, in the HTS. 6. Section 204 of the Implementation Act authorizes the President to take certain enforcement actions relating to trade with Oman in textile and apparel goods. 7. Subtitle B of title III of the Implementation Act authorizes the President to take certain actions in response to a request by an interested party for relief from serious damage or actual threat thereof to a domestic industry producing certain textile or apparel articles. 8. Executive Order 11651 of March 3, 1972, as amended, established the Committee for the Implementation of Textile Agreements (CITA), consisting of representatives of the Departments of State, the Treasury, Commerce and Labor, and the Office of the United States Trade Representative, with the representative of the Department of Commerce as Chairman, to supervise the implementation of textile trade agreements. Consistent with section 301 of title 3, United States Code, when carrying out functions vested in the
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President by statute and assigned by the President to CITA, the officials collectively exercising those functions are all to be officers required to be appointed by the President with the advice and consent of the Senate. 9. Section 604 of the 1974 Act, as amended, authorizes the President to embody in the HTS the substance of relevant provisions of that Act, or other Acts affecting import treatment, and of actions taken thereunder, includ- ing the removal, modification, continuance, or imposition of any rate of duty or other import restriction. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, acting under the authority vested in me by the Constitution and the laws of the United States of America, including but not limited to section 604 of the 1974 Act; sections 105(a), 201, 202, and 204, and subtitle B of title III, of the Implementation Act; and section 301 of title 3, United States Code, and having made the determination under section 101(b) of the Implementation Act necessary for the exchange of notes, do hereby proclaim: (1) In order to provide generally for the preferential tariff treatment being accorded under the Agreement, to set forth rules for determining whether goods imported into the customs territory of the United States are eligible for preferential tariff treatment under the Agreement, to provide certain other treatment to originating goods of Oman for the purposes of the Agree- ment, to provide tariff-rate quotas with respect to certain originating goods of Oman, to reflect Oman’s removal from the enumeration of designated beneficiary developing countries for purposes of the GSP, and to make technical and conforming changes in the general notes to the HTS, the HTS is modified as set forth in Annex I of Publication 4050 of the United States International Trade Commission, entitled, Modifications to the Har- monized Tariff Schedule of the United States Implementing the United States-Oman Free Trade Agreement (Publication 4050), which is incorporated by reference into this proclamation. (2) In order to implement the initial stage of duty elimination provided for in the Agreement and to provide for future staged reductions in duties for originating goods of Oman for purposes of the Agreement, the HTS is modified as provided in Annex II of Publication 4050, effective on the dates specified in the relevant sections of such publication and on any subsequent dates set forth for such duty reductions in that publication. (3) The amendments to the HTS made by paragraphs (1) and (2) of this proclamation shall be effective with respect to goods entered, or withdrawn from warehouse for consumption, on or after the relevant dates indicated in Annex II of Publication 4050. (4) The Secretary of Commerce is authorized to exercise my authority under section 105(a) of the Implementation Act to establish or designate an office within the Department of Commerce to carry out the functions set forth in that section. (5) The CITA is authorized to exercise my authority under section 204 of the Implementation Act to exclude textile and apparel goods from the customs territory of the United States; to determine whether an enterprise’s production of, and capability to produce, goods are consistent with statements by the enterprise; to find that an enterprise has knowingly or willfully engaged in circumvention; and to deny preferential tariff treatment to textile and apparel goods. (6) The CITA is authorized to exercise the functions of the President under subtitle B of title III of the Implementation Act to review requests, and to determine whether to commence consideration of such requests; to cause to be published in the Federal Register a notice of commencement of consid- eration of a request and notice seeking public comment thereon; to determine whether imports of an Omani textile or apparel article are causing serious damage, or actual threat thereof, to a domestic industry producing an article
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that is like, or directly competitive with, the imported article; and to provide relief from imports of an article that is the subject of such a determination. (7) All provisions of previous proclamations and Executive Orders that are inconsistent with the actions taken in this proclamation are superseded to the extent of such inconsistency. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of December, in the year of our Lord two thousand eight, and of the Independence of the United States of America the two hundred and thirty-third.
[FR Doc. E8–31234 Filed 12–30–08; 8:45 am] Billing code 3195–W9–P
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Federal Register Presidential Documents Vol. 73, No. 251
Wednesday, December 31, 2008
Title 3— Presidential Determination No. 2009–9 of December 18, 2008
The President Unexpected Urgent Humanitarian Needs Related to the Democratic Republic of Congo, Rwanda, and Uganda
Memorandum for the Secretary of State
By the authority vested in me by the Constitution and the laws of the United States, including sections 2 and 4(a)(1) of the Migration and Refugee Assistance Act of 1962 (the ‘‘Act’’), as amended, (22 U.S.C. 2601 and 2603) and section 301 of title 3, United States Code: (1) I hereby determine, pursuant to section 2(c)(1) of the Act, that it is important to the national interest to furnish assistance under the Act in an amount not to exceed $6 million from the United States Emergency Refugee and Migration Assistance Fund, for the purpose of meeting unex- pected and urgent refugee and migration needs related to humanitarian needs of Congolese refugees and internally displaced, including by con- tributions to international, governmental, and nongovernmental organiza- tions and payment of administrative expenses of the Bureau of Population, Refugees, and Migration of the Department of State; and (2) The functions of the President in relation to this memorandum under section 2(d) of the Act, and of establishing terms and conditions under section 2(c)(1) of the Act, are assigned to you, and you may further assign such functions to your subordinates, consistent with applicable law. You are authorized and directed to publish this memorandum in the Federal Register.
THE WHITE HOUSE, Washington, December 18, 2008
[FR Doc. E8–31237 Filed 12–30–08; 8:45 am] Billing code 4710–10–P
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Rules and Regulations Federal Register Vol. 73, No. 251
Wednesday, December 31, 2008
This section of the FEDERAL REGISTER Coverage Enhancement Option is amount of insurance for each unit by the contains regulatory documents having general incorrect and should read ‘‘total value of MPCI coverage level. applicability and legal effect, most of which the insured crop by unit.’’ The term * * * * * are keyed to and codified in the Code of ‘‘total value of the insured crop by unit’’ Federal Regulations, which is published under has replaced the term ‘‘total value of the 7. If you elect CEO and a MPCI 50 titles pursuant to 44 U.S.C. 1510. insured crop’’ everywhere it appears in indemnity is paid on any unit, CEO will pay a portion of the loss not paid under The Code of Federal Regulations is sold by the Coverage Enhancement Option. This the Superintendent of Documents. Prices of includes in the definition of the term the deductible of the MPCI policy new books are listed in the first FEDERAL ‘‘CEO dollar amount of insurance,’’ depending on the CEO coverage level REGISTER issue of each week. section 7, section 8(b) and paragraphs you select (For example, if you selected (b) and (c) in the example. This change a 50 percent MPCI coverage level, ensures liability and indemnity selected an 85 percent CEO coverage DEPARTMENT OF AGRICULTURE determinations are on the same basis. level, and had 60 percent loss of the Also, in the definition of ‘‘Total value insured crop, the total amount of Federal Crop Insurance Corporation of the insured crop by unit’’ in section indemnity paid under both the MPCI 1, the phrase ‘‘and summing the total for policy and the CEO would be equal to 7 CFR Part 457 all units,’’ should be removed. This approximately 51 percent of the total RIN 0563–AC15 language could give the impression that value of the insured crop by unit). See when multiple units are involved, the the example in section 8. Common Crop Insurance Regulations, value of all units should be added * * * * * Coverage Enhancement Option together. However, section 8 and the Provisions; Corrections example are calculated on a unit basis 8. * * * so that bringing the value of other units AGENCY: Federal Crop Insurance * * * * * Corporation, USDA. into the calculation would result in an (b) Determine the total value of the incorrect indemnity. ACTION: Final rule; corrections. insured crop by unit; Crop Insurance, Coverage Enhancement * * * * * SUMMARY: This document contains Option corrections to the final regulation that Example: was published Monday, July 28, 2008 Correction of Publication * * * * * (73 FR 43607–43611). The regulation ■ Accordingly, the 7 CFR part 457 is (b) $120,000 MPCI dollar amount of pertains to the Coverage Enhancement corrected as follows: insurance, divided by the MPCI Option. coverage level of .50 results in $240,000 PART 457—COMMON CROP DATES: Effective Date: December 31, total value of the insured crop by unit; INSURANCE REGULATIONS 2008. (c) $240,000 total value of the insured FOR FURTHER INFORMATION CONTACT: Bill ■ 1. The authority citation for 7 CFR crop by unit multiplied by the CEO Klein, Risk Management Specialist, part 457 is revised to read as follows: coverage level .85, equals $204,000, and Product Management, Product Authority: 7 U.S.C. 1506(l) and 1506(o). subtracting $120,000 MPCI dollar Administration and Standards Division, amount of insurance equals $84,000 ■ 2. § 457.172 is amended by revising in Risk Management Agency, United States CEO dollar amount of insurance; Department of Agriculture, Beacon section 1 the definitions of ‘‘CEO dollar * * * * * Facility—Mail Stop 0812, PO Box amount of insurance,’’ ‘‘total value of 419205, Kansas City, MO 64141–6205, the insured crop,’’ section 7, section Signed in Washington, DC, on December telephone (816) 926–7730. 8(b), and paragraphs (b) and (c) of the 23, 2008. Example to read as follows: SUPPLEMENTARY INFORMATION: Eldon Gould, Background § 457.172 Coverage Enhancement Option. Manager, Federal Crop Insurance * * * * * Corporation. The final regulation that is the subject 1. Definitions. [FR Doc. E8–31105 Filed 12–30–08; 8:45 am] of these corrections was intended to BILLING CODE 3410–08–P make permanent the Pilot Coverage * * * * * Enhancement Option Provisions to be CEO dollar amount of insurance—The used in conjunction with the Common value of the additional insurance Crop Insurance Policy Basic Provisions coverage for each unit provided by the and selected crop policies for ease of CEO, which is determined by use and consistency of terms. multiplying the CEO coverage level by the total value of the insured crop by Need for Corrections unit and subtracting the MPCI dollar As published, the final regulation amount of insurance. contained an error that may prove to be * * * * * misleading and needs to be clarified. Total value of the insured crop by The term ‘‘total value of the insured unit—The value of the crop that is crop’’ defined in section 1 of the determined by dividing the MPCI dollar
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DEPARTMENT OF TRANSPORTATION • Fax: (202) 493–2251. that are above 80 °C deterioration of FOR FURTHER INFORMATION CONTACT: EGT margin. Federal Aviation Administration Stephen K. Sheely, Aerospace Engineer, Comments Invited Engine Certification Office, FAA, Engine 14 CFR Part 39 and Propeller Directorate, 12 New This AD is a final rule that involves England Executive Park, Burlington, MA requirements affecting flight safety and [Docket No. FAA–2008–1353; Directorate was not preceded by notice and an Identifier 2008–NE–46–AD; Amendment 39– 01803; e-mail: opportunity for public comment; 15779; AD 2009–01–01] [email protected]; telephone however, we invite you to send us any (781) 238–7750; fax (781) 238–7199. RIN 2120–AA64 written relevant data, views, or SUPPLEMENTARY INFORMATION: On arguments regarding this AD. Send your Airworthiness Directives; CFM December 15, 2008, an Airbus A321 comments to an address listed under International, S. A. CFM56–5B Series airplane powered by CFM56–5B1/P ADDRESSES. Include ‘‘AD Docket No. Turbofan Engines turbofan engines experienced HPC stalls FAA–2008–1353; Directorate Identifier in both engines during climb out after AGENCY: Federal Aviation 2008–NE–46–AD’’ in the subject line of takeoff. The flight crew restored power Administration (FAA), DOT. your comments. We specifically invite to both engines by retarding the throttles comments on the overall regulatory, ACTION: Final rule; request for to flight idle. The crew continued the comments. economic, environmental, and energy climb out phase of the flight, declared aspects of the rule that might suggest a SUMMARY: The FAA is adopting a new an emergency, and returned to the need to modify it. airworthiness directive (AD) for CFM airport without incident. This We will post all comments we International, S. A. CFM56–5B series condition, if not corrected, could result receive, without change, to http:// turbofan engines. This AD requires in HPC stalls, which could prevent www.regulations.gov, including any reviewing exhaust gas temperature continued safe flight or landing. personal information you provide. We (EGT) monitoring records to determine FAA’s Determination and Requirements will also post a report summarizing each EGT deterioration margin, and for of This AD substantive verbal contact with FAA airplanes where both engines have personnel concerning this AD. Using the The unsafe condition described greater than 80° centigrade (C) search function of the Web site, anyone previously is likely to exist or develop deterioration of EGT margin, borescope- can find and read the comments in any on other CFM International, S. A. inspecting the high-pressure compressor of our dockets, including, if provided, CFM56–5B series turbofan engines of (HPC) of both engines. This AD also the name of the individual who sent the the same type design. For that reason, requires removing from service any comment (or signed the comment on we are issuing this AD to prevent HPC engine that does not pass the borescope behalf of an association, business, labor stalls, which could prevent continued inspection, and if both engines pass, union, etc.). You may review the DOT’s safe flight or landing. This AD requires removing and replacing one of the complete Privacy Act Statement in the the following: engines with an engine that has 80 °C Federal Register published on April 11, • Reviewing EGT monitoring records or less deterioration of EGT margin. 2000 (65 FR 19477–78). to determine EGT deterioration margin; This AD also requires continuous and Examining the AD Docket monitoring of EGT margin on engines in • For airplanes where both engines You may examine the AD docket on service, to prevent two engines on an ° airplane from having greater than 80 °C have greater than 80 C deterioration of the Internet at http:// EGT margin, doing the following: www.regulations.gov; or in person at the of deterioration of EGT margin. This AD • results from an Airbus A321 airplane Borescope-inspecting HPC stages 1, Docket Operations office between 9 a.m. 3, 6, and 9 of both engines. and 5 p.m., Monday through Friday, powered by CFM56–5B1/P turbofan • engines experiencing HPC stalls during Removing from service any engine except Federal holidays. The AD docket climb out after takeoff. We are issuing that does not pass the borescope contains this AD, the regulatory inspection; and evaluation, any comments received, and this AD to prevent HPC stalls, which • could prevent continued safe flight or If both engines pass the borescope other information. The street address for landing. inspection, then removing one of the the Docket Operations office (telephone engines from service and replacing it (800) 647–5527) is the same as the Mail DATES: This AD becomes effective with an engine that has 80 °C or less address provided in the ADDRESSES December 31, 2008. deterioration of EGT margin. section. Comments will be available in We must receive any comments on the AD docket shortly after receipt. this AD by March 2, 2009. FAA’s Determination of the Effective Date ADDRESSES: Use one of the following Authority for This Rulemaking addresses to comment on this AD: Since an unsafe condition exists that Title 49 of the United States Code • Federal eRulemaking Portal: Go to requires the immediate adoption of this specifies the FAA’s authority to issue http://www.regulations.gov and follow AD, we have found that notice and rules on aviation safety. Subtitle I, the instructions for sending your opportunity for public comment before Section 106, describes the authority of comments electronically. issuing this AD are impracticable, and the FAA Administrator. Subtitle VII, • Mail: U.S. Docket Management that good cause exists for making this Aviation Programs, describes in more Facility, Department of Transportation, amendment effective in less than 30 detail the scope of the Agency’s 1200 New Jersey Avenue, SE., West days. authority. Building, Ground Floor, Room W12– We are issuing this rulemaking under 140, Washington, DC 20590–0001. Interim Actions the authority described in Subtitle VII, • Hand Delivery: Deliver to Mail These actions are interim actions and Part A, Subpart III, Section 44701, address above between 9 a.m. and 5 we anticipate further rulemaking actions ‘‘General requirements.’’ Under that p.m., Monday through Friday, except in the future, including further action to section, Congress charges the FAA with Federal holidays. address the remaining engines in service promoting safe flight of civil aircraft in
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air commerce by prescribing regulations Affected ADs CFM56–5B S/B 72–0722, dated December 22, for practices, methods, and procedures (b) None. 2008, for related information. the Administrator finds necessary for (j) Contact CFM International, S. A., Applicability safety in air commerce. This regulation Technical Publications Department, 1 Neumann Way, Cincinnati, OH 45215; is within the scope of that authority (c) This AD applies to CFM International, S. A. CFM56–5B1, –5B2, –5B4, –5B5, –5B6, telephone (513) 552–2800; fax (513) 552– because it addresses an unsafe condition –5B7, –5B1/P, –5B2/P, –5B3/P, –5B3/P1, 2816, for a copy of this service bulletin. that is likely to exist or develop on –5B4/P, –5B5/P, –5B6/P, –5B7/P, –5B8/P, (k) Contact Airbus, 1 Rond Point Maurice products identified in this rulemaking –5B9/P, –5B1/2P, –5B2/2P, –5B3/2P, –5B3/ Bellonte, 31707 Blagnac Cedex, France, for a action. 2P1, –5B4/2P, –5B6/2P, –5B4/P1, –5B4/2P1, copy of the aircraft maintenance manual. and –5B9/2P turbofan engines. These engines (l) Contact Stephen K. Sheely, Aerospace Regulatory Findings are installed on, but not limited to, Airbus Engineer, Engine Certification Office, FAA, We have determined that this AD will A318, A319, A320, and A321 series Engine and Propeller Directorate, 12 New not have federalism implications under airplanes. England Executive Park, Burlington, MA 01803; e-mail: [email protected]; Unsafe Condition Executive Order 13132. This AD will telephone (781) 238–7750; fax (781) 238– not have a substantial direct effect on (d) This AD results from an Airbus A321 7199, for more information about this AD. the States, on the relationship between airplane powered by CFM56–5B1/P turbofan the national Government and the States, engines experiencing high-pressure Material Incorporated by Reference or on the distribution of power and compressor (HPC) stalls during climb out (m) None. after takeoff. We are issuing this AD to responsibilities among the various Issued in Burlington, Massachusetts, on levels of government. prevent HPC stalls, which could prevent continued safe flight or landing. December 23, 2008. For the reasons discussed above, I Francis A. Favara, Compliance certify that this AD: Manager, Engine and Propeller Directorate, 1. Is not a ‘‘significant regulatory (e) You are responsible for having the Aircraft Certification Service. action’’ under Executive Order 12866; actions required by this AD performed within [FR Doc. E8–31189 Filed 12–30–08; 8:45 am] the compliance times specified unless the 2. Is not a ‘‘significant rule’’ under the actions have already been done. BILLING CODE 4910–13–P DOT Regulatory Policies and Procedures (f) Within 14 days of the effective date of (44 FR 11034, February 26, 1979); and this AD do the following: 3. Will not have a significant (1) Review exhaust gas temperature (EGT) DEPARTMENT OF HOUSING AND economic impact, positive or negative, monitoring records to determine EGT URBAN DEVELOPMENT on a substantial number of small entities deterioration margin. under the criteria of the Regulatory (2) For airplanes where both engines have 24 CFR Part 203 greater than 80° centigrade (C) deterioration Flexibility Act. of EGT margin, do the following: [Docket No. FR–5087–F–05] We prepared a summary of the costs (i) Borescope-inspect HPC stages 1, 3, 6, RIN 2502–AI52 to comply with this AD and placed it in and 9 of both engines. Information on the AD Docket. You may get a copy of borescope inspection of the HPC can be Standards for Mortgagor’s Investment this summary at the address listed found in the aircraft maintenance manual. in Mortgaged Property: Compliance under ADDRESSES. (ii) Remove from service any engine that does not pass the borescope inspection With Court Order Vacating Final Rule List of Subjects in 14 CFR Part 39 requirements found in the aircraft maintenance manual. AGENCY: Office of the Assistant Air transportation, Aircraft, Aviation (iii) If both engines pass the borescope Secretary for Housing-Federal Housing safety, Safety. inspection, then remove one of the engines Commissioner, HUD. Adoption of the Amendment from service and replace it with an engine ACTION: Final rule. that has 80 °C or less deterioration of EGT ■ Under the authority delegated to me margin. SUMMARY: This final rule complies with by the Administrator, the Federal (3) Continue monitoring EGT margin on a court order to vacate HUD’s rule engines in service, to prevent two engines on entitled ‘‘Standards for Mortgagor’s Aviation Administration amends part 39 an airplane from having greater than 80 °C of the Federal Aviation Regulations (14 deterioration of EGT margin. Information on Investment in Mortgaged Property’’ CFR part 39) as follows: monitoring EGT can be found in CFM published on October 1, 2007. International, S. A. Service Bulletin (SB) No. DATES: Effective Date: January 30, 2009. PART 39—AIRWORTHINESS CFM56–5B S/B 72–0722, dated December 22, FOR FURTHER INFORMATION CONTACT: DIRECTIVES 2008. Margaret Burns, Director, Office of ■ 1. The authority citation for part 39 Interim Actions Single Family Program Development, continues to read as follows: (g) These actions are interim actions and Department of Housing and Urban we anticipate further rulemaking actions in Development, 451 Seventh Street, SW., Authority: 49 U.S.C. 106(g), 40113, 44701. the future, including further action to address Washington, DC 20410; telephone the remaining engines in service that are number 202–708–2121 (this is not a toll- § 39.13 [Amended] ° above 80 C deterioration of EGT margin. free number). Persons with hearing or ■ 2. The FAA amends § 39.13 by adding Alternative Methods of Compliance speech impairments may access this the following new airworthiness (AMOCs) number through TTY by calling the toll- directive: (h) The Manager, Engine Certification free Federal Information Relay Service 2009–01–01 CFM International, S. A.: Office, FAA, has the authority to approve at 800–877–8339. Amendment 39–15779. Docket No. AMOCs for this AD, if requested using the SUPPLEMENTARY INFORMATION: Pursuant FAA–2008–1353; Directorate Identifier procedures found in 14 CFR 39.19. to the February 29, 2008, order of the 2008–NE–46–AD. Related Information U.S. District Court for the Eastern Effective Date (i) Refer to MCAI EASA Airworthiness District of California in Nehemiah (a) This airworthiness directive (AD) Directive 2008–0227–E, dated December 23, Corporation of America v. Jackson, et becomes effective December 31, 2008. 2008, and CFM International, S. A. SB No. al., No. S–07–2056 (E.D. Cal.), and the
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March 5, 2008, order of the U.S. District PART 203—SINGLE FAMILY also available for inspection or copying Court for the District of Columbia in MORTGAGE INSURANCE at two locations: The Docket Ameridream Inc., et al., v. Jackson, No. Management Facility (M–30), U.S. 07–1752 (D.D.C.) and Penobscot Indian ■ 1. The authority citation for part 203 Department of Transportation, West Nation, et al., v. HUD, No. 07–1282 continues to read as follows: Building Ground Floor, Room W12–140, (D.D.C.), which vacated the final rule Authority: 12 U.S.C. 1709, 1710, 1715b, 1200 New Jersey Avenue, SE., entitled ‘‘Standards for Mortgagor’s 1715z–16, and 1715u; 42 U.S.C. 3535(d). Washington, DC 20590, between 9 a.m. Investment in Mortgaged Property’’, and 5 p.m., Monday through Friday, § 203.19 [Removed and Reserved] published on October 1, 2007 (72 FR except Federal holidays, and the First 56002), this final rule removes the ■ 2. Section 203.19 is removed and Coast Guard District, Battery Park regulation at 24 CFR 203.19, and reserved. Building, One South Street, New York, reserves § 203.19. Dated: December 19, 2008. NY 10004 between 8:30 a.m. and 4:30 Ronald Y. Spraker, p.m., Monday through Friday except Findings and Certifications Acting General Deputy Assistant Secretary Federal holidays. Justification for Final Rulemaking for Housing—Acting Deputy Federal Housing FOR FURTHER INFORMATION CONTACT: Mr. Commissioner. Gary Kassof, Bridge Branch, (212) 668– In general, HUD publishes a rule for [FR Doc. E8–31060 Filed 12–30–08; 8:45 am] 7165. public comment before issuing a final BILLING CODE 4210–67–P SUPPLEMENTARY INFORMATION: The rule, in accordance with its own Arthur Kill Railroad Bridge (AK RR) has regulations on rulemaking at 24 CFR a vertical clearance of 31 feet at mean part 10. Part 10, however, does provide, DEPARTMENT OF HOMELAND high water and 35 feet at mean low in § 10.1, for exceptions from that SECURITY water in the closed position. The owner general rule where the HUD finds good of the bridge, New York City Economic cause to omit advance notice and public Coast Guard Development Corporation (NYCEDC), participation. The good cause began a bridge rehabilitation program requirement is satisfied when the prior 33 CFR Part 117 approximately 10 years ago, as part of public procedure is ‘‘impracticable, the region’s Full Freight Access unnecessary, or contrary to the public [USCG–2008–0864] Initiative. interest.’’ HUD finds that good cause Drawbridge Operation Regulations; Part of the Full Freight Access exists and prior public procedure is Raritan River, Arthur Kill, and Their Initiative was to restore rail freight unnecessary because HUD has no Tributaries, New Jersey service across the bridge to and from the discretion but to comply with the court Staten Island Landfill facility (SIL) and order to vacate the October 1, 2007, final AGENCY: Coast Guard, DHS. the New York Container Terminal rule entitled, ‘‘Standards for Mortgagor’s ACTION: Notice of temporary deviation (formerly the Howland Hook Terminal). Investment in Mortgaged Property.’’ from regulations; request for comments. The AK Railroad Bridge rehabilitation Public comment in this context would project was completed in 2007 in serve no purpose and is, therefore, SUMMARY: The Commander, First Coast anticipation of renewed rail operations unnecessary. Guard District, has issued a new requiring the passage of train traffic temporary deviation from the regulation across the bridge. Trash trains have been Environmental Review governing the operation of the Arthur traveling to and from the SIL since June Kill (AK) Railroad Bridge across Arthur A Finding of No Significant Impact 2007 and the revitalized New York Kill at mile 11.6 between Staten Island, was not required for the October 1, 2007 Container Terminal has been receiving New York and Elizabeth, New Jersey. final rule. Under 24 CFR 50.19(b)(6), railroad freight traffic for the past year. This deviation is necessary to test a new that rule was categorically excluded The operating rule for this bridge operating rule for the bridge that will from the requirements of the National found at 33 CFR 117.747 is no longer help determine the most equitable and Environmental Policy Act (42 U.S.C. applicable or necessary as it pertains to safe solution to facilitate the present and 4332 et seq.) and that categorical the AK RR because the AK RR had been anticipated needs of navigation and rail exclusion continues to apply. maintained in the open position until traffic. This deviation requires the AK last year due to the cessation of all Catalog of Federal Domestic Assistance Railroad Bridge to remain in the open railroad train traffic over the bridge. position but allows the bridge owner/ The Catalog of Federal Domestic operator to schedule short bridge Background and Purpose Assistance Number for the principal closure periods after first broadcasting Federal Housing Administration (FHA) Beginning with a temporary deviation advance notice to the marine entitled ‘‘Drawbridge Operation single family mortgage insurance community. This change from the program is 14.117. This rule also applies Regulations; Raritan River, Arthur Kill, previous deviation will consider the and Their Tributaries, NJ’’ published on through cross-referencing to FHA needs of navigation and allow marine mortgage insurance for condominium March 20, 2007 in the Federal Register interests to adjust their schedules (72 FR 12981), the Coast Guard units (14.133), and other smaller single around the bridge closure periods. family programs. published a series of three temporary DATES: This deviation is effective from deviations to test a variety of bridge List of Subjects in 24 CFR Part 203 12:01 a.m. on December 15, 2008 operation schedules culminating in the through June 12, 2009. Comments must most recent test deviation published on Loan programs—housing and be received by January 31, 2009. June 3, 2008 (73 FR 31610). The community development, Mortgage ADDRESSES: Documents indicated in this proposed and final temporary deviation insurance, Reporting and recordkeeping preamble as being available in the will confirm the lessons learned from requirements. docket are part of docket USCG–2008– the previous tests, namely that shorter ■ Accordingly, the Department amends 0864 and are available online at bridge closure periods complemented 24 CFR part 203, as follows: http://www.regulations.gov. They are by close coordination between the
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bridge operator and marine interests, sound signal given. In the event of District, Federal Building, 1st Floor, 431 and advance broadcast notice of bridge operational failure, the bridge Crawford Street, Portsmouth, VA intended bridge closures should satisfy owner or operator shall notify the Coast 23704–5004 between 8 a.m. and 4 p.m., the reasonable needs of navigation and Guard Captain of the Port, New York Monday through Friday, except Federal allow freight rail operations to develop immediately and shall ensure that a holidays. and grow. repair crew is on scene at the bridge no FOR FURTHER INFORMATION CONTACT: Mr. Temporary Deviation To Be Established later than 45 minutes after the bridge Bill H. Brazier, Bridge Management fails to operate and that repair crew Specialist, Fifth Coast Guard District, at The schedule considered in this shall remain at the bridge until the (757) 398–6422. notice would provide daily, bridge has been restored to normal SUPPLEMENTARY INFORMATION: The unscheduled, bridge closures up to operations or raised and locked in the thirty minutes in duration. Maryland State Highway fully open position. Administration, who owns and operates This temporary deviation requires the This deviation from the operating AK RR to remain in the open position this double-leaf bascule drawbridge, has regulations is authorized under 33 CFR requested a temporary deviation from at all times except during periods when 117.35. it is closed for the passage of rail traffic. the current operating regulations set out Conrail, the bridge operator, has Dated: December 10, 2008. in 33 CFR 117.5 that requires the bridge established a dedicated hot line at 973– Gary Kassof, to open promptly and fully for the 690–2454 for coordination of Bridge Program Manager, First Coast Guard passage of vessels when a request to anticipated bridge closures. Tide District. open is given to facilitate electrical restrained, deep draft vessels shall call [FR Doc. E8–31070 Filed 12–30–08; 8:45 am] repairs. the hot line daily to advise of expected BILLING CODE 4910–15–P The Pennington Avenue Bridge, a times of vessel transit through the double-leaf bascule, has a vertical AKRR. The bridge may not close for the clearance in the closed position to passage of trains during any high tide DEPARTMENT OF HOMELAND vessels of 38 feet, above mean high period (2 hours before until 1⁄2 hour SECURITY water. after predicted high tide at The Battery, To facilitate installation of submarine Coast Guard New York) if deep draft, tide restrained cables and electrical repairs, the vessels have advised Conrail of their drawbridge will be maintained in the 33 CFR Part 117 intent to transit under the bridge. At closed-to-navigation position from 6 least 90 minutes and again at 75 [USCG–2008–1187] a.m. on January 21, 2009, until and including 11:59 p.m. on January 27, minutes prior to a bridge closure the RIN 1625–AA09 bridge owner or operator shall issue a 2009. The Coast Guard will inform the users manual broadcast notice to mariners Drawbridge Operation Regulations; of the waterway through our Local and (minimum range of 15 miles) on Curtis Creek in Baltimore, MD, Broadcast Notices to Mariners of the channel 13/16, VHF–FM of its intent to Maintenance close the bridge for up to thirty minutes. opening restrictions of the draw span to Beginning at 60 minutes prior to closure AGENCY: Coast Guard, DHS. minimize transiting delays caused by automated broadcasts must be repeated ACTION: Notice of temporary deviation the temporary deviation. at 15 minute intervals and at 10 and 5 from regulations. In accordance with 33 CFR 117.35(e), minutes prior to closure. The Coast the drawbridge must return to its regular Guard shall be informed via call to SUMMARY: The Commander, Fifth Coast operating schedule immediately at the VTS–NY at 718–354–4088. Each day Guard District, has approved a end of the designated time period. This two bridge closures, each fifteen temporary deviation from the deviation from the operating regulations minutes in duration, separated by a regulations governing the operation of is authorized under 33 CFR 117.35. the Pennington Avenue Bridge, at mile thirty minute bridge open period are Dated: December 15, 2008. authorized to allow multiple train 0.9, across Curtis Creek in Baltimore, MD. Under this temporary deviation, Waverly W. Gregory, Jr., movements across the bridge over a Chief, Bridge Administration, Branch Fifth short time interval. Vessels shall plan the drawbridge may remain in the closed position on specific dates and Coast Guard District. their transits around the announced [FR Doc. E8–31073 Filed 12–30–08; 8:45 am] closure period(s); however a request for times to facilitate electrical repairs. BILLING CODE 4910–15–P up to a 30 minute delay in the bridge DATES: This deviation is effective from closure to allow navigation to meet tide 6 a.m. on January 21, 2009, to 11:59 or current requirements shall be granted p.m. on January 27, 2009. DEPARTMENT OF AGRICULTURE if requested within 30 minutes after the ADDRESSES: Documents indicated in this initial broadcast. Requests received after preamble as being available in the Forest Service the initial 30 minutes will not be docket are part of docket USCG–2008– granted; therefore marine interests 1187 and are available online at 36 CFR Part 219 should plan their transits carefully. The http://www.regulations.gov. They are bridge owner/operator shall repeat the also available for inspection or copying RIN 0596–AB86 manual bridge closure notice via marine at two locations: The Docket radio at 75 minutes prior to the Management Facility (M–30), U.S. National Forest System Land scheduled closure then via manual or Department of Transportation, West Management Planning; Correction automated broadcast at 15 minute Building Ground Floor, Room W12–140, AGENCY: Forest Service, USDA. intervals until 15 minutes prior to the 1200 New Jersey Avenue, SE., ACTION: Correcting amendment. intended closure at which time notice of Washington, DC 20590, between 9 a.m. bridge closure will be broadcast every and 5 p.m., Monday through Friday, SUMMARY: This document makes five minutes and once again as the except Federal holidays, and the technical corrections Forest Service bridge begins to close and appropriate Commander (dpb), Fifth Coast Guard regulations concerning the
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administrative review procedures that notices for the procedures formerly optional appeal procedures available the responsible official may use in some codified at 36 CFR part 217. during the planning rule transition cases when approving plans, plan The Department identifies these period. The optional appeal procedures amendments, or plan revisions during procedures as the ‘‘optional appeal available during the planning rule the transition period for the rule. A final procedures available during the transition period are published at 54 FR rule was published in volume 73 of the planning rule transition period.’’ This 3357 (January 23, 1989), as amended at Federal Register, page 21468, April 21, format eliminates references to the 54 FR 13807 (April 5, 1989); 54 FR 2008. This document makes corrections previous coding of the administrative 34509 (August 21, 1989); 55 FR 7895 to the April 21 rule. appeal and review procedures in the (March 6, 1990); 56 FR 4918 (February DATES: Effective Date: These corrections CFR to avoid confusion as to the proper 6, 1991); 56 FR 46550 (September 13, are effective December 31, 2008. status of those procedures. The 1991); and 58 FR 58915 (November 4, ‘‘optional appeal procedures available ADDRESSES: Written inquiries about this 1993). Plan amendments initiated after during the planning rule transition correction notice may be sent to the the transition period must conform to period,’’ are 54 FR 3357 (January 23, Director, Ecosystem Management the requirements of this subpart. 1989), as amended at 54 FR 13807 Coordination Staff, USDA Forest (3) * * * (April 5, 1989); 54 FR 34509 (August 21, Service, 1400 Independence Ave., SW., (iii) Except when a plan amendment 1989); 55 FR 7895 (March 6, 1990); 56 Mailstop Code 1104, Washington, DC is approved contemporaneously with a FR 4918 (February 6, 1991); 56 FR 20250–1104. project or activity and applies only to 46550 (September 13, 1991); and 58 FR that project or activity (in a way that 36 FOR FURTHER INFORMATION CONTACT: 58915 (November 4, 1993). The CFR part 215 or part 218, subpart A Ecosystem Management Coordination ‘‘optional appeal procedures available apply), the responsible official may elect Staff’s Planning Specialist Regis Terney during the planning rule transition to use either the objection procedures of at (202) 205–1552. period,’’ are available at http:// this subpart or the optional appeal SUPPLEMENTARY INFORMATION: www.fs.fed.us/emc/applit/includes/Plan procedures available during the Background AppealProceduresDuringTransition.pdf. planning rule transition period. The List of Subjects in 36 CFR Part 219 optional appeal procedures available In volume 73 of the Federal Register, during the planning rule transition page 21468, April 21, 2008 (73 FR Administrative practice and period are published at 54 FR 3357 21468) the United States Department of procedure, Environmental impact (January 23, 1989), as amended at 54 FR Agriculture (Department) published a statements, Indians, Intergovernmental 13807 (April 5, 1989); 54 FR 34509 final rule setting forth directions for relations, National forests, Reporting (August 21, 1989); 55 FR 7895 (March developing, amending, revising, and and recordkeeping requirements, 6, 1990); 56 FR 4918 (February 6, 1991); monitoring land management plans (the Science and technology. 56 FR 46550 (September 13, 1991); and planning rule). On May 27, 2008, the ■ Accordingly, 36 CFR part 219 is 58 FR 58915 (November 4, 1993). Office of the Federal Register informed corrected by making the following * * * * * the Department that citing ‘‘36 CFR correcting amendments: 217’’ in the Code of Federal Regulations Dated: December 24, 2008. (CFR) was not appropriate because ‘‘36 PART 219—PLANNING Hank Kashdan, CFR 217’’ no longer exists. Currently, ■ 1. The authority citation for subpart A Deputy Chief, Business Operations. part 219 refers several times to the continues to read as follows: [FR Doc. E8–31165 Filed 12–30–08; 8:45 am] administrative review procedures ‘‘at 36 BILLING CODE 3410–11–P CFR part 217 in effect prior to Authority: 5 U.S.C. 301; 16 U.S.C. 1604, November 9, 2000 (see 36 CFR parts 200 1613. to 299, revised as of July 1, 2000).’’ Subpart A—National Forest System ENVIRONMENTAL PROTECTION Need for Correction Land Management Planning AGENCY These Code of Federal Regulations ■ 2. In § 219.14 revise paragraphs (b)(2) 40 CFR Part 52 references must be removed because (1) and (b)(3)(iii) to read as follows: they refer to an outdated edition of the [FRL–8759–5] CFR, (2) part 217 has not been codified § 219.14 Effective dates and transition. Clean Air Act Prevention of Significant in the CFR since 2000, and (3) the * * * * * reference is confusing to people who (b) * * * Deterioration (PSD) Construction will not find part 217 in the CFR. (2) Plan Amendments. With respect to Permit Program; Interpretation of Therefore the Department is issuing a plans approved or revised pursuant to Regulations That Determine Pollutants technical correction to section the planning regulation in effect before Covered by the Federal PSD Permit 219.14(b)(2) and section 219.14(b)(3)(iii) November 9, 2000, (see 36 CFR parts Program of the planning rule. 200 to 299, Revised as of July 1, 2000), AGENCY: Environmental Protection The planning rule’s transition a 3-year transition period for plan Agency (EPA). provisions, at 36 CFR 219.14(b), allow a amendments begins on April 21, 2008. ACTION: Notice of issuance of the responsible official to provide either During the transition period, plan Administrator’s interpretation. objection procedures, as provided by amendments may continue using the section 219.13 of the planning rule, or provisions of the planning regulation in SUMMARY: On December 18, 2008, the the administrative appeal procedures effect before November 9, 2000, or may Administrator issued an interpretive formerly codified under 36 CFR part 217 conform to the requirements of this memorandum entitled ‘‘EPA’s for administrative review of land subpart. If the responsible official uses Interpretation of Regulations That management plans or plan amendments the provisions of the prior planning Determine Pollutants Covered by in some situations. In the place of ‘‘36 regulations, the responsible official may Federal Prevention of Significant CFR part 217’’ in the corrected rule, the elect to use either the objection Deterioration (PSD) Permit Program.’’ Department cites the Federal Register procedures of this subpart or the This memorandum clarifies the scope of
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the EPA regulation that determines the rules and regulations under Executive disclosure is restricted by statute. pollutants subject to the Federal PSD Order 12866. Certain other material, such as program under the Clean Air Act (Act). In addition, this is not a rule as copyrighted material, is not placed on Under Title I, Part C of the Act, the PSD defined by the Regulatory Flexibility the Internet and will be publicly program preconstruction permit Act, 5 U.S.C. section (601)(2). Therefore, available only in hard copy form. requirement applies to any new major EPA has not prepared a regulatory Publicly available docket materials are stationary source or modified existing flexibility analysis addressing the available in the electronic docket at major stationary source of regulated air impact of this action on small business http://www.regulations.gov, or, if only pollutants located in an area that is activities. available in hard copy, at the OPP either attaining the National Ambient Regulatory Public Docket in Rm. S– Judicial Review Air Quality Standards (NAAQS) or 4400, One Potomac Yard (South Bldg.), unclassifiable. Under the Federal PSD Because we have designated this 2777 S. Crystal Dr., Arlington, VA. The permitting regulations, only new or interpretation as nationally significant Docket Facility is open from 8:30 a.m. modified major sources that emit one or under section 307(b) of the Act, to 4 p.m., Monday through Friday, more ‘‘regulated NSR pollutants,’’ as challenges must be brought to the excluding legal holidays. The Docket that term is defined in the regulations, United States Court of Appeals for the Facility telephone number is (703) 305– are subject to the requirements of the District of Columbia Circuit by March 2, 5805. PSD program, including the requirement 2009. FOR FURTHER INFORMATION CONTACT: Jane to install the best available control Dated: December 23, 2008. Smith, Special Review and technology (BACT) for those regulated Robert J. Meyers, Reregistration Division (7508P), Office NSR pollutants that the facility has the Principal Deputy Assistant Administrator. of Pesticide Programs, Environmental potential to emit in significant amounts. [FR Doc. E8–31114 Filed 12–30–08; 8:45 am] Protection Agency, 1200 Pennsylvania This memorandum contains EPA’s Ave., NW., Washington, DC 20460– BILLING CODE 6560–50–P definitive interpretation of ‘‘regulated 0001; telephone number: (703) 308– NSR pollutant’’ and is intended to 0048; e-mail address: smith.jane- resolve any ambiguity in the definition, ENVIRONMENTAL PROTECTION [email protected]. which includes ‘‘any pollutant that AGENCY SUPPLEMENTARY INFORMATION: otherwise is subject to regulation under the Act.’’ As of the date of the 40 CFR Part 180 I. General Information memorandum, EPA interprets this A. Does this Action Apply to Me? definition of ‘‘regulated NSR pollutant’’ [EPA–HQ–OPP–2007–0674; FRL–8393–9] to exclude pollutants for which EPA The Agency included in the final rule 2, 4-D, Bensulide, Chlorpyrifos, DCPA, a list of those who may be potentially regulations only require monitoring or Desmedipham, Dimethoate, reporting but include all pollutants affected by this action. If you have Fenamiphos, Metolachlor, Phorate, questions regarding the applicability of subject to a provision in the Act or Sethoxydim, Terbufos, regulation adopted by EPA under the this action to a particular entity, consult Tetrachlorvinphos, and Triallate; the person listed under FOR FURTHER Act that requires actual control of Technical Amendment emissions of that pollutant. INFORMATION CONTACT. FOR FURTHER INFORMATION CONTACT: AGENCY: Environmental Protection B. How Can I Access Electronic Copies Mike Sewell, Office of Air Quality Agency (EPA). of this Document and Other Related Planning and Standards, Air Quality ACTION: Final rule; technical Information? Policy Division (C 504–03), amendment. In addition to accessing electronically Environmental Protection Agency, 109 SUMMARY: available documents at http:// TW Alexander Drive, Research Triangle EPA issued a final rule in the Federal Register of September 17, 2008, www.regulations.gov, you may access Park, NC 27709; telephone number: this Federal Register document (919) 541–0873; fax number: (919) 541– concerning the modification of certain tolerances for a number of pesticides electronically through the EPA Internet 5509; e-mail address: under the ‘‘Federal Register’’ listings at [email protected]. including the herbicides DCPA and sethoxydim as a follow-up to the http://www.epa.gov/fedrgstr. SUPPLEMENTARY INFORMATION: Agency’s reregistration program under II. What Does this Amendment Do? the Federal Insecticide, Fungicide, and I. General Information FR Doc. E8–21589 published in the Rodenticide Act (FIFRA) and tolerance Federal Register of September 17, 2008 A. How Can I Get Copies of This reassessment program under the Federal (73 FR 53732) (FRL–8375–2), is Document and Other Related Food, Drug, and Cosmetic Act (FFDCA). Information? corrected as follows: This document corrects clerical errors 1. On page 53737, under § 180.185(a), 1. Electronic Access. You may access made in the final rule. in the table, the tolerance for ‘‘vegetable, this Federal Register document DATES: This final rule is effective brassica, leafy, group 5’’ is corrected to electronically through the EPA Internet December 31, 2008. read 5.0 ppm. (EPA proposed a 5.0 ppm under the ‘‘Federal Register’’ listings at ADDRESSES: EPA has established a tolerance on February 6, 2008 (73 FR http://www.epa.gov/fedrgstr/. You may docket for this action under docket 6867) (FRL–8345–2), and received no access the memorandum at http:// identification (ID) number EPA–HQ– comments on that proposed tolerance, www.epa.gov/nsr. OPP–2007–0674. All documents in the but through typographical error the docket are listed in the docket index tolerance was listed at 0.05 ppm in the Statutory and Executive Orders available in http://www.regulations.gov. final rule. This technical amendment This action is not a rule as defined by Although listed in the index, some corrects that error.) Executive Order 12866. Therefore, it is information is not publicly available, 2. On page 53742, under § 180.412(a), exempt from review by the Office of e.g., Confidential Business Information the table is corrected to include the Management and Budget as required for (CBI) or other information whose following tolerances which were
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inadvertently omitted: Crambe, meal at the Congress and to the Comptroller Parts per 40.0 ppm; crambe, seed at 35.0 ppm; General of the United States. EPA will Commodity million cuphea, seed at 35.0 ppm; echium, seed submit a report containing this rule and at 35.0 ppm; gold of pleasure, meal at other required information to the U.S. ***** 40.0 ppm; gold of pleasure, seed at 35.0 Senate, the U.S. House of Lesquerella, seed ...... 35.0 ppm; hare’s ear mustard, seed at 35.0 ***** Representatives, and the Comptroller Lunaria, seed ...... 35.0 ppm; lesquerella, seed at 35.0 ppm; General of the United States prior to Meadowfoam, seed ...... 35.0 lunaria, seed at 35.0 ppm; meadowfoam, publication of this final rule in the ***** seed at 35.0 ppm; milkweed, seed at Federal Register. This final rule is not Milkweed, seed ...... 35.0 35.0 ppm; mustard, seed at 35.0 ppm; a ‘‘major rule’’ as defined by 5 U.S.C. Mustard, seed ...... 35.0 oil radish, seed at 35.0 ppm; poppy, 804(2). ***** seed at 35.0 ppm; sesame, seed at 35.0 Oil radish, seed ...... 35.0 ppm; and sweet rocket, seed at 35.0 List of Subjects in 40 CFR Part 180 ***** ppm. (These oil seed commodity Poppy, seed ...... 35.0 Environmental protection, ***** tolerances for sethoxydim were Administrative practice and procedure, published in the Federal Register of Sesame, seed ...... 35.0 Agricultural commodities, Pesticides ***** July 9, 2008 (73 FR 39256) (FRL–8370– and pests, Reporting and recordkeeping Sweet rocket, seed ...... 35.0 9). When EPA published the September requirements. ***** 17, 2008 (73 FR 53732), final rule pertaining to sethoxydim tolerances for Dated: December 22, 2008. * * * * * other commodities, the amendatory Debra Edwards, [FR Doc. E8–31010 Filed 12–30–08; 8:45 am] language in the final rule mistakenly Director, Office of Pesticide Programs. omitted the tolerances finalized on July BILLING CODE 6560–50–S ■ 9, 2008, rather than adding to them, as Therefore, 40 CFR part 180 is had been intended. EPA has not amended as follows: proposed revoking these tolerances. PART 180—[AMENDED] DEPARTMENT OF HEALTH AND This technical amendment corrects that HUMAN SERVICES error). ■ 1. The authority citation for part 180 continues to read as follows: Centers for Medicare & Medicaid III. Why is this Amendment Issued as Services a Final Rule? Authority: 21 U.S.C. 321(q), 346a and 371. ■ Section 553 of the Administrative 2. Section 180.185 is amended by 42 CFR Parts 405, 409, 410, 411, 413, Procedure Act (APA), 5 U.S.C. revising the entry for ‘‘Vegetable, 414, 415, 423, 424, 485, 486, and 489 553(b)(B), provides that, when an brassica, leafy, group 5’’ in the table in Agency for good cause finds that notice paragraph (a) to read as follows: [CMS–1403–CN2] and public procedure are impracticable, § 180.185 DCPA; tolerances for residues. unnecessary or contrary to the public RIN 0938–AP18 (a) General. *** interest, the Agency may issue a final Medicare Program; Payment Policies rule without providing notice and an Commodity Parts per Under the Physician Fee Schedule and opportunity for public comment. EPA million Other Revisions to Part B for CY 2009; has determined that there is good cause E-Prescribing Exemption for Computer for making today’s technical ***** Vegetable, brassica, leafy, Generated Facsimile Transmissions; amendment final without prior proposal Corrections and opportunity for comment, because group 5 ...... 5.0 ***** the erroneous changes being corrected AGENCY: Centers for Medicare & were the result of clerical error, and Medicaid Services (CMS), HHS. * * * * * were neither proposed nor commented ■ 3. Section 180.412 is amended by ACTION: Correction of final rule with upon. Notice and comment is therefore alphabetically adding the following comment period. unnecessary. commodities to the table in paragraph SUMMARY: This document corrects IV. Do Any of the Statutory and (a) to read as follows: several technical and typographical Executive Order Reviews Apply to this errors in the final rule with comment Action? § 180.412 Sethoxydim; tolerances for residues. period that appeared in the November No. This action only corrects (a) General. *** 19, 2008 Federal Register entitled typographical omissions and errors for a ‘‘Medicare Program; Payment Policies previously published final rule and does Under the Physician Fee Schedule and Commodity Parts per not impose any new requirements. million Other Revisions to Part B for CY 2009; EPA’s compliance with the statues and E-Prescribing Exemption for Computer- Executive Orders for the underlying rule ***** Generated Facsimile Transmissions; and Crambe, meal ...... 40.0 is discussed in Unit VI. of the final rule Payment for Certain Durable Medical published September 17, 2008 (73 FR Crambe, seed ...... 35.0 ***** Equipment, Prosthetics, Orthotics, and 53732). Cuphea, seed ...... 35.0 Supplies (DMEPOS); Final Rule’’ (73 FR V. Congressional Review Act ***** 69726). Echium, seed ...... 35.0 DATES: The Congressional Review Act, 5 Effective Date: This correction ***** notice is effective January 1, 2009. U.S.C. 801 et seq., generally provides Gold of pleasure, meal ...... 40.0 that before a rule may take effect, the Gold of pleasure, seed ...... 35.0 FOR FURTHER INFORMATION CONTACT: Agency promulgating the rule must ***** Diane Milstead, (410) 786–3355. submit a rule report to each House of Hare’s ear mustard, seed ...... 35.0 SUPPLEMENTARY INFORMATION:
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I. Background corrected. In addition the global periods phrase ‘‘beneficiaries who’s OSA’’ is In FR Doc. E8–26213 of November 19, for the CPT codes 47525, 63650, 63685, corrected to read ‘‘beneficiaries whose 2008 (73 FR 69726) (hereinafter referred 63688, and 93352 are corrected. OSA’’. to as the CY 2009 PFS final rule with On pages 70147, 70148, 70149 and 7. On page 69857, in the 1st column, comment period), there were a number 70151 of Addendum C, Codes with in the 2nd full paragraph, lines 7 of technical and typographical errors Interim RVUs, the PE RVUS listed for through 11, the sentence ‘‘In addition, that are identified and corrected in the CPT code 26097 are corrected and the we are adding a new paragraph (g), Correction of Errors section of this global period for CPT codes 47525, which would create an exception to the notice. The provisions of this notice are 63650, 63685, 63688, and 93352 are prohibition contained in (f) if the sleep effective as if they had been included in corrected. test is an attended facility-based PSG.’’ On page 70215, Addendum J, we are the CY 2009 PFS final rule with is deleted. deleting HCPCS code G0394 and its 8. On page 69866, in the 3rd column: comment period. Accordingly, the short descriptor. a. In the 1st partial paragraph, line 12, corrections are effective January 1, 2009. On page 70226, Addendum J, we are the footnote annotation ‘‘2’’ is corrected II. Summary of Errors deleting CPT 78414 and its short to read ‘‘2A’’. descriptor. b. In the footnotes, the following A. Errors in the Preamble footnote is added in numerical order III. Correction of Errors On pages 69738 and 69739, we are ‘‘2A Dartmouth Atlas of Healthcare. 2005 correcting a typographical error in the A. Corrections to the Preamble Medicare reimbursement figures derived discussion concerning submission of 1. On page 69738: from Hospital Service Area (HSA).’’ information for supply and equipment a. In the 1st column, in the 1st partial 9. On page 69867, in the 2nd column, items. In addition, in Table 2, we are paragraph, line 2, the phrase ‘‘items for in the 3rd full paragraph, lines 15 and correcting the reference to a code some each of the’’ is corrected to read 16, the phrase ‘‘high cost, of a high number that appears in that table, as ‘‘items for some of the’’. volume,’’ is corrected to read ‘‘high cost, well as typographical errors that appear b. In Table 2, Supply Items Needing high volume,’’. in the footnotes for Tables 2 and 3. We Specialty Input for Pricing, in column 6, 10. On page 69868: are also correcting the reference to two lines 1 and 2, the CPT code ‘‘50395’’ is a. In the 2nd column, in the 1st partial code numbers that appear in Table 5. corrected to read ‘‘50593’’. paragraph, line 16, the phrase On pages 69764, 69765, 69801, 69856, c. In the footnote to Table 2, line 5, ‘‘approach to data for Phase 1,’’ is 69867, 69868, and 69869, we are the phrase ‘‘In these instances only’’ is corrected to read ‘‘approach used for correcting typographical errors. corrected to read ‘‘In instances where Phase 1,’’. On page 69857, we are deleting a only’’. b. In the 2nd column, in the 1st full sentence which refers incorrectly to a 2. On page 69739: paragraph, line 6, the phrase ‘‘high cost, revision to the regulation. a. In the footnote to Table 3, line 5, a high volume,’’ is corrected to read On page 69866, we are adding a the phrase ‘‘In these instances only’’ is ‘‘high cost, high volume,’’. footnote that was referenced but corrected to read ‘‘In instances where c. In the 3rd column, in the 1st inadvertently not included. only’’. paragraph, lines 22 through 23, the On page 69899, we are adding CPT b. In the footnote to Table 3, line 15 phrase ‘‘data was available’’ is corrected 78414 to our summary of deleted codes. (item B.), the phrase ‘‘ No/insufficient to read ‘‘data were not available’’. This code does not involve imaging and, received.’’ is corrected to read ‘‘No/ 11. On page 69869, in the 1st column: therefore, should not be included in the Insufficient information received.’’ a. In the 1st partial paragraph, lines 7 category of ‘‘Radiology and Certain c. In Table 5, in the 5th column, line through 8, the phrase ‘‘In addition, to Other Imaging Services.’’ 2, the CPT codes ‘‘93693 and 93696’’ are including’’ is corrected to read ‘‘In On page 69900, Table 30, we are corrected to read ‘‘93293 and 93296’’. addition to including’’. adding two codes to the list of deletions. 3. On page 69764, in the 3rd column, b. In the 2nd full paragraph, line 3, Under the heading of ‘‘Clinical 1st full paragraph: the phrase ‘‘ of the program as’’ is Laboratory Services,’’ we are adding a. Lines 1 and 2, the sentence ‘‘We corrected to read ‘‘of the program, as’’. HCPCS code G0394 and its short disagree with the commenter.’’ is 12. On page 69899, in the 3rd column, descriptor because this code will be removed. in the 3rd paragraph, lines 5 and 6, the terminated December 31, 2008. Under b. Line 5, the phrase ‘‘imaging phrase ‘‘CPT codes 78000, 78001, and the heading of ‘‘Radiology and Certain services’’ is corrected to read ‘‘testing 78003’’ is corrected to read ‘‘CPT codes Other Imaging Services,’’ we are adding services.’’ 78000, 78001, 78003, and 78414’’. in numerical order CPT code 78414 and 4. On page 69765, in the 1st column: 13. On page 69900, in the 1st column, its short descriptor. a. In the 1st paragraph, line 2, the Table 30: Deletions to the Physician phrase ‘‘commenters’ concerns and we’’ Self-Referral List of CPT1/HCPCS Codes: B. Errors in the Regulations Text is corrected to read ‘‘commenters’ a. Under the heading of ‘‘Clinical The regulations text contained minor concerns, but we.’’ Laboratory Services,’’ HCPCS code typographical and technical errors; b. In the 5th paragraph, the phrase G0394 and its short descriptor are added therefore, we are not summarizing the ‘‘commenters’ concerns and we’’ is as the last entry to read as follows: individual errors in this section. corrected to read ‘‘commenters’ concerns, but we.’’ CLINICAL LABORATORY SERVICES C. Errors in the Addenda 5. On page 69801, in the 1st column, On pages 69956, 70007, 70024, 70051, in the 2nd full paragraph, line 40, the G0394 ...... Blood occult test, colorectal. 70088, and 70122 of Addendum B, phrase ‘‘PC be an employee or Relative Value Units and Related independent’’ is corrected to read ‘‘PC b. Under the heading of ‘‘Radiology Information Used in Determining be an owner, employee, or and Certain Other Imaging Services,’’ Medicare Payments for 2009, the PE independent’’. CPT code 78414 and its short descriptor RVUs listed for CPT codes 20697, 6. On page 69856, in the 2nd column, are added in numerical order to read as 37205, 37206, 47525 and 76775–26 are in the 1st partial paragraph, line 8, the follows:
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RADIOLOGY AND CERTAIN OTHER ‘‘subparagraphs (p)(2)(i) through (vi) of d. Paragraph (e)(1)(i)(A)(1) is IMAGING SERVICES this section’’. redesignated to (e)(5)(i)(A). 3. On page 69936, in § 414.210, in e. Paragraph (e)(1)(i)(A)(2) is 78414 ...... Non-imaging heart function. amendatory instruction #26, the redesignated to (e)(5)(i)(B). statement ‘‘E. Adding paragraph f. Paragraph (e)(1)(i)(B) is redesignated B. Corrections to the Regulation Text (e)(3)(iv).’’ is added in alphabetical to (e)(5)(ii). order. g. Paragraph (e)(1)(i)(B)(1) is 1. On page 69933, in § 410.33: 4. On page 69937, in § 414.904, redesignated to (e)(5)(ii)(A). a. In paragraph (g)(16), the phrase amendatory instruction #31 is revised to h. Paragraph (e)(1)(i)(B)(2) is ‘‘imaging services’’ is corrected to read read redesignated to (e)(5)(ii)(B). ‘‘testing services’’. ‘‘Section 414.904 is amended by— 6. On page 69940, in § 424.516, in a. Revising paragraphs (b)(2), (c)(2), paragraph (e)(1), the phrase ‘‘ownership, b. In paragraph (g)(17), the phrase and (d)(3). including’’ is corrected to read ‘‘part of a hospital service provided b. Adding paragraph (e)(5). ‘‘ownership or control, including’’. under arrangement with that hospital’’ The revisions and addition read as is corrected to read ‘‘part of a service follows:’’. C. Corrections to the Addenda provided under arrangement as 5. On page 69938, in § 414.904: 1. On pages 69956, 70007, 70024, described in section 1861(w)(1) of the a. In paragraph (e), the text ‘‘(1) 70051, 70088, and 70122, Addendum B: Act’’. * * *’’ is removed. Relative Value Units and Related 2. On page 69934, in § 411.15, in b. Paragraph (e)(1)(i) is redesignated Information Used in Determining paragraph (p)(2)(xii), the phrase to (e)(5). Medicare Payments for 2009, the ‘‘paragraphs (k)(15)(i) thorugh (vi) of c. Paragraph (e)(1)(i)(A) is following CPT codes are corrected to this section’’ is corrected to read redesignated to (e)(5)(i). read as follows:
Fully Year Year 2009 Fully 2009 imple- imple- Physi- mented transi- transi- Mal- 1 mented CPT / cian non- tional tional practice Global HCPCS Mod Status Description work non- facility facility facility RVUs 2 2 PE RVUs PE facility PE PE RVUs 2 RVUs 2 RVUs 2 RVUs 2
20697 ...... A Comp ext fixate strut change .. 0.00 33.08 33.08 NA NA 0.01 000 37205 ...... A Transcath iv stent, percut ...... 8.27 105.15 105.15 3.35 3.46 0.60 000 37206 ...... A Transcath iv stent/perc addl .... 4.12 64.26 64.26 1.62 1.58 0.31 ZZZ 47525 ...... A Change bile duct catheter ...... 1.54 10.90 11.98 0.86 1.35 0.33 000 63650 ...... A Implant neuroelectrodes...... 7.15 NA NA 2.71 2.83 0.53 010 63685 ...... A Insrt/redo spine n generator .... 6.00 NA NA 2.90 3.22 1.05 010 63688 ...... A Revise/remove neuroreceiver.. 5.25 NA NA 2.88 3.05 0.89 010 76775 .. 26 A Us exam abdo back wall, lim .. 0.58 0.23 0.23 0.23 0.23 0.03 XXX 93352 ...... A Admin ecg contrast agent ...... 0.19 0.84 0.84 NA NA 0.04 ZZZ
2. On pages 70147, 70148, 70149 and Interim RVUs, the following CPT codes 70151, Addendum C: Codes with are corrected to read as follows:
Year Fully 2009 Fully Year imple- imple- 2009 Physi- mented transi- transi- Mal- CPT 1/ cian tional mented HCPCS Mod Status Description work non- non- facility tional practice Global facility facility RVUs 2 2 PE RVUs PE facility PE PE RVUs 2 RVUs 2 RVUs 2 RVUs 2
20697 ...... A Comp ext fixate strut change .. 0.00 33.08 33.08 NA NA 0.01 000 47525 ...... A Change bile duct catheter ...... 1.54 10.90 11.98 0.86 1.35 0.33 000 63650 ...... A Implant neuroelectrodes...... 7.15 NA NA 2.71 2.83 0.53 010 63685 ...... A Insrt/redo spine n generator .... 6.00 NA NA 2.90 3.22 1.05 010 63688 ...... A Revise/remove neuroreceiver.. 5.25 NA NA 2.88 3.05 0.89 010 93352 ...... A Admin ecg contrast agent ...... 0.19 0.84 0.84 NA NA 0.04 ZZZ
3. On page 70215, in Addendum J, the comment before the provisions of a rule Section 553(d) of the APA ordinarily entry for HCPCS code G0394 and its take effect in accordance with section requires a 30-day delay in the effective short descriptor are removed. 553(b) of the Administrative Procedure date of final rules after the date of their 4. On page 70226, in Addendum J, the Act (APA) (5 U.S.C. 553(b)). However, publication. This 30-day delay in entry for CPT code 78414 and its short we can waive the notice and comment effective date can be waived, however, descriptor are removed. procedure if the Secretary finds, for if an agency finds for good cause that good cause, that the notice and III. Waiver of Proposed Rulemaking the delay is impracticable, unnecessary, comment process is impracticable, and Delay in Effective Date or contrary to the public interest, and unnecessary, or contrary to the public the agency incorporates a statement of We ordinarily publish a notice of interest, and incorporates a statement of the findings and its reasons in the rule proposed rulemaking in the Federal the finding and the reasons for it in the issued. Register to provide a period for public rule.
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This document merely corrects License Subsidiary, LLC, the permittee PART 73—RADIO BROADCAST typographical and technical errors made of post-transition station WTVM–DT, to SERVICES in FR Doc. E8–26213, the CY 2009 PFS substitute DTV channel 11 for post- ■ final rule with comment period, which transition DTV channel 9 at Columbus, 1. The authority citation for part 73 appeared in the November 19, 2009 Georgia. continues to read as follows: Federal Register (73 FR 69726), and is Authority: 47 U.S.C. 154, 303, 334, 336. DATES: (with limited exceptions not relevant to This rule is effective January 30, § 73.622 [Amended] these corrections, but noted in the rule), 2009. effective January 1, 2009. The FOR FURTHER INFORMATION CONTACT: ■ 2. Section 73.622(i), the Post- provisions of the final rule with Shaun A. Maher, Media Bureau, (202) Transition Table of DTV Allotments comment period have been subjected 418–1600. under Georgia, is amended by adding previously to notice and comment DTV channel 11 and removing DTV procedures. The corrections contained SUPPLEMENTARY INFORMATION: This is a channel 9 at Columbus. synopsis of the Commission’s Report in this document are consistent with, Federal Communications Commission. and do not make substantive changes to, and Order, MB Docket No. 08–100, adopted December 17, 2008, and Barbara A. Kreisman, the payment methodologies and policies Chief, Video Division, Media Bureau. adopted in the CY 2009 PFS final rule released December 18, 2008. The full [FR Doc. E8–31005 Filed 12–30–08; 8:45 am] with comment period. As such, these text of this document is available for corrections are being made to ensure the public inspection and copying during BILLING CODE 6712–01–P CY 2009 PFS final rule with comment normal business hours in the FCC’s period accurately reflects the policies Reference Information Center at Portals II, CY–A257, 445 12th Street, SW., FEDERAL COMMUNICATIONS adopted in that rule. We find, therefore, COMMISSION for good cause that it is unnecessary and Washington, DC, 20554. This document would be contrary to the public interest will also be available via ECFS (http:// 47 CFR Part 73 to undertake further notice and www.fcc.gov/cgb/ecfs/). (Documents comment procedures to incorporate will be available electronically in ASCII, [DA 08–2723; MB Docket No. 08–103; RM– these corrections into the CY 2009 PFS Word 97, and/or Adobe Acrobat.) This 11441] document may be purchased from the final rule with comment period. Television Broadcasting Services; Commission’s duplicating contractor, For the same reasons, we are also Augusta, GA waiving the 30-day delay in effective Best Copy and Printing, Inc., 445 12th date for these corrections. We believe Street, SW., Room CY–B402, AGENCY: Federal Communications that it is in the public interest to ensure Washington, DC 20554, telephone Commission. that the CY 2009 PFS final rule with 1–800–478–3160 or via e-mail http:// ACTION: Final rule. comment period accurately states our www.BCPIWEB.com. To request this policies as of the date they take effect. document in accessible formats SUMMARY: The Commission grants a Therefore, we find that delaying the (computer diskettes, large print, audio petition for rulemaking filed by Media effective date of these corrections recording, and Braille), send an e-mail Holdings, Inc., permittee of station beyond the effective date of the final to [email protected] or call the WFXG–DT, to substitute DTV channel rule with comment period would be Commission’s Consumer and 31 for its assigned post-transition DTV contrary to the public interest. In so Governmental Affairs Bureau at (202) channel 51 at Augusta, Georgia. doing, we find good cause to waive the 418–0530 (voice), (202) 418–0432 DATES: This rule is effective January 30, 30-day delay in the effective date. (TTY). This document does not contain 2009. Authority: (Catalog of Federal Domestic information collection requirements FOR FURTHER INFORMATION CONTACT: Assistance Program No. 93.774, Medicare— subject to the Paperwork Reduction Act Shaun A. Maher, Media Bureau, (202) Supplementary Medical Insurance Program) of 1995, Public Law 104–13. In addition, 418–1600. Dated: December 22, 2008. therefore, it does not contain any SUPPLEMENTARY INFORMATION: This is a information collection burden ‘‘for Ann C. Agnew, synopsis of the Commission’s Report small business concerns with fewer than Executive Secretary to the Department. and Order, MB Docket No. 08–103, 25 employees,’’ pursuant to the Small adopted December 17, 2008, and [FR Doc. E8–31027 Filed 12–30–08; 8:45 am] Business Paperwork Relief Act of 2002, released December 18, 2008. The full BILLING CODE 4120–01–P Public Law 107–198, see 44 U.S.C. text of this document is available for 3506(c)(4). Provisions of the Regulatory public inspection and copying during Flexibility Act of 1980 do not apply to normal business hours in the FCC’s FEDERAL COMMUNICATIONS this proceeding. Reference Information Center at Portals COMMISSION The Commission will send a copy of II, CY–A257, 445 12th Street, SW., 47 CFR Part 73 this Report and Order in a report to be Washington, DC, 20554. This document sent to Congress and the Government will also be available via ECFS (http:// [DA 08–2722; MB Docket No. 08–100; RM– Accountability Office pursuant to the www.fcc.gov/cgb/ecfs/). (Documents 11437] Congressional review Act, see 5 U.S.C. will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) This Television Broadcasting Services; 801(a)(1)(A). document may be purchased from the Columbus, GA List of Subjects in 47 CFR Part 73 Commission’s duplicating contractor, Best Copy and Printing, Inc., 445 12th AGENCY: Federal Communications Television, Television broadcasting. Commission. Street, SW., Room CY–B402, ■ ACTION: Final rule. For the reasons discussed in the Washington, DC 20554, telephone preamble, the Federal Communications 1–800–478–3160 or via e-mail http:// SUMMARY: The Commission grants a Commission amends 47 CFR part 73 as www.BCPIWEB.com. To request this petition for rulemaking filed by WTVM follows: document in accessible formats
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(computer diskettes, large print, audio DEPARTMENT OF COMMERCE year, approximately 178,000 lb (80,739 recording, and Braille), send an e-mail kg) of which was remaining for harvest to [email protected] or call the National Oceanic and Atmospheric at the beginning of the fourth quarter. Commission’s Consumer and Administration The regulations at § 648.53(a)(8)(iii) Governmental Affairs Bureau at (202) require the LAGC fishery to be closed to 418–0530 (voice), (202) 418–0432 50 CFR Part 648 IFQ vessels once the Northeast Regional (TTY). This document does not contain [Docket No. 070817467–8554–02] Administrator has determined that the information collection requirements TAC is projected to be landed. RIN 0648–XM40 subject to the Paperwork Reduction Act Based on dealer reporting and vessel of 1995, Public Law 104–13. In addition, Magnuson-Stevens Fishery pre-landing reports through Vessel therefore, it does not contain any Conservation and Management Act Monitoring Systems (VMS), it is information collection burden ‘‘for Provisions; Fisheries of the projected that, given current activity small business concerns with fewer than Northeastern United States; Atlantic levels by IFQ scallop vessels in the area, 25 employees,’’ pursuant to the Small Sea Scallop Fishery; Closure of the 4,352,500 lb (1,974,261 kg) will have Business Paperwork Relief Act of 2002, Limited Access General Category been landed by December 30, 2008. Public Law 107–198, see 44 U.S.C. Scallop Fishery to Individual Fishing Therefore, in accordance with the 3506(c)(4). Provisions of the Regulatory Quota Scallop Vessels regulations at § 648.53(a)(8)(iii), the Flexibility Act of 1980 do not apply to AGENCY: National Marine Fisheries LAGC scallop fishery is closed to all this proceeding. Service (NMFS), National Oceanic and general IFQ vessels as of 0001 hr local The Commission will send a copy of Atmospheric Administration (NOAA), time December 31, 2008. Accordingly, this Report and Order in a report to be Commerce. this closure is in effect for the remainder sent to Congress and the Government ACTION: Temporary rule; closure. of the fourth quarter of the 2008 scallop Accountability Office pursuant to the fishing year. IFQ scallop vessels are not Congressional review Act, see 5 U.S.C. SUMMARY: NMFS announces the Limited allowed to fish for, possess, or retain 801(a)(1)(A). Access General Category (LAGC) scallops, or declare, or initiate, a scallop Scallop Fishery is closed to individual trip following this closure for the List of Subjects in 47 CFR Part 73 fishing quota (IFQ) scallop vessels as of remainder of the 2008 fourth quarter, 0001 hrs local time, December 31, 2008. ending on February 28, 2009. The LAGC Television, Television broadcasting. This fishery will re-open on March 1, scallop fishery is scheduled to re-open ■ 2009. This action is based on the For the reasons discussed in the to IFQ scallop vessels on March 1, 2009. preamble, the Federal Communications determination that the annual scallop Commission amends 47 CFR part 73 as total allowable catch (TAC) for LAGC Classification follows: IFQ scallop vessels (including vessels issued an IFQ letter of authorization This action is required by 50 CFR part PART 73—RADIO BROADCAST (LOA) to fish under appeal), is projected 648 and is exempt from review under SERVICES to be landed. This action is being taken Executive Order 12866. to prevent IFQ scallop vessels from This action closes the LAGC scallop ■ 1. The authority citation for part 73 exceeding the 2008 annual TAC, in fishery to all IFQ scallop vessels until continues to read as follows: accordance with the regulations March 1, 2009. The regulations at implementing Amendment 11 to the § 648.53(a)(8)(iii) require such action to Authority: 47 U.S.C. 154, 303, 334, 336. Atlantic Sea Scallop Fishery ensure that IFQ scallop vessels do not Management Plan (FMP), enacted by § 73.622 [Amended] exceed the 2008 annual TAC. The LAGC Framework 19 to the FMP, and the scallop fishery opened for the fourth ■ 2. Section 73.622(i), the Post- Magnuson-Stevens Fishery quarter of the 2008 fishing year at 0001 Transition Table of DTV Allotments Conservation and Management Act. hours on December 1, 2008. Data under Georgia, is amended by adding DATES: The closure of the LAGC fishery indicating the IFQ scallop fleet has DTV channel 31 and removing DTV to all IFQ scallop vessels is effective landed all of the 2008 fourth quarter channel 51 at Augusta. 0001 hrs local time, December 31, 2008, through February 28, 2009. TAC have only recently become Federal Communications Commission. available. The Assistant Administrator FOR FURTHER INFORMATION CONTACT: Barbara A. Kreisman, Cheryl McGarrity, Fishery Management for Fisheries, NOAA (AA), finds good Chief, Video Division, Media Bureau. Specialist, (978) 281–9174, fax (978) cause pursuant to 5 U.S.C. 553(b)(B) to [FR Doc. E8–31003 Filed 12–30–08; 8:45 am] 281–9135. waive prior notice and the opportunity BILLING CODE 6712–01–P SUPPLEMENTARY INFORMATION: for public comment because it would be Regulations governing fishing activity in contrary to the public interest. If the LAGC fishery authorize vessels implementation of this closure is issued a valid IFQ scallop permit to fish delayed to solicit prior public comment, in the LAGC fishery under specific the quota for this quarter will be conditions, including a TAC (see 50 exceeded, thereby undermining the CFR 648.59, 648.60, and conservation objectives of the FMP. The 648.53(a)(8)(iii)). The TACs were AA further finds, pursuant to 5 U.S.C established by the final rule that 553(d)(3), good cause to waive the thirty implemented Framework 19 to the FMP (30) day delayed effectiveness period for (73 FR 30790 May 29, 2008) and the reasons stated above. included an annual TAC of 4,352,500 lb Authority: 16 U.S.C. 1801 et seq. (1,974,261 kg) that may be landed by IFQ vessels during the 2008 fishing
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Dated: December 23, 2008. Web site at http:// after NMFS provides them with the Alan D. Risenhoover, alaskafisheries.noaa.gov/regs/analyses/. authority to do so. Director, Office of Sustainable Fisheries, FOR FURTHER INFORMATION CONTACT: Detailed information on the National Marine Fisheries Service. Thomas Pearson, 907–481–1780. management background and need for action is in the preamble to the [FR Doc. E8–31126 Filed 12–24–08; 4:15 pm] SUPPLEMENTARY INFORMATION: NMFS proposed rule (73 FR 55010, September BILLING CODE 3510–22–S manages the groundfish fisheries in the 24, 2008). A Notice of Availability exclusive economic zone of the Bering (NOA) of the FMP amendments was Sea and Aleutian Islands Management published in the Federal Register on DEPARTMENT OF COMMERCE Area (BSAI) and the Gulf of Alaska September 17, 2008 (73 FR 53816). (GOA) under the Fishery Management National Oceanic and Atmospheric Comments on both the proposed rule Plan for Groundfish of the Bering Sea Administration and NOA were invited through and Aleutian Islands Management Area November 17, 2008. One comment was and the Fishery Management Plan for 50 CFR Part 679 received and is described and Groundfish of the Gulf of Alaska responded to below. Amendments 73/77 [Docket No. 080226310–81584–02] (FMPs). The North Pacific Fishery to the FMPs were approved by the Management Council (Council) Secretary of Commerce on December 15, RIN 0648–AU20 prepared the FMPs under the authority 2008. of the Magnuson-Stevens Fishery Fisheries of the Exclusive Economic Conservation and Management Act Comments and Responses Zone Off Alaska; Revised Management (Magnuson-Stevens Act), 16 U.S.C. 1801 NMFS received one comment. The Authority for Dark Rockfish in the et seq. Regulations governing U.S. comment did not indicate whether it Bering Sea and Aleutian Islands fisheries and implementing the FMPs was in response to the notice of Management Area and the Gulf of appear at 50 CFR parts 600 and 679. availability for Amendments 73/77 or Alaska Background the proposed rule. Comment 1: The commenter opposed AGENCY: National Marine Fisheries In April 2007, the Council Service (NMFS), National Oceanic and turning over management of dark recommended Amendment 73 to the rockfish to the State of Alaska because Atmospheric Administration (NOAA), Fishery Management Plan for of his or her general concerns about the Commerce. Groundfish of the Bering Sea and State’s management of all natural ACTION: Final rule. Aleutian Islands Management Area and resources under its authority. The Amendment 77 to the Fishery commenter also expressed general SUMMARY: NMFS issues a final rule that Management Plan for Groundfish of the opposition to NMFS’s management of implements Amendment 73 to the Gulf of Alaska (Amendments 73/77). Fishery Management Plan for fishery resources off Alaska. Amendments 73/77 would remove dark Response: NMFS disagrees with the Groundfish of the Bering Sea and rockfish (Sebastes ciliatus) from the commenter that management of dark Aleutian Islands Management Area and FMPs. Dark rockfish currently are rockfish should not be turned over to Amendment 77 to the Fishery managed as part of the ‘‘other rockfish’’ the State. In addition to the reasons Management Plan for Groundfish of the complex in the BSAI and as part of the described above that the Council Gulf of Alaska (collectively, pelagic shelf rockfish (PSR) complex in recommended removal of dark rockfish Amendments 73/77). Amendments the GOA. The Council recommended from the FMPs, the State also has 73/77 remove dark rockfish (Sebastes removal of dark rockfish from the FMPs demonstrated its ability to manage ciliatus) from both fishery management for the following reasons: (1) In 2004, rockfish species previously removed plans (FMPs). The State of Alaska dark rockfish was identified as a from the FMPs for similar reasons. Black (State) will assume management of dark separate rockfish species, (2) data in the rockfish was removed from the FMPs rockfish catch by State-permitted stock assessments for the PSR complex and management was turned over to the vessels in the Bering Sea and Aleutian in the GOA and the ‘‘other rockfish’’ State in 1998. Some of the management Islands Management Area and the Gulf complex in the BSAI are predominantly measures that the State has of Alaska, in addition to its existing from dusky rockfish, not dark rockfish, implemented for black rockfish in the authority in State waters. This action is (3) dark rockfish are distributed in GOA include development of a fishery necessary to allow the State to nearshore habitats that are not management plan specifically implement more responsive, regionally specifically assessed by the NMFS trawl addressing black rockfish and based management of dark rockfish than surveys, (4) there is a possibility of management measures designed to is currently possible under the FMPs. overfishing dark rockfish in local areas prevent localized depletion of black This action will improve conservation given the relatively high total allowable rockfish. These management measures and management of dark rockfish and catch (TAC) for the PSR and ‘‘other include smaller area guideline harvest promote the goals and objectives of the rockfish’’ complexes as a whole, and (5) levels, lower total guideline harvest Magnuson-Stevens Fishery the removal of dark rockfish from the levels compared to what the total Conservation and Management Act, the FMPs will allow the State of Alaska allowable catch would have been under FMPs, and other applicable laws. (State) to assume management authority the Federal FMPs, and lower maximum DATES: Effective January 30, 2009. for dark rockfish catch by State- retainable amounts than would have ADDRESSES: Copies of Amendments permitted vessels in Federal waters off been in effect under Federal regulations. 73/77 and the Environmental Alaska, in addition to its existing The State also has undertaken research Assessment/Regulatory Impact Review/ authority in State waters and to to assess the status of black rockfish Final Regulatory Flexibility Analysis implement more responsive, regionally stocks in the GOA that the Federal (EA/RIR/FRFA) prepared for this action based management of dark rockfish than government likely would not have been are available from the NMFS Alaska is possible under the FMPs. The State of able to do if it had retained management Region, P.O. Box 21668, Juneau, AK Alaska has expressed its intent to of black rockfish. NMFS and the 99802, or from the Alaska Region NMFS assume management of dark rockfish Council expect the State to manage dark
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rockfish in a similar manner once it has Changes From the Proposed Rule support the action. A copy of this the authority to do so. Therefore, no In the proposed rule, NMFS analysis is available from NMFS (see change was made to the final rule as a mistakenly included revisions to the ADDRESSES). No comments were result of this comment. retainable percentages in Table 10 to received on the IRFA. The numbers of small entities that part 679 for selected groundfish species Regulatory Amendments may be directly regulated by this action using arrowtooth flounder as a basis have been estimated using information This final rule revises the definition species. The proposed rule did not on gross revenues and American of ‘‘rockfish’’ at § 679.2 to exclude dark specifically propose these revisions in Fisheries Act affiliation in 2006, and rockfish in both the GOA and BSAI. The the preamble. These revisions were information on participation in the GOA recommended by the Council in a definition for ‘‘other rockfish’’ is Rockfish Program and on corporate amended to add a reference to Table 11 separate action and were published in a ownership of vessel fleets from 2007 to part 679 because the quota category separate proposed rule on November 25, and 2008. for ‘‘other rockfish’’ exists in both the 2008 (73 FR 71592). Revisions related to In 2006, one year immediately BSAI and GOA and is referred to in the the retainable percentages using preceding the Council action maximum retainable amounts tables for arrowtooth flounder as a basis species recommending the removal of dark both areas (Tables 10 and 11). In should not have been included in the rockfish from the FMPs, there were 81 addition, the definition of ‘‘other red proposed rule for Amendments 73/77. small catcher vessels that made landings rockfish’’ is removed from § 679.2 Therefore, this final rule does not of pelagic shelf rockfish from the GOA, because this rockfish quota category no implement revisions to the retainable taken as either targeted or incidental longer exists and the term is not used percentages in Table 10 for deep-water catch fish. No small catcher-processors anywhere else in 50 CFR part 679. flatfish, rex sole, flathead sole, shallow- made such landings. The 81 small water flatfish, sablefish, aggregated The final rule also corrects the Latin catcher vessels included 74 that used rockfish, Atka mackerel, and skates name of dusky rockfish (Sebastes hook-and-line, pot, or jig gear, and using arrowtooth flounder as a basis variabilis), species code 172, in Table 2a seven that used pelagic or non-pelagic species. The retainable percentages for to part 679, and adds dark rockfish trawl gear. The 81 small catcher vessels these species using arrowtooth flounder (Sebastes ciliatus), species code 173, to averaged about $400,000 in gross ex- as a basis species remain at 0 percent in the non-FMP species listed in Table 2d vessel revenues from all sources. this final rule, which reflects current to part 679. In 2006, one small catcher/processor regulations at 50 CFR part 679. and 36 small catcher vessels made In Table 10 to part 679 (Gulf of Alaska This final rule also incorporates incidental catch landings of pelagic Retainable Percentages), footnote 5 is revisions that were made to Tables 2a, shelf rockfish in the BSAI. All together, revised to correct the Latin name for 2d, 10, and 11 to part 679 in a separate 35 vessels used hook-and-line, pot, or dusky rockfish (Sebastes variabilis). final rule that implemented a variety of jig gear, and two used trawl gear. The 37 Footnote 8 is revised to remove recordkeeping and reporting regulatory small vessels averaged about $1.4 reference to Sebastes and Sebastolobus amendments (73 FR 76136; December million in gross revenues from all and to refer to the definition of 15, 2008). The revision to the sources. ‘‘rockfish’’ at § 679.2. hyphenation of the words ‘‘shallow- This regulation does not impose new This final rule also makes minor water’’ and ‘‘deep-water’’ in Table 10 to recordkeeping and reporting editorial revisions to Table 10 to part part 679 was included in the proposed requirements on the regulated small 679. In note 1, the species code for rule for Amendments 73/77, but since entities. ‘‘shortraker/rougheye (171)’’ is removed this revision was made in the final rule Two alternatives are analyzed in this because NMFS no longer has a species described above that implemented document: Alternative 1—No Action, code associated with the combination of recordkeeping and reporting revisions, continue managing dark rockfish within shortraker and rougheye rockfish Table changing the hyphenation of these terms the larger PSR complex in the GOA, and 2a to part 679. Shortraker rockfish and no longer needs to be implemented within the ‘‘other rockfish’’ complex in rougheye rockfish have separate species through this final rule for Amendments the BSAI; and Alternative 2—Preferred codes. Note 10 lists the species included 73/77. Alternative, remove dark rockfish from the GOA groundfish FMP and BSAI in the aggregated forage fish category. Classification The word ‘‘families’’ in the parentheses groundfish FMP, and defer management The Administrator, Alaska Region, following the term ‘‘Aggregated forage of this species, in both State and Federal NMFS, determined that Amendments fish’’ is replaced with the word ‘‘taxa’’ waters, to the State of Alaska. 73/77 are necessary for the conservation The preferred alternative may have because all species of the order and management of the groundfish adverse impacts on operations targeting Euphausiacea (krill) also are included in fisheries in the BSAI and GOA, and that pelagic shelf rockfish in the Central the list of aggregated forage fish. The these FMP amendments and the GOA and in the West Yakutat District. word ‘‘taxa’’ refers to more general regulatory amendments to implement NMFS does not expect the action to groupings of similar organisms and them are consistent with the Magnuson- have adverse impacts on operations includes taxonomic families and orders. Stevens Fishery Conservation and targeting rockfish in the Southeast In Table 11 to part 679 (BSAI Management Act and other applicable Outside and Western regions of the Retainable Percentages), footnotes 3 and laws. GOA, or in the BSAI (targeting does not 6 are revised to remove references to This final rule has been determined to appear to be significant in the Southeast Sebastes and Sebastolobus and to refer be not significant for the purposes of Outside or BSAI). NMFS does not to the definition of ‘‘rockfish’’ at § 679.2. Executive Order 12866. expect the action to have adverse This revision excludes dark rockfish A final regulatory flexibility analysis impacts on operations taking dark from these rockfish categories in the (FRFA) was prepared. The FRFA rockfish as incidental catch. In the BSAI because dark rockfish are incorporates the initial regulatory Central GOA, most of the adverse excluded from the definition of rockfish flexibility analysis (IRFA), and provides impact would fall on participants in the at § 679.2. a summary of the analyses completed to GOA Rockfish Program. Because of the
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affiliations these operations have collectively they represent the small TABLE 2a TO PART 679—SPECIES through the quota management and entity compliance guide for this final CODES: FMP GROUNDFISH—Contin- allocation features of the Rockfish rule. These documents are available ued Program, NMFS does not believe these from NMFS (see ADDRESSES) and from operations can be considered small the NMFS Alaska Region’s Web site at Species description Code entities for the purpose of the RFA. http://alaskafisheries.noaa.gov. The However, it is possible that they would State of Alaska will assume FLOUNDER: experience some adverse impact as management of dark rockfish in the Alaska plaice ...... 133 described in the Regulatory Impact BSAI and GOA when this final rule Arrowtooth and/or Kamchatka ...... 121 Review. The primary alternative becomes effective and all State- Starry ...... 129 Octopus, North Pacific ...... 870 considered here, Alternative 1—No permitted vessels will be required to Pacific cod ...... 110 Action, would not have these adverse comply with State of Alaska laws and Pollock ...... 270 impacts, but would not remove dark regulations governing the catch of dark ROCKFISH: rockfish from the FMPs and, thus, does rockfish. Aurora (Sebastes aurora) ...... 185 not accomplish the stated objective for Black (BSAI) (S. melanops) ...... 142 the action. List of Subjects in 50 CFR Part 679 Blackgill (S. melanostomus) ...... 177 The Council also considered an Alaska, Fisheries. Blue (BSAI) (S. mystinus) ...... 167 Bocaccio (S. paucispinis) ...... 137 additional alternative to the proposed Dated: December 22, 2008. action that was not carried forward for Canary (S. pinniger) ...... 146 Samuel D. Rauch, III., analysis. This alternative was to transfer Chilipepper (S. goodei) ...... 178 China (S. nebulosus) ...... 149 management authority of dark rockfish Deputy Assistant Administrator for Regulatory Programs, National Marine Copper (S. caurinus) ...... 138 to the State of Alaska while retaining Fisheries Service. Darkblotched (S. crameri) ...... 159 the species under the Federal FMPs. ■ Dusky (S. variabilis) ...... 172 Demersal shelf rockfish in Southeast For the reasons set out in the Greenstriped (S. elongatus) ...... 135 Alaska is under a similarly delegated preamble, NMFS amends 50 CFR part Harlequin (S. variegatus) ...... 176 management program with the State of 679 as follows: Northern (S. polyspinis) ...... 136 Alaska. A similar alternative was Pacific ocean perch (S. alutus) ...... 141 PART 679—FISHERIES OF THE considered and rejected for black Pygmy (S. wilsoni) ...... 179 EXCLUSIVE ECONOMIC ZONE OFF rockfish and blue rockfish under Quillback (S. maliger) ...... 147 ALASKA Redbanded (S. babcocki) ...... 153 Amendment 46 to the GOA FMP. This Redstripe (S. proriger) ...... 158 alternative was not carried forward for ■ 1. The authority citation for 50 CFR Rosethorn (S. helvomaculatus) ...... 150 dark rockfish because (1) State part 679 continues to read as follows: Rougheye (S. aleutianus) ...... 151 personnel would be required to comply Authority: 16 U.S.C. 773 et seq., 1801 et Sharpchin (S. zacentrus) ...... 166 with additional Federal management seq., 3631 et seq.; Pub. L. 108–447. Shortbelly (S. jordani) ...... 181 processes that may not be consistent Shortraker (S. borealis) ...... 152 with State procedures; (2) the State ■ 2. In § 679.2, remove the definition for Silvergray (S. brevispinis) ...... 157 would need to meet both State and ‘‘Other red rockfish’’ and revise the Splitnose (S. diploproa) ...... 182 Federal requirements, which often definitions for ‘‘Other rockfish’’ and Stripetail (S. saxicola) ...... 183 ‘‘Rockfish’’ to read as follows: Thornyhead (all Sebastolobus spe- prescribe different time-frames for cies) ...... 143 management actions (e.g., notice, public § 679.2 Definitions. Tiger (S. nigrocinctus) ...... 148 meetings, and reports); and (3) the State Vermilion (S. miniatus) ...... 184 did not believe it could meet the costly * * * * * Widow (S. entomelas) ...... 156 assessment requirements for managing a Other rockfish (see Tables 10 and 11 Yelloweye (S. ruberrimus) ...... 145 nearshore species, mandated under a to this part pursuant to § 679.20(c); see Yellowmouth (S. reedi) ...... 175 Federal management plan. also ‘‘rockfish’’ in this section.) Yellowtail (S. flavidus) ...... 155 * * * * * Sablefish (blackcod) ...... 710 Small Entity Compliance Guide Rockfish means: Sculpins ...... 160 Section 212 of the Small Business (1) For the Gulf of Alaska: Any SHARKS: Regulatory Enforcement Fairness Act of Other (if salmon, spiny dogfish or species of the genera Sebastes or Pacific sleeper shark—use spe- 1996 states that, for each rule or group Sebastolobus except Sebastes ciliatus cific species code) ...... 689 of related rules for which an agency is (dark rockfish); Sebastes melanops Pacific sleeper ...... 692 required to prepare a FRFA, the agency (black rockfish); and Sebastes mystinus Salmon ...... 690 shall publish one or more guides to (blue rockfish). Spiny dogfish ...... 691 assist small entities in complying with (2) For the Bering Sea and Aleutian SKATES: the rule, and shall designate such Islands Management Area: Any species Big ...... 702 publications as ‘‘small entity of the genera Sebastes or Sebastolobus Longnose ...... 701 compliance guides.’’ The agency shall except Sebastes ciliatus (dark rockfish). Other (If longnose or big skate— explain the actions that a small entity is use specific species code) ...... 700 * * * * * SOLE: required to take to comply with a rule ■ 3. Table 2a to part 679 is revised to Butter ...... 126 or group of rules. The preamble to the read as follows: Dover ...... 124 proposed rule and this final rule fully English ...... 128 explain the regulatory amendments that TABLE 2a TO PART 679—SPECIES Flathead ...... 122 will be implemented to remove dark Petrale ...... 131 CODES: FMP GROUNDFISH rockfish from the FMPs. The proposed Rex ...... 125 Rock ...... 123 rule, final rule, and regulations Species description Code governing the groundfish fisheries off Sand ...... 132 Alaska are the best source of Yellowfin ...... 127 Atka mackerel (greenling) ...... 193 Squid, majestic ...... 875 information about how to comply with Flatfish, miscellaneous (flatfish spe- Turbot, Greenland ...... 134 Amendments 73/77 and, therefore, cies without separate codes) ...... 120
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■ 4. Table 2d to part 679 is revised to TABLE 2d TO PART 679—SPECIES TABLE 2d TO PART 679—SPECIES read as follows: CODES: NON-FMP SPECIES—Con- CODES: NON-FMP SPECIES—Con- tinued tinued TABLE 2d TO PART 679—SPECIES CODES: NON-FMP SPECIES Species description Code Species description Code
Species description Code Pacific lamprey ...... 600 Pacific geoduck ...... 815 Pacific saury ...... 220 Pacific littleneck ...... 840 GENERAL USE Pacific tomcod ...... 250 Pacific razor ...... 830 Poacher (Family Agonidae) ...... 219 Washington butter ...... 810 Arctic char (anadromous) ...... 521 Prowfish ...... 215 Coral ...... 899 Bering flounder (Hippoglossoides Ratfish ...... 714 Mussel, blue ...... 855 robustus) ...... 116 Rockfish, black (GOA) ...... 142 Oyster, Pacific ...... 880 Dolly varden (anadromous) ...... 531 Rockfish, blue (GOA) ...... 167 Scallop, weathervane ...... 850 Eels or eel-like fish ...... 210 Rockfish, dark ...... 173 Scallop, pink (or calico) ...... 851 Eel, wolf ...... 217 Sardine, Pacific (pilchard) ...... 170 SHRIMP: GREENLING: Sea cucumber, red ...... 895 Coonstripe ...... 964 Kelp ...... 194 Shad ...... 180 Humpy ...... 963 Rock ...... 191 Skilfish ...... 715 Northern (pink) ...... 961 Whitespot ...... 192 Snailfish, general (genus Liparis and Sidestripe ...... 962 Grenadier, giant ...... 214 genus Careproctus) ...... 218 Spot ...... 965 Grenadier (rattail) ...... 213 Sturgeon, general ...... 680 Snails ...... 890 Jellyfish (unspecified) ...... 625 Wrymouths ...... 211 Urchin, green sea ...... 893 Lamprey, Pacific ...... 600 SHELLFISH Urchin, red sea ...... 892 Lingcod ...... 130 Abalone, northern (pinto) ...... 860 Lumpsucker ...... 216 CLAMS: Pacific flatnose ...... 260 Arctic surf ...... 812 ■ 5. Tables 10 and 11 to part 679 are Pacific hagfish ...... 212 Cockle ...... 820 revised to read as follows: Pacific hake ...... 112 Eastern softshell ...... 842 BILLING CODE 3510–22–P
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[FR Doc. E8–31020 Filed 12–30–08; 8:45 am] BILLING CODE 3510–22–C
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Proposed Rules Federal Register Vol. 73, No. 251
Wednesday, December 31, 2008
This section of the FEDERAL REGISTER review your comments more efficiently, below; personnel in grades SK 9 to 13; contains notices to the public of the proposed please use only one method. The and personnel in grades SK 14 or issuance of rules and regulations. The Commission will post all comments on above.1 The Commission’s Web site will purpose of these notices is to give interested the Commission’s Internet Web site contain current rates for search and persons an opportunity to participate in the (http://www.sec.gov/rules/ review fees for each class. The rates will rule making prior to the adoption of the final rules. proposed.shtml). Comments are also be updated when salaries change and available for public inspection and will be determined by using the formula copying in the Commission’s Public in the regulation and averaging the SECURITIES AND EXCHANGE Reference Room, 100 F Street, NE., hourly rate of the different groups of COMMISSION Washington, DC 20549 on official grades of staff who routinely perform business days between the hours of 10 these duties. For the current calendar 17 CFR Part 200 a.m. and 3 p.m. All comments received year, the fees would be assessed as [Release No. 34–59150; File No. S7–33–08] will be posted without change; we do follows: SK 8 or below: $26/hour; SK 9 not edit personal identifying to 13: $40/hour; and SK 14 or above: Records Services, Fee Schedule information from submissions. You $70/hour. The cost of the average fee should submit only information that collection activity is $20; therefore, no AGENCY: Securities and Exchange you wish to make available publicly. fee will be charged of $20 or less. See Commission. FOR FURTHER INFORMATION CONTACT: 5 U.S.C. 552(a)(4)(A)(iv) (providing that ACTION: Proposed rule. Melinda Hardy, Assistant General no fee may be charged if fee exceeds Counsel, Office of the General Counsel, costs of collecting and processing fee). SUMMARY: The Securities and Exchange (202) 551–5149; Securities and II. Statutory Basis Commission (‘‘Commission’’) is Exchange Commission, 100 F Street, soliciting comments on a proposed NE., Washington, DC 20549–9612. The Commission is proposing amendment to its regulation governing SUPPLEMENTARY INFORMATION: amendments to 17 CFR part 200 the fees for records services. The pursuant to 5 U.S.C. 552 and 15 U.S.C. Commission’s schedule of fees for I. Discussion 78d–1. records services will be updated using The fees the Commission charges for List of Subjects in 17 CFR Part 200 a formula for the calculation of fees searching, reviewing, and duplicating under the Freedom of Information Act records pursuant to FOIA requests are Administrative practice and (‘‘FOIA’’) and language that directs set forth in 17 CFR 200.80e [Schedule of procedure, Freedom of information, FOIA requesters to the Commission’s fees for records services]. The Organization and functions. Web site. Using a formula, instead of set Commission believes it is appropriate to III. Text of Proposed Amendments rates, will allow the Commission to update its fee schedule for searching For the reasons set forth in the charge fees that reflect its allowable and reviewing records to comply with preamble, Title 17 Chapter II of the direct costs. guidelines promulgated by the Office of Code of Federal Regulations is proposed DATES: Comments should be received on Management and Budget, Uniform to be amended as follows: or before January 30, 2009. Freedom of Information Act Fee ADDRESSES: Comments may be Schedule and Guidelines, 52 FR 10,012, PART 200—ORGANIZATION; submitted by any of the following 10,018 (Mar. 27, 1987) (‘‘OMB CONDUCT AND ETHICS; AND methods: Guidance’’), which instructs agencies to INFORMATION AND REQUESTS charge fees that recoup the full Electronic Comments allowable direct costs that they incur. Subpart D—Information and Requests • Use the Commission’s Internet The OMB Guidance states that agencies comment form (http://www.sec.gov/ may charge the average basic pay rate of 1. The general authority citation for rules/proposed.shtml); employees routinely performing these Part 200, subpart D, is revised to read • Send an e-mail to rule- services plus 16% to cover associated as follows: [email protected]. Please include File benefits. Id. Also, ‘‘agencies may Authority: 5 U.S.C. 552, as amended, 15 Number S7–33–08 on the subject line; establish an average rate for the range of U.S.C. 77f(d), 77s, 77ggg(a), 77sss, 78m(F)(3), or grades typically involved.’’ Id. 78w, 80a–37, 80a–44(a), 80a–44(b), 80b– • Use the Federal eRulemaking Portal The current regulation contains set 10(a), 80b–11. (http://www.regulations.gov). Follow the rates for FOIA request search and * * * * * instructions for submitting comments. review activities: $16/hour for grade 11 2. Section 200.80e, first paragraph, is Paper Comments and below; and $28/hour for grade 12 revised to read as follows: and above. The Commission is • Send paper comments in triplicate proposing to revise the regulation to § 200.80e Appendix E—Schedule of fees for records services. to Secretary, Securities and Exchange provide the formula contained in the Commission, 100 F Street, NE., OMB Guidance rather than a set price. Search and review services: The Washington, DC 20549–1090. Moreover, the proposed regulation average salary rates (i.e., basic pay plus All submissions should refer to File provides that the Commission will 1 Fees for searches of computerized records will Number S7–33–08. This file number establish an average rate for each of the continue to be based on the actual cost to the should be included on the subject line three different groups of grades typically Commission which includes machine and operator if e-mail is used. To help us process and involved: Personnel in grades SK 8 or time. 17 CFR 200.80(e)(9)(i).
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16%) of employees performing these submission process to: regional hearings and in writing, we services. The hourly rates are listed on [email protected]. have decided to establish the following the Commission’s Web site at http:// For information about negotiated five negotiating committees: www.sec.gov/foia/feesche.htm. rulemaking in general, see The • Team I—Loans–Lender/General * * * * * Negotiated Rulemaking Process for Title Loan Issues; IV Regulations, Frequently Asked • Team II—Loans–School–based By the Commission. Questions at http://www.ed.gov/policy/ Loan Issues; • Dated: December 23, 2008. highered/reg/hearulemaking/hea08/neg- Team III—Accreditation; Florence E. Harmon, • Team IV—Discretionary Grants; reg-faq.html. For further information • Acting Secretary. contact: Wendy Macias, U.S. Team V—General and Non-Loan Programmatic Issues. [FR Doc. E8–31127 Filed 12–30–08; 8:45 am] Department of Education, 1990 K Street, We list the topics each committee is BILLING CODE 8011–01–P NW., room 8017, Washington, DC likely to address elsewhere in this 20006. Telephone: (202) 502–7526. You notice under Committee Topics. may also e-mail your questions about Because of the large volume of DEPARTMENT OF EDUCATION negotiated rulemaking to: changes made by the HEOA that must [email protected]. 34 CFR Chapter VI be implemented through negotiated If you use a telecommunications rulemaking, not all provisions will be device for the deaf (TDD), call the Office of Postsecondary Education; regulated at this time. In particular, the Federal Relay Service (FRS), toll free at Notice of Negotiated Rulemaking for provisions affecting foreign schools (the 1–800–877–8339. Programs Authorized Under Title IV of majority of which are not effective until Individuals with disabilities can the Higher Education Act of 1965, as July 1, 2010) and unfunded programs obtain this document in an accessible Amended will be regulated through the negotiated format (e.g., braille, large print, rulemaking process at a later date. For AGENCY: Department of Education. audiotape, or computer diskette) by Team III—Accreditation, in addition to ACTION: Notice of establishment of contacting Wendy Macias at the the provisions of the HEOA, we have negotiated rulemaking committees. address, telephone number, or e-mail included several issues identified address listed above. during the 2007 negotiated rulemaking SUMMARY: We announce our intention to SUPPLEMENTARY INFORMATION: On process, which did not result in establish five negotiated rulemaking September 8, 2008, we published a published regulations. committees to prepare proposed notice in the Federal Register (73 FR As we did not receive any requests regulations under Title IV of the Higher 51990) announcing our intent to from the public to negotiate the Education Act of 1965, as amended establish negotiated rulemaking provision added to section 207(c) of the (HEA). Each committee will include committees to develop proposed HEA, and the Secretary has determined representatives of organizations or regulations to implement (1) the that it is not necessary to issue groups with interests that are changes made to the HEA by the Higher regulations in this area at this time, we significantly affected by the subject Education Opportunity Act of 2008 will not be negotiating this provision of matter of the proposed regulations. We (HEOA), Public Law 110–315, that affect the HEOA in these negotiated request nominations for individual programs authorized under Title IV of rulemaking sessions. Regulations negotiators who represent key the HEA and, (2) possibly, the provision implementing HEOA changes to other stakeholder constituencies that are added to section 207(c) of the HEA by areas of Title II of the HEA, as well as involved in the student financial the HEOA that requires the Secretary to Titles III, V, VI, and VII, and those areas assistance and grant programs submit to a negotiated rulemaking of Title I that do not affect the Title IV authorized under Title IV of the HEA to process any regulations the Secretary programs, will be implemented either serve on these committees. chooses to develop under amended through notice-and-comment DATES: We must receive your section 207(b)(2) of the HEA, regarding rulemaking or, where the regulations nominations for negotiators to serve on the prohibition on a teacher preparation will merely reflect the changes to the the committees on or before January 23, program from which the State has HEA and not expand upon those 2009. withdrawn approval or terminated changes, without notice and comment. ADDRESSES: Please send your financial support from accepting or The only exception will be in the case nominations for negotiators to Patty enrolling any student who received of regulations that are needed to Chase, U.S. Department of Education, Title IV aid. We announced our intent implement the initial grant competition 1990 K Street, NW., room 8034, to develop these proposed regulations under a new or substantially revised Washington, DC 20006, or by fax at by following the negotiated rulemaking program authority; in these situations (202) 502–7874. You may also e-mail procedures in section 492 of the HEA. section 437(d)(1) of the General your nominations to The notice also announced a series of Education Provisions Act (20 U.S.C. [email protected]. Nominees will be six regional hearings at which interested § 1232(d)(1)) permits the Secretary to notified by letter whether or not they parties could suggest topics for issue regulations without first soliciting have been selected as negotiators, as consideration for action by the public comment. soon as the Department’s review process negotiating committees. We invited We intend to select participants for is completed. parties to submit topics for the negotiated rulemaking committees FOR FURTHER INFORMATION CONTACT: For consideration in writing, as well. We that represent the interests significantly information about the nomination heard testimony and received written affected by the proposed regulations. In submission process contact: Wendy comments from approximately 250 so doing, we will follow the new Macias, U.S. Department of Education, people. Transcripts from the hearings requirement in section 492(b)(1) of the 1990 K Street, NW., room 8017, can be found at http://www.ed.gov/ HEA that the individuals selected must Washington, DC 20006. Telephone: HEOA. have demonstrated expertise or (202) 502–7526. You may also e-mail Regulatory Issues: After consideration experience in the relevant subjects your questions about the nomination of the information received at the under negotiation. We will also select
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individual negotiators who reflect the • Guaranty agencies and guaranty or group represented by a negotiator are diversity among program participants, agency servicers (including collection bound by the consensus and are in accordance with section 492(b)(1). agencies); prohibited from commenting negatively Our goal is to establish committees that • Lenders, secondary markets, and on the resulting proposed regulations. will allow significantly affected parties loan servicers; The Department will not consider any to be represented while keeping the • Regional accrediting agencies; such negative comments that are committee size manageable. • National accrediting agencies; submitted by members of such an The committees may create subgroups • Specialized accrediting agencies; organization or group. on particular topics that would involve • State approval agencies; Nominations should include: additional individuals who are not • State student grant agencies; • The name of the nominee, the members of the committees. Individuals • Special populations, including organization or group the nominee who are not selected as members of the migrant and seasonal farmworkers, and represents, and a description of the committees will be able to attend the entities that provide outreach and interests that the nominee represents; meetings, have access to the individuals support services (for Team IV— • Evidence of the nominee’s expertise representing their constituencies, and Discretionary Grants); or experience in the subject, or subjects, participate in informal working groups • Individuals with intellectual to be negotiated; on various issues between the meetings. disabilities (for Team V—General and • Evidence of support from The committee meetings will be open to Non-Loan Programmatic Issues, Student individuals or groups of the the public. eligibility); constituency that the nominee will The Department has identified the • Digital content owners (for Team represent; constituencies listed below as having V—General and Non-Loan • The nominee’s commitment that he interests that are significantly affected Programmatic Issues, Peer-to-peer file or she will actively participate in good by the subject matter of the negotiated sharing/ copyrighted material); faith in the development of the rulemaking process. The Department • Technology providers (for Team proposed regulations; and • plans to seat as negotiators individuals V—General and Non-Loan The nominee’s contact information, from organizations or groups Programmatic Issues, Peer-to-peer file including address, phone number, fax representing each of the constituencies. sharing/copyrighted material); number, and e-mail address. The Department anticipates that • Law enforcement (for Team V— For a better understanding of the individuals from organizations or General and Non-Loan Programmatic process, nominees should review The groups representing each of these Issues, Campus safety issues); Negotiated Rulemaking Process for Title constituencies will participate as • Campus safety (for Team V— IV Regulations, Frequently Asked members of one or more committees, General and Non-Loan Programmatic Questions at http://www.ed.gov/policy/ except where noted. These Issues, Campus safety issues). highered/reg/hearulemaking/hea08/neg- constituencies are: The negotiation of proposed reg-faq.html prior to committing to • Students; regulations for the following issues on serve as a negotiator. • Legal assistance organizations that the Team V agenda requires the Committee Topics represent students; representation of some very specific • Financial aid administrators at constituencies who are affected parties The topics the committees are likely institutions of higher education; for purposes of these issues only: to address are: • Business officers and bursars at • Title IV eligibility for individuals Team I—Loans—Lender/General Loan institutions of higher education; with intellectual disabilities; Issues • Institutional servicers (including • Peer-to-peer file sharing/ • Loan discharges based on total and collection agencies); copyrighted material; and • permanent disability (including Perkins State higher education executive • Campus safety (Hate crime officers; Loans) (HEOA section 437); • reporting, Emergency response and • Federal PLUS loan repayment, post- State Attorneys General and other evacuation procedures, Disclosure of appropriate State officials; half-time enrollment deferment, and • fire safety standards and measures, and interest capitalization (HEOA section State student grant agencies; Missing person procedures). • Business and industry; 424); • Institutions of higher education For these issues, we will be selecting • Consumer credit reporting after eligible to receive. ‘‘single-issue negotiators’’ whose loan rehabilitation/Eligibility for loan Federal assistance under Title III, participation on the committee will be rehabilitation (HEOA section 426); Parts A and B, and Title V of the HEA, limited to the negotiation of only the • FFEL and Direct Loan teacher loan which include Historically Black specific issue. As previously noted, the forgiveness (HEOA sections 429 and Colleges and Universities, Hispanic- committee may form subgroups for 454); Serving Institutions, American Indian preliminary discussions of these, or • Applicability of the Tribally Controlled Colleges and other, issues to include individuals who Servicemembers Civil Relief Act to Universities, Alaska Native and Native are not members of the committee but Federal Family Education Loan (FFEL) Hawaiian-Serving Institutions, and who have expertise that would be and Direct Loan borrowers and related other institutions with a substantial helpful. FFEL lender special allowance payment enrollment of needy students as defined The goal of each committee is to calculations on affected loans (PLUS in Title III of the HEA: develop proposed regulations that endorsers) (HEOA section 422); • Two-year public institutions of reflect a final consensus of the • Borrower eligibility for deferment higher education; committee. Consensus means that there (HEOA section 422); • Four-year public institutions of is no dissent by any member of the • Changes to prohibited inducement higher education; negotiating committee. An individual provisions governing FFEL lenders and • Private, non-profit institutions of selected as a negotiator will be expected guaranty agencies (HEOA sections 422 higher education; to represent the interests of their and 436); • Private, for-profit institutions of organization or group. If consensus is • FFEL Consolidation Loan-borrower higher education; reached, all members of the organization eligibility (HEOA section 425);
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• New audit requirement for FFEL • Definitions (Covered institution, • Substantive change; school lenders and Eligible Lender Institution-affiliated organization, • Monitoring throughout period; Trustees (ELTs) originating FFEL loans Officer, Agent); • Subparts C and D—Recognition for an institution or school-affiliated • Required borrower disclosures by process, limitation, suspension and organization (HEOA section 436); covered institutions and institution- termination; • • affiliated organizations that participate Recordkeeping; Required education loan borrower • disclosures by lenders (HEOA section in a preferred lender arrangement; Confidentiality. 120); • Required reporting by covered Team IV—Discretionary Grants • institutions and institution-affiliated Definitions (Education loan, • TRIO Programs; Private education loan, Lender, organizations; • Branch campuses and different • Other covered institution and Preferred lender arrangement); populations (HEOA section 403(a)); • Required lender disclosures; institution-affiliated requirements; • • Appeals process for unsuccessful • Required lender reporting and Information and dissemination TRIO grant applicants (HEOA section certification; activities—terms and conditions under 403(a)); • Lender forbearance information and which students receive FFEL, Direct • Revised outcome criteria and contact requirements (HEOA section Loans and Perkins Loans (HEOA section measurement of progress (HEOA section 422); 488(a)); 403(a)); • • Guaranty agency notifications to Disclosure of reimbursements for • Foster care and homeless youth borrowers in default (HEOA section service on advisory boards (HEOA (HEOA section 403(a)); 422); section 1011); • Required services and • • Financial and economic literacy Direct Loan borrower disclosures by permissible services (HEOA section information for rehabilitated borrowers Direct Loan schools (HEOA section 403); • (HEOA section 426); 451); GEAR UP (HEOA section 404); • • • Required lender disclosures to Perkins Loan Program; Priority; • Mandatory assignment (HEOA • Funding rules; FFEL borrowers (HEOA section 434); • • section 463); Duration of awards; Required FFEL (non- • • Revised definition of consolidation) disclosures before loan Reinstatement of loans discharged due to death or disability if partnerships; disbursement; • the borrower receives another Title IV Changes to matching funds; • Required FFEL (non- • loan; if the borrower earns income in Waiver of matching funds; consolidation) borrower disclosures • Revision to required and before repayment; excess of the poverty line; or if the Secretary determines it is necessary to allowable activities under GEAR UP; • Special disclosure rules on PLUS • Revised scholarships; resume collection (HEOA section 464); and Unsubsidized loans; • Establishment of a scholarship • Expansion of teacher, Head Start, • New borrower disclosures during trust fund; and law enforcement cancellation repayment; • Redistribution or return to the categories (HEOA section 465); • Notification to a FFEL borrower Department of Education of unused • Addition of new public service when the transfer, sale, or assignment of scholarship funds after six years; cancellation categories (HEOA section • a loan will result in a change in the Special Programs for Students 465); Whose Families are Engaged in Migrant party to whom the borrower must send • Military service cancellation payments (HEOA section 422); and Seasonal Farmwork (HEOA section • (HEOA section 465). 408); FFEL Consolidation Loan- • application disclosures to Perkins Loan Team III—Accreditation High school equivalency program and Direct Loan borrowers (HEOA • eligibility and activities; Distance education and • College assistance migrant section 425). correspondence education (HEOA • Consumer education information program eligibility and activities; sections 495(1)(A) and (5)); • Reservation and allocation of provided by guaranty agencies (HEOA • Due process and appeals (HEOA funds. section 435). section 495(1)(C)); • Team V—General and Non-Loan Team II—Loans—School-based Loan Accreditation team members Programmatic Issues Issues (HEOA section 495(2)(A)); • Operating Procedures (HEOA • • Readmission requirements for Cohort default rate calculation, section 495(2)(C)); servicemembers (HEOA section 487); default prevention plans, and • Growth monitoring; • 90/10 rule (HEOA section 493); institutional eligibility (HEOA section • Teach-out plan approval; • Institutional requirements for teach- 436); • Summary of agency actions; out/eligibility and certification • Exit counseling (HEOA section • Confirmation of disclosure of procedures-treatment of teach-outs 488(b)); transfer of credit policies and criteria. (HEOA sections 493(f) and 496); • Entrance counseling (HEOA section (The following issues are not from • Financial assistance for individuals 488(g)); changes made by the HEOA, but were with intellectual disabilities (HEOA • Program Participation Agreement identified during the 2007 negotiated sections 485(a)(8) and 709) (including (HEOA section 493); rulemaking process, which did not ‘‘student with an intellectual disability’’ • Code of Conduct; result in published regulations.) and ‘‘comprehensive transition and • Preferred Lender Lists; • Recognition when not fully postsecondary programs for students • Private Education Loan compliant; with intellectual disabilities,’’ Certification; • Demonstration of compliance definitions in Title VII of the HEA that • Required education loan borrower within 12 months; apply); disclosures by institutions of higher • Direct assessment programs • Definition of baccalaureate ‘‘liberal education, and institution-affiliated definition; arts’’ programs offered by proprietary organizations (HEOA section 120); • Definition of recognition; schools (HEOA section 102(d)(1)(A)(i));
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• Consumer information; www.ed.gov/HEOA. Please note that the and phosalone; the plant growth • Peer-to-peer file sharing/ upcoming personnel changes in the regulator 1-naphthaleneacetic acid; and copyrighted material (HEOA sections executive branch of the Federal the antimicrobial/insecticidal agent 488(a) and 493); government may affect these plans. ethylene oxide. Also, EPA is proposing • Institutional plans for improving The schedule for negotiations has to modify certain tolerances for the the academic program (HEOA section been developed to ensure publication of insecticides disulfoton, esfenvalerate, 488(a)); the final regulations by the November 1 and phosmet; and the plant growth • Placement of and types of statutory deadline for publishing regulator 1-naphthaleneacetic acid. In employment obtained by graduates of student financial assistance final addition, EPA is proposing to establish degree or certificate programs/types of regulations (to be addressed by Teams I, new tolerances for the insecticides graduate and professional education II, III, and V). Although not subject to disulfoton, esfenvalerate, and phosmet; (HEOA section 488(a)); the November 1 statutory deadline, the and the antimicrobial/insecticidal agent • Retention rates (HEOA section schedule for the Title IV discretionary ethylene oxide and ethylene 488(a)); grant programs (to be addressed by chlorohydrin (a reaction product formed • Hate crime reporting (HEOA Team IV) will provide for the during the fumigation/sterilization section 488(e)); publication of regulations in time for process). The regulatory actions • Emergency response and competitions to be held during fiscal proposed in this document are in evacuation procedures (HEOA section year 2010. follow-up to the Agency’s reregistration 488(e)); Electronic Access to This Document program under the Federal Insecticide, • Disclosure of fire safety standards Fungicide, and Rodenticide Act and measures (HEOA sections 488(a)); You may view this document, in text (FIFRA), and tolerance reassessment • Missing person procedures or Adobe Portable Document Format program under the Federal Food, Drug, (HEOA section 488(g)); (PDF), on the Internet at the following and Cosmetic Act (FFDCA), section • Year-round Pell Grant (HEOA site: http://www.ed.gov/news/ 408(q). section 401); fedregister. To use PDF you must have DATES: • Pell Grants and Children of Soldiers Adobe Acrobat Reader, which is Comments must be received on (HEOA section (HEOA section 401); available free at this site. If you have or before March 2, 2009. • TEACH Grants-extenuating questions about using PDF, call the U.S. ADDRESSES: Submit your comments, circumstances (HEOA section 412(a)(1)); Government Printing Office toll free at identified by docket identification (ID) • Federal Work Study (FWS); 1–888–293–6498; or in the Washington, number EPA–HQ–OPP–2008–0834, by • Definition of community service DC area at (202) 512–1530. one of the following methods: (HEOA section 441(2)); • Federal eRulemaking Portal: http:// • Note: The official version of this document www.regulations.gov. Follow the online Grants for FWS Program (HEOA is the document published in the Federal section 443); instructions for submitting comments. • Register. Free Internet access to the official • Mail: Office of Pesticide Programs Flexible use of funds (HEOA edition of the Federal Register and the Code section 444); of Federal Regulations is available on GPO (OPP) Regulatory Public Docket (7502P), • Additional funds for off-campus Access at: http://www.gpoaccess.gov/nara/ Environmental Protection Agency, 1200 community service (HEOA section 446); index.html. Pennsylvania Ave., NW., Washington, • Work Colleges (HEOA section DC 20460–0001. • 447); Program Authority: 20 U.S.C. 1098a. Delivery: OPP Regulatory Public • LEAP/Grants for Access and Dated: December 24, 2008. Docket (7502P), Environmental Persistence (GAP) Program (HEOA Vince Sampson, Protection Agency, Rm. S–4400, One section 407); Deputy Assistant Secretary for Postsecondary Potomac Yard (South Bldg.), 2777 S. • Notification to students; Education. Crystal Dr., Arlington, VA. Deliveries • GAP non-Federal share; [FR Doc. E8–31176 Filed 12–30–08; 8:45 am] are only accepted during the Docket • Facility’s normal hours of operation Application for an allotment BILLING CODE 4000–01–P under GAP; (8:30 a.m. to 4 p.m., Monday through • Roles of partners in GAP; Friday, excluding legal holidays). • Special arrangements should be made GAP Program activities; ENVIRONMENTAL PROTECTION • for deliveries of boxed information. The Applicability of LEAP Program AGENCY requirements in GAP; Docket Facility telephone number is • GAP maintenance of effort 40 CFR Part 180 (703) 305–5805. requirement. Instructions: Direct your comments to These topics are tentative. Topics may [EPA–HQ–OPP–2008–0834; FRL–8394–7] docket ID number EPA–HQ–OPP–2008– be added or removed as the process 0834. EPA’s policy is that all comments Azinphos-methyl, Disulfoton, continues. received will be included in the docket Esfenvalerate, Ethylene oxide, without change and may be made Schedule for Negotiations Fenvalerate, et al.; Proposed Tolerance available online at http:// We anticipate that negotiations for Actions www.regulations.gov, including any these committees will begin in February AGENCY: Environmental Protection personal information provided, unless 2009, with each committee meeting for Agency (EPA). the comment includes information three sessions of approximately three ACTION: Proposed rule. claimed to be Confidential Business days at roughly monthly intervals. The Information (CBI) or other information committees will meet in the SUMMARY: EPA is proposing to revoke whose disclosure is restricted by statute. Washington, DC area. The dates and certain tolerances for the fungicides Do not submit information that you locations of these meetings will be prothioconazole and thiabendazole; the consider to be CBI or otherwise published in a subsequent notice in the herbicide primisulfuron- methyl; and protected through regulations.gov or e- Federal Register, and will be posted on the insecticides azinphos-methyl, mail. The regulations.gov website is an the Department’s Web site at: http:// disulfoton, esfenvalerate, fenvalerate, ‘‘anonymous access’’ system, which
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means EPA will not know your identity • Pesticide manufacturing (NAICS vii. Explain your views as clearly as or contact information unless you code 32532). possible, avoiding the use of profanity provide it in the body of your comment. This listing is not intended to be or personal threats. If you send an e-mail comment directly exhaustive, but rather provides a guide viii. Make sure to submit your to EPA without going through for readers regarding entities likely to be comments by the comment period regulations.gov, your e-mail address affected by this action. Other types of deadline identified. will be automatically captured and entities not listed in this unit could also C. What Can I do if I Wish the Agency included as part of the comment that is be affected. The North American to Maintain a Tolerance that the Agency placed in the docket and made available Industrial Classification System Proposes to Revoke? on the Internet. If you submit an (NAICS) codes have been provided to electronic comment, EPA recommends assist you and others in determining This proposed rule provides a that you include your name and other whether this action might apply to comment period of 60 days for any contact information in the body of your certain entities. To determine whether person to state an interest in retaining comment and with any disk or CD-ROM you or your business may be affected by a tolerance proposed for revocation. If you submit. If EPA cannot read your this action, you should carefully EPA receives a comment within the 60– comment due to technical difficulties examine the applicability provisions in day period to that effect, EPA will not and cannot contact you for clarification, Unit II.A. If you have any questions proceed to revoke the tolerance EPA may not be able to consider your regarding the applicability of this action immediately. However, EPA will take comment. Electronic files should avoid to a particular entity, consult the person steps to ensure the submission of any the use of special characters, any form listed under FOR FURTHER INFORMATION needed supporting data and will issue of encryption, and be free of any defects CONTACT. an order in the Federal Register under FFDCA section 408(f), if needed. The or viruses. B. What Should I Consider as I Prepare Docket: All documents in the docket order would specify data needed and My Comments for EPA? are listed in the docket index available the timeframes for its submission, and at http://www.regulations.gov. Although 1. Submitting CBI. Do not submit this would require that within 90 days some listed in the index, some information is information to EPA through person or persons notify EPA that they not publicly available, e.g., CBI or other regulations.gov or e-mail. Clearly mark will submit the data. If the data are not information whose disclosure is the part or all of the information that submitted as required in the order, EPA restricted by statute. Certain other you claim to be CBI. For CBI will take appropriate action under material, such as copyrighted material, information in a disk or CD-ROM that FFDCA. is not placed on the Internet and will be you mail to EPA, mark the outside of the EPA issues a final rule after publicly available only in hard copy disk or CD-ROM as CBI and then considering comments that are form. Publicly available docket identify electronically within the disk or submitted in response to this proposed materials are available either in the CD-ROM the specific information that is rule. In addition to submitting electronic docket at http:// claimed as CBI. In addition to one comments in response to this proposal, www.regulations.gov, or, if only complete version of the comment that you may also submit an objection at the available in hard copy, at the OPP includes information claimed as CBI, a time of the final rule. If you fail to file Regulatory Public Docket in Rm. S– copy of the comment that does not an objection to the final rule within the 4400, One Potomac Yard (South Bldg.), contain the information claimed as CBI time period specified, you will have 2777 S. Crystal Dr., Arlington, VA. The must be submitted for inclusion in the waived the right to raise any issues hours of operation of this Docket public docket. Information so marked resolved in the final rule. After the Facility are from 8:30 a.m. to 4 p.m., will not be disclosed except in specified time, issues resolved in the Monday through Friday, excluding legal accordance with procedures set forth in final rule cannot be raised again in any holidays. The Docket Facility telephone 40 CFR part 2. subsequent proceedings. 2. Tips for preparing your comments. number is (703) 305–5805. II. Background FOR FURTHER INFORMATION CONTACT: When submitting comments, remember Joseph Nevola, Special Review and to: A. What Action is the Agency Taking? i. Identify the document by docket ID Reregistration Division (7508P), Office number and other identifying EPA is proposing to revoke, modify, of Pesticide Programs, Environmental information (subject heading, Federal and establish specific tolerances for Protection Agency, 1200 Pennsylvania Register date and page number). residues of the fungicides Ave, NW., Washington, DC 20460–0001; ii. Follow directions. The Agency may prothioconazole and thiabendazole; the telephone number: (703) 308–8037; e- ask you to respond to specific questions herbicide primisulfuron-methyl; and the mail address: [email protected]. or organize comments by referencing a insecticides azinphos-methyl, SUPPLEMENTARY INFORMATION: Code of Federal Regulations (CFR) part disulfoton, esfenvalerate, fenvalerate, I. General Information or section number. phosalone, and phosmet; the plant iii. Explain why you agree or disagree; growth regulator 1-naphthaleneacetic A. Does this Action Apply to Me? suggest alternatives and substitute acid; and the antimicrobial/insecticidal You may be potentially affected by language for your requested changes. agent ethylene oxide and its reaction this action if you are an agricultural iv. Describe any assumptions and product ethylene chlorohydrin in or on producer, food manufacturer, or provide any technical information and/ commodities listed in the regulatory pesticide manufacturer. Potentially or data that you used. text. affected entities may include, but are v. If you estimate potential costs or EPA is proposing these tolerance not limited to: burdens, explain how you arrived at actions for disulfoton, ethylene oxide, 1- • Crop production (NAICS code 111). your estimate in sufficient detail to naphthaleneacetic acid, and phosmet to • Animal production (NAICS code allow for it to be reproduced. implement the tolerance 112). vi. Provide specific examples to recommendations made during the • Food manufacturing (NAICS code illustrate your concerns and suggest reregistration and tolerance 311). alternatives. reassessment processes (including
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follow-up on canceled or additional oxide (EPA–HQ–OPP–2005–0203) and Administrative Record and paper copies uses of pesticides). However, in the case primisulfuron-methyl (EPA–HQ–OPP– for ethylene oxide and 1- of prothioconazole, the proposed 2002–0163) at http:// naphthaleneacetic acid can be found tolerance revocation herein is not www.regulations.gov and REDs for under their respective public docket ID associated with the reregistration or azinphos-methyl, disulfoton, phosmet, numbers, identified in Unit II.A. Paper tolerance reassessment processes, but and thiabendazole at http:// copies for disulfoton, esfenvalerate, and rather with an existing label prohibition. www.epa.gov/pesticides/reregistration/ phosmet are available in the public In the cases of azinphos-methyl, status.htm. docket for this proposed rule. Electronic fenvalerate, primisulfuron-methyl, and The selection of an individual copies are available through EPA’s thiabendazole, the proposed tolerance tolerance level is based on crop field electronic public docket and comment revocations herein are associated with residue studies designed to produce the system, regulations.gov at http:// no active U.S. registrations for specific maximum residues under the existing or www.regulations.gov. You may search food uses, and in the case of phosalone, proposed product label. Generally, the for docket ID number EPA–HQ–OPP– the proposed revocations are associated level selected for a tolerance is a value 2008–0834, then click on that docket ID with a follow-up to the withdrawal of a slightly above the maximum residue number to view its contents. comment to maintain tolerances for found in such studies, provided that the EPA has determined that the aggregate import purposes, as described in Unit tolerance is safe. The evaluation of exposures and risks are not of concern II.A. In the case of esfenvalerate, an whether a tolerance is safe is a separate for the above mentioned pesticide active isomer of fenvalerate, proposed inquiry. EPA recommends the raising of ingredients based upon the data a tolerance when data show that: identified in the RED or TRED which tolerances to be established (for those • Lawful use (sometimes through a lists the submitted studies that the food commodities with U.S. label change) may result in a higher Agency found acceptable. registrations for esfenvalerate) are being residue level on the commodity. EPA has found that the tolerances that converted from fenvalerate tolerances • The tolerance remains safe, are proposed in this document to be due to a phase out of fenvalerate use in notwithstanding increased residue level modified, are safe; i.e., that there is a the United States, and the proposed allowed under the tolerance. reasonable certainty that no harm will tolerance revocation on a processed In REDs, Chapter IV on ‘‘Risk result to infants and children from commodity tolerance is associated with Management, Reregistration, and aggregate exposure to the pesticide data that shows such residues are Tolerance Reassessment’’ typically chemical residues, in accordance with covered by the appropriate tolerance on describes the regulatory position, FQPA FFDCA section 408(b)(2)(C). (Note that the raw agricultural commodity for assessment, cumulative safety changes to tolerance nomenclature do which the Agency is proposing a determination, determination of safety not constitute modifications of decreased level herein. As part of these for U.S. general population, and safety tolerances). These findings are processes, EPA is required to determine for infants and children. In particular, discussed in detail in each RED or whether each of the amended tolerances the human health risk assessment TRED. The references are available for meets the safety standard of FFDCA. document which supports the RED inspection as described in this The safety finding determination of describes risk exposure estimates and document under SUPPLEMENTARY ‘‘reasonable certainty of no harm’’ is whether the Agency has concerns. In INFORMATION. discussed in detail in each TREDs, the Agency discusses its In addition, EPA is proposing to Reregistration Eligibility Decision (RED) evaluation of the dietary risk associated revoke certain specific tolerances and Report of the Food Quality with the active ingredient and whether because either they are no longer Protection Act (FQPA) Tolerance it can determine that there is a needed or are associated with food uses Reassessment Progress and Risk reasonable certainty (with appropriate that are no longer registered under Management Decision (TRED) for the mitigation) that no harm to any FIFRA. Those instances where active ingredient. REDs and TREDs population subgroup will result from registrations were canceled were recommend the implementation of aggregate exposure. EPA also seeks to because the registrant failed to pay the certain tolerance actions, including harmonize tolerances with international required maintenance fee and/or the modifications to reflect current use standards set by the Codex Alimentarius registrant voluntarily requested patterns, meet safety findings, and Commission, as described in Unit III. cancellation of one or more registered change commodity names and Explanations for proposed uses of the pesticide. It is EPA’s general groupings in accordance with new EPA modifications in tolerances and/or practice to propose revocation of those policy. Printed copies of many REDs establishments of tolerances for tolerances for residues of pesticide and TREDs may be obtained from EPA’s disulfoton, ethylene oxide, 1- active ingredients on crop uses for National Service Center for naphthaleneactic acid, and phosmet can which there are no active registrations Environmental Publications (EPA/ be found in the RED and TRED under FIFRA, unless any person in NSCEP), P.O. Box 42419, Cincinnati, document and in more detail in the comments on the proposal indicates a OH 45242–2419; telephone number: 1– Residue Chemistry Chapter document need for the tolerance to cover residues 800–490–9198; fax number: 1–513–489– which supports the RED and TRED. in or on imported commodities or 8695; Internet at http://www.epa.gov/ Esfenvalerate was not subject to the legally treated domestic commodities. ncepihom and from the National reregistration program because it was 1. Azinphos-methyl. On December 28, Technical Information Service (NTIS), registered after November 1, 1984. 2005 (70 FR 76827) (FRL–7752–5), the 5285 Port Royal Rd., Springfield, VA However, the explanation for the Agency published a notice in the 22161; telephone number: 1–800–553– proposed modification in one tolerance Federal Register and approved requests 6847 or (703) 605–6000; Internet at and establishments of other tolerances from registrants to voluntarily amend http://www.ntis.gov. Electronic copies of for esvenvalerate can be found in the their product registrations to terminate REDs and TREDs are available on the Residue Chemistry Chapter available in certain azinphos-methyl uses effective Internet in public dockets for 1- the public docket for this proposed rule. December 28, 2005. These amendments naphthaleneacetic acid (EPA–HQ–OPP– Copies of the Residue Chemistry follow a September 30, 2002 Federal 2006–0507) and TREDs for ethylene Chapter documents are found in the Register Notice of Receipt of Requests
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(67 FR 61337) (FRL–7199–6) from the Brussels sprouts effective September 30, metabolites, calculated as demeton. azinphos-methyl registrants to amend 2008, on almonds, pistachios, and Based on plant and animal metabolism their product registrations to terminate walnuts effective October 30, 2009, and data, the Agency determined that certain uses. The amendments on apples, blueberries, cherries, parsley, residues of concern should include the terminated azinphos-methyl use on a and pears effective September 30, 2012. sulfoxide and sulfone degradates and number of commodities, including Treated commodities subject to the final oxygen analogues of the sulfoxide and alfalfa, bean (succulent and snap), rule and that are in the channels of trade sulfone degradates and calculated as broccoli, cabbage (including chinese), following the tolerance revocations are disulfoton in compatibility with the cauliflower, celery, citrus, clover, subject to FFDCA section 408(l)(5). Codex expression. Therefore, EPA is cucumber, eggplant, grape, hazelnut Residues of pesticides whose tolerances proposing to revise the introductory text (filbert), melon, onion (green and dry have been revoked do not render the containing the tolerance expression in bulb), pecan, pepper, fresh plum, dried food adulterated so long as it is shown 40 CFR 180.183(a) to read as follows: plum, quince, spinach, strawberry, to the satisfaction of the Food and Drug ‘‘Tolerances are established for the tomato, and birdsfoot trefoil. All sale Administration that residue is present combined residues of the insecticide and distribution of existing stocks of as the result of an application or use of disulfoton, O,O-diethyl S-[2- end-use products bearing these uses by the pesticide at a time and in a manner (ethylthio)ethyl] phosphorodithioate; registrants was prohibited 90-calendar that was lawful under FIFRA and the demeton-S, O,O-diethyl S-[2- days after receipt of EPA approved residue does not exceed the level that (ethylthio)ethyl] phosphorothioate; revised labels reflecting the use was authorized at the time of the disulfoton sulfoxide, O,O-diethyl S-[2- deletions; i.e., after August 2003. The application or use to be present on the (ethylsulfinyl)ethyl] Agency believes that end users will food under a tolerance or exemption phosphorodithioate; disulfoton oxygen have had sufficient time to exhaust from tolerance. Evidence to show that analog sulfoxide, O,O-diethyl S-[2- existing stocks and for treated food was lawfully treated may include (ethylsulfinyl)ethyl] phosphorothioate; commodities to have cleared the records that verify the dates that the disulfoton sulfone, O,O-diethyl S-[2- channels of trade. Therefore the pesticide was applied to such food. (ethylsulfonyl)ethyl] associated tolerances are no longer Therefore, the associated tolerances will phosphorodithioate; and disulfoton needed. Consequently, EPA is proposing no longer be needed after the last use oxygen analog sulfone, O,O-diethyl S-[2- to revoke the tolerances in 40 CFR dates specified. Consequently, EPA is (ethylsulfonyl)ethyl] phosphorothioate; 180.154 on alfalfa, forage; alfalfa, hay; proposing to revoke the tolerances in 40 calculated as disulfoton, in or on food bean, snap, succulent; broccoli; cabbage; CFR 180.154 on Brussels sprouts on the commodities as follows.’’ cauliflower; celery; clover, forage; date of publication of the final rule in Also, EPA is proposing to revise the clover, hay; cucumber; eggplant; fruit, the Federal Register, on almond; introductory text containing the citrus, group 10; grape; hazelnut; melon; almond, hulls; pistachio; and walnut; tolerance expression in 40 CFR onion; pecan; pepper; plum, prune; each with an expiration/revocation date 180.183(c) to read as follows: quince; spinach; strawberry; tomato, of October 30, 2009, and on apple; ‘‘Tolerances with regional registration postharvest; trefoil, forage; and trefoil, crabapple; blueberry; cherry; parsley, are established for the combined hay. leaves; parsley, turnip rooted, roots; and residues of the insecticide disulfoton, On July 5, 2006 (71 FR 38148) (FRL– pear; each with an expiration/revocation O,O-diethyl S-[2-(ethylthio)ethyl] 8076–4) and March 29, 2006 (71 FR date of September 30, 2012. phosphorodithioate; demeton-S, O,O- 15731) (FRL–7771–4), the Agency In addition, because the tolerance diethyl S-[2-(ethylthio)ethyl] published notices in the Federal expired on June 30, 2000, EPA is phosphorothioate; disulfoton sulfoxide, Register and approved requests from proposing to remove the tolerance in 40 O,O-diethyl S-[2-(ethylsulfinyl)ethyl] registrants to voluntarily amend their CFR 180.154 on sugarcane, cane. phosphorodithioate; disulfoton oxygen product registrations to terminate Also, EPA is proposing to revise the analog sulfoxide, O,O-diethyl S-[2- certain azinphos-methyl uses on section heading in 40 CFR 180.154 from (ethylsulfinyl)ethyl] phosphorothioate; caneberry (blackberry, boysenberry, O,O-Dimethyl S-[(4-oxo-1,2,3- disulfoton sulfone, O,O-diethyl S-[2- loganberry, raspberry), cotton, benzotriazin-3(4H)- (ethylsulfonyl)ethyl] cranberry, nectarine (covered by the yl)methyl]phosphorodithioate to that of phosphorodithioate; and disulfoton peach tolerance under 40 CFR 180.1(g)), azinphos-methyl. oxygen analog sulfone, O,O-diethyl S-[2- peach, and potato effective September There are Codex Maximum Residue (ethylsulfonyl)ethyl] phosphorothioate; 30, 2006. The Agency believes that end Limits (MRLs) for residues of azinphos- calculated as disulfoton, in or on food users will have had sufficient time for methyl on alfalfa forage; almonds; commodities as follows.’’ treated commodities to have cleared the almond hulls; apple; blueberries; In the Federal Register of May 21, channels of trade. Therefore the broccoli; cherries; clover hay or fodder; 2008 (73 FR 29507) (FRL–8364–7), EPA associated tolerances are no longer cottonseed; cranberry; cucumber; fruits issued a notice regarding EPA’s needed. Consequently, EPA is proposing (except as otherwise listed); melons, announcement of the receipt of requests to revoke the tolerances in 40 CFR except watermelon; peach; pear; pecan; from a registrant to voluntarily amend 180.154 on blackberry; boysenberry; peppers, chili (dry); peppers, sweet; certain registrations for disulfoton, cotton, undelinted seed; cranberry; plums (including prunes); potato; including deletion of the last barley and loganberry; peach; potato; and tomato; vegetables (except as otherwise wheat uses from disulfoton raspberry. listed); and walnuts. registrations. EPA approved the barley On March 26, 2008 (73 FR 16006) 2. Disulfoton, O,O-Diethyl S-[2- and wheat use deletions for disulfoton (FRL–8355–1) and February 20, 2008 (ethylthio)ethyl]phosphorodithioate. and issued a cancellation order on July (73 FR 9328) (FRL–8349–8), the Agency Currently, tolerances for disulfoton in 30, 2008 (73 FR 44263) (FRL–8375–7) published notices in the Federal 40 CFR 180.183(a) and (c) are and permitted the registrants to sell and Register and approved requests from established for the combined residues of distribute product under the previously registrants to voluntarily cancel and disulfoton, O,O-diethyl S-[2- approved labeling for a period of 6 amend their product registrations to (ethylthio)ethyl] phosphorodithioate, months after the effective date of the terminate azinphos-methyl uses on and its cholinesterase-inhibiting cancellation order; i.e., until January 30,
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2009. The Agency believes that end policy is in accordance with the and for disulfoton-treated potato users will have had sufficient time to Agency’s statement of policy as set forth commodities to have cleared the exhaust existing stocks and for in the Federal Register of June 26, 1991 channels of trade by January 30, 2010. disulfoton-treated barley and wheat (56 FR 29362) (FRL–3846–4). However, Consequently, using the latter date, EPA commodities to have cleared the in this case, the registrant, Bonide is proposing to revoke the tolerance in channels of trade by January 30, 2010. Products, Inc. (Bonide), has provided 40 CFR 180.183(a) on potato with an Therefore, EPA is proposing to revoke information to the Agency that these expiration/revocation date of January the tolerances in 40 CFR 180.183(a) on registrations were dormant, the 30, 2010. In addition, based on field barley, grain; barley, straw; wheat, hay; pesticide has not been recently trial data that showed disulfoton wheat, grain; and wheat, straw; each produced or distributed by Bonide, and residues of concern at less than 0.5 with an expiration/revocation date of that no existing stocks provision is ppm, EPA determined that the tolerance January 30, 2010. In addition, based on needed by Bonide in association with on potatoes should be decreased from field trial data and in order to be these cancellation requests. However, in 0.75 to 0.5 ppm. Therefore, EPA is compatible with Codex MRLs of 0.2 its request of April 11, 2008 for proposing to decrease the tolerance in milligram/kilogram (mg/kg), EPA voluntary cancellation, Bonide noted 40 CFR 180.183 on potato to 0.5 ppm, determined that the tolerance on wheat, that previously sold/distributed product the appropriate tolerance level for the grain should be decreased from 0.3 to may be in the channels of trade. The interim period before it expires on 0.2 parts per million (ppm). Also, the Agency believes that end users will January 30, 2010. Agency determined that wheat data may have had sufficient time (18 months) to In the Federal Register of December be translated to barley and the tolerance exhaust existing stocks and for 15, 2004 (69 FR 75061) (FRL–7689–8), on barley, grain should be decreased disulfoton-treated spinach and tomato EPA issued a notice which announced from 0.75 to 0.2 ppm. Therefore, EPA is commodities to have cleared the the receipt of requests from a registrant proposing to decrease the tolerances in channels of trade by October 14, 2009. to voluntarily amend a specific 40 CFR 180.183 on barley, grain and Therefore, EPA is proposing to revoke registration for disulfoton, including wheat, grain; each to 0.2 ppm, the the tolerances in 40 CFR 180.183(a) on deletion of the last peanut and pepper appropriate tolerance level for the spinach and tomato; each with an uses. EPA approved the amendments, interim period before each tolerance expiration/revocation date of October including the peanut and pepper use expires on January 30, 2010. 14, 2009. deletions for disulfoton in an order Available wheat processing data issued on October 10, 2007 (72 FR showed that disulfoton residues of Also, in Federal Register notices of 57571) (FRL–8151–8), and permitted the concern concentrated in wheat aspirated September 12, 2008 (73 FR 53007) registrant and others to sell, distribute, grain fractions at 1.35X and based on a (FRL–8380–7) and May 21, 2008 (73 FR and use product under the previously reassessed tolerance for wheat, grain at 29507) (FRL–8364–7), EPA announced approved labeling until stocks are 0.2 ppm (see the disulfoton RED), and the receipt of requests from registrants exhausted. The registrant and others the translation of wheat data to barley, to voluntarily cancel certain or amend have had more than 4 years since the EPA determined that a tolerance should registrations for disulfoton, which voluntary amendment requests and be established on aspirated grain include the last potato use registrations. more than 1 year since the amendment fractions at 0.3 ppm. Therefore, EPA is On October 14, 2008, the Agency issued order to sell and distribute stocks and proposing to establish a tolerance in 40 a cancellation order for specific Bonide the Agency believes that end users will CFR 180.183(a) on grain, aspirated registrations and permitted the have had sufficient time to exhaust fractions at 0.3 ppm with an expiration/ registrant to sell and distribute product existing stocks and for disulfoton- revocation date of January 30, 2010. under the previously approved labeling treated peanut and pepper commodities Based on available field trial data that until April 11, 2009. However, Bonide, to have cleared the channels of trade by showed combined disulfoton residues of the registrant, had informed the Agency January 30, 2010. Also, based on concern as high as <0.2 ppm on coffee in its request of April 11, 2008, that available data that showed combined beans, EPA determined that the while the associated registrations were disulfoton residues of concern below 0.1 tolerance should be decreased from 0.3 dormant ones where the pesticide has ppm in or on nutmeat, the Agency to 0.2 ppm. Therefore, EPA is proposing not been recently produced or determined that the tolerance should be to decrease the tolerance in 40 CFR distributed by the registrant such that it decreased from 0.75 to 0.1 ppm. 180.183(a) on coffee, bean to 0.2 ppm. did not need an existing stocks Therefore, EPA is proposing to revoke In the Federal Register of September provision, previously sold/distributed the tolerances in 40 CFR 180.183(a) on 12, 2008 (73 FR 53007) (FRL–8380–7), product in the channels of trade would peanut and pepper; each with an EPA issued a notice regarding EPA’s need an existing stocks provision. The expiration/revocation date of January announcement of the receipt of requests Agency believes that end users will 30, 2010, and decrease the tolerance on from a registrant to voluntarily cancel have had sufficient time to exhaust peanut to 0.1 ppm for the interim period certain registrations for disulfoton, existing stocks and for disulfoton- before it expires. including termination of the last treated potato commodities to have There have been no active spinach and tomato uses from cleared the channels of trade by October registrations in the United States for disulfoton registrations. On October 14, 14, 2009. However, the Agency issued disulfoton use on peas since 2002. The 2008, EPA approved the registration an order on July 30, 2008 (73 FR 44263) Agency believes that end users have had cancellations for disulfoton and issued (FRL–8375–7) to amend and terminate sufficient time to exhaust existing stocks a cancellation order to the registrant and certain uses, including potato, for and for disulfoton-treated peas to have permitted the registrant to sell and specific Bayer CropSciences cleared the channels of trade. Therefore, distribute product under the previously registrations and permitted the EPA is proposing to revoke the approved labeling until April 11, 2009. registrant to sell and distribute product tolerances in 40 CFR 180.183(a) on pea, Typically, the Agency will permit a under the previously approved labeling dry, seed; pea, field, vines; and pea, registrant to sell and distribute existing until January 30, 2009. The Agency succulent. stocks for 1 year after the date the believes that end users will have had Based on available field trial data that cancellation request was received. Such sufficient time to exhaust existing stocks showed combined disulfoton residues of
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concern as high as 1.15 ppm on leaf 30, 2010, and on milk at 0.01 ppm with newly recodified 40 CFR 180.533(a)(2) lettuce, EPA determined that the an expiration/revocation date of January on raw agricultural food commodities existing tolerance for lettuce at 0.75 30, 2010. (other than those food commodities ppm should be revised and a separate There are Codex MRLs for combined already covered by a higher tolerance as tolerance for leaf lettuce should be residues of disulfoton, demeton-S, and a result of use on growing crops) for the increased from 0.75 to 2 ppm. their sulfoxides and sulfones on a combined residues of the insecticide Therefore, EPA is proposing to revise number of commodities, including esfenvalerate, (S)-cyano(3- the tolerance on lettuce at 0.75 ppm in barley, barley straw, peanut, wheat, and phenoxyphenyl)methyl-(S)-4-chloro-a- 40 CFR 180.183(a) and separate it into wheat straw. (1-methylethyl)benzeneacetate, its non- lettuce, head at 0.75 and lettuce, leaf at 3. Esfenvalerate. Existing tolerances racemic isomer, (R)-cyano(3- 2 ppm. The Agency determined that the for fenvalerate are proposed herein to be phenoxyphenyl)methyl-(R)-4-chloro-a- increased tolerance is safe; i.e., there is converted to esfenvalerate tolerances for (1-methylethyl)benzeneacetate and its a reasonable certainty that no harm will those crops with U.S. registrations for diastereomers (S)-cyano(3- result from aggregate exposure to the esfenvalerate. This is because phenoxyphenyl)methyl-(R)-4-chloro-a- pesticide chemical residue. fenvalerate uses are being phased out in (1-methylethyl)benzeneacetate and (R)- the United States. Esfenvalerate and Based on available metabolism and cyano(3-phenoxyphenyl)methyl-(S)-4- fenvalerate are considered chemically cattle feeding data (3.6X) that showed chloro-a-(1-methylethyl)benzeneacetate. and toxicologically equivalent by EPA. combined disulfoton residues of Based on available data that showed Esfenvalerate is the S,S-isomer (the most concern in milk were as high as 0.012 combined esfenvalerate residues of insecticidally active isomer) enriched concern that were non-detectable (<0.01 ppm, EPA calculated residues at the 1X version of fenvalerate. Currently, ppm) in or on sugar beet roots, and in feeding level to be <0.01 ppm. esfenvalerate tolerances in 40 CFR order to harmonize with the fenvalerate Therefore, EPA determined that a 180.533(a) are established for residues Codex MRL for root and tuber tolerance should be established on milk of esfenvalerate, (S)-cyano(3- vegetables, EPA determined that the at 0.01 ppm with an expiration/ phenoxyphenyl)methyl-(S)-4-chloro-a- tolerance should be decreased from 0.5 revocation date of January 30, 2010. (1-methylethyl)benzeneacetate. The to 0.05 ppm. Therefore, EPA is Also, based on available metabolism Agency had determined that residues of proposing to decrease the tolerance in and cattle feeding data (0.7X) that concern should include its non-racemic newly recodified 40 CFR 180.533(a)(1) showed combined disulfoton residues of isomer, (R)-cyano(3- on beet, sugar, roots to 0.05 ppm. In concern in or on meat and meat phenoxyphenyl)methyl-(R)-4-chloro-a- addition, based on available processing byproducts as high as <0.01 ppm in fat (1-methylethyl)benzeneacetate and its data that showed an average and muscle, and 0.03 ppm in kidney, diastereomers (S)-cyano(3- concentration factor of 4.5X for dried EPA calculated that residues at the 1X phenoxyphenyl)methyl-(R)-4-chloro-a- sugar beet pulp and the highest average feeding level are expected to be <0.05 (1-methylethyl)benzeneacetate and (R)- field trial (HAFT) for sugar beet roots ppm in meat byproducts. Therefore, cyano(3-phenoxyphenyl)methyl-(S)-4- (<0.01 ppm), EPA determined that the EPA determined that tolerances on the chloro-a-(1-methylethyl)benzeneacetate. expected combined esfenvalerate fat, meat and meat byproducts of cattle, In addition, the Agency determined that residues of concern in dried sugar beet goats, hogs, horses, and sheep should be proposed and existing tolerances for pulp are <0.045 ppm. Because the established at 0.05 ppm. Currently, residues of concern as a result of proposed tolerance for the raw there are label restrictions against the esfenvalerate use on food commodities agricultural commodity (sugar beet root) grazing of disulfoton-treated cotton should be recodified into 40 CFR at 0.05 ppm should sufficiently cover fields and feeding of treated cotton 180.533(a)(1) and separated from the expected combined esfenvalerate forage to livestock and cotton forage is proposed tolerance on food residues of concern in or on sugar beet not considered by EPA to be a commodities for residues of concern as pulp resulting from registered use, the significant livestock feed item. While a result of esfenvalerate use in food- Agency determined that the existing cotton gin byproducts may occasionally handling establishments. Therefore, tolerance on dried sugar beet pulp is no serve as a livestock feed, the Agency has EPA is proposing to revise the longer needed and should be revoked. determined that there is no reasonable introductory text containing the Therefore, the Agency is proposing to expectation that disulfoton residues tolerance expression in 40 CFR revoke the tolerance in newly recodified would transfer to livestock tissue. 180.533(a) and recodify that section 40 CFR 180.533(a)(1) on beet, sugar, However, based on the feed crops of under 40 CFR 180.533(a)(1), as follows: dried pulp. barley, peanut, and wheat that are ‘‘Tolerances are established for the Because the existing tolerances for proposed herein for tolerance combined residues of the insecticide kohlrabi and head lettuce support revocation, each with an expiration/ esfenvalerate, (S)-cyano(3- regional registrations in Texas and revocation date of January 30, 2010, the phenoxyphenyl)methyl-(S)-4-chloro-a- Arizona, California, Colorado, Florida, Agency determined that the livestock (1-methylethyl)benzeneacetate, its non- New Mexico, and Texas, respectively, and milk tolerances should be racemic isomer, (R)-cyano(3- EPA determined that these tolerances established, each with an expiration/ phenoxyphenyl)methyl-(R)-4-chloro-a- are no longer general tolerances and revocation date of January 30, 2010. (1-methylethyl)benzeneacetate and its should be redesignated as regional Consequently, EPA is proposing to diastereomers (S)-cyano(3- registrations. Therefore, the Agency is establish tolerances in 40 CFR phenoxyphenyl)methyl-(R)-4-chloro-a- proposing to recodify tolerances on 180.183(a) on cattle, fat; cattle, meat; (1-methylethyl)benzeneacetate and (R)- kohlrabi at 2.0 ppm and lettuce, head at cattle, meat byproducts; goat, fat; goat, cyano(3-phenoxyphenyl)methyl-(S)-4- 5.0 ppm from 40 CFR 180.533(a) into 40 meat; goat, meat byproducts; hog, fat; chloro-a-(1-methylethyl)benzeneacetate, CFR 180.533(c) for regional tolerances. hog, meat; hog, meat byproducts; horse, in or on food commodities as follows:.’’ Also, because that section is currently fat; horse, meat; horse, meat byproducts; In order to cover current registrations reserved, EPA is proposing introductory sheep, fat; sheep, meat; and sheep, meat for use of esfenvalerate in food-handling text as follows: ‘‘Tolerances with byproducts, each at 0.05 ppm and with establishments, EPA is proposing to regional registration are established for an expiration/revocation date of January establish a tolerance of 0.05 ppm under the combined residues of the insecticide
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esfenvalerate, (S)-cyano(3- cantaloupe at 0.5 ppm; eggplant at 0.5 ppm; in milk at 0.3 ppm; and in milk, phenoxyphenyl)methyl-(S)-4-chloro-a- ppm; melon, honeydew at 0.5 ppm; fat at 7.0 ppm. (1-methylethyl)benzeneacetate, its non- muskmelon at 0.5 ppm; pea, succulent Based on a petition with data racemic isomer, (R)-cyano(3- at 0.5 ppm; pear at 1.0 ppm; pepper at submitted by the Interregional Research phenoxyphenyl)methyl-(R)-4-chloro-a- 0.5 ppm; pumpkin at 0.5 ppm; squash, Project No. 4 (IR-4) in support of the use (1-methylethyl)benzeneacetate and its winter at 0.5 ppm; sugarcane, cane at of esfenvalerate on sweet potatoes that diastereomers (S)-cyano(3- 1.0 ppm; sunflower, seed at 0.5 ppm; showed residues of concern at <0.05 phenoxyphenyl)methyl-(R)-4-chloro-a- tomato at 0.5 ppm; and watermelon at ppm, EPA determined that a tolerance (1-methylethyl)benzeneacetate and (R)- 0.5 ppm. should be established at 0.05 ppm. cyano(3-phenoxyphenyl)methyl-(S)-4- Based on the available bridging data Therefore, the Agency is proposing to chloro-a-(1-methylethyl)benzeneacetate, from fenvalerate that compared residues establish a tolerance in 40 CFR in or on food commodities as follows:.’’ of fenvalerate with esfenvalerate for 180.533(a)(1) on sweet potato, roots at Currently, many crop commodities certain crop commodities and using a 0.05 ppm. registered for esfenvalerate, the S,S- tiered approach of residue conversion, Also, based on a petition with data isomer of fenvalerate, have been covered EPA determined that fenvalerate submitted by IR-4 in support of a by tolerances in 40 CFR 180.379 for tolerances greater than 2.0 ppm should regional registration (east of the fenvalerate, a racemic mixture of four be established for esfenvalerate at levels Mississippi River only) for use of stereoisomers (the S,S; R,S; S,R; and R,R divided by 3 and rounded to the nearest esfenvalerate on bok choy that showed isomers). However, as described earlier whole number. Therefore, the Agency is residues of concern at <1.0 ppm, EPA in this document, EPA is proposing to proposing to establish tolerances in determined that a regional tolerance revoke fenvalerate tolerances. Therefore, newly recodified 40 CFR 180.533(a)(1) should be established at 1.0 ppm. EPA is proposing to establish separate for combined esfenvalerate residues of Therefore, the Agency is proposing to tolerances for esfenvalerate in 40 CFR concern on almond, hulls at 5.0 ppm; establish a regional tolerance in 40 CFR 180.533 as described below. blueberry at 1.0 ppm; cabbage, except 180.533(c) on cabbage, chinese, bok Based on the available bridging data chinese cabbage at 3.0 ppm; caneberry choy at 1.0 ppm. from fenvalerate that compared residues subgroup 13A at 1.0 ppm; collards at 3.0 In addition, based on a petition with of fenvalerate with esfenvalerate for ppm; elderberry at 1.0 ppm; fruit, stone, data submitted by IR-4 regarding bulk certain crop commodities and using a group 12 at 3.0 ppm; gooseberry at 1.0 food storage areas and in support of tiered approach of residue conversion, ppm; radish, tops at 3.0 ppm; and postharvest uses of esfenvalerate on EPA determined that fenvalerate turnip, tops at 7.0 ppm. stored almonds, cacao beans, peanuts, tolerances less than 1.0 ppm should be Based on the available bridging data and walnuts that showed residues of established for esfenvalerate at levels from fenvalerate that compared residues concern as high as 43.48 ppm, 0.79 that remain unchanged due to the of fenvalerate with esfenvalerate for ppm, 0.11 ppm and 13.05 ppm, increased variability in analytical data corn and using a tiered approach of respectively, on samples collected from as the limit of quantitation is residue conversion, the Agency exposed surface sections of sacks approached. Therefore, the Agency is determined that tolerances should be (samples from interior sections of sacks proposing to establish tolerances in established for combined esfenvalerate were mostly non-detectable; i.e., <0.1 newly recodified 40 CFR 180.533(a)(1) residues of concern on the forage of ppm), EPA determined that postharvest for combined esfenvalerate residues of field and sweet corn and the stover of tolerances should be established on concern on almond at 0.2 ppm; bean, field, pop, and sweet corn, each at 15.0 almond, postharvest at 50 ppm; cacao dry, seed at 0.25 ppm; carrot, roots at ppm. Therefore, the Agency is bean, postharvest at 1.0 ppm; peanut, 0.5 ppm; cauliflower at 0.5 ppm; corn, proposing to establish tolerances in postharvest at 0.20 ppm; and walnut, field, grain at 0.02 ppm; corn, pop, grain newly recodified 40 CFR 180.533(a)(1) postharvest at 15 ppm. However, the at 0.02 ppm; corn, sweet, kernel plus for combined esfenvalerate residues of petitioner needs to submit a revised cob with husks removed at 0.1 ppm; concern on corn, field, forage at 15.0 Section B to limit number of cotton, undelinted seed at 0.2 ppm; ppm; corn, field, stover at 15.0 ppm; consecutive daily spray applications to cucumber at 0.5 ppm; hazelnut at 0.2 corn, pop, stover at 15.0 ppm; corn, 270 days and specify a retreatment ppm; lentil, seed at 0.25 ppm; pea, dry, sweet, forage at 15.0 ppm; and corn, interval of 3-4 days when the proposed seed at 0.25 ppm; peanut at 0.02 ppm; sweet, stover at 15.0 ppm. formulation is used for space treatments pecan at 0.2 ppm; potato at 0.02 ppm; In order to cover potential secondary of food-handling establishments other radish, roots at 0.3 ppm; soybean, seed residues in or on milk and ruminant than on stored almonds, cacao beans, at 0.05 ppm; squash, summer at 0.5 tissues which could result from peanuts, and walnuts. Therefore, the ppm; turnip, roots at 0.5 ppm; and registered uses of esfenvalerate on many Agency is not taking action to establish walnut at 0.2 ppm. livestock feed items and livestock such postharvest tolerances at this time. Based on the available bridging data premises, and because the ruminant Moreover, based on a petition with from fenvalerate that compared residues metabolism of esfenvalerate is similar to data submitted by IR-4 in support of a of fenvalerate with esfenvalerate for fenvalerate, EPA determined that animal regional registration (for use of certain crop commodities and using a commodity tolerances for esfenvalerate esfenvalerate on Brussels sprouts grown tiered approach of residue conversion, should be established at levels which in all states except California) that EPA determined that fenvalerate match the existing tolerances for showed esfenvalerate residues of tolerances that range from 1.0 to 2.0 fenvalerate. Therefore, the Agency is concern as high as 0.141 ppm, EPA ppm should be established for proposing to establish tolerances in 40 determined that a postharvest tolerance esfenvalerate at levels divided by 2. CFR 180.533(a)(1) on cattle, fat; cattle, should be established at 0.20 ppm. Therefore, the Agency is proposing to meat; cattle, meat byproducts; goat, fat; Provided that the use of esfenvalerate on establish tolerances in newly recodified goat, meat; goat, meat byproducts; hog, Brussels sprouts is limited to the EPA- 40 CFR 180.533(a)(1) for combined fat; hog, meat; hog, meat byproducts; defined growing regions represented by esfenvalerate residues of concern on horse, fat; horse, meat; horse, meat Arkansas (Region 4) and North Carolina apple at 1.0 ppm; bean, snap, succulent byproducts; sheep, fat; sheep, meat; and (Region 2), no additional field trials are at 1.0 ppm; broccoli at 1.0 ppm; sheep, meat byproducts; each at 1.5 required. However, the petitioner did
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not specify the minimum spray volumes newly revised 40 CFR 180.151(a)(2) as treated food commodities to have for ground versus aerial equipment follows: ‘‘Tolerances are established for cleared the channels of trade by April 2, applications, and this information is residues of the ethylene oxide reaction 2010. Therefore, EPA is proposing to required since the amount of spray product, 2-chloroethanol, commonly revoke the tolerances in 40 CFR volumes as well as equipment types can referred to as ethylene chlorohydrin, 180.379(a)(1) on almond, hulls; almond; affect the magnitude of residues. when ethylene oxide is used as a apple; artichoke, globe; bean, dry, seed; Therefore, the Agency is not taking postharvest fumigant in or on food bean, snap, succulent; broccoli; action to establish such a tolerance for commodities as follows:.’’ blueberry; cabbage; caneberry subgroup Brussels sprouts at this time. Also, EPA is proposing to establish 13A; cantaloupe; carrot, roots; cattle, fat; There are Codex MRLs for residues of tolerances in 40 CFR 180.151(a)(2) for cattle, meat byproducts; cattle, meat; esfenvalerate on eggs; poultry meat; and ethylene chlorohydrin on herb and cauliflower; collards; corn, grain; corn, poultry, edible offal. spice, group 19, dried, except basil at forage; corn, stover; corn, sweet, kernel 4. Ethylene oxide. Because there are 940 ppm and vegetable, dried at 940 plus cob with husks removed; cotton, no active registrations for use of ppm. undelinted seed; cucumber; currant; ethylene oxide on coconut, EPA In addition, EPA is proposing to eggplant; elderberry; fruit, stone; goat, determined that the tolerance on revise commodity terminology to fat; goat, meat byproducts; goat, meat; coconut, copra is no longer needed and conform to current Agency practice as gooseberry; hazelnut; hog, fat; hog meat should be revoked. Consequently, the follows: in 40 CFR 180.151(a)(1), byproducts; hog, meat; horse, fat; horse, Agency is proposing to revoke the ‘‘walnut, black’’ to ‘‘walnut.’’ meat byproducts; horse, meat; tolerance in 40 CFR 180.151(a) on There are no Codex MRLs for residues huckleberry; melon, honeydew; milk; coconut, copra. of ethylene oxide or ethylene milk, fat; muskmelon; peanut; pear; pea; EPA has determined that the tolerance chlorohydrin in or on spices/herbs. A pea, dry, seed; pecan; pepper; potato; on processed spices at 50 ppm in 40 Canadian MRL exists for ethylene pumpkin; radish, roots; radish, tops; CFR 180.151(a)(2) should be reassigned chlorohydrin on spices at 1,500 ppm. sheep, fat; sheep, meat byproducts; with the tolerance on whole spices at 50 There is no Canadian MRL for ethylene sheep, meat; soybean; squash, summer; ppm in 40 CFR 180.151(a)(1), as one oxide on spices/herbs. However, squash, winter; sugarcane, cane; tolerance termed herbs and spices, because the U.S. residue data showed sunflower, seed; tomato; turnip, greens; group 19, dried (except basil), and slightly lower levels of ethylene turnip, roots; walnut; and watermelon; should be lowered to 7 ppm based on chlorohydrin, the Agency is proposing a each with an expiration/revocation date a reevaluation of a single chamber 940 ppm tolerance. of April 2, 2010. Also, EPA is proposing process that showed much lower 5. Fenvalerate. Fenvalerate is a to revoke the tolerance in 40 CFR residue levels. Therefore, the Agency is racemic mixture of four stereoisomers 180.379(a)(3) on soybean, hulls and the proposing to revoke the tolerances on (the S,S; R,S; S,R; and R,R isomers). On regional tolerance in 40 CFR 180.379(c) processed (ground) spices in 40 CFR August 5, 2004 (69 FR 47437) (FRL– on okra. In addition, EPA is proposing 180.151(a)(2) and the tolerance on 7369–5), EPA issued a cancellation to revoke a tolerance on raw agricultural spices, whole in 40 CFR 180.151(a)(1), order for all technical registrations for food commodities (other than those food and establish a tolerance in 40 CFR fenvalerate that permitted one technical commodities already covered by a 180.151(a)(1) on herb and spice, group registrant to sell and distribute existing higher tolerance as a result of use on 19, dried, except basil at 7 ppm. stocks until March 27, 2004 and the growing crops) at 0.05 ppm in 40 CFR Based on data for spices/herbs and other technical registrant to sell and 180.379(a)(2) for residues of fenvalerate single chamber treatment process, EPA distribute existing stocks until April 1, and esfenvalerate as a result of use in determined that a tolerance should be 2004. Since then, in the Federal food-handling establishments. A established on dried vegetables at 7 Register of April 30, 2008 (73 FR 23457) separate tolerance for use of ppm, provided that label amendments (FRL–8363–5), EPA issued a notice esfenvalerate in food-handling are made as described above. Therefore, regarding EPA’s announcement of the establishments is proposed by the the Agency is proposing to establish a receipt of requests from end-use Agency to be established in 40 CFR tolerance in 40 CFR 180.151(a)(1) for registrants to voluntarily cancel certain 180.533(a)(2) as described earlier in this residues of ethylene oxide in or on registrations for fenvalerate, cyano(3- document. vegetable, dried at 7 ppm. phenoxyphenyl)methyl-4-chloro-a-(1- Due to the proposed tolerance Currently in 40 CFR 180.151(a)(2), methylethyl)benzeneacetate, which revocations herein, EPA is proposing to there are prescribed conditions of use would terminate the last fenvalerate revise the section heading in 40 CFR for ethylene oxide. The Agency believes products registered for use in the United 180.379 from cyano(3- that these current sections in 40 CFR States. EPA approved the cancellations phenoxyphenyl)methyl-4-chloro-a-(1- 180.151(a)(2) should be removed effective on July 9, 2008, and permitted methylethyl)benzeneacetate to that of because all treatment parameters should the registrants to sell and distribute fenvalerate, remove the table in be on the label. Ethylene chlorohydrin product under the previously approved paragraph (c) and reserve paragraph (c), is a reaction product that results from labeling for a period of 1 year from the remove paragraphs (a)(2) and (a)(3), the fumigation of foods with ethylene date of the cancellation request (which revise paragraph (a)(1) into (a) and the oxide due to interaction of the ethylene ranged from August 29, 2007 through introductory text containing the oxide with natural chlorides present in April 2, 2008), i.e., until April 2, 2009 tolerance expression in newly the crop. Based on spice sterilization for the last end-use registrations. These recodified 40 CFR 180.379(a) to read as data and a refined probabilistic acute last registrations were for uses follows: ‘‘Tolerances are established for dietary assessment for all supported associated with agricultural, pet care, residues of the insecticide fenvalerate, ethylene oxide food uses, the Agency domestic home and garden, and cyano(3-phenoxyphenyl)methyl-4- concluded that ethylene chlorohydrin is commercial/industrial/food sites and chloro-a-(1-methylethyl)benzeneacetate, a residue of concern and should have non-food/mosquito abatement. The in or on food commodities as follows.’’ tolerances. Therefore, EPA is proposing Agency believes that end users will Also, EPA is proposing to revise to remove existing paragraph (a)(2) and have had sufficient time to exhaust commodity terminology to conform to establish a tolerance expression in existing stocks and for the fenvalerate- current Agency practice in 40 CFR
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180.379(a) from ‘‘corn, forage’’ to ‘‘corn, exemptions. Also, EPA is proposing to revise 40 CFR 180.155 by adding field, forage’’ and ‘‘corn, sweet, forage;’’ revoke the tolerances on apple and pear separate paragraphs (c), and (d), and ‘‘corn, grain’’ to ‘‘corn, field, grain’’ and in 40 CFR 180.309, and remove that reserving those sections for tolerances ‘‘corn, pop, grain;’’ ‘‘corn, stover’’ to section. In addition, EPA is proposing to with regional registrations and indirect ‘‘corn, field, stover,’’ ‘‘corn, pop, revise the introductory text in 40 CFR or inadvertent residues, respectively. stover,’’ and ‘‘corn, sweet, stover;’’ 180.155(a) as follows: ‘‘Tolerances are In addition, EPA is proposing to ‘‘fruit, stone’’ to ‘‘fruit, stone, group 12;’’ established for the combined residues of revise commodity terminology to ‘‘soybean’’ to ‘‘soybean, seed;’’ and the plant growth regulator 1- conform to current Agency practice in ‘‘turnip, greens’’ to ‘‘turnip, tops.’’ naphthaleneacetic acid and its 40 CFR 180.155(a) from ‘‘orange, sweet’’ Currently, there are existing Codex conjugates calculated as 1- to ‘‘orange.’’ Also, in order to reflect that MRLs for fenvalerate residues on beans, naphthaleneacetic acid from the there are no U.S. registrations, but only shelled at 0.1 mg/kg; beans, except application of 1-naphthaleneacetic acid, support for importation, EPA is broad bean and soya bean at 1 mg/kg; its ammonium, sodium, or potassium proposing to footnote the pineapple berries and other small fruits at 1 mg/ salts, ethyl ester, and acetamide in or on tolerance and revise it from ‘‘pineapple kg; broccoli at 2 mg/kg; cabbages, head food commodities as follows:.’’ (from the application of the sodium salt at 3 mg/kg; cauliflower at 2 mg/kg; Because tolerances for residues of 1- to the growing crop)’’ to ‘‘pineapple.’’ cereal grains at 2 mg/kg; cherries at 2 naphthaleneacetic acid by application of There are no Codex MRLs for residues mg/kg; cottonseed at 0.2 mg/kg; its various forms will be combined into of 1-naphthaleneacetic acid, its salts, cucumber at 0.2 mg/kg; edible offal one introductory text in 40 CFR ester, and acetamide. (mammalian) at 0.02 mg/kg; fat of meat 180.155(a), 40 CFR 180.3(d)(7), which 7. Phosalone. In the Federal Register (from mammals other than marine states that the total amount of residues of October 26, 1998 (63 FR 57062) (FRL– mammals) at 1 mg/kg; melons, except for a-naphthaleneacetamide and/or a- 6035–8), EPA responded to a comment watermelon at 0.2 mg/kg; milks at 0.1 naphthaleneacetic acid on the same raw from Rhone-Poulenc Ag Company, mg/kg; peach at 5 mg/kg; peanut, whole agricultural commodity shall not exceed which requested that the Agency not at 0.1 mg/kg; peas, shelled (succulent more residue than that permitted by the revoke tolerances for phosalone on seeds) at 0.1 mg/kg; peppers, chili (dry) higher of the two tolerances, is no almonds; apricots; apples; cherries; at 5 mg/kg; peppers, sweet at 0.5 mg/kg; longer needed and therefore 40 CFR grapes; peaches; pears; and plums/ pome fruits at 2 mg/kg; root and tuber 180.3(d)(7) should be removed. prunes in order to maintain them for vegetables at 0.05 mg/kg; soya bean Consequently, EPA is proposing to importation purposes, by not revoking (dry) at 0.1 mg/kg; squash, summer at remove the current 40 CFR 180.3(d)(7) those tolerances at that time. Later, after 0.5 mg/kg; sunflower seed at 0.1 mg/kg; and redesignate current 40 CFR a merger, Rhone-Poulenc Ag Company sweet corn (corn-on-the-cob) at 0.1 mg/ 180.3(d)(8) through (d)(13) as 40 CFR became Aventis CropScience, and was kg; tomato at 1 mg/kg; watermelon at 0.5 180.3(d)(7) through (d)(12), respectively. eventually acquired by Bayer mg/kg; tree nuts at 0.2 mg/kg; and Based on available field trial data that CropScience, which later entered into winter squash at 0.5 mg/kg. showed combined naphthaleneacetic an agreement that transferred the global 6. 1-Naphthaleneacetic acid. acid residues of concern in or on apples rights of phosalone to Cheminova. On Currently, tolerances in 40 CFR and pears as high as 0.06 ppm and 0.03 April 30, 2008, Cheminova notified EPA 180.155(a) are established for residues ppm, respectively, EPA determined that that for commercial reasons it will not of 1-naphthaleneacetic acid, in 40 CFR the tolerances on apple, pear, and develop the requested data to support 180.155(b) for residues of the ethyl ester quince in 40 CFR 180.155(a) should be the phosalone import tolerances. of 1-naphthaleneacetic acid, and in 40 decreased from 1 to 0.1 ppm and revised However, Cheminova urged the Agency CFR 180.309 for combined residues of into a crop group tolerance entitled to prevent trade irritants and consider a-naphthaleneacetamide and its fruit, pome, group 11. Therefore, EPA is that Canada is phasing out the use of metabolite a-naphthaleneacetic acid proposing to decrease the tolerances on phosalone. Health Canada’s Pest (calculated as a-naphthaleneacetic apple, pear, and quince in 40 CFR Management Regulatory Agency acid). However, the Agency has 180.155(a) to 0.1 ppm and revise them (PMRA) has scheduled a last date of determined the residues of concern are into fruit, pome, group 11. application for phosalone on apple; 1-naphthaleneacetic acid and its Based on available field trial data that cherry; grape; peach; pear; and plum/ conjugates and therefore that the showed combinednaphthaleneacetic prune as September 30, 2012, with the introductory text in 40 CFR 180.155(a) acid residues of concern in or on olives earliest date for amending (revoking) its should be revised for residues of 1- as high as 0.61 ppm, EPA determined MRLs as September 30, 2013. This naphthaleneacetic acid and its that the tolerances on olive in 40 CFR information is found on PMRA’s conjugates calculated as 1- 180.155(a) should be increased from 0.1 website at http://www.pmra-arla.gc.ca/ naphthaleneacetic acid that result from to 0.7 ppm. Therefore, EPA is proposing english/pdf/rev/rev2008-02-e.pdf. application of the acid, its ammonium, to increase the tolerance on olive in 40 Therefore, EPA is proposing to revoke sodium, or potassium salts, ethyl ester, CFR 180.155(a) to 0.7 ppm. The Agency the tolerances in 40 CFR 180.263 on or acetamide. Therefore, while determined that the increased tolerance apple; cherry; grape; peach; pear; and tolerances on apple, pear, and olive is safe; i.e., there is a reasonable plum, prune, fresh; each with an should be proposed at reassessed levels certainty that no harm will result from expiration date of September 30, 2013. in 40 CFR 180.155(a), separate aggregate exposure to the pesticide In addition, EPA is proposing to revoke tolerances on apple, pear, and olive in chemical residue. Also, EPA is the tolerances in 40 CFR 180.263 on 40 CFR 180.155(b) and on apple and proposing to remove the ‘‘(N)’’ almond and apricot effective on the day pear in 40 CFR 180.309 are no longer designation from the tolerance on olive of publication of the final rule in the needed and should be revoked. in 40 CFR 180.155(a) to conform to Federal Register. Consequently, EPA is proposing to current Agency administrative practice, In accordance with current Agency revoke the tolerances on apple, pear, where the ‘‘(N)’’ designation means practice, EPA is proposing to revise 40 and olive in 40 CFR 180.155(b) and negligible residue. CFR 180.263 by adding separate revise and reserve that paragraph for Also, in accordance with current paragraphs (b), (c), and (d), and tolerances with section 18 emergency Agency practice, EPA is proposing to reserving those sections for tolerances
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with section 18 emergency exemptions, 180.261(a) on hog, meat; and hog, meat tree, group 14.’’ Moreover, in 40 CFR regional registrations, and indirect or byproducts, each to 0.04 ppm. 180.261, EPA is proposing to remove the inadvertent residues, respectively. Based on available storage stability ‘‘(N)’’ designation from all entries to There are Codex MRLs for residues of data that showed no significant decline conform to current Agency phosalone on almonds, pome fruits, and in residues after 343 days of freezer administrative practice, where the ‘‘(N)’’ stone fruits. storage and field trial data that showed designation means negligible residues. 8. Phosmet, N- combined phosmet residues of concern There is compatibility between U.S. (Mercaptomethyl)phthalimide S-(O,O- in or on washed sweet potatoes as high tolerances and Codex MRLs for residues dimethyl phosphorodithioate). Based on as 11.2 ppm following postharvest of phosmet on apple at 10 mg/kg; metabolism and cattle feeding data treatment and 40–day storage, EPA apricot at 5 mg/kg; blueberries at 10 mg/ (0.2X (MTDB) that showed combined determined that the tolerance on sweet kg; citrus fruits at 5 mg/kg; grapes at 10 phosmet residues of concern in milk potatoes should be increased from 10 to mg/kg; nectarine at 5 mg/kg; peach at 10 below the limit of quantitation (LOQ) of 12 ppm. Therefore, EPA is proposing to mg/kg; pear at 10 mg/kg. In addition, 0.05 ppm, EPA determined that a increase the tolerance in 40 CFR there are Codex MRLs for residues of tolerance should be established on milk 180.261(a) on sweet potato, roots to 12 phosmet on tree nuts at 0.2 mg/kg and for phosmet residues of concern at the ppm. The Agency determined that the potato at 0.05 mg/kg. combined LOQ level of 0.1 ppm. increased tolerance is safe; i.e., there is 9. Primisulfuron-methyl. There have Therefore, EPA is proposing to establish a reasonable certainty that no harm will been no active registrations for use of a tolerance on milk in 40 CFR result from aggregate exposure to the primisulfuron-methyl on sweet corn for 180.261(a) at 0.1 ppm. pesticide chemical residue. more than 10 years. Also, for at least 10 Based on available metabolism and Based on available field trial data that years, active registrations for cattle feeding data (1.1X MTDB) that showed combined phosmet residues of primisulfuron-methyl have shown a showed combined phosmet residues of concern in or on succulent pea pods, label prohibition of its use on sweet concern in or on meat and meat and dry pea hay as high as 0.56 ppm corn. Therefore, there is no longer a byproducts below the LOQ of 0.05 ppm, and 17.3 ppm, respectively, EPA need for the sweet corn tolerance. EPA determined that the tolerances on determined that the tolerance on field Consequently, EPA is proposing to meat and meat byproducts of cattle, pea hay should be increased from 10 to revoke the tolerance in 40 CFR 180.452 goats, horses, and sheep should be set 20 ppm, and the pea tolerance at 0.5 on corn, sweet, kernel plus cob with at the combined LOQ of 0.1 ppm, and ppm should be revised and divided into husks removed. therefore decreased from 0.2 to 0.1 ppm. pea, dry, seed at 0.5 ppm and pea, There are no Codex MRLs for residues Consequently, EPA is proposing to succulent, which should be increased of primisulfuron-methyl. decrease tolerances in 40 CFR from 0.5 to 1 ppm. Therefore, EPA is 10. Prothioconazole. Prothioconazole 180.261(a) on cattle, meat; goat, meat; proposing in 40 CFR 180.261(a) to is a fungicide first registered for use in horse, meat; sheep, meat; cattle, meat increase the tolerance on pea, field, hay the United States in 2007. Therefore, it byproducts; goat, meat byproducts; to 20 ppm and revise pea into pea, dry, did not need to be reviewed under the horse, meat byproducts; and sheep, seed at 0.5 ppm and pea, succulent at reregistration or tolerance reassessment meat byproducts, each to 0.1 ppm. 1 ppm. The Agency determined that the programs. However, current active Based on a slightly exaggerated increased tolerances are safe; i.e., there registrations for the use of dermal application, EPA determined is a reasonable certainty that no harm prothioconazole on peanuts have a label that combined phosmet residues of will result from aggregate exposure to restriction against the feeding of peanut concern in or on cattle fat were below the pesticide chemical residue. hay or threshings to livestock or grazing the combined LOQ and in order to Based on available field trial data that of livestock in treated areas. Based on reflect both secondary residues from showed combined phosmet residues of these restrictions, the Agency has feed and direct dermal application, the concern below 20 ppm on alfalfa forage, determined that the tolerance on peanut Agency determined that overall EPA determined that the tolerance on hay is no longer needed, and therefore combined residues in or on cattle fat are alfalfa at 40 ppm should be revised and should be revoked. Consequently, EPA expected to be <0.2 ppm. However, divided into alfalfa, hay at 40 ppm and is proposing to revoke the tolerance in phosmet is not registered for dermal alfalfa, forage, which should be 40 CFR 180.626(a)(1) on peanut, hay. application to goats, horses, and sheep, decreased from 40 to 20 ppm. Therefore, There are no Codex MRLs for residues and the fat tolerances on goats, horses EPA is proposing to revise the tolerance of prothioconazole. and sheep should be based on the cattle in 40 CFR 180.261(a) on alfalfa into 11. Thiabendazole. In the Federal feeding data alone and set at a combined alfalfa, hay at 40 ppm and alfalfa, forage Register of December 28, 2007 (72 FR LOQ of 0.1 ppm, and therefore at 20 ppm. 73809) (FRL–8345–5), EPA issued a decreased from 0.2 to 0.1 ppm. Based on available processing data for notice regarding EPA’s announcement Consequently, EPA is proposing to cotton that showed phosmet residues of of the receipt of requests from decrease the tolerances in 40 CFR concern concentrated in cottonseed oil registrants to voluntarily amend certain 180.261(a) on goat, fat; horse, fat; and at 2X the treatment of cotton, EPA registrations for several active sheep, fat to 0.1 ppm. determined that a tolerance of 0.2 ppm ingredients, including deletion of the Based on swine dermal treatment data should be established based on the last sugar beet uses from thiabendazole that showed combined phosmet existing tolerance of 0.1 ppm for cotton, registrations. EPA approved the sugar residues of concern in or on liver, undelinted seed. Therefore, EPA is beet use deletions for thiabendazole and kidney, and muscle from animals at the proposing to establish a tolerance in 40 made the last one effective on June 25, 1–day pre-slaughter interval, each below CFR 180.261(a) on cotton, refined oil at 2008, and permitted the registrants to the combined LOQ of 0.04 ppm, EPA 0.2 ppm. sell and distribute product under the determined that the tolerances on meat Also, EPA is proposing to revise previously approved labeling for a and meat byproducts of hogs should be commodity terminology to conform to period of 18 months after approval of decreased from 0.2 to 0.04 ppm. current Agency practice in 40 CFR the revision; i.e., until December 25, Consequently, EPA is proposing to 180.261(a) from ‘‘fruit, citrus’’ to ‘‘fruit, 2009. The Agency believes that end decrease tolerances in 40 CFR citrus, group 10’’ and ‘‘nut’’ to ‘‘nut, users will have had sufficient time to
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exhaust existing stocks and for EPA has issued REDs for azinphos- contributions to such exposure from all thiabendazole-treated sugar beet methyl, disulfoton, 1-naphthaleneacetic tolerances. If the cumulative risk is such commodities to have cleared the acid, phosmet, and thiabendazole, and that the tolerances in aggregate are not channels of trade by December 25, 2010. TREDs for ethylene oxide and safe, then every one of these tolerances Therefore, EPA is proposing to revoke primisulfuron methyl. REDs and TREDs is potentially vulnerable to revocation. the tolerances in 40 CFR 180.242(a)(1) contain the Agency’s evaluation of the Furthermore, if unneeded tolerances are on beet, sugar, dried pulp; beet, sugar, database for these pesticides, including included in the aggregate and roots; and beet, sugar, tops; each with an requirements for additional data on the cumulative risk assessments, the expiration/revocation date of December active ingredients to confirm the estimated exposure to the pesticide 25, 2010. potential human health and would be inflated. Consequently, it may There are no Codex MRLs for residues environmental risk assessments be more difficult for others to obtain of thiabendazole on sugar beets. associated with current product uses, needed tolerances or to register needed and in REDs state conditions under new uses. To avoid potential trade B. What is the Agency’s Authority for which these uses and products will be restrictions, the Agency is proposing to Taking this Action? eligible for reregistration. The REDs and revoke tolerances for residues on crops A ‘‘tolerance’’ represents the TREDs recommended the establishment, uses for which FIFRA registrations no maximum level for residues of pesticide modification, and/or revocation of longer exist, unless someone expresses chemicals legally allowed in or on raw specific tolerances. RED and TRED a need for such tolerances. Through this agricultural commodities and processed recommendations such as establishing proposed rule, the Agency is inviting foods. Section 408 of FFDCA, 21 U.S.C. or modifying tolerances, and in some individuals who need these import 346a, as amended by FQPA of 1996, cases revoking tolerances, are the result tolerances to identify themselves and Public Law 104–170, authorizes the of assessment under the FFDCA the tolerances that are needed to cover establishment of tolerances, exemptions standard of ‘‘reasonable certainty of no imported commodities. from tolerance requirements, harm.’’ However, tolerance revocations recommended in REDs and TREDs that Parties interested in retention of the modifications in tolerances, and tolerances should be aware that revocation of tolerances for residues of are proposed in this document do not additional data may be needed to pesticide chemicals in or on raw need such assessment when the support retention. These parties should agricultural commodities and processed tolerances are no longer necessary. EPA’s general practice is to propose be aware that, under FFDCA section foods. Without a tolerance or revocation of tolerances for residues of 408(f), if the Agency determines that exemption, food containing pesticide pesticide active ingredients on crops for additional information is reasonably residues is considered to be unsafe and which FIFRA registrations no longer required to support the continuation of therefore ‘‘adulterated’’ under section exist and on which the pesticide may a tolerance, EPA may require that 402(a) of FFDCA, 21 U.S.C. 342(a). Such therefore no longer be used in the parties interested in maintaining the food may not be distributed in interstate United States. EPA has historically been tolerances provide the necessary commerce (21 U.S.C. 331(a)). For a food- concerned that retention of tolerances information. If the requisite information use pesticide to be sold and distributed, that are not necessary to cover residues is not submitted, EPA may issue an the pesticide must not only have in or on legally treated foods may order revoking the tolerance at issue. appropriate tolerances under the encourage misuse of pesticides within When EPA establishes tolerances for FFDCA, but also must be registered the United States. Nonetheless, EPA under FIFRA (7 U.S.C. 136 et seq.). pesticide residues in or on raw will establish and maintain tolerances agricultural commodities, consideration Food-use pesticides not registered in the even when corresponding domestic uses United States must have tolerances in must be given to the possible residues are canceled if the tolerances, which of those chemicals in meat, milk, order for commodities treated with EPA refers to as ‘‘import tolerances,’’ are those pesticides to be imported into the poultry, and/or eggs produced by necessary to allow importation into the animals that are fed agricultural United States. United States of food containing such EPA is proposing these tolerance products (for example, grain or hay) pesticide residues. However, where containing pesticides residues (40 CFR actions to implement the tolerance there are no imported commodities that 180.6). When considering this recommendations made during the require these import tolerances, the possibility, EPA can conclude that: reregistration and tolerance Agency believes it is appropriate to reassessment processes (including revoke tolerances for unregistered 1. Finite residues will exist in meat, follow-up on canceled or additional pesticides in order to prevent potential milk, poultry, and/or eggs. uses of pesticides). As part of these misuse. 2. There is a reasonable expectation processes, EPA is required to determine Furthermore, as a general matter, the that finite residues will exist. whether each of the amended tolerances Agency believes that retention of import meets the safety standard of FQPA. The tolerances not needed to cover any 3. There is a reasonable expectation safety finding determination is imported food may result in that finite residues will not exist. If discussed in detail in each post-FQPA unnecessary restriction on trade of there is no reasonable expectation of RED and TRED for the active ingredient. pesticides and foods. Under section 408 finite pesticide residues in or on meat, REDs and TREDs recommend the of FFDCA, a tolerance may only be milk, poultry, or eggs, tolerances do not implementation of certain tolerance established or maintained if EPA need to be established for these actions, including modifications to determines that the tolerance is safe commodities (40 CFR 180.6(b) and (c)). reflect current use patterns, to meet based on a number of factors, including EPA has evaluated certain specific safety findings, and change commodity an assessment of the aggregate exposure meat, milk, poultry, and egg tolerances names and groupings in accordance to the pesticide and an assessment of proposed for revocation in this with new EPA policy. Printed and the cumulative effects of such pesticide document and has concluded that there electronic copies of the REDs and and other substances that have a is no reasonable expectation of finite TREDs are available as provided in Unit common mechanism of toxicity. In pesticide residues of concern in or on II.A. doing so, EPA must consider potential those commodities.
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C. When Do These Actions Become channels of trade following the established under FFDCA section 408. Effective? tolerance revocations, shall be subject to The Office of Management and Budget With the exception of certain FFDCA section 408(l)(5), as established (OMB) has exempted these types of tolerances for azinphos-methyl, by FQPA. Under this unit, any residues actions (e.g., establishment and disulfoton, fenvalerate, phosalone, and of these pesticides in or on such food modification of a tolerance and thiabendazole for which EPA is shall not render the food adulterated so tolerance revocation for which proposing specific expiration/revocation long as it is shown to the satisfaction of extraordinary circumstances do not dates, the Agency is proposing that the Food and Drug Administration that: exist) from review under Executive these revocations, modifications, 1. The residue is present as the result Order 12866, entitled Regulatory establishments of tolerances, and of an application or use of the pesticide Planning and Review (58 FR 51735, at a time and in a manner that was revisions of tolerance nomenclature October 4, 1993). Because this proposed lawful under FIFRA, and become effective on the date of rule has been exempted from review 2. The residue does not exceed the publication of the final rule in the under Executive Order 12866 due to its level that was authorized at the time of lack of significance, this proposed rule Federal Register. With the exception of the application or use to be present on the proposed revocation of specific is not subject to Executive Order 13211, the food under a tolerance or exemption entitled Actions Concerning Regulations tolerances for azinphos-methyl, from tolerance. Evidence to show that That Significantly Affect Energy Supply, disulfoton, fenvalerate, phosalone, and food was lawfully treated may include Distribution, or Use (66 FR 28355, May thiabendazole, the Agency believes that records that verify the dates when the 22, 2001). This proposed rule does not existing stocks of pesticide products pesticide was applied to such food. labeled for the uses associated with the contain any information collections tolerances proposed for revocation have III. Are the Proposed Actions subject to OMB approval under the been completely exhausted and that Consistent with International Paperwork Reduction Act (PRA), 44 treated commodities have cleared the Obligations? U.S.C. 3501 et seq., or impose any channels of trade. EPA is proposing The tolerance actions in this proposal enforceable duty or contain any expiration/revocation dates of October are not discriminatory and are designed unfunded mandate as described under 30, 2009, for azinphos-methyl tolerances to ensure that both domestically Title II of the Unfunded Mandates on almond; almond, hulls; pistachio; produced and imported foods meet the Reform Act of 1995 (UMRA) (Public and walnut; September 30, 2012, for food safety standards established by Law 104–4). Nor does it require any azinphos-methyl tolerances on apple; FFDCA. The same food safety standards special considerations as required by crabapple; blueberry; cherry; parsley, apply to domestically produced and Executive Order 12898, entitled Federal leaves; parsley, turnip rooted, roots; and imported foods. Actions to Address Environmental pear; October 14, 2009, for disulfoton In making its tolerance decisions, EPA Justice in Minority Populations and tolerances on spinach and tomato; seeks to harmonize U.S. tolerances with Low-Income Populations (59 FR 7629, January 30, 2010, for disulfoton international standards whenever February 16, 1994); or OMB review or tolerances on barley, grain; barley, possible, consistent with U.S. food any other Agency action under straw; grain, aspirated fractions; peanut; safety standards and agricultural Executive Order 13045, entitled pepper; potato; wheat, hay; wheat, practices. EPA considers the Protection of Children from grain; wheat, straw; milk; and the fat, international MRLs established by the Environmental Health Risks and Safety meat, and meat byproducts of cattle, Codex Alimentarius is a joint U.N. Food Risks (62 FR 19885, April 23, 1997). goats, hogs, horses, and sheep; April 2, and Agriculture Organization/World This action does not involve any 2010, for most of the fenvalerate Health Organization food standards technical standards that would require tolerances (as described in Unit II.A.); program, and it is recognized as an Agency consideration of voluntary September 30, 2013, for phosalone international food safety standards- consensus standards pursuant to section tolerances on apple; cherry; grape; setting organization in trade agreements 12(d) of the National Technology peach; pear; and plum, prune, fresh; and to which the United States is a party. Transfer and Advancement Act of 1995 December 25, 2010, for thiabendazole EPA may establish a tolerance that is (NTTAA), Public Law 104–113, section tolerances on beet, sugar, dried pulp; different from a Codex MRL; however, 12(d) (15 U.S.C. 272 note). Pursuant to beet, sugar, roots; and beet, sugar, tops. FFDCA section 408(b)(4) requires that the Regulatory Flexibility Act (RFA) (5 The Agency believes that these EPA explain the reasons for departing U.S.C. 601 et seq.), the Agency revocation dates allow users to exhaust from the Codex level in a notice previously assessed whether stocks and allows sufficient time for published for public comment. EPA’s establishment of tolerances, exemptions passage of treated commodities through effort to harmonize with Codex MRLs is from tolerances, raising of tolerance the channels of trade. However, if EPA summarized in the tolerance levels, expansion of exemptions, or is presented with information that reassessment section of individual REDs revocations might significantly impact a existing stocks would still be available and TREDs, and in the Residue substantial number of small entities and and that information is verified, the Chemistry document which supports concluded that, as a general matter, Agency will consider extending the the RED and TRED, as mentioned in these actions do not impose a significant expiration date of the tolerance. If you Unit II.A. Specific tolerance actions in economic impact on a substantial have comments regarding existing this proposed rule and how they number of small entities. These analyses stocks and whether the effective date compare to Codex MRLs (if any) are for tolerance establishments and allows sufficient time for treated discussed in Unit II.A. modifications, and for tolerance commodities to clear the channels of revocations were published on May 4, trade, please submit comments as IV. Statutory and Executive Order 1981 (46 FR 24950) and on December described under SUPPLEMENTARY Reviews 17, 1997 (62 FR 66020) (FRL–5753–1), INFORMATION. In this proposed rule, EPA is respectively, and were provided to the Any commodities listed in this proposing to establish tolerances under Chief Counsel for Advocacy of the Small proposal treated with the pesticides FFDCA section 408(e), and also modify Business Administration. Taking into subject to this proposal, and in the and revoke specific tolerances account this analysis, and available
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information concerning the pesticides process to ensure ‘‘meaningful and referred to as ethylene chlorohydrin, listed in this proposed rule, the Agency timely input by tribal officials in the when ethylene oxide is used as a hereby certifies that this proposed rule development of regulatory policies that postharvest fumigant in or on food will not have a significant negative have tribal implications.’’ ‘‘Policies that commodities as follows: economic impact on a substantial have tribal implications’’ is defined in number of small entities. In a the Executive order to include Commodity Parts per memorandum dated May 25, 2001, EPA regulations that have ‘‘substantial direct million determined that eight conditions must effects on one or more Indian tribes, on Herb and spice, group 19, all be satisfied in order for an import the relationship between the Federal dried, except basil ...... 940 tolerance or tolerance exemption Government and the Indian tribes, or on Vegetable, dried ...... 940 revocation to adversely affect a the distribution of power and significant number of small entity responsibilities between the Federal * * * * * importers, and that there is a negligible Government and Indian tribes.’’ This 4. Section 180.154 is amended by joint probability of all eight conditions proposed rule will not have substantial revising the section heading and the holding simultaneously with respect to direct effects on tribal governments, on table in paragraph (a) to read as follows: any particular revocation. (This Agency the relationship between the Federal Government and Indian tribes, or on the §180.154 Azinphos-methyl; tolerances for document is available in the docket of residues. this proposed rule). Furthermore, for the distribution of power and (a) * * * pesticides named in this proposed rule, responsibilities between the Federal Government and Indian tribes, as the Agency knows of no extraordinary Expira- circumstances that exist as to the specified in Executive Order 13175. Commodity Parts per tion/Rev- present proposal that would change the Thus, Executive Order 13175 does not million ocation EPA’s previous analysis. Any comments apply to this proposed rule. Date about the Agency’s determination List of Subjects in 40 CFR Part 180 Almond ...... 0.2 10/30/09 should be submitted to the EPA along Almond, hulls ...... 5.0 10/30/09 with comments on the proposal, and Environmental protection, Apple ...... 1.5 9/30/12 will be addressed prior to issuing a final Administrative practice and procedure, Blueberry ...... 5.0 9/30/12 rule. In addition, the Agency has Agricultural commodities, Pesticides Cherry ...... 2.0 9/30/12 determined that this action will not and pests, Reporting and recordkeeping Crabapple ...... 1.5 9/30/12 have a substantial direct effect on States, requirements. Parsley, leaves ...... 5.0 9/30/12 Parsley, turnip root- on the relationship between the national Dated: December 22, 2008. ed, roots ...... 2.0 9/30/12 government and the States, or on the Debra Edwards, Pear ...... 1.5 9/30/12 distribution of power and Director, Office of Pesticide Programs. Pistachio ...... 0.3 10/30/09 responsibilities among the various Walnut ...... 0.3 10/30/09 levels of government, as specified in Therefore, it is proposed that 40 CFR Executive Order 13132, entitled chapter I be amended as follows: * * * * * Federalism (64 FR 43255, August 10, PART 180—[AMENDED] 5. Section 180.155 is revised to read 1999). Executive Order 13132 requires as follows: EPA to develop an accountable process 1. The authority citation for part 180 to ensure ‘‘meaningful and timely input § 180.155 1-Naphthaleneacetic acid; continues to read as follows: tolerances for residues. by State and local officials in the Authority: 21 U.S.C. 321(q), 346a and 371. development of regulatory policies that (a) General. Tolerances are have federalism implications.’’ ‘‘Policies § 180.3 [Amended] established for the combined residues of that have federalism implications’’ is the plant growth regulator 1- 2. Section 180.3 is amended by naphthaleneacetic acid and its defined in the Executive order to removing paragraph (d)(7) and include regulations that have conjugates calculated as 1- redesignating paragraphs (d)(8) through naphthaleneacetic acid from the ‘‘substantial direct effects on the States, (d)(13) as paragraphs (d)(7) through on the relationship between the national application of 1-naphthaleneacetic acid, (d)(12), respectively. its ammonium, sodium, or potassium government and the States, or on the 3. Section 180.151 is amended by distribution of power and salts, ethyl ester, and acetamide in or on revising the table in paragraph (a)(1) and food commodities as follows: responsibilities among the various by revising paragraph (a)(2) to read as levels of government.’’ This proposed follows: Parts per rule directly regulates growers, food Commodity million processors, food handlers, and food § 180.151 Ethylene oxide; tolerances for retailers, not States. This action does not residues. Cherry, sweet ...... 0.1 alter the relationships or distribution of (a) * * * Fruit, pome, group 11 ...... 0.1 power and responsibilities established (1) * * * Olive ...... 0.7 by Congress in the preemption Orange ...... 0.1 Pineapple 1 ...... 0.05 provisions of section 408(n)(4) of Parts per Commodity million Tangerine ...... 0.1 FFDCA. For these same reasons, the 1 Agency has determined that this Herb and spice, group 19, There are no U.S. registrations since 1988. proposed rule does not have any ‘‘tribal dried, except basil ...... 7 implications’’ as described in Executive Vegetable, dried ...... 7 (b) Section 18 emergency exemptions. Order 13175, entitled Consultation and Walnut ...... 50 [Reserved] Coordination with Indian Tribal (c) Tolerances with regional Governments (65 FR 67249, November (2) Tolerances are established for registrations. [Reserved] 9, 2000). Executive Order 13175, residues of the ethylene oxide reaction (d) Indirect or inadvertent residues. requires EPA to develop an accountable product, 2-chloroethanol, commonly [Reserved]
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6. Section 180.183 is amended by Expira- Expira- revising paragraph (a) and paragraph (c) Commodity Parts per tion/Rev- Commodity Parts per tion/Rev- to read as follows: million ocation million ocation Date Date § 180.183 O,O-Diethyl S-[2-(ethylthio)ethyl] phosphorodithioate; tolerances for Wheat, hay ...... 5.0 1/30/10 Sweet potato residues. Wheat, straw ...... 5.0 1/30/10 (postharvest to (a) General. Tolerances are sweet potato in- * * * * * tended only for use established for the combined residues of as seed) ...... 0.05 None the insecticide disulfoton, O,O-diethyl (c) Tolerances with regional Wheat, grain ...... 1.0 None S-[2-(ethylthio)ethyl] registrations. Tolerances with regional Wheat, straw ...... 1.0 None phosphorodithioate; demeton-S, O,O- registration are established for the diethyl S-[2-(ethylthio)ethyl] combined residues of the insecticide 1 There are no U.S. registrations on the in- phosphorothioate; disulfoton sulfoxide, disulfoton, O,O-diethyl S-[2- dicated commodity. O,O-diethyl S-[2-(ethylsulfinyl)ethyl] (ethylthio)ethyl] phosphorodithioate; * * * * * demeton-S, O,O-diethyl S-[2- phosphorodithioate; disulfoton oxygen 8. Section 180.261 is amended by (ethylthio)ethyl] phosphorothioate; analog sulfoxide, O,O-diethyl S-[2- revising the table in paragraph (a) to disulfoton sulfoxide, O,O-diethyl S-[2- (ethylsulfinyl)ethyl] phosphorothioate; read as follows: disulfoton sulfone, O,O-diethyl S-[2- (ethylsulfinyl)ethyl] (ethylsulfonyl)ethyl] phosphorodithioate; disulfoton oxygen §180.261 N-Mercaptomethyl phthalimide phosphorodithioate; and disulfoton analog sulfoxide, O,O-diethyl S-[2- S-(O,O-dimethyl phosphorodithioate) and oxygen analog sulfone, O,O-diethyl S-[2- (ethylsulfinyl)ethyl] phosphorothioate; its oxygen analog; tolerances for residues. (ethylsulfonyl)ethyl] phosphorothioate; disulfoton sulfone, O,O-diethyl S-[2- (a) * * * calculated as disulfoton, in or on food (ethylsulfonyl)ethyl] commodities as follows: phosphorodithioate; and disulfoton Parts per oxygen analog sulfone, O,O-diethyl S-[2- Commodity million Expira- (ethylsulfonyl)ethyl] phosphorothioate; Commodity Parts per tion/Rev- calculated as disulfoton, in or on food Alfalfa, forage ...... 20 million ocation Alfalfa, hay ...... 40 Date commodities as follows: Almond, hulls ...... 10 Apple ...... 10 Barley, grain ...... 0.2 1/30/10 Commodity Parts per Barley, straw ...... 5.0 1/30/10 million Apricot ...... 5 Bean, lima ...... 0.75 None Blueberry ...... 10 Bean, snap, suc- Asparagus ...... 0.1 Cattle, fat ...... 0.2 culent ...... 0.75 None Cattle, meat ...... 0.1 Broccoli ...... 0.75 None * * * * * Cattle, meat byproducts ...... 0.1 Brussels sprouts ...... 0.75 None 7. Section 180.242 is amended by Cherry ...... 10 Cabbage ...... 0.75 None revising the table in paragraph (a)(1) to Cotton, refined oil ...... 0.2 Cattle, fat ...... 0.05 1/30/10 read as follows: Cotton, undelinted seed ...... 0.1 Cattle, meat ...... 0.05 1/30/10 Cranberry ...... 10 Cattle, meat byprod- §180.242 Thiabendazole; tolerances for Fruit, citrus, group 10 ...... 5 ucts ...... 0.05 1/30/10 residues. Goat, fat ...... 0.1 Cauliflower ...... 0.75 None Goat, meat ...... 0.1 Coffee, bean ...... 0.2 None (a) * * * Goat, meat byproducts ...... 0.1 Cotton, undelinted (1) * * * Grape ...... 10 seed ...... 0.75 None Hog, fat ...... 0.2 Goat, fat ...... 0.05 1/30/10 Expira- Hog, meat ...... 0.04 Goat, meat ...... 0.05 1/30/10 Parts per tion/Rev- Hog, meat byproducts ...... 0.04 Goat, meat byprod- Commodity million ocation ucts ...... 0.05 1/30/10 Date Horse, fat ...... 0.1 Grain, aspirated frac- Horse, meat ...... 0.1 tions ...... 0.3 1/30/10 Apple, wet pomace ... 12.0 None Horse, meat byproducts ...... 0.1 Hog, fat ...... 0.05 1/30/10 Avocado 1 ...... 10.0 None Kiwifruit ...... 25 Hog, meat ...... 0.05 1/30/10 Banana, postharvest 3.0 None Milk ...... 0.1 Hog, meat byprod- Bean, dry, seed ...... 0.1 None Nectarine ...... 5 ucts ...... 0.05 1/30/10 Beet, sugar, dried Nut, tree, group 14 ...... 0.1 Horse, fat ...... 0.05 1/30/10 pulp ...... 3.5 12/25/10 Pea, dry, seed ...... 0.5 Horse, meat ...... 0.05 1/30/10 Beet, sugar, roots ..... 0.25 12/25/10 Pea, field, hay ...... 20 Horse, meat byprod- Beet, sugar, tops ...... 10.0 12/25/10 Pea, field, vines ...... 10 ucts ...... 0.05 1/30/10 Cantaloupe 1 ...... 15.0 None Pea, succulent ...... 1 Lettuce, head ...... 0.75 None Carrot, roots, Peach ...... 10 Lettuce, leaf ...... 2 None postharvest ...... 10.0 None Pear ...... 10 Milk ...... 0.01 1/30/10 Citrus, oil ...... 15.0 None Plum, prune, fresh ...... 5 Peanut ...... 0.1 1/30/10 Fruit, citrus, group Potato ...... 0.1 Pepper ...... 0.1 1/30/10 10, postharvest ..... 10.0 None Sheep, fat ...... 0.1 Potato ...... 0.5 1/30/10 Fruit, pome, group Sheep, meat ...... 0.1 Sheep, fat ...... 0.05 1/30/10 11, postharvest ..... 5.0 None Sheep, meat byproducts ...... 0.1 Sheep, meat ...... 0.05 1/30/10 Mango ...... 10.0 None Sweet potato, roots ...... 12 Sheep, meat byprod- Mushroom ...... 40.0 None ucts ...... 0.05 1/30/10 Papaya, postharvest 5.0 None * * * * * Spinach ...... 0.75 10/14/09 Potato, postharvest ... 10.0 None Tomato ...... 0.75 10/14/09 Soybean ...... 0.1 None 9. Section 180.263 is revised to read Wheat, grain ...... 0.2 1/30/10 Strawberry 1 ...... 5.0 None as follows:
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§180.263 Phosalone; tolerances for Expira- §180.533 Esfenvalerate; tolerances for residues. residues. Commodity Parts per tion/Rev- (a) General. Tolerances are million ocation (a) General. (1) Tolerances are established for residues of the Date established for the combined residues of insecticide phosalone, S-(6-chloro-3- Corn, sweet, kernel the insecticide esfenvalerate, (S)- (mercaptomethyl)-2-benzoxazolinone) plus cob with husks cyano(3-phenoxyphenyl)methyl-(S)-4- O,O-diethyl phosphorodithioate, in or removed ...... 0.1 4/2/10 chloro-a-(1-methylethyl)benzeneacetate, on the following food commodities: Corn, sweet, stover .. 50.0 4/2/10 its non-racemic isomer, (R)-cyano(3- Cotton, undelinted phenoxyphenyl)methyl-(R)-4-chloro-a- seed ...... 0.2 4/2/10 Parts per Expiration/ (1-methylethyl)benzeneacetate and its Commodity Revocation Cucumber ...... 0.5 4/2/10 diastereomers (S)-cyano(3- million Date Currant ...... 3.0 4/2/10 phenoxyphenyl)methyl-(R)-4-chloro-a- Eggplant ...... 1.0 4/2/10 Apple 1 ...... 10.0 9/30/13 Elderberry ...... 3.0 4/2/10 (1-methylethyl)benzeneacetate and (R)- Cherry 1 ...... 15.0 9/30/13 Fruit, stone, group 12 10.0 4/2/10 cyano(3-phenoxyphenyl)methyl-(S)-4- Grape 1 ...... 10.0 9/30/13 Goat, fat ...... 1.5 4/2/10 chloro-a-(1-methylethyl)benzeneacetate, Peach 1 ...... 15.0 9/30/13 Goat, meat ...... 1.5 4/2/10 in or on food commodities as follows: Pear 1 ...... 10.0 9/30/13 Goat, meat byprod- Plum, prune, fresh 1 15.0 9/30/13 ucts ...... 1.5 4/2/10 Commodity Parts per Gooseberry ...... 3.0 4/2/10 million 1 There are no U.S. registrations since 1992. Hazelnut ...... 0.2 4/2/10 Hog, fat ...... 1.5 4/2/10 Almond ...... 0.2 (b) Section 18 emergency exemptions. Hog, meat ...... 1.5 4/2/10 Almond, hulls ...... 5.0 [Reserved] Hog, meat byprod- Apple ...... 1.0 (c) Tolerances with regional ucts ...... 1.5 4/2/10 Artichoke, globe ...... 1.0 Bean, dry, seed ...... 0.25 registrations. [Reserved] Horse, fat ...... 1.5 4/2/10 Horse, meat ...... 1.5 4/2/10 Bean, snap, succulent ...... 1.0 (d) Indirect or inadvertent residues. Beet, sugar, roots ...... 0.05 [Reserved] Horse, meat byprod- ucts ...... 1.5 4/2/10 Beet, sugar, tops ...... 5.0 Blueberry ...... 1.0 § 180.309 [Removed] Huckleberry ...... 3.0 4/2/10 Melon, honeydew ..... 1.0 4/2/10 Broccoli ...... 1.0 10. Section 180.309 is removed. Milk ...... 0.3 4/2/10 Cabbage, except chinese cab- 11. Section 180.379 is revised to read Milk, fat ...... 7.0 4/2/10 bage ...... 3.0 as follows: Muskmelon ...... 1.0 4/2/10 Caneberry subgroup 13A ...... 1.0 Pea ...... 1.0 4/2/10 Cantaloupe ...... 0.5 §180.379 Fenvalerate; tolerances for Pea, dry, seed ...... 0.25 4/2/10 Carrot, roots ...... 0.5 residues. Peanut ...... 0.02 4/2/10 Cattle, fat ...... 1.5 Cattle, meat ...... 1.5 (a) General. Tolerances are Pear ...... 2.0 4/2/10 Cattle, meat byproducts ...... 1.5 established for residues of the Pecan ...... 0.2 4/2/10 Cauliflower ...... 0.5 Pepper ...... 1.0 4/2/10 insecticide fenvalerate, cyano(3- Collards ...... 3.0 Potato ...... 0.02 4/2/10 phenoxyphenyl)methyl-4-chloro-a-(1- Corn, field, forage ...... 15.0 methylethyl)benzeneacetate, in or on Pumpkin ...... 1.0 4/2/10 Corn, field, grain ...... 0.02 food commodities as follows: Radish, roots ...... 0.3 4/2/10 Corn, field, stover ...... 15.0 Radish, tops ...... 8.0 4/2/10 Corn, pop, grain ...... 0.02 Expira- Sheep, fat ...... 1.5 4/2/10 Corn, pop, stover ...... 15.0 Sheep, meat ...... 1.5 4/2/10 Commodity Parts per tion/Rev- Corn, sweet, forage ...... 15.0 million ocation Sheep, meat byprod- Corn, sweet, kernel plus cob Date ucts ...... 1.5 4/2/10 with husks removed ...... 0.1 Soybean, seed ...... 0.05 4/2/10 Corn, sweet, stover ...... 15.0 Almond ...... 0.2 4/2/10 Squash, summer ...... 0.5 4/2/10 Cotton, undelinted seed ...... 0.2 Almond, hulls ...... 15.0 4/2/10 Squash, winter ...... 1.0 4/2/10 Cucumber ...... 0.5 Apple ...... 2.0 4/2/10 Sugarcane, cane ...... 2.0 4/2/10 Egg ...... 0.03 Artichoke, globe ...... 0.2 4/2/10 Sunflower, seed ...... 1.0 4/2/10 Eggplant ...... 0.5 Bean, dry, seed ...... 0.25 4/2/10 Tomato ...... 1.0 4/2/10 Elderberry ...... 1.0 Bean, snap, suc- Turnip, roots ...... 0.5 4/2/10 Fruit, stone, group 12 ...... 3.0 culent ...... 2.0 4/2/10 Turnip, tops ...... 20.0 4/2/10 Goat, fat ...... 1.5 Broccoli ...... 2.0 4/2/10 Walnut ...... 0.2 4/2/10 Goat, meat ...... 1.5 Blueberry ...... 3.0 4/2/10 Watermelon ...... 1.0 4/2/10 Goat, meat byproducts ...... 1.5 Cabbage ...... 10.0 4/2/10 Gooseberry ...... 1.0 Caneberry subgroup (b) Section 18 emergency exemptions. Hazelnut ...... 0.2 13A ...... 3.0 4/2/10 [Reserved] Hog, fat ...... 1.5 Cantaloupe ...... 1.0 4/2/10 (c) Tolerances with regional Hog, meat ...... 1.5 Carrot, roots ...... 0.5 4/2/10 registrations. [Reserved] Hog, meat byproducts ...... 1.5 Cattle, fat ...... 1.5 4/2/10 (d) Indirect or inadvertent residues. Horse, fat ...... 1.5 Cattle, meat ...... 1.5 4/2/10 [Reserved] Horse, meat ...... 1.5 Cattle, meat byprod- Horse, meat byproducts ...... 1.5 ucts ...... 1.5 4/2/10 § 180.452 [Amended] Kiwifruit ...... 0.5 Cauliflower ...... 0.5 4/2/10 12. Section 180.452 is amended by Lentil, seed ...... 0.25 Collards ...... 10.0 4/2/10 removing from the table in paragraph (a) Melon, honeydew ...... 0.5 Corn, field, forage ..... 50.0 4/2/10 Milk ...... 0.3 Corn, field, grain ...... 0.02 4/2/10 the entry ‘‘corn, sweet, kernel plus cob Milk, fat ...... 7.0 Corn, field, stover ..... 50.0 4/2/10 with husks removed.’’ Muskmelon ...... 0.5 Corn, pop, grain ...... 0.02 4/2/10 13. Section 180.533 is amended by Mustard greens ...... 5.0 Corn, pop, stover ...... 50.0 4/2/10 revising paragraph (a) and adding Pea, dry, seed ...... 0.25 Corn, sweet, forage .. 50.0 4/2/10 paragraph (c) to read as follows: Pea, succulent ...... 0.5
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Parts per Parts per follow the instructions provided on the Commodity million Commodity million Web site for submitting comments. In completing the transmittal screen, filers Peanut ...... 0.02 Cabbage, chinese, bok choy .... 1.0 should include their full name, U.S. Pear ...... 1.0 Kohlrabi ...... 2.0 Postal Service mailing address, and the Pecan ...... 0.2 Lettuce, head ...... 5.0 applicable docket or rulemaking Pepper ...... 0.5 number. Potato ...... 0.02 * * * * * • Poultry, fat ...... 0.3 E-mail: [email protected]. To get filing Poultry, liver ...... 0.03 § 180.626 [Amended] instructions, filers should send an e- Poultry, meat ...... 0.03 14. Section 180.626 is amended by mail to [email protected], and include the Poultry, meat byproducts, ex- removing the entry for peanut, hay from following words in the body of the cept liver ...... 0.3 the table in paragraph (a)(1). message, ‘‘get form.’’ A sample form and Pumpkin ...... 0.5 [FR Doc. E8–31182 Filed 12–30–08; 8:45 am] directions will be sent in response. Radish, roots ...... 0.3 • BILLING CODE 6560–50–S Mail: Filings can be sent by Radish, tops ...... 3.0 commercial overnight courier or by first- Sheep, fat ...... 1.5 class or overnight U.S. Postal Service Sheep, meat ...... 1.5 Sheep, meat byproducts ...... 1.5 FEDERAL COMMUNICATIONS mail (although we continue to Sorghum, forage ...... 10.0 COMMISSION experience delays in receiving U.S. Sorghum, grain, grain ...... 5.0 Postal Service mail). Parties who choose Sorghum, grain, stover ...... 10.0 47 CFR Part 73 to file by paper must file an original and Soybean, seed ...... 0.05 four copies of each filing. If more than Squash, summer ...... 0.5 [MB Docket No. 08–255; FCC 08–281] one docket or rulemaking number Squash, winter ...... 0.5 appears in the caption of this Sugarcane, cane ...... 1.0 Implementation of Short-term Analog Flash and Emergency Readiness Act; proceeding, filers must submit two Sunflower, seed ...... 0.5 additional copies for each additional Sweet potato, roots ...... 0.05 Establishment of DTV Transition ‘‘Analog Nightlight’’ Program docket or rulemaking number. All Tomato ...... 0.5 filings must be addressed to the Turnip, roots ...... 0.5 AGENCY Turnip, tops ...... 7.0 : Federal Communications Commission’s Secretary, Office of the Walnut ...... 0.2 Commission. Secretary, Federal Communications Watermelon ...... 0.5 ACTION: Proposed rule. Commission. Commercial overnight mail (other than U.S. Postal Service SUMMARY: This document describes and Express Mail and Priority Mail) must be (2) A tolerance of 0.05 ppm on raw seeks comment on the Commission’s sent to 9300 East Hampton Drive, agricultural food commodities (other implementation of the Short-term Capitol Heights, MD 20743. U.S. Postal than those food commodities already Analog Flash and Emergency Readiness Service first-class, Express, and Priority covered by a higher tolerance as a result Act (‘‘Analog Nightlight Act’’), S. 3663, mail should be addressed to 445 12th of use on growing crops) is established 110th Cong., as enacted December 23, Street, SW., Washington, DC 20554. for the combined residues of the 2008. The Analog Nightlight Act • Hand Delivery/Courier: Filings can insecticide esfenvalerate, (S)-cyano(3- requires the Commission to develop and be sent by hand or messenger delivery. phenoxyphenyl)methyl-(S)-4-chloro-a- implement a program by January 15, The Commission’s contractor will (1-methylethyl)benzeneacetate, its non- 2009, to ‘‘encourage and permit’’ receive hand-delivered or messenger- racemic isomer, (R)-cyano(3- continued analog TV service for a delivered paper filings for the phenoxyphenyl)methyl-(R)-4-chloro-a- period of thirty days after the February Commission’s Secretary at 236 (1-methylethyl)benzeneacetate and its 17, 2009 DTV transition date, where Massachusetts Avenue, NE., Suite 110, diastereomers (S)-cyano(3- technically feasible, to provide ‘‘public Washington, DC 20002. The filing hours phenoxyphenyl)methyl-(R)-4-chloro-a- safety information’’ and ‘‘DTV transition at this location are 8 a.m. to 7 p.m. All (1-methylethyl)benzeneacetate and (R)- information.’’ For consumers who are hand deliveries must be held together cyano(3-phenoxyphenyl)methyl-(S)-4- not capable of receiving digital with rubber bands or fasteners. Any chloro-a-(1-methylethyl)benzeneacetate television signals by the transition envelopes must be disposed of before as a result of the use of esfenvalerate in deadline, the Analog Nightlight program entering the building. Parties who food-handling establishments. proposed herein will ensure that there choose to file by paper must file an * * * * * is no interruption in the provision of original and four copies of each filing. (c) Tolerances with regional critical emergency information and will All filings must be addressed to the registrations. Tolerances with regional provide useful information regarding Commission’s Secretary, Office of the registration are established for the the transition to help consumers Secretary, Federal Communications combined residues of the insecticide establish digital service. Commission. esfenvalerate, (S)-cyano(3- DATES: Comments are due on or before • Accessibility Information: Contact phenoxyphenyl)methyl-(S)-4-chloro-a- January 5, 2009; reply comments are the FCC to request information in (1-methylethyl)benzeneacetate, its non- due on or before January 8, 2009. accessible formats (computer diskettes, racemic isomer, (R)-cyano(3- ADDRESSES: You may submit comments, large print, audio recording, and Braille) phenoxyphenyl)methyl-(R)-4-chloro-a- identified by MB Docket No. 08–255, by by sending an e-mail to [email protected] (1-methylethyl)benzeneacetate and its any of the following methods: or calling the FCC’s Consumer and diastereomers (S)-cyano(3- • Federal eRulemaking Portal: http:// Governmental Affairs Bureau at (202) phenoxyphenyl)methyl-(R)-4-chloro-a- www.regulations.gov. Follow the 418–0530 (voice), (202) 418–0432 (1-methylethyl)benzeneacetate and (R)- instructions for submitting comments. (TTY). This document can also be cyano(3-phenoxyphenyl)methyl-(S)-4- • Federal Communications downloaded in Word and Portable chloro-a-(1-methylethyl)benzeneacetate, Commission’s Web Site: http:// Document Format (PDF) at: http:// in or on food commodities as follows: www.fcc.gov/cgb/ecfs/. Filers should www.fcc.gov.
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Instructions: All submissions received Commission to develop and implement under the Administrative Procedure must include the agency name and a program by January 15, 2009, to Act. As stated above, the Analog docket number for this rulemaking. ‘‘encourage and permit’’ continued Nightlight Act imposes a statutory Comments, reply comments, and ex analog TV service after the February 17, deadline of January 15, 2009, less than parte submissions will be available for 2009 DTV transition date, where one month away, and the Commission public inspection during regular technically feasible, for the purpose of has an extraordinarily short time period business hours in the FCC Reference providing ‘‘public safety information’’ to meet this deadline: The bill was sent Center, Federal Communications and ‘‘DTV transition information’’ to to the President for his signature on Commission, 445 12th Street, SW., CY– viewers who may not obtain the December 12, 2008, and it was enacted A257, Washington, DC 20554. These necessary equipment to receive digital into law on December 23, 2008. documents will also be available via broadcasts after the transition date. In Nonetheless, we are affording interested ECFS. Documents will be available this way, the continued analog service parties an opportunity to participate in electronically in ASCII, Word 97, and/ would serve like a ‘‘nightlight’’ to the proceeding in order to assist in our or Adobe Acrobat. For detailed unprepared viewers, assuring that these development of the Analog Nightlight instructions for submitting comments viewers continue to have access to program, and we find that a very and additional information on the emergency information and guiding abbreviated comment period of eight rulemaking process, see the them with information to help them days is justified by the exigent SUPPLEMENTARY INFORMATION section of make a belated transition. This NPRM circumstances. (As noted above, the this document. describes the procedures the Analog Nightlight Act directs the FOR FURTHER INFORMATION CONTACT: Kim Commission intends to follow to Commission to implement its provisions Matthews, [email protected], or implement the Act; the nature of the by January 15, 2009, ‘‘[n]otwithstanding Evan Baranoff, [email protected] of programming permitted by the Act; and any other provision of law.’’ We find the Media Bureau, Policy Division, (202) the stations that are eligible to that a longer comment period would 418–2120; or Eloise Gore, participate in the Analog Nightlight make timely implementation [email protected], of the Media program. Stations that are eligible under impracticable and, therefore, would be Bureau, Policy Division, (202) 418– the Act to provide nightlight service inconsistent with the Act’s provisions. 2120; or Gordon Godfrey, may choose to provide their own service Comments must be filed no later than [email protected], of the Media on their analog channels, or may choose five days after this NPRM is published Bureau, Engineering Division, (202) to work with other stations in their in the Federal Register, and replies 418–7000; or Alan Stillwell, community to provide a comprehensive must be filed no later than eight days [email protected], of the Office of nightlight service on one or more analog after publication. Notwithstanding the Engineering and Technology, (202) 418– channels in that community. Stations holiday season, these dates will not be 2470. that cannot broadcast their own extended.) This NPRM lays out the SUPPLEMENTARY INFORMATION: This is a nightlight service can participate in a procedures we plan to follow, as well as summary of the Commission’s Notice of joint nightlight effort together with other a preliminary list of the stations that we Proposed Rulemaking (NPRM), FCC 08– stations in their community by believe will be eligible to participate in 281, adopted on December, 24, 2008, providing financial, technical, or other the Analog Nightlight program. We and released on December 24, 2008. The resources. encourage all stations that qualify to full text of this document is available for 2. Congress previously mandated that notify us promptly, during the comment public inspection and copying during after February 17, 2009, full-power period, as described below, of their regular business hours in the FCC television broadcast stations must intention to participate. Reference Center, Federal transmit only digital signals, and may 3. We strongly encourage all eligible Communications Commission, 445 12th no longer transmit analog signals. (See stations to participate in the provision Street, SW., CY–A257, Washington, DC Digital Television and Public Safety Act of a nightlight service to assist 20554. These documents will also be of 2005 (‘‘DTV Act’’), which is Title III consumers during the 30-day period available via ECFS (http://www.fcc.gov/ of the Deficit Reduction Act of 2005, following the digital transition. We also cgb/ecfs/). (Documents will be available Public Law 109–171, 120 Stat. 4 (2006) urge stations that are not on the electronically in ASCII, Word 97, and/ (codified at 47 U.S.C. 309(j)(14) and preliminary list of eligible stations to or Adobe Acrobat.) The complete text 337(e)).) On December 10, 2008, determine whether they can participate may be purchased from the Congress adopted legislation providing and to seek Commission approval by Commission’s copy contractor, 445 12th for a short-term extension of the analog demonstrating that they will not, in fact, Street, SW., Room CY–B402, television broadcasting authority so that cause harmful interference to any other Washington, DC 20554. To request this essential public safety announcements digital station, or to coordinate with document in accessible formats and digital television transition another broadcaster in their service area (computer diskettes, large print, audio information may be provided for a short to share the costs of Analog Nightlight recording, and Braille), send an e-mail time during the digital transition. The operation on a qualifying station that to [email protected] or call the Analog Nightlight Act requires that, no serves their viewers. While some Commission’s Consumer and later than January 15, 2009, the stations may not be able to broadcast Governmental Affairs Bureau at (202) Commission develop and implement a transition and public safety information 418–0530 (voice), (202) 418–0432 program to ‘‘encourage and permit’’ the on their analog channels after February (TTY). broadcasting of public safety and digital 17, 2009 because of interference to Summary of the Notice of Proposed transition information for a period of 30 digital signals or other technical Rulemaking days after the digital transition deadline constraints, we strongly encourage all of February 17, 2009. Given the ‘‘urgent stations to work together to ensure that I. Introduction necessity for rapid administrative action at least one station serving each 1. The Short-term Analog Flash and under the circumstances,’’ we believe community provides a nightlight service Emergency Readiness Act (‘‘Analog that there is good cause to dispense with to assist that community. The station Nightlight Act’’ or ‘‘Act’’) requires the notice and comment requirements whose channel is being used to provide
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the nightlight service will remain television signals, upgrade to digital (1) Emergency information, including responsible for the content of the now with a converter box, a new TV set critical details regarding the emergency, programming. with a digital (ATSC) tuner or by as broadcast or required to be broadcast 4. The Commission, in conjunction subscribing to a pay service like cable or by full-power stations in the digital with industry stakeholders, state and satellite. For more information call: 1– television service; (Section 4 of the Act local officials, community grassroots 877-DTV–0908 or TTY: 1–866–644– states that the term ‘‘emergency organizations, and consumer groups, 0908 or visit http:// information’’ has the same meaning as has worked hard to increase consumer www.DTVWilmington.com.’’) In that term has under Part 79 of the FCC’s awareness of the digital transition, and enacting the Analog Nightlight Act, rules. See Analog Nightlight Act, these efforts have been fruitful. (Many Congress acknowledged that the FCC Section 4.) industry members have been working and others ‘‘have been working (2) Information, in both English and hard to educate consumers about the furiously’’ to inform viewers about the Spanish, and accessible to persons with upcoming transition including transition, but also recognized that there disabilities, concerning— broadcasters, multichannel video will inevitably be some consumers left (A) The digital television transition, programming distributors, behind. Congress also recognized that including the fact that a transition has telecommunications companies, when viewers are cut off from their taken place and that additional action is satellite providers, manufacturers, and televisions, it is not just a matter of required to continue receiving television retailers. According to the latest Nielsen convenience but also one of public service, including emergency DTV report, more than 92 percent of safety. The concern about readiness is notifications; and U.S. households are aware of and especially acute with regard to the (B) The steps required to enable prepared, at least to some extent, for the nation’s more vulnerable citizens—the viewers to receive such emergency transition.) All of our efforts will poor, the elderly, the disabled, and information via the digital television continue and intensify up to and those with language barriers—who may service and to convert to receiving beyond the transition deadline. be less prepared to ensure they will digital television service, including a However, it is inevitable that on have continued access to television phone number and Internet address by February 17, 2009 some consumers will service. which help with such transition may be be unaware of the transition, some will 6. Section 2(a) of the Analog obtained in both English and Spanish; be unprepared to receive digital signals, Nightlight Act states: and and others will experience unexpected Notwithstanding any other provision (3) Such other information related to technical difficulties. For these of law, the Federal Communications consumer education about the digital consumers, the Analog Nightlight Commission shall, not later than television transition or public health program adopted by Congress and January 15, 2009, develop and and safety or emergencies as the implemented as we propose herein will implement a program to encourage and Commission may find to be consistent ensure that there is no interruption in permit, to the extent technically feasible with the public interest. the provision of critical emergency and subject to such limitations as the 9. Based on these statutory provisions, information and will provide useful Commission finds to be consistent with continued analog broadcasting after information regarding the transition to the public interest and requirements of February 17, 2009, is limited to help consumers establish digital service. this Act, the broadcasting in the analog emergency information and information television service of only the public concerning the digital television II. Background and Initial Conclusions safety information and digital transition transition. The Act does not 5. The Analog Nightlight Act is information specified in subsection (b) contemplate other programming, designed to ensure that those consumers during the 30-day period beginning on including advertisements, which does who are not able to receive digital the day after the date established by law not fall into either of these two signals after the DTV transition on under section 3002(b) of the [DTV Act] categories. We seek comment on this February 17, 2009, will not be left for termination of all licenses for full- tentative conclusion. without access to emergency power television stations in the analog 10. Section 3 of the Act requires, information. The Act is also intended to television service and cessation of among other things, that the help consumers understand the steps broadcasting by full-power stations in Commission consider ‘‘market-by- they need to take in order to restore the analog television service. market needs, based on factors such as their television signals. The analog 7. Thus, as required by this Act, the channel and transmitter availability’’ in nightlight was first used by the Analog Nightlight program will permit developing the nightlight program, and broadcasters in Wilmington, North eligible full-power television stations, as requires the Commission to ensure that Carolina, who volunteered to transition defined below, to continue their analog the broadcasting of analog nightlight their market on September 8, 2008. broadcasting for a period of 30 days information will not cause ‘‘harmful They ceased analog broadcasting on that beginning on February 18, 2009, for the interference’’ to digital television date but continued to broadcast their limited purpose of providing public signals. Section 3 also mandates that the analog signals for roughly a month, safety and digital transition information, Commission ‘‘not require’’ that analog displaying a ‘‘slate’’ describing the as further described below. The 30-day nightlight signals be subject to transition and where people could period ends at 11:59:59 p.m. on March mandatory cable carriage and obtain information about it. (The text 19, 2009. As discussed below, we will retransmission requirements. In aired by the Wilmington stations extend the license term for stations addition, Section 3 prohibits the consisted of the following: ‘‘At 12 noon participating in the Analog Nightlight broadcasting of analog nightlight signals on September 8, 2008, commercial program. on spectrum ‘‘approved or pending television stations in Wilmington, North 8. Section 2(b) of the Act describes the approval by the Commission to be used Carolina began to broadcast programming that stations will be for public safety radio services’’ and on programming exclusively in a digital permitted to broadcast during the channels 52–69. Based on this section of format. If you are viewing this message, nightlight period. That section states the Act, we tentatively conclude that this television set has not yet been that the nightlight program shall only stations operating on channels 2 upgraded to digital. To receive your provide for the broadcast of: through 51 are eligible to broadcast in
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analog pursuant to the Act, and that These stations could continue or resume having the Analog Nightlight available such channels cannot be used for analog analog broadcasting as part of the to as many over-the-air viewers as broadcasting if they cause harmful Analog Nightlight program without possible. To that end, the Commission interference to digital television signals. causing harmful interference. This will identify those areas in which Therefore, a station that is Appendix also lists stations that are Analog Nightlight service is not ‘‘flashcutting’’ to its pre-transition going to remain on their pre-transition available and, within the limited analog channel for post-transition digital channel for a period of time after timeframes available, seek reasonable digital operation will not generally be February 17, 2009 while they are solutions—e.g., whether there is a eligible to use its analog channel for the completing construction of their final station that can and would stay on to Analog Nightlight because to do so post-transition channel. In the listed provide Analog Nightlight service would by definition interfere with its instances, these stations could use their without causing undue interference, or digital service. (As discussed below, a analog channel for the Analog whether there is a low power station station that is approved for a phased Nightlight program. Appendix A does that has not transitioned to digital that transition to remain on its pre-transition not include stations licensed to would be willing to transmit the digital channel may be permitted to use communities in Delaware, New Jersey, relevant messages. We seek comment on its analog channel for the analog New Hampshire, or Rhode Island. See what the Commission’s appropriate role nightlight program if doing so does not also Appendix B, which lists all 210 should be in this regard. delay its transition to digital service. DMAs and indicates which DMAs do or These circumstances will be evaluated do not include a station that is listed in 12. The stations listed in Appendix A on a case-by case basis.) We seek Appendix A.) Appendix A is not an operate on analog channels 2–51 and comment on these tentative exhaustive list of the stations that may therefore comply with Section 3(6) of conclusions. be eligible to participate in the Analog the Act. With respect to Section 3(2) of Nightlight program, and it most likely the Act, in considering interference III. Discussion underestimates the stations that could protection for digital TV stations, we A. Stations Eligible To Provide Analog qualify. Rather, Appendix A represents used the +2 dB desired-to-undesired ¥ Nightlight Service a conservative list that the Commission (D/U) co-channel and 48 dB adjacent was able to assemble in the limited channel signal ratios in 47 CFR 73.623 1. Stations Initially Determined To Be timeframe contemplated by the and developed minimum co-channel Eligible legislation based on readily accessible and adjacent channel spacing measures 11. In light of the short period of time information and valid engineering that would ensure that an analog station provided by the Act to implement a assumptions. As discussed above, would not cause interference to a DTV nightlight program, we attach as Section 3(2) of the Act requires the station. Meeting these measures, which Appendix A hereto an initial list of Commission to ensure that broadcasting vary by channel band and Zone, would stations that we believe can continue to of nightlight signals on analog channels establish a presumption that analog broadcast an analog signal after does not cause harmful interference to stations that are located the specified February 17, 2009 within the technical digital television signals. In addition, distance or greater from any operating and interference constraints set forth in Section 3(5) prohibits the broadcast of DTV stations would not cause the statute. The stations listed in nightlight service on spectrum that ‘‘is interference to signals in the digital Appendix A are located in 46 states, approved or pending approval’’ by the television service. (For the purposes of plus Washington, DC, Puerto Rico, and Commission for public safety services, allotment and assignment, the United the Virgin Islands and are in 136 of the and Section 3(6) prohibits nightlight States is divided into three zones as 210 Designated Market Areas (‘‘DMAs’’). service on channels 52–69. We defined in Section 73.609. Roughly, (Appendix A includes stations that have tentatively conclude that the stations Zone I includes areas in the terminated or plan to terminate analog listed in Appendix A meet these criteria northeastern and some midwestern service before February 17, 2009, and invite comment on this tentative states, Zone III includes the area along including the stations in Hawaii that are conclusion. As described below, we also the Gulf of Mexico, and Zone II includes transitioning statewide on January 15, recognize that additional stations may all areas that are not in Zone I or Zone 2009, and the stations in the be able to meet the statutory criteria and III. 47 CFR 73.609.) The minimum Wilmington, North Carolina DMA that we provide a mechanism for their spacing measures used in developing transitioned on September 8, 2008. participation, consistent with the goal of this list are:
Channel band Zone (see 47 CFR 73.609) Co-channel minimum spacing Adjacent channel minimum spacing
2–6 (Low-VHF) ...... 1 ...... 302 km (188 miles) ...... 131 km (81 miles). 2–6 (Low-VHF) ...... 2 and 3 ...... 344 km (214 miles) ...... 156 km (97 miles). 7–13 (High-VHF) ...... 1 ...... 264 km (164 miles) ...... 118 km (73 miles). 7–13 (High-VHF) ...... 2 and 3 ...... 308 km (191 miles) ...... 149 km (93 miles). 14–51 (UHF) ...... 1, 2 and 3 ...... 283 km (176 miles) ...... 134 km (83 miles).
13. In developing these spacing 2–6), high-VHF (channels 7–13), and limits are (1) for low-VHF, 10 kW in criteria, we assumed that both the UHF (channels 14–51) stations are set Zone I and 45 kW in Zones II and III; analog station being studied and DTV forth in Section 73.622(f) of the rules, 47 (2) for hi-VHF, 30 kW in Zone I and 160 stations in the same vicinity are CFR 73.622(f). The maximum antenna kW in Zone II; and (3) for UHF, 1000 operating at maximum power and HAAT allowed for DTV stations on kW. Certain stations were allowed to antenna height allowed under the rules. channels 2–13 is 305 meters and on use somewhat higher power on their (The maximum transmit antenna height channels 14–51 is 365 meters (power DTV channels in order to replicate their above average terrain (antenna HAAT) reductions are required if higher analog stations; however, for purposes and power limits for low-VHF (channels antennas are used), the maximum power of this brief 30 day extension of analog
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operation we would assume that all who have not obtained the necessary they believe they meet the criteria stations are operating at power levels no digital equipment to receive digital identified in the Act. We recognize that higher than the maximum levels in the signals, with the public interest in there are many analog stations that are rules. The minimum technical criteria promoting good digital signal reception currently operating close to digital (D/U ratios) for protection of digital for viewers who have. stations without causing interference. In television signals from interference from 14. Public safety services operate in such cases, interference is avoided by analog signals are set forth in Section the TV bands in 13 metropolitan areas stations operating at less than the 73.623(c)(2) of the rules, 47 CFR on channels in the range of 14–20 (470– maximum allowed technical facilities, 73.623(c)(2). In developing these 412 MHz) that have previously been terrain features, or other conditions spacing measures we also used (1) the identified in each area. (Public safety affecting propagation. We propose to F(50,90) curves as derived from the services operate on specified channels allow stations to notify the Commission F(50,50) and F(50,10) curves in Section in the TV bands as part of the Private of their interest in participating in the 73.699 of the rules, 47 CFR 73.699, and Land Mobile Radio Service (PLMRS), Analog Nightlight program even if their the DTV service thresholds in Section see 47 CFR 90.303(a). PLMRS base spacing is less than the distances 73.622(e) of the rules, 47 CFR 73.622(e), stations on these channels must be proposed above from one or more co- to calculate DTV service areas and (2) located within 80 kilometers (50 miles) channel or adjacent channel digital the analog maximum power and of the center of the cities where they are stations. Such stations should notify us antenna height standards in Section permitted to operate on channels 14–20 in their comments to this NPRM and 73.614 of the rules, 47 CFR 73.614, and (470–512 MHz), and mobile units may through the Engineering STA process be operated within 48 kilometers (30 the F(50,10) curves in Section 73.699 to described below, and explain how they miles) of their associated base station or calculate analog interference potential.) could operate without causing harmful stations. Thus, mobile stations may be We also assumed that viewers would interference to nearby digital station(s). operated at up to 128 kilometers (80 orient their antennas toward the desired Such explanations may consist of miles) from the city center, see 47 CFR DTV station and away from an analog analyses using the methods in OET–69 90.305.) To protect these operations station in a neighboring or distant or other recognized methodologies for from interference, new and modified market so that the front-to-back evaluating TV station interference. It is analog TV stations are required to reception ratio of a user’s antenna important that licensees be aware that protect land mobile operations on would be 10 dB at low-VHF, 12 dB at interference that an analog station may channels 14–20 by maintaining a co- be causing to digital stations prior to high VHF and 14 dB at UHF as channel separation of 341 km (212 indicated in the DTV planning factors February 18, 2009, will not be allowed miles) or more and an adjacent channel to continue after that date unless set forth in our OET Bulletin No. 69 separation of 225 km (140 miles) or (OET–69). (See Federal authorized pursuant to paragraph 16. more from the geographic coordinates of We anticipate that we will be able to Communications Commission, Office of the center of the metropolitan area. Engineering and Technology, OET rely on the submissions we receive and These standards have served well over public review to identify stations that Bulletin No. 69 ‘‘Longley-Rice the years to ensure that new and Methodology for Evaluating TV may pose a problem. We delegate to the modified analog stations do not cause Media Bureau authority to address Coverage and Interference,’’ February 6, interference to land mobile operations 2004, at p. 10, Table 6. This bullet in is expeditiously issues that may arise in the TV bands. In developing the associated with this process. available on the Internet at: http:// Appendix A list of analog stations that www.fcc.gov/Bureaus/ 16. We tentatively conclude that we _ are eligible to operate after the transition Engineering Technology/Documents/ ends, we used these same separation will permit a station not listed in bulletins/oet69/oet69.pdf. We further standards to protect land mobile Appendix A to provide nightlight assumed that an analog station would operations on channels 14–20 from service if the station would cause no not cause interference to a co-located interference from analog TV operations. more than 0.1 percent new interference adjacent channel digital station, i.e., a (See 47 CFR 73.623(e) for the list of land to a digital station in addition to that digital station within 5 km (3 miles), mobile communities and channels.) We reflected in the DTV Table Appendix B. and we did not apply adjacent channel note that the analog stations that will (The details of each station’s DTV (post- protection between channels 4 and 5, operate under this authority have been transition) channel assignment, channels 6 and 7 and channels 13 and operating without causing interference including technical facilities and 14 as those channels are not adjacent in to public safety or other land mobile predicted service and interference the frequency spectrum. We propose to operations in those channels prior to the information, are set forth in the use these separation distances to protect transition, and we expect that these Appendix B to the final order in the digital TV signals from analog signals stations will continue to operate in that DTV Table proceeding, MB Docket No. during the 30-day Analog Nightlight manner during the 30-day Analog 87–268 (‘‘DTV Table Appendix B’’).) period. We request comment on these Nightlight Act period. We request This stringent interference standard, parameters for protecting digital signals comment on use of these standards and which was used in the channel election from harmful interference for this assumptions to protect public safety process, will minimize as much as limited time and for this limited operations on channels 14–20 from possible the chance of harmful purpose. We note that it is our intention interference from analog signals used for interference from analog nightlight to use conservative factors, which are the Analog Nightlight program. service to DTV service. We seek more likely to over-protect a digital comment on this standard. We also signal, for this purpose rather than to 2. Other Stations That May Meet propose to permit a station to cause up risk interference that will hinder viewer Eligibility Requirements to, but no more than, 0.5 percent new reception of DTV signals. In developing 15. Broadcasters whose stations are interference to a digital station in these criteria based on the statutory not listed in Appendix A and who are addition to the interference included in mandate, we are attempting to balance interested in providing nightlight DTV Table Appendix B in areas where the goal of encouraging use of the service may submit engineering and there is no station listed as eligible in Analog Nightlight to benefit viewers other information to demonstrate why Appendix A or that would meet the 0.1
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percent interference standard. (In this we will not require an engineering or Appendix A as warranted in the Report circumstance, an ‘‘area’’ means a other showing. We also remind stations and Order. viewing area, which may be a city, choosing to participate in the program 21. To demonstrate eligibility, a county, community, market, DMA, or to file an update to their Transition station must include an engineering other geographic area in which people Status Report (FCC Form 387). (Stations showing demonstrating that the station receive over-the-air television service. are responsible for the continuing will cause no more than 0.1% Stations seeking to participate under accuracy and completeness of the interference, which is the standard the this standard should make their information furnished in their Form Commission used for the channel argument and basis for inclusion clear 387. Whenever the information election process. This conservative in their STA submission.) We believe furnished in their form is no longer measure of interference will ensure that that this more-relaxed 0.5 percent substantially accurate and complete in stations continuing to broadcast an interference standard is warranted all significant respects, the station must analog signal will not cause harmful where necessary to ensure that at least file an updated form as promptly as interference to digital service. A station one station will provide the Analog possible and in any event within 30 may propose to reduce its current Nightlight service, consistent with the days to furnish such additional or analog power in order to remain within Act’s purpose of enabling broadcasters corrected information as is appropriate.) this interference level. Alternatively, a to provide essential public safety We seek comment on this proposal. station may demonstrate that there is no announcements and digital television 19. In light of the extremely short other station in the area that is eligible transition information for a short time period of time before the transition, we to or planning to remain on the air to during the transition. We note that encourage stations to review Appendix participate in the Analog Nightlight Section 3(1) of the Act requires the A and to notify the Commission during program and thus justify up to 0.5% Commission to ‘‘take into account the comment cycle if they intend to interference to digital stations. 22. In order to afford an opportunity market-by-market needs, based upon participate in the Analog Nightlight for public consideration of these factors such as channel and transmitter program. To ensure that these Engineering STA notifications, stations availability.’’ We invite comment on notifications are properly recorded, whether this provision supports use of must file no later than February 3, 2009. stations filings comments should also This timing will allow the Commission, a more relaxed 0.5 percent interference file a notification through the Legal STA standard to determine eligibility in the public and other interested parties process described above. As noted an opportunity to review and evaluate situations where no station can meet our above, participation is voluntary, but we more stringent interference eligibility these requests. The Media Bureau will encourage stations to make these announce by public notice those criteria. determinations and commitments as 17. The Commission reserves the right stations that have filed a request to quickly as possible. These early participate in the program. (The public to rescind any station’s authority to indications of participation will provide analog nightlight service if it notice will set forth a brief period of facilitate Commission determination of time within which an objection based interferes with post-transition digital the need to permit additional stations service in a manner that is more harmful on interference may be filed and will that are not included on the initial list describe the expedited process for filing than expected and that outweighs the to participate. benefit of the time-limited analog such objections.) Before February 17, nightlight service. 2. Requests for Program Participation 2009, stations with requests that are not With Eligibility Showings subject to any pending objection will be B. Notifications to the Commission of considered eligible to participate in the Program Participation 20. Stations that are not listed in the program. Nevertheless, participating final Appendix A to the Report and stations must immediately stop 1. Notifications by Pre-Approved Order in this proceeding, may Eligible Stations broadcasting Analog Nightlight nevertheless request to participate in the operations upon any valid complaints of 18. A station listed in Appendix A Analog Nightlight Program by filing an interference to DTV stations or other can be considered pre-approved to Engineering STA notification statutorily protected operations. We also participate in the Analog Nightlight electronically through CDBS using the remind stations choosing to participate program but must notify the Informal Application filing form. A in the program to file an update to their Commission of its intent to participate filing fee is normally required for an Transition Status Report (FCC Form by filing a Legal STA electronically Engineering STA; however, to 387). We seek comment on this through the Commission’s Consolidated encourage participation in the Analog proposed process and the criteria set Database System (‘‘CDBS’’) using the Nightlight program, we will waive the forth above. Informal Application filing form. These filing fee for timely filed requests. In notifications are necessary so that we addition, to hasten the process and C. Analog License Extension for can determine where the Analog expand the pool of eligible participants, Participating Stations Nightlight service will be available and broadcasters whose stations are not 23. Television broadcast licenses also to establish the source of any listed in Appendix A to this NPRM that currently contain the following language unanticipated interference to a digital believe they are nevertheless eligible to concerning analog service: station in the area. Notifications should participate may file comments in this This is to notify you that your be filed as soon as possible and must be proceeding demonstrating their application for license is subject to the filed no later than February 10, 2009. A eligibility to participate in the program. condition that on February 17, 2009, or filing fee is normally required for Legal To ensure that these requests are by such other date as the Commission STAs; however, to encourage and hasten properly recorded, stations filing may establish in the future under participation in the Analog Nightlight comments should also file a notification Section 309(j)(14)(a) and (b) of the program, we will waive the filing fee for through the Engineering STA process. If Communications Act, the licensee shall timely filed notifications. Because these there are objections to these surrender either its analog or digital stations are already determined to be notifications, they can be filed as reply television channel for reallocation or eligible to participate in the program, comments in this docket. We will revise reassignment pursuant to Commission
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regulations. The Channel retained by such emergencies, including but not persons with disabilities,’’ concerning the licensee will be used to broadcast limited to a crawl or text describing the the digital transition and certain other digital television only after this date. emergency, live or taped action information. (As noted above, stations 24. The Report and Order in this regarding the emergency, programming are encouraged also to provide proceeding will grant a blanket concerning the emergency, and the like. information in additional languages that extension of license to broadcasters who Licensees providing emergency are common among their viewing participate in the Analog Nightlight information must make that information audiences.) We tentatively conclude program to operate for a period of 30 accessible to persons with disabilities that such information may be made days after February 17, 2009, i.e., until under 47 CFR 79.2. We also note that available in either open or closed and including March 19, 2009. We the Emergency Alert System (‘‘EAS’’) captioning. In addition, as the Act delegate authority to the Media Bureau would apply to the Analog Nightlight provides, the Analog Nightlight to issue a public notice just before the service to the extent an emergency information should include a telephone transition date announcing those arises during the 30-day time frame. number and Internet address by which stations that are participating in the EAS ‘‘provides the President with the help with the transition may be Analog Nightlight program. The Media capability to provide immediate obtained in both English and Spanish. Bureau’s Public Notice will establish the communications and information to the We seek comment on the specific right of those licensees whose stations general public at the National, State and contact information that stations should are identified in the public notice to Local Area levels during periods of provide to consumers. We ask state continue to operate their stations in national emergency,’’ and, in addition, broadcaster associations to inform us of analog on their analog channels solely ‘‘may be used to provide the heads of their plans to have local numbers, or for the purpose of providing the Analog State and local government, or their local call centers, available to provide Nightlight service as described in the designated representatives, with a assistance to viewers with questions Report and Order. means of emergency communication about local signal reception. In the with the public in their State or Local interim, we encourage broadcasters to D. Permissible Analog Nightlight Area.’’ make local phone numbers available to Programming the public and, where feasible, establish 2. Transition Information 25. Consistent with the explicit local call centers. language of the Act, we tentatively 28. With respect to the digital 30. We seek comment on the types of conclude that nightlight programming television transition, we tentatively information that may be provided and may convey only emergency conclude that stations airing a nightlight additional sources for consumers to information, as that term is defined in signal may broadcast any information contact. With regard to the kind of 47 CFR 79.2, and information regarding that is relevant to informing viewers emergency information noted in Section the digital transition. All such about the transition and how they can 2(b)(1) of the Act, we note that, pursuant information should be available in both continue to obtain television service. to § 79.2 of our rules, such information English and Spanish and accessible to Examples of the kind of information a must be provided in an accessible visual persons with disabilities. We also station may want to air include, but are format, but does not require that it be encourage participating stations to not limited to: General information open or closed captioned. Such provide the information in additional about the transition; information about information must not only be accessible languages where appropriate and how viewers can receive digital signals; to individuals who are deaf and hard of beneficial for their viewers. No other information about the circumstances hearing, but also to individuals who are programming or advertisements will be related to the DTV transition in the blind or have low vision. Pursuant to permitted. As stated below, we seek station’s market; answers to commonly § 79.2 (b)(ii) and (iii), this is achieved comment on these tentative asked questions and other useful through open aural description (in the conclusions. information (e.g., how to re-position an case of (ii)) or by the use of an aural tone antenna or install a converter box); in (iii) to alert those with vision 1. Emergency Information where viewers can obtain more disabilities that they should turn to a 26. Under part 79 of our rules, information about the transition in their radio or some other source of emergency information is defined as local community, including a telephone information. We seek comment on follows: number and Web site address for the whether these methods are sufficient for Information about a current station providing the nightlight service purposes of Section 2(b)(2) of the Act. emergency, that is intended to further and other stations in the community We also invite comment about other the protection of life, health, safety, and and any other local sources of transition ways we can ensure that information is property, i.e., critical details regarding information and assistance; information conveyed to people with disabilities. the emergency and how to respond to about the DTV converter box coupon 31. We tentatively conclude that the the emergency. Examples of the types of program; and information or links to Analog Nightlight information may be emergencies covered include tornadoes, other Web sites containing DTV aired using a ‘‘slate’’ with text and audio hurricanes, floods, tidal waves, earth information, including the FCC, of the text or other DTV information, as quakes, icing conditions, heavy snows, National Association of Broadcasters well as information, if necessary widespread fires, discharge of toxic (NAB) and National describing the steps viewers must take gases, widespread power failures, Telecommunications and Information to obtain emergency information. industrial explosions, civil disorders, Administration (NTIA) Web sites. Based Participants in the Analog Nightlight school closings and changes in school on the limitations in the statute, we program may also air a video loop with bus schedules resulting from such tentatively conclude that advertisements audio, or broadcast live action with conditions, and warning and watches of are not permitted to be included in the audio format, or any combination impending changes in weather. Analog Nightlight program. We seek thereof. (Stations choosing a video loop 27. Thus, in the event of an comment on this tentative conclusion. format may use the FCC’s educational emergency situation during the 30-day 29. Section 2(b)(2) of the Act provides video showing how to install a nightlight period, stations may for the broadcast of information, ‘‘in converter box. See http://www.dtv.gov/ broadcast video and audio concerning English and Spanish and accessible to video_audio.html. Additional formats of
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the video are available upon request.) brief 30-day period during which the their full name, U.S. Postal Service We note that during the early transition Act’s provisions will be in force, mailing address, and the applicable in Wilmington, NC, stations used a slate circumstances which make the use of docket or rulemaking number. Parties to provide nightlight service. NAB has normal OMB clearance procedures may also submit an electronic comment also recently announced that it will reasonably likely to cause the Act’s by Internet e-mail. To get filing produce and distribute a brief DTV statutory deadlines to be missed. In instructions, filers should send an e- educational video that stations can air addition, any delay in implementing mail to [email protected], and include the as part of the Analog Nightlight this Congressional mandate can result in following words in the body of the program. harm to TV stations, and, in turn, to message, ‘‘get form.’’ A sample form and 32. In general we seek comment on their viewers. (Due to the short time directions will be sent in response. these tentative conclusions and frame provided for us to act in the 38. Paper Filers: Parties who choose proposals regarding nightlight Analog Nightlight Act, we will ask OMB to file by paper must file an original and programming and invite commenters to to waive Federal Register notice for this four copies of each filing. Filings can be suggest other kinds of information that emergency request under the PRA. See sent by hand or messenger delivery, by stations could provide to assist viewers. 5 CFR 1320.13(d).) For additional commercial overnight courier, or by information concerning the PRA first-class or overnight U.S. Postal IV. Procedural Matters proposed information collection Service mail (although we continue to A. Regulatory Flexibility Act Analysis requirements contained in this NPRM, experience delays in receiving U.S. Not Required contact Cathy Williams at 202–418– Postal Service mail). All filings must be 2918, or via the Internet to addressed to the Commission’s 33. We find that no Initial Regulatory [email protected]. Secretary, Office of the Secretary, Flexibility Analysis (IRFA) is required Federal Communications Commission. for this Notice of Proposed Rulemaking. C. Ex Parte Rules 39. The Commission’s contractor will As stated above, because of the ‘‘urgent 35. Permit-But-Disclose. This receive hand-delivered or messenger- necessity for rapid administrative action proceeding will be treated as a ‘‘permit- delivered paper filings for the under the circumstances,’’ we find that but-disclose’’ proceeding subject to the Commission’s Secretary at 236 there is good cause to dispense with ‘‘permit-but-disclose’’ requirements Massachusetts Avenue, NE., Suite 110, notice and comment requirements under section 1.1206(b) of the Washington, DC 20002. The filing hours under the Administrative Procedure Commission’s rules. Ex parte at this location are 8 a.m. to 7 p.m. All Act. The Analog Nightlight Act imposes presentations are permissible if hand deliveries must be held together a statutory deadline of January 15, 2009, disclosed in accordance with with rubber bands or fasteners. Any less than one month away, and the Commission rules, except during the envelopes must be disposed of before Commission has an extraordinarily Sunshine Agenda period when entering the building. short time period to meet this deadline: presentations, ex parte or otherwise, are 40. Commercial overnight mail (other The bill was sent to the President for his generally prohibited. Persons making than U.S. Postal Service Express Mail signature on December 12, 2008, and it oral ex parte presentations are reminded and Priority Mail) must be sent to 9300 was enacted into law on December 23, that a memorandum summarizing a East Hampton Drive, Capitol Heights, 2008. For this reason, we find that an presentation must contain a summary of MD 20743. IRFA is not required. Nonetheless, we the substance of the presentation and 41. U.S. Postal Service first-class, invited comment from interested parties not merely a listing of the subjects Express, and Priority mail should be in order to assist in our development of discussed. More than a one- or two- addressed to 445 12th Street, SW., the Analog Nightlight program. sentence description of the views and Washington, DC 20554. 42. Availability of Documents. B. Initial Paperwork Reduction Act of arguments presented is generally Comments, reply comments, and ex 1995 Analysis required. Additional rules pertaining to oral and written presentations are set parte submissions will be available for 34. This Notice of Proposed forth in section 1.1206(b). public inspection during regular Rulemaking was analyzed with respect business hours in the FCC Reference to the Paperwork Reduction Act of 1995 D. Filing Requirements Center, Federal Communications (‘‘PRA’’), Public Law 104–13, 109 Stat 36. Comments and Replies. Pursuant Commission, 445 12th Street, SW., CY– 163 (1995) (codified in Chapter 35 of to Sections 1.415 and 1.419 of the A257, Washington, DC 20554. These Title 44 U.S.C.), and contains a Commission’s rules, interested parties documents will also be available via modified information collection may file comments and reply comments ECFS. Documents will be available requirement. The Commission will seek on or before the dates indicated on the electronically in ASCII, Word 97, and/ approval under the PRA under OMB’s first page of this document. Comments or Adobe Acrobat. emergency processing rules for these may be filed using: (1) The 43. People with Disabilities: To information collections in order to Commission’s Electronic Comment request materials in accessible formats implement the Congressional mandate Filing System (‘‘ECFS’’), (2) the Federal for people with disabilities (braille, for the FCC to develop and implement Government’s eRulemaking Portal, or (3) large print, electronic files, audio a program by January 15, 2009, to by filing paper copies. format), send an e-mail to encourage and permit TV broadcast 37. Electronic Filers: Comments may [email protected] or call the Consumer & stations to use this opportunity to be filed electronically using the Internet Governmental Affairs Bureau at 202– provide public safety information and by accessing the ECFS: http:// 418–0530 (voice), 202–418–0432 (tty). DTV transition information. We believe www.fcc.gov/cgb/ecfs/ or the Federal 44. Additional Information. For there is good cause for requesting eRulemaking Portal: http:// additional information on this emergency PRA approval from OMB www.regulations.gov. Filers should proceeding, contact Kim Matthews, because of the January 15, 2009 follow the instructions provided on the [email protected], or Evan statutory deadline for implementing the Web site for submitting comments. For Baranoff, [email protected], or Nightlight Act, which was enacted by ECFS filers, in completing the Eloise Gore, [email protected], of the Congress only this month, as well as the transmittal screen, filers should include Media Bureau, Policy Division, (202)
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418–2120; Gordon Godfrey, V. Ordering Clauses Consumer Information Bureau, shall [email protected], of the Media 45. Accordingly, it is ordered that, send a copy of this Notice of Proposed Bureau, Engineering Division, (202) pursuant to Sections 1, 4(i), 303(r), 316, Rulemaking, including the Initial 418–7000; Nazifa Sawez, and 336 of the Communications Act of Regulatory Flexibility Analysis, to the [email protected], of the Media 1934, 47 U.S.C. 151, 154(i), 303(r), 316, Chief Counsel for Advocacy of the Small Bureau, Video Division, (202) 418–1600; and 336, and the Short-term Analog Business Administration. or Alan Stillwell, Flash and Emergency Readiness Act of Federal Communications Commission. [email protected], of the Office of 2008, notice is hereby given of the William F. Caton, Engineering and Technology, (202) 418– proposals and tentative conclusions 2470. described in this Notice of Proposed Deputy Secretary. Rulemaking. Appendix A: Initial List of Stations 46. It is further ordered that the Eligible for Analog Nightlight Program Reference Information Center,
Post Pre Market Facility ID Call sign City ST Anlg transition transition Status of analog Ch. DTV Ch. DTV Ch. (*)
Anchorage, AK ...... 804 KAKM ...... Anchorage ...... AK 7 8 Anchorage, AK ...... 13815 KIMO ...... Anchorage ...... AK 13 12 Anchorage, AK ...... 10173 KTUU–TV .. Anchorage ...... AK 2 10 Anchorage, AK ...... 4983 KYUK–TV .. Bethel ...... AK 4 3 Fairbanks, AK ...... 13813 KATN ...... Fairbanks ...... AK 2 18 Fairbanks, AK ...... 20015 KJNP–TV ... North Pole ...... AK 4 20 Fairbanks, AK ...... 49621 KTVF ...... Fairbanks ...... AK 11 26 Fairbanks, AK ...... 69315 KUAC–TV .. Fairbanks ...... AK 9 9 24 Juneau, AK ...... 8651 KTOO–TV .. Juneau ...... AK 3 10 Juneau, AK ...... 60520 KUBD ...... Ketchikan ...... AK 4 13 Birmingham, AL ...... 71325 WDBB ...... Bessemer ...... AL 17 18 Dothan, AL ...... 43846 WDHN ...... Dothan ...... AL 18 21 Huntsville-Decatur-Flor- 57292 WAAY–TV Huntsville ...... AL 31 32 ence, AL. Montgomery, AL ...... 714 WDIQ ...... Dozier ...... AL 2 10 Ft. Smith-Fayetteville- 66469 KFSM–TV .. Fort Smith...... AR 5 18 Springdale-Rogers, AR. Ft. Smith-Fayetteville- 60354 KHOG–TV Fayetteville ...... AR 29 15 Springdale-Rogers, AR. Little Rock-Pine Bluff, 33440 KARK–TV .. Little Rock...... AR 4 32 AR. Little Rock-Pine Bluff, 2770 KETS ...... Little Rock ...... AR 2 7 ...... Terminating 1/3/09. AR. Little Rock-Pine Bluff, 11951 KLRT–TV ... Little Rock...... AR 16 30 AR. Little Rock-Pine Bluff, 37005 KWBF ...... Little Rock ...... AR 42 44 ...... Reduced 10/31/08. AR. Phoenix, AZ ...... 41223 KPHO–TV .. Phoenix ...... AZ 5 17 Phoenix, AZ ...... 40993 KTVK ...... Phoenix ...... AZ 3 24 Phoenix, AZ ...... 68886 KUTP ...... Phoenix ...... AZ 45 26 Tucson, AZ ...... 81441 KFTU–TV .. Douglas ...... AZ 3 36 Tucson, AZ ...... 30601 KHRR ...... Tucson ...... AZ 40 40 42 Tucson, AZ ...... 2731 KUAT–TV .. Tucson ...... AZ 6 30 Tucson, AZ ...... 25735 KVOA ...... Tucson ...... AZ 4 23 Eureka, CA ...... 8263 KAEF ...... Arcata ...... CA 23 22 Fresno-Visalia, CA ...... 51488 KMPH–TV Visalia ...... CA 26 28 Fresno-Visalia, CA ...... 35594 KSEE ...... Fresno ...... CA 24 38 Los Angeles, CA ...... 47906 KNBC ...... Los Angeles ...... CA 4 36 Los Angeles, CA ...... 35670 KTLA ...... Los Angeles ...... CA 5 31 Los Angeles, CA ...... 26231 KWHY–TV Los Angeles ...... CA 22 42 Sacramento-Stockton- 33875 KCRA–TV .. Sacramento ...... CA 3 35 Modesto, CA. San Diego, CA ...... 6124 KPBS ...... San Diego ...... CA 15 30 San Francisco-Oakland- 65526 KRON–TV San Francisco...... CA 4 38 San Jose, CA. San Francisco-Oakland- 35703 KTVU ...... Oakland ...... CA 2 44 San Jose, CA. Santa Barbara-Santa 63165 KCOY–TV .. Santa Maria...... CA 12 19 Maria-San Luis Obispo, CA. Santa Barbara-Santa 60637 KEYT–TV .. Santa Barbara...... CA 3 27 Maria-San Luis Obispo, CA.
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Post Pre Market Facility ID Call sign City ST Anlg transition transition Status of analog Ch. DTV Ch. DTV Ch. (*)
Santa Barbara-Santa 19654 KSBY ...... San Luis Obispo .... CA 6 15 Maria-San Luis Obispo, CA. Yuma, AZ-El Centro, CA 36170 KVYE ...... El Centro ...... CA 7 22 Albuquerque-Santa Fe, 48589 KREZ–TV .. Durango ...... CO 6 15 NM. Colorado Springs-Pueb- 59014 KOAA–TV .. Pueblo ...... CO 5 42 lo, CO. Denver, CO ...... 63158 KCDO ...... Sterling ...... CO 3 23 Denver, CO ...... 24514 KCEC ...... Denver ...... CO 50 51 Denver, CO ...... 47903 KCNC–TV .. Denver ...... CO 4 35 Grand Junction- 31597 KFQX ...... Grand Junction...... CO 4 15 Montrose, CO. Grand Junction- 70596 KREX–TV .. Grand Junction...... CO 5 2 Montrose, CO. Hartford-New Haven, CT 53115 WFSB ...... Hartford ...... CT 3 33 Washington, DC ...... 47904 WRC–TV ... Washington ...... DC 4 48 Gainesville, FL ...... 69440 WUFT ...... Gainesville ...... FL 5 36 Jacksonville, FL ...... 53116 WJXT ...... Jacksonville ...... FL 4 42 Miami-Ft. Lauderdale, 47902 WFOR–TV Miami ...... FL 4 22 FL. Miami-Ft. Lauderdale, 13456 WPBT ...... Miami ...... FL 2 18 FL. Miami-Ft. Lauderdale, 64971 WSCV ...... Fort Lauderdale..... FL 51 30 FL. Orlando-Daytona Beach- 25738 WESH ...... Daytona Beach...... FL 2 11 Melbourne, FL. Orlando-Daytona Beach- 53465 WKCF ...... Clermont ...... FL 18 17 Melbourne, FL. Panama City, FL ...... 2942 WPGX ...... Panama City ...... FL 28 9 Tampa-St. Petersburg- 21808 WEDU ...... Tampa ...... FL 3 13 ...... Reduced 7/1/08. Sarasota, FL. West Palm Beach-Ft. 59443 WPTV ...... West Palm Beach .. FL 5 12 ...... Reduced 7/24/08. Pierce, FL. Atlanta, GA ...... 70689 WAGA ...... Atlanta ...... GA 5 27 Atlanta, GA ...... 23960 WSB–TV .... Atlanta ...... GA 2 39 Augusta, GA ...... 70699 WAGT ...... Augusta ...... GA 26 30 Macon, GA ...... 23935 WMUM–TV Cochran ...... GA 29 7 Savannah, GA ...... 48662 WSAV–TV Savannah ...... GA 3 39 Honolulu, HI ...... 65395 KBFD ...... Honolulu ...... HI 32 33 ...... Reduced 5/15/08 and Terminating 1/15/ 09. Honolulu, HI ...... 34445 KFVE ...... Honolulu ...... HI 5 23 Honolulu, HI ...... 36917 KGMB ...... Honolulu ...... HI 9 22 ...... Terminating 1/15/09. Honolulu, HI ...... 36920 KGMV ...... Wailuku ...... HI 3 24 ...... Terminating 1/15/09. Honolulu, HI ...... 34846 KHBC–TV .. Hilo ...... HI 2 22 ...... Terminating 1/15/09. Honolulu, HI ...... 34867 KHNL ...... Honolulu ...... HI 13 35 ...... Terminating 1/15/09. Honolulu, HI ...... 4144 KHON–TV Honolulu ...... HI 2 8 ...... Terminating 1/15/09. Honolulu, HI ...... 34527 KIKU ...... Honolulu ...... HI 20 19 ...... Terminating 1/15/09. Honolulu, HI ...... 64548 KITV ...... Honolulu ...... HI 4 40 Cedar Rapids-Waterloo- 35336 KFXA ...... Cedar Rapids...... IA 28 27 Iowa City-Dubuque, IA. Cedar Rapids-Waterloo- 29025 KIIN ...... Iowa City...... IA 12 12 45 Iowa City-Dubuque, IA. Des Moines-Ames, IA ... 29100 KTIN ...... Fort Dodge ...... IA 21 25 Rochester-Austin, MN- 66402 KIMT ...... Mason City...... IA 3 42 Mason City, IA. Rochester-Austin, MN- 29086 KYIN ...... Mason City...... IA 24 18 Mason City, IA. Boise, ID ...... 49760 KBCI–TV ... Boise ...... ID 2 28 Boise, ID ...... 59363 KNIN–TV ... Caldwell ...... ID 9 10 Boise, ID ...... 28230 KTRV–TV .. Nampa ...... ID 12 13 Spokane, WA ...... 56032 KLEW–TV .. Lewiston ...... ID 3 32 Twin Falls, ID ...... 1255 KXTF ...... Twin Falls ...... ID 35 34 Champaign-Springfield- 42124 WCIA ...... Champaign ...... IL 3 48 Decatur, IL. Chicago, IL ...... 9617 WBBM–TV Chicago ...... IL 2 12 Paducah, KY-Cape 73999 WSIL–TV ... Harrisburg ...... IL 3 34 Girardeau, MO-Harris- burg-Mt. Vernon, IL. Ft. Wayne, IN ...... 39270 WANE–TV Fort Wayne ...... IN 15 31 Indianapolis, IN ...... 40877 WRTV ...... Indianapolis ...... IN 6 25
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Post Pre Market Facility ID Call sign City ST Anlg transition transition Status of analog Ch. DTV Ch. DTV Ch. (*)
Indianapolis, IN ...... 56523 WTTV ...... Bloomington ...... IN 4 48 Terre Haute, IN ...... 20426 WTWO ...... Terre Haute ...... IN 2 36 ...... Terminated 12/1/08. Wichita-Hutchinson, KS 72359 KSNC ...... Great Bend ...... KS 2 22 Wichita-Hutchinson, KS 72358 KSNW ...... Wichita ...... KS 3 45 Wichita-Hutchinson, KS 60683 KSWK ...... Lakin ...... KS 3 8 Wichita-Hutchinson, KS 66413 KWCH–TV Huchinson ...... KS 12 12 19 Charleston-Huntington, 34171 WKAS ...... Ashland ...... KY 25 26 WV. Louisville, KY ...... 13989 WAVE ...... Louisville ...... KY 3 47 Alexandria, LA ...... 51598 KALB–TV ... Alexandria ...... LA 5 35 Baton Rouge, LA ...... 38616 WBRZ–TV Baton Rouge ...... LA 2 13 Lafayette, LA ...... 33471 KATC ...... Lafayette ...... LA 3 28 New Orleans, LA ...... 71357 WDSU ...... New Orleans ...... LA 6 43 New Orleans, LA ...... 18819 WLAE–TV .. New Orleans ...... LA 32 31 New Orleans, LA ...... 54280 WNOL–TV New Orleans ...... LA 38 15 New Orleans, LA ...... 74192 WWL–TV ... New Orleans ...... LA 4 36 Shreveport, LA ...... 73706 KSHV ...... Shreveport ...... LA 45 44 Shreveport, LA ...... 35652 KTBS–TV .. Shreveport ...... LA 3 28 Boston, MA ...... 25456 WBZ–TV .... Boston ...... MA 4 30 Boston, MA ...... 65684 WCVB–TV Boston ...... MA 5 20 Boston, MA ...... 72099 WGBH–TV Boston ...... MA 2 19 Baltimore, MD ...... 59442 WMAR–TV Baltimore ...... MD 2 38 Bangor, ME ...... 17005 WABI–TV ... Bangor ...... ME 5 12 Bangor, ME ...... 39644 WLBZ ...... Bangor ...... ME 2 2 25 Detroit, MI ...... 73123 WJBK ...... Detroit ...... MI 2 7 Flint-Saginaw-Bay City, 72052 WEYI–TV ... Saginaw ...... MI 25 30 MI. Grand Rapids-Kala- 74195 WWMT ...... Kalamazoo ...... MI 3 8 mazoo-Battle Creek, MI. Marquette, MI ...... 9630 WJMN–TV Escanaba ...... MI 3 48 Traverse City-Cadillac, 21254 WTOM–TV Cheboygan ...... MI 4 35 MI. Duluth, MN-Superior, WI 4691 KDLH ...... Duluth ...... MN 3 33 Duluth, MN-Superior, WI 35525 KQDS–TV .. Duluth ...... MN 21 17 Minneapolis-St. Paul, 35843 KSTC–TV .. St. Paul...... MN 45 45 44 MN. Minneapolis-St. Paul, 28010 KSTP–TV .. St. Paul...... MN 5 35 MN. Minneapolis-St. Paul, 68594 KTCA–TV .. St. Paul...... MN 2 34 MN. Minneapolis-St. Paul, 36395 WUCW ...... Minneapolis ...... MN 23 22 MN. Rochester-Austin, MN- 18285 KAAL ...... Austin ...... MN 6 36 Mason City, IA. Columbia-Jefferson City, 4326 KMOS–TV Sedalia ...... MO 6 15 MO. Kansas City, MO–KS .... 65686 KMBC–TV Kansas City ...... MO 9 29 Kansas City, MO–KS .... 33337 KPXE ...... Kansas City ...... MO 50 51 Kansas City, MO–KS .... 59444 KSHB–TV .. Kansas City ...... MO 41 42 Ottumwa, IA-Kirksville, 21251 KTVO ...... Kirksville ...... MO 3 33 MO. Springfield, MO ...... 36003 KYTV ...... Springfield ...... MO 3 44 St. Joseph, MO ...... 20427 KQTV ...... St. Joseph ...... MO 2 7 St. Louis, MO ...... 46981 KSDK ...... St. Louis ...... MO 5 35 St. Louis, MO ...... 35693 KTVI ...... St. Louis ...... MO 2 43 Columbus-Tupelo-West 12477 WCBI–TV .. Columbus ...... MS 4 35 Point, MS. Columbus-Tupelo-West 37732 WLOV–TV West Point...... MS 27 16 Point, MS. Columbus-Tupelo-West 43192 WMAB–TV Mississippi State.... MS 2 10 Point, MS. Jackson, MS ...... 68542 WLBT ...... Jackson ...... MS 3 7 Jackson, MS ...... 43184 WMAU–TV Bude ...... MS 17 18 ...... Reduced 8/7/08 Jackson, MS ...... 43168 WMPN–TV Jackson ...... MS 29 20 Meridian, MS ...... 43169 WMAW–TV Meridian ...... MS 14 44 ...... Reduced 8/7/08. Billings, MT ...... 47670 KHMT ...... Hardin ...... MT 4 22 Butte-Bozeman, MT ...... 43567 KUSM ...... Bozeman ...... MT 9 8 Butte-Bozeman, MT ...... 14674 KWYB ...... Butte ...... MT 18 19 Great Falls, MT ...... 35567 KRTV ...... Great Falls ...... MT 3 7 Great Falls, MT ...... 13792 KTGF ...... Great Falls ...... MT 16 45 Charlotte, NC ...... 30826 WBTV ...... Charlotte ...... NC 3 23
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Post Pre Market Facility ID Call sign City ST Anlg transition transition Status of analog Ch. DTV Ch. DTV Ch. (*)
Greensboro-High Point- 72064 WFMY–TV Greensboro ...... NC 2 51 Winston Salem, NC. Norfolk-Portsmouth- 69292 WUND–TV Edenton ...... NC 2 20 Newport News, VA. Wilmington, NC ...... 48666 WECT ...... Wilmington ...... NC 6 44 ...... Terminated 9/30/08. Wilmington, NC ...... 72871 WSFX–TV Wilmington ...... NC 26 30 ...... Terminated 9/30/08. Wilmington, NC ...... 12033 WWAY ...... Wilmington ...... NC 3 46 ...... Terminated 9/30/08. Fargo-Valley City, ND ... 53320 KGFE ...... Grand Forks ...... ND 2 15 Fargo-Valley City, ND ... 49134 KXJB–TV ... Valley City ...... ND 4 38 Minot-Bismarck-Dickin- 53313 KSRE ...... Minot ...... ND 6 40 son, ND. Cheyenne, WY- 17683 KDUH–TV .. Scottsbluff ...... NE 4 7 Scottsbluff, NE. Omaha, NE ...... 35190 KMTV ...... Omaha ...... NE 3 45 Omaha, NE ...... 23277 KXVO ...... Omaha ...... NE 15 38 Omaha, NE ...... 47974 KYNE–TV .. Omaha ...... NE 26 17 Omaha, NE ...... 65528 WOWT–TV Omaha ...... NE 6 22 Albuquerque-Santa Fe, 32311 KASA–TV .. Santa Fe...... NM 2 27 NM. Albuquerque-Santa Fe, 55049 KASY–TV .. Albuquerque ...... NM 50 45 NM. Albuquerque-Santa Fe, 1151 KAZQ ...... Albuquerque ...... NM 32 17 NM. Albuquerque-Santa Fe, 35084 KLUZ–TV ... Albuquerque ...... NM 41 42 NM. Albuquerque-Santa Fe, 993 KNAT–TV .. Albuquerque ...... NM 23 24 NM. Albuquerque-Santa Fe, 55528 KNME–TV Albuquerque ...... NM 5 35 NM. Albuquerque-Santa Fe, 85114 KOBG–TV Silver City...... NM 6 12 NM. Albuquerque-Santa Fe, 35313 KOB–TV .... Albuquerque ...... NM 4 26 NM. Albuquerque-Santa Fe, 53908 KOCT ...... Carlsbad ...... NM 6 19 NM. Albuquerque-Santa Fe, 76268 KWBQ ...... Santa Fe...... NM 19 29 NM. Amarillo, TX ...... 18338 KENW ...... Portales ...... NM 3 32 Las Vegas, NV ...... 63768 KBLR ...... Paradise ...... NV 39 40 ...... Reduced 11/17/08. Las Vegas, NV ...... 11683 KLVX ...... Las Vegas ...... NV 10 11 ...... Reduced 10/31/08. Las Vegas, NV ...... 41237 KMCC ...... Laughlin ...... NV 34 32 Las Vegas, NV ...... 10179 KVMY ...... Las Vegas ...... NV 21 22 Las Vegas, NV ...... 35870 KVVU–TV .. Henderson ...... NV 5 9 Reno, NV ...... 10228 KNPB ...... Reno ...... NV 5 15 Reno, NV ...... 51493 KREN–TV .. Reno ...... NV 27 26 Reno, NV ...... 60307 KRNV ...... Reno ...... NV 4 7 Reno, NV ...... 59139 KTVN ...... Reno ...... NV 2 13 Buffalo, NY ...... 64547 WGRZ–TV Buffalo ...... NY 2 33 Buffalo, NY ...... 7780 WIVB–TV ... Buffalo ...... NY 4 39 Buffalo, NY ...... 67784 WNYO–TV Buffalo ...... NY 49 34 Buffalo, NY ...... 2325 WPXJ–TV .. Batavia ...... NY 51 23 ...... Reduced 10/30/08. Burlington, VT-Platts- 57476 WPTZ ...... North Pole...... NY 5 14 burgh, NY. New York, NY ...... 9610 WCBS–TV New York ...... NY 2 33 Syracuse, NY ...... 21252 WSTM–TV Syracuse ...... NY 3 24 Syracuse, NY ...... 74151 WTVH ...... Syracuse ...... NY 5 47 Utica, NY ...... 60654 WKTV ...... Utica ...... NY 2 29 Cleveland-Akron, OH .... 73195 WKYC–TV Cleveland ...... OH 3 17 Columbus, OH ...... 50781 WCMH–TV Columbus ...... OH 4 14 Columbus, OH ...... 56549 WSYX ...... Columbus ...... OH 6 48 Dayton, OH ...... 65690 WDTN ...... Dayton ...... OH 2 50 Zanesville, OH ...... 61216 WHIZ–TV ... Zanesville ...... OH 18 40 Oklahoma City, OK ...... 50182 KAUT–TV .. Oklahoma City ...... OK 43 40 Oklahoma City, OK ...... 66222 KFOR–TV .. Oklahoma City ...... OK 4 27 Oklahoma City, OK ...... 50170 KOCB ...... Oklahoma City ...... OK 34 33 Oklahoma City, OK ...... 12508 KOCO–TV Oklahoma City ...... OK 5 7 Oklahoma City, OK ...... 35388 KOKH–TV .. Oklahoma City ...... OK 25 24 Oklahoma City, OK ...... 50194 KWET ...... Cheyenne ...... OK 12 8 Tulsa, OK ...... 59439 KJRH ...... Tulsa ...... OK 2 8 ...... Reduced 12/1/08. Tulsa, OK ...... 54420 KMYT–TV .. Tulsa ...... OK 41 42 Tulsa, OK ...... 50198 KOET ...... Eufaula ...... OK 3 31 Tulsa, OK ...... 35434 KOTV ...... Tulsa ...... OK 6 45 ...... Reduced 12/1/08.
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Post Pre Market Facility ID Call sign City ST Anlg transition transition Status of analog Ch. DTV Ch. DTV Ch. (*)
Bend, OR ...... 50588 KOAB–TV .. Bend ...... OR 3 11 Eugene, OR ...... 8322 KLSR–TV .. Eugene ...... OR 34 31 Eugene, OR ...... 35189 KMTR ...... Eugene ...... OR 16 17 Eugene, OR ...... 31437 KTVC ...... Roseburg ...... OR 36 18 Medford-Klamath Falls, 8284 KOTI ...... Klamath Falls...... OR 2 13 OR. Portland, OR ...... 21649 KATU ...... Portland ...... OR 2 43 Portland, OR ...... 47707 KNMT ...... Portland ...... OR 24 45 Johnstown-Altoona, PA 73120 WJAC–TV .. Johnstown ...... PA 6 34 Johnstown-Altoona, PA 66219 WPSU–TV Clearfield ...... PA 3 15 Philadelphia, PA ...... 25453 KYW–TV .... Philadelphia ...... PA 3 26 Pittsburgh, PA ...... 25454 KDKA–TV .. Pittsburgh ...... PA 2 25 Puerto Rico ...... 52073 WAPA–TV San Juan ...... PR 4 27 Puerto Rico ...... 53863 WIPM–TV .. Mayaguez ...... PR 3 35 Puerto Rico ...... 64983 WKAQ–TV San Juan ...... PR 2 28 Puerto Rico ...... 64865 WORA–TV Mayaguez ...... PR 5 29 Charleston, SC ...... 10587 WCBD–TV Charleston ...... SC 2 50 Charleston, SC ...... 21536 WCIV ...... Charleston ...... SC 4 34 Charleston, SC ...... 71297 WCSC–TV Charleston ...... SC 5 47 Rapid City, SD ...... 41969 KCLO–TV .. Rapid City ...... SD 15 16 Rapid City, SD ...... 17686 KHSD–TV .. Lead ...... SD 11 10 Sioux Falls-Mitchell, SD 60728 KCSD–TV .. Sioux Falls ...... SD 23 24 Sioux Falls-Mitchell, SD 55379 KDLT–TV ... Sioux Falls ...... SD 46 47 Sioux Falls-Mitchell, SD 55375 KDLV–TV .. Mitchell ...... SD 5 26 Sioux Falls-Mitchell, SD 61064 KDSD–TV .. Aberdeen ...... SD 16 17 Sioux Falls-Mitchell, SD 41964 KPLO–TV .. Reliance ...... SD 6 13 Sioux Falls-Mitchell, SD 48660 KPRY–TV .. Pierre ...... SD 4 19 Sioux Falls-Mitchell, SD 61072 KUSD–TV .. Vermillion ...... SD 2 34 Sioux Falls-Mitchell, SD 29121 KWSD ...... Sioux Falls ...... SD 36 36 51 Chattanooga, TN ...... 59137 WRCB–TV Chattanooga ...... TN 3 13 Knoxville, TN ...... 18252 WETP–TV Sneedville ...... TN 2 41 Memphis, TN ...... 21726 WPXX–TV Memphis ...... TN 50 51 Memphis, TN ...... 66174 WREG–TV Memphis ...... TN 3 28 Nashville, TN ...... 73188 WKRN–TV Nashville ...... TN 2 27 Nashville, TN ...... 60820 WPGD–TV Hendersonville ...... TN 50 33 Amarillo, TX ...... 1236 KACV–TV .. Amarillo ...... TX 2 8 ...... Reduced 11/30/08. Amarillo, TX ...... 8523 KAMR–TV Amarillo ...... TX 4 19 Amarillo, TX ...... 33722 KCIT ...... Amarillo ...... TX 14 15 ...... Reduced 7/1/08. Beaumont-Port Arthur, 61214 KBTV–TV .. Port Arthur...... TX 4 40 TX. Corpus Christi, TX ...... 10188 KIII ...... Corpus Christi ...... TX 3 8 Corpus Christi, TX ...... 64877 KORO ...... Corpus Christi ...... TX 28 27 Corpus Christi, TX ...... 25559 KRIS–TV ... Corpus Christi ...... TX 6 13 Dallas-Ft. Worth, TX ...... 33770 KDFW ...... Dallas ...... TX 4 35 Dallas-Ft. Worth, TX ...... 49326 KDTN ...... Denton ...... TX 2 43 El Paso, TX ...... 33764 KDBC–TV .. El Paso ...... TX 4 18 El Paso, TX ...... 51708 KINT–TV .... El Paso ...... TX 26 25 El Paso, TX ...... 10202 KSCE ...... El Paso ...... TX 38 39 Harlingen-Weslaco- 34457 KGBT–TV .. Harlingen ...... TX 4 31 Brownsville-McAllen, TX. Harlingen-Weslaco- 12913 KLUJ–TV ... Harlingen ...... TX 44 34 Brownsville-McAllen, TX. Harlingen-Weslaco- 43328 KRGV–TV .. Weslaco ...... TX 5 13 Brownsville-McAllen, TX. Houston, TX ...... 53117 KPRC–TV .. Houston ...... TX 2 35 Houston, TX ...... 64984 KTMD ...... Galveston ...... TX 47 48 Lubbock, TX ...... 40820 KAMC ...... Lubbock ...... TX 28 27 Lubbock, TX ...... 77719 KLCW–TV Wolfforth ...... TX 22 43 ...... Terminated 10/1/08. Lubbock, TX ...... 65355 KTXT–TV ... Lubbock ...... TX 5 39 Odessa-Midland, TX ...... 35131 KMID ...... Midland ...... TX 2 26 Odessa-Midland, TX ...... 50044 KPBT–TV .. Odessa ...... TX 36 38 Odessa-Midland, TX ...... 42008 KWAB–TV Big Spring ...... TX 4 33 San Angelo, TX ...... 58560 KIDY ...... San Angelo ...... TX 6 19 San Angelo, TX ...... 31114 KLST ...... San Angelo ...... TX 8 11 San Angelo, TX ...... 307 KSAN–TV .. San Angelo ...... TX 3 16 San Antonio, TX ...... 24316 KCWX ...... Fredericksburg ...... TX 2 5 ...... Reduced 12/15/08. San Antonio, TX ...... 51518 KMYS ...... Kerrville ...... TX 35 32 San Antonio, TX ...... 55762 KTRG ...... Del Rio ...... TX 10 28 Victoria, TX ...... 73101 KAVU–TV .. Victoria ...... TX 25 15
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Post Pre Market Facility ID Call sign City ST Anlg transition transition Status of analog Ch. DTV Ch. DTV Ch. (*)
Wichita Falls, TX- 6864 KAUZ–TV .. Wichita Falls...... TX 6 22 Lawton, OK. Wichita Falls, TX- 65370 KFDX–TV .. Wichita Falls...... TX 3 28 Lawton, OK. Wichita Falls, TX- 7675 KJTL ...... Wichita Falls...... TX 18 15 Lawton, OK. Salt Lake City, UT ...... 59494 KCSG ...... Cedar City ...... UT 4 14 Salt Lake City, UT ...... 36607 KJZZ–TV ... Salt Lake City ...... UT 14 46 Salt Lake City, UT ...... 6359 KSL–TV ..... Salt Lake City ...... UT 5 38 Salt Lake City, UT ...... 68889 KTVX ...... Salt Lake City ...... UT 4 40 Salt Lake City, UT ...... 69396 KUED ...... Salt Lake City ...... UT 7 42 Salt Lake City, UT ...... 69582 KUEN ...... Ogden ...... UT 9 36 Salt Lake City, UT ...... 35822 KUSG ...... St. George ...... UT 12 9 Harrisonburg, VA ...... 4688 WHSV–TV Harrisonburg ...... VA 3 49 Norfolk-Portsmouth- 47401 WTKR ...... Norfolk ...... VA 3 40 Newport News, VA. Richmond-Petersburg, 74416 WRIC–TV .. Petersburg ...... VA 8 22 VA. U.S. Virgin Islands ...... 2370 WSVI ...... Christiansted ...... VI 8 20 Burlington, VT-Platts- 46728 WCAX–TV Burlington ...... VT 3 22 burgh, NY. Burlington, VT-Platts- 69946 WVER ...... Rutland ...... VT 28 9 burgh, NY. Portland, OR ...... 35460 KPDX ...... Vancouver ...... WA 49 30 Seattle-Tacoma, WA ..... 34847 KING–TV ... Seattle ...... WA 5 48 Seattle-Tacoma, WA ..... 66781 KIRO–TV ... Seattle ...... WA 7 39 Seattle-Tacoma, WA ..... 21656 KOMO–TV Seattle ...... WA 4 38 Spokane, WA ...... 58684 KAYU–TV .. Spokane ...... WA 28 28 ...... Reduced 10/31/08. Spokane, WA ...... 34868 KREM–TV Spokane ...... WA 2 20 Spokane, WA ...... 35606 KSKN ...... Spokane ...... WA 22 36 Spokane, WA ...... 61978 KXLY–TV .. Spokane ...... WA 4 13 Yakima-Pasco-Richland- 56029 KEPR–TV .. Pasco ...... WA 19 18 Kennewick, WA. Yakima-Pasco-Richland- 56033 KIMA–TV ... Yakima ...... WA 29 33 Kennewick, WA. Yakima-Pasco-Richland- 12395 KNDO ...... Yakima ...... WA 23 16 Kennewick, WA. Yakima-Pasco-Richland- 12427 KNDU ...... Richland ...... WA 25 26 Kennewick, WA. Yakima-Pasco-Richland- 71023 KTNW ...... Richland ...... WA 31 38 Kennewick, WA. Yakima-Pasco-Richland- 33752 KYVE ...... Yakima ...... WA 47 21 Kennewick, WA. Duluth, MN-Superior, WI 33658 KBJR–TV ... Superior ...... WI 6 19 Green Bay-Appleton, WI 74417 WBAY–TV Green Bay ...... WI 2 23 Green Bay-Appleton, WI 73042 WIWB ...... Suring ...... WI 14 21 Madison, WI ...... 65143 WISC–TV .. Madison ...... WI 3 50 Milwaukee, WI ...... 72342 WVCY–TV Milwaukee ...... WI 30 22 Wausau-Rhinelander, WI 81503 WBIJ ...... Crandon ...... WI 4 12 Bluefield-Beckley-Oak 66804 WOAY–TV Oak Hill...... WV 4 50 Hill, WV. Charleston-Huntington, 36912 WSAZ–TV Huntington ...... WV 3 23 WV. Casper-Riverton, WY .... 10036 KCWC–TV Lander ...... WY 4 8 Casper-Riverton, WY .... 63162 KGWL–TV Lander ...... WY 5 7 Casper-Riverton, WY .... 82575 KPTW ...... Casper ...... WY 6 8 Cheyenne, WY- 63166 KGWN–TV Cheyenne ...... WY 5 30 Scottsbluff, NE. Cheyenne, WY- 18287 KQCK ...... Cheyenne ...... WY 33 11 Scottsbluff, NE. (*): Stations with their pre-transition DTV channel listed have requested permission to remain on their pre-transition DTV channel after the Feb- ruary 17, 2009 transition date pursuant to the Commission’s ‘‘phased transition’’ relief provisions.
Appendix B: List of DMAs Indicating Presence of Stations Initially Eligible for Nightlight Participation
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Covered DMA DMA name State markets rank
1...... Anchorage ...... AK ...... x 154 2...... Fairbanks ...... AK ...... x 202 3...... Juneau, AK ...... AK ...... x 207 4...... Birmingham (Ann and Tusc) ...... AL ...... x 40 5...... Dothan ...... AL ...... x 172 6...... Huntsville-Decatur (Flor) ...... AL ...... x 84 7...... Montgomery-Selma ...... AL ...... x 117 8...... Mobile (AL)-Pensacola (Ft Walt) (FL) ...... AL/FL ...... 59 9...... Ft. Smith-Fay-Sprngdl-Rgrs ...... AR ...... x 102 10...... Jonesboro ...... AR ...... 180 11...... Little Rock-Pine Bluff ...... AR ...... x 57 12...... Phoenix (Prescott), AZ ...... AZ ...... x 13 13...... Tucson (Sierra Vista) ...... AZ ...... x 70 14...... Yuma (AZ)-El Centro (CA) ...... AZ/CA ...... x 167 15...... Bakersfield ...... CA ...... 126 16...... Chico-Redding ...... CA ...... 130 17...... Eureka ...... CA ...... x 193 18...... Fresno-Visalia ...... CA ...... x 55 19...... Los Angeles ...... CA ...... x 2 20...... Monterey-Salinas ...... CA ...... 124 21...... Palm Springs ...... CA ...... 149 22...... Sacramnto-Stktn-Modesto ...... CA ...... x 20 23...... San Diego ...... CA ...... x 27 24...... San Francisco-Oak-San Jose ...... CA ...... x 5 25...... SantaBarbra-SanMar-SanLuOb ...... CA ...... x 122 26...... Colorado Springs-Pueblo ...... CO ...... x 94 27...... Denver ...... CO ...... x 18 28...... Grand Junction-Montrose ...... CO ...... x 186 29...... Hartford & New Haven ...... CT ...... x 28 30...... Washington, DC (Hagerstown) ...... DC/MD ...... x 8 31...... Ft. Myers-Naples ...... FL ...... 64 32...... Gainesville ...... FL ...... x 162 33...... Jacksonville, Brunswick ...... FL ...... x 50 34...... Miami-Ft. Lauderdale ...... FL ...... x 16 35...... Orlando-Daytona Bch-Melbrn ...... FL ...... x 19 36...... Panama City ...... FL ...... x 156 37...... Tampa-St. Pete (Sarasota) ...... FL ...... x 12 38...... West Palm Beach-Ft. Pierce ...... FL ...... x 38 39...... Tallahassee (FL)-Thomasville (GA) ...... FL/GA ...... 108 40...... Albany, GA ...... GA ...... 145 41...... Atlanta ...... GA ...... x 9 42...... Augusta ...... GA ...... x 114 43...... Columbus, GA ...... GA ...... 128 44...... Macon ...... GA ...... x 121 45...... Savannah ...... GA ...... x 97 46...... Honolulu ...... HI ...... x 72 47...... Cedar Rapids-Wtrlo-IWC & Dub ...... IA ...... x 89 48...... Des Moines-Ames ...... IA ...... x 73 49...... Sioux City ...... IA ...... 143 50...... Davenport (IA)-R. Island-Moline (IL) ...... IA/IL ...... 96 51...... Ottumwa (IA)-Kirksville (MO) ...... IA/MO ...... x 199 52...... Boise ...... ID ...... x 118 53...... Idaho Falls-Pocatello ...... ID ...... 163 54...... Twin Falls ...... ID ...... x 191 55...... Champaign & Sprngfld-Decatur ...... IL ...... x 82 56...... Chicago ...... IL ...... x 3 57...... Peoria-Bloomington ...... IL ...... 116 58...... Rockford ...... IL ...... 133 59...... Quincy (IL)-Hannibal (MO)-Keokuk (IA) ...... IL/MO/IA ...... 171 60...... Evansville ...... IN ...... 101 61...... Ft. Wayne ...... IN ...... x 106 62...... Indianapolis ...... IN ...... x 25 63...... Lafayette, IN ...... IN ...... 188 64...... South Bend-Elkhart ...... IN ...... 88 65...... Terre Haute ...... IN ...... x 151 66...... Topeka ...... KS ...... 138 67...... Wichita-Hutchinson Plus ...... KS ...... x 67 68...... Bowling Green ...... KY ...... 183 69...... Lexington ...... KY ...... 63 70...... Louisville ...... KY ...... x 48 71...... Paducah (KY)-Cape Girard (MO)-Harsbg (IL) ...... KY/MO/IL ...... x 80 72...... Alexandria, LA ...... LA ...... x 179 73...... Baton Rouge ...... LA ...... x 93
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Covered DMA DMA name State markets rank
74...... Lafayette, LA ...... LA ...... x 123 75...... Lake Charles ...... LA ...... 175 76...... New Orleans ...... LA ...... x 54 77...... Shreveport ...... LA ...... x 81 78...... Monroe (LA)-El Dorado (AR) ...... LA/AR ...... 135 79...... Boston (Manchester) ...... MA ...... x 7 80...... Springfield-Holyoke ...... MA ...... 109 81...... Baltimore ...... MD ...... x 24 82...... Salisbury ...... MD ...... 148 83...... Bangor ...... ME ...... x 152 84...... Portland-Auburn ...... ME ...... 74 85...... Presque Isle ...... ME ...... 204 86...... Alpena ...... MI ...... 208 87...... Detroit ...... MI ...... x 11 88...... Flint-Saginaw-Bay City ...... MI ...... x 66 89...... Grand Rapids-Kalmzoo-B. Crk ...... MI ...... x 39 90...... Lansing ...... MI ...... 112 91...... Marquette ...... MI ...... x 178 92...... Traverse City-Cadillac ...... MI ...... x 113 93...... Mankato ...... MN ...... 200 94...... Minneapolis-St. Paul ...... MN ...... x 15 95...... Rochestr (MN)-Mason City (IA)-Austin (MN) ...... MN/IA ...... x 153 96...... Duluth (MN)-Superior (WI) ...... MN/WI ...... x 137 97...... Columbia-Jefferson City ...... MO ...... x 139 98...... Kansas City ...... MO ...... x 31 99...... Springfield, MO ...... MO ...... x 76 100...... St. Joseph ...... MO ...... x 201 101...... St. Louis ...... MO ...... x 21 102...... Joplin (MO)-Pittsburg (KS) ...... MO/KS ...... 144 103...... Biloxi-Gulfport ...... MS ...... 160 104...... Columbus-Tupelo-West Point ...... MS ...... x 132 105...... Greenwood-Greenville ...... MS ...... 184 106...... Hattiesburg-Laurel ...... MS ...... 165 107...... Jackson, MS ...... MS ...... x 87 108...... Meridian ...... MS ...... x 185 109...... Billings ...... MT ...... x 170 110...... Butte-Bozeman, MT ...... MT ...... x 192 111...... Glendive ...... MT ...... 210 112...... Great Falls ...... MT ...... x 190 113...... Helena ...... MT ...... 206 114...... Missoula ...... MT ...... 168 115...... Charlotte ...... NC ...... x 26 116...... Greensboro-H.Point-W.Salem ...... NC ...... x 47 117...... Greenville-N.Bern-Washngtn ...... NC ...... 107 118...... Raleigh-Durham (Fayetvlle) ...... NC ...... 29 119...... Wilmington ...... NC ...... x 136 120...... Fargo-Valley City ...... ND ...... x 119 121...... Minot-Bismarck-Dickinson ...... ND ...... x 158 122...... Lincoln & Hstngs-Krny Plus ...... NE ...... 104 123...... North Platte ...... NE ...... 209 124...... Omaha ...... NE ...... x 75 125...... Albuquerque-Santa Fe ...... NM ...... x 45 126...... Las Vegas ...... NV ...... x 43 127...... Reno ...... NV ...... x 110 128...... Albany-Schenectady-Troy ...... NY ...... 56 129...... Binghamton ...... NY ...... 157 130...... Buffalo ...... NY ...... x 49 131...... Elmira (Corning) ...... NY ...... 173 132...... New York ...... NY ...... x 1 133...... Rochester, NY ...... NY ...... 78 134...... Syracuse ...... NY ...... x 79 135...... Utica ...... NY ...... x 169 136...... Watertown ...... NY ...... 176 137...... Cincinnati ...... OH ...... 33 138...... Cleveland-Akron (Canton) ...... OH ...... x 17 139...... Columbus, OH ...... OH ...... x 32 140...... Dayton ...... OH ...... x 58 141...... Lima ...... OH ...... 196 142...... Toledo ...... OH ...... 71 143...... Youngstown ...... OH ...... 103 144...... Zanesville ...... OH ...... x 203 145...... Oklahoma City ...... OK ...... x 45 146...... Tulsa ...... OK ...... x 62
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Covered DMA DMA name State markets rank
147...... Bend, OR ...... OR ...... x 194 148...... Eugene ...... OR ...... x 120 149...... Medford-Klamath Falls ...... OR ...... x 141 150...... Portland, OR ...... OR ...... x 23 151...... Erie ...... PA ...... 142 152...... Harrisburg-Lncstr-Leb-York ...... PA ...... 41 153...... Johnstown-Altoona ...... PA ...... x 98 154...... Philadelphia ...... PA ...... x 4 155...... Pittsburgh ...... PA ...... x 22 156...... Wilkes Barre-Scranton ...... PA ...... 53 157...... Providence (RI)-New Bedford (MA) ...... RI/MA ...... 51 158...... Charleston, SC ...... SC ...... x 100 159...... Columbia, SC ...... SC ...... 83 160...... Myrtle Beach-Florence ...... SC ...... 105 161...... Greenvll-Spart-Ashevll-And ...... SC/NC ...... 36 162...... Rapid City ...... SD ...... x 177 163...... Sioux Falls (Mitchell) ...... SD ...... x 115 164...... Chattanooga ...... TN ...... x 86 165...... Jackson, TN ...... TN ...... 174 166...... Knoxville ...... TN ...... x 60 167...... Memphis ...... TN ...... x 44 168...... Nashville ...... TN ...... x 30 169...... Tri-Cities, TN-VA ...... TN-VA ...... 92 170...... Abilene-Sweetwater ...... TX ...... 164 171...... Amarillo ...... TX ...... x 131 172...... Austin ...... TX ...... 52 173...... Beaumont-Port Arthur ...... TX ...... x 140 174...... Corpus Christi ...... TX ...... x 129 175...... Dallas-Ft. Worth ...... TX ...... x 6 176...... El Paso (Las Cruces) ...... TX ...... x 99 177...... Harlingen-Wslco-Brnsvl-McA ...... TX ...... x 91 178...... Houston ...... TX ...... x 10 179...... Laredo ...... TX ...... 187 180...... Lubbock ...... TX ...... x 147 181...... Odessa-Midland ...... TX ...... x 159 182...... San Angelo ...... TX ...... x 197 183...... San Antonio ...... TX ...... x 37 184...... Tyler-Longview (Lfkn&Ncgd) ...... TX ...... 111 185...... Victoria ...... TX ...... x 205 186...... Waco-Temple-Bryan ...... TX ...... 95 187...... Sherman, TX-Ada, OK ...... TX/OK ...... 161 188...... Wichita Falls (TX) & Lawton (OK) ...... TX/OK ...... x 146 189...... Salt Lake City ...... UT ...... x 35 190...... Charlottesville ...... VA ...... 182 191...... Harrisonburg ...... VA ...... x 181 192...... Norfolk-Portsmth-Newpt Nws ...... VA ...... x 42 193...... Richmond-Petersburg ...... VA ...... x 61 194...... Roanoke-Lynchburg ...... VA ...... 68 195...... Burlington (VT)-Plattsburgh (NY) ...... VT/NY ...... x 90 196...... Seattle-Tacoma ...... WA ...... x 14 197...... Spokane ...... WA ...... x 77 198...... Yakima-Pasco-Rchlnd-Knnwck ...... WA ...... x 125 199...... Green Bay-Appleton ...... WI ...... x 69 200...... La Crosse-Eau Claire ...... WI ...... 127 201...... Madison ...... WI ...... x 85 202...... Milwaukee ...... WI ...... x 34 203...... Wausau-Rhinelander ...... WI ...... x 134 204...... Bluefield-Beckley-Oak Hill ...... WV ...... x 150 205...... Charleston-Huntington ...... WV ...... x 65 206...... Clarksburg-Weston ...... WV ...... 166 207...... Parkersburg ...... WV ...... 189 208...... Wheeling (WV)-Steubenville (OH) ...... WV/OH ...... 155 209...... Casper-Riverton ...... WY ...... x 198 210...... Cheyenne, WY-Scottsbluff, NE ...... WY/NE ...... x 195
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[FR Doc. E8–31142 Filed 12–30–08; 8:45 am] interested parties of the date, time, and Secretary of DOT the authority to BILLING CODE 6712–01–P location of any such hearing. establish a locomotive engineer ADDRESSES: You may submit comments qualification licensing or certification identified by the docket number FRA– program. The Secretary of DEPARTMENT OF TRANSPORTATION 2008–0091 by any one of the following Transportation delegated this authority methods: to the Federal Railroad Administrator. Federal Railroad Administration • Fax: 1–202–493–2251; 49 CFR 1.49(m). In 1991, FRA • Mail: U.S. Department of implemented this statutory provision by 49 CFR Part 240 Transportation, Docket Operations, M– issuing a final rule. 56 FR 28228, 28254 30, West Building Ground Floor, Room (June 19, 1991) (codified at 49 CFR part [Docket No. FRA–2008–0091] W12–140, 1200 New Jersey Avenue, SE., 240). FRA does not test or certify engineers RIN 2130–AB95 Washington, DC 20590; • Hand Delivery: U.S. Department of itself. Rather, the regulation requires Qualification and Certification of Transportation, Docket Operations, each railroad to adopt training and Locomotive Engineers; Miscellaneous West Building Ground Floor, Room certification programs that meet Revisions W12–140, 1200 New Jersey Avenue, SE., minimum requirements. See, e.g., 49 Washington, DC 20590, between 9 a.m. CFR 240.1 and 240.101. These AGENCY: Federal Railroad and 5 p.m., Monday through Friday, requirements include, inter alia, a Administration (FRA), Department of except Federal holidays; or determination ‘‘that the person has Transportation (DOT). • Electronically through the Federal demonstrated . . . the skills to safely ACTION: Notice of proposed rulemaking eRulemaking Portal, http:// operate locomotives or locomotives and (NPRM). www.regulations.gov. Follow the online trains, including the proper application instructions for submitting comments. of the railroad’s rules and practices for SUMMARY: FRA proposes revisions to its Instructions: All submissions must the safe operation of locomotives or regulation governing the qualification include the agency name, docket name trains, in the most demanding class or and certification of locomotive and docket number or Regulatory type of service that the person will be engineers by prohibiting a railroad from Identification Number (RIN) for this permitted to perform.’’ 49 CFR reclassifying a person’s locomotive rulemaking. Note that all comments 240.211(a). If a candidate passes the engineer certificate to that of a more received will be posted without change certification program, a railroad may restrictive class during the period in to http://www.regulations.gov, including issue a certificate to that person for any which the certificate is otherwise valid any personal information provided. of the following classes of service: train while permitting the railroad to place Please see the Privacy Act section of this service engineer, locomotive servicing restrictions on the locomotive engineer document. engineer, or student engineer. 49 CFR if appropriate. FRA also proposes to Docket: For access to the docket to 240.107(b). Train service engineers may clarify that revocation of an engineer’s read background documents or operate locomotives singly or in certificate may only occur for the comments received, go to http:// multiples and may move them with or reasons specified in the regulation. www.regulations.gov at any time or to without cars coupled to them. Additionally, FRA proposes provisions U.S. Department of Transportation, Locomotive servicing engineers may that would require each railroad to Docket Operations, M–30, West operate locomotives singly or in identify the actions it will take in the Building Ground Floor, Room W12–140, multiples but may not move them with cars coupled to them. Student engineers event that a person fails a skills 1200 New Jersey Avenue, SE., may operate only under direct and performance test or the railroad finds Washington, DC, between 9 a.m. and 5 immediate supervision of an instructor deficiencies with an engineer’s p.m., Monday through Friday, except engineer. 49 CFR 240.107(c). A railroad performance during an operational Federal holidays. monitoring observation or unannounced may impose additional conditions or FOR FURTHER INFORMATION CONTACT: John operational restrictions on the service compliance test. These proposals will L. Conklin, Program Manager, address unanticipated consequences an engineer may perform provided those Locomotive Engineer Certification, U.S. conditions or restrictions are not arising from reclassifications and clarify Department of Transportation, Federal the grounds upon which a railroad may inconsistent with part 240. 49 CFR Railroad Administration, Mail Stop 25, 240.107(d). revoke a locomotive engineer’s West Building 3rd Floor West, Room certification. A certified engineer must undergo W38–208, 1200 New Jersey Avenue, SE., periodic retesting and shall have his or DATES: Written Comments: Written Washington, DC 20590 (telephone: 202– her certification revoked if he or she comments on the proposed rule must be 493–6318); or John Seguin, Trial demonstrates a failure to comply with received by March 2, 2009. Comments Attorney, U.S. Department of those railroad rules and practices received after that date will be Transportation, Federal Railroad deemed essential for the safe operation considered to the extent possible Administration, Office of Chief Counsel, of trains specified in § 240.117(e). without incurring additional expense or RCC–10, Mail Stop 10, West Building Section 240.117(e) provides that a delay. FRA anticipates being able to 3rd Floor, Room W31–217, 1200 New certification may only be revoked for six determine these matters without a Jersey Avenue, SE., Washington, DC specific types of operating rules and public, oral hearing. However, if prior to 20590 (telephone: 202–493–6045). operating practices violations: (1) January 30, 2009, FRA receives a SUPPLEMENTARY INFORMATION: Failure to control a locomotive or train specific request for a public, oral in accordance with a signal indication hearing accompanied by a showing that 1. Background that requires a complete stop before the party is unable to adequately present Pursuant to the Rail Safety passing it; (2) Failure to adhere to his or her position by written statement, Improvement Act of 1988, Public Law limitations concerning train speed when a hearing will be scheduled and FRA No. 100–342, § 4, 102 Stat. 624, 625–27 the speed exceeds the maximum will publish a supplemental notice in (June 22, 1988) (recodified at 49 U.S.C. authorized limit by at least 10 miles per the Federal Register to inform 20135), Congress conferred on the hour or a violation of restricted speed
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that causes a reportable accident or a certified engineer who is denied reclassifications despite these incident under 49 CFR part 225; (3) recertification when the currently held unanticipated consequences. Failure to adhere to certain federally certificate lapses, the railroad must Consequently, FRA believes that required procedures for the safe use of notify the person ‘‘of information modification of the existing regulation is train or engine brakes; (4) Occupying a known to the railroad that forms the necessary to address this issue. main track or a segment of main track basis for denying the person In an effort to eliminate the without proper authority or permission; certification [or recertification] and unanticipated consequences created by (5) Failure to comply with prohibitions provide the person a reasonable unilateral reclassification of an against tampering with locomotive opportunity to explain or rebut that engineer’s certificate and to clarify the mounted safety devices or knowingly adverse information in writing prior to regulations regarding revocations, FRA operating a train with an unauthorized denying certification.’’ 49 CFR proposes to make three specific changes disabled safety device; or (6) Incidents 240.219(a). The person may then seek to part 240. First, FRA proposes to of noncompliance with the regulations review of an adverse certification prohibit the practice of reclassifying any regarding the use or possession of decision through a similar dispute type of engineer’s certification to a more alcohol and drugs. 49 CFR 240.117(e); resolution process that FRA affords to restrictive class of certificate or to a see also 49 CFR 219.101 and 240.119(c). an engineer who has had his or her student engineer certificate during the Due to the potentially severe certificate revoked. 49 CFR 240.401– period in which the certification is consequences to the individual resulting 240.411. otherwise valid. Second, FRA proposes from the denial of certification, the With respect to deficiencies in an to clarify part 240 to ensure that all denial of recertification, or the engineer’s performance that do not rise parties understand that revocation of an revocation of a certificate (e.g., making to the level of revocation, each railroad engineer’s certificate may only occur for it more difficult to be certified by retains a measure of discretion to the reasons specified in the regulation. another U.S. railroad under § 240.225 or fashion, within the context of collective Third, FRA proposes to require each being temporarily banned from bargaining agreements, appropriate railroad to identify the potential actions operating a locomotive or train for any responses, including disciplinary it may take in the event that a person railroad operating in the U.S.), FRA sanctions, to those types of deficiencies. fails a skills performance test or that the regulations require each railroad to See, e.g., 49 CFR 240.5(d). However, in railroad finds deficiencies with an make a deliberative decision and exercising that discretion, at least one engineer’s performance during an provide for considerable FRA oversight. Class I railroad has handled engineer operational monitoring observation or For example, if a railroad determines performance deficiencies in a manner unannounced compliance test or that a locomotive engineer may have not contemplated by FRA when it otherwise becomes aware of such violated an operating rule specified in implemented the engineer certification deficiencies. These proposals are not § 240.117(e), the railroad is required to regulation and not used by the industry only consistent with the overall original suspend the engineer’s certificate generally. The practices of this railroad intent of part 240, but are also pending a revocation determination. 49 included reclassifying the certificates of consistent with current industry CFR 240.307(b)(1). Prior to or upon some of its train service engineers to practice concerning reclassification and suspending an engineer’s certificate, a student engineer certificates when it revocation. railroad shall provide notice of the discovered deficiencies in the engineers’ reason for the suspension and an performance not specifically identified 2. Additional Issues opportunity for a hearing before a in § 240.117(e). The railroad did not In addition to the proposed changes presiding officer other than the provide a hearing regarding the discussed above, FRA is considering investigating officer. 49 CFR reclassification decision. The reason for making some minor revisions to update 240.307(b)(2). Although a person may the reclassifications appears to be part 240 and make it consistent with waive the opportunity for a hearing, the related to a deficiency in performance other FRA regulations and guidance. waiver must be in writing and meet skills, but not a failure to pass a skills Those proposed revisions are detailed certain safeguards to ensure the waiver performance test required for below. FRA seeks comments from is made voluntarily and with knowledge recertification. In some instances, interested parties on these proposed and understanding of the person’s subsequent skills performance tests modifications. rights. 49 CFR 240.307(f). were provided and the newly If adversely affected by a railroad’s reclassified student engineers that failed A. Deletion of Implementation and decision regarding revocation, an those tests were denied certification and Phase-In Dates engineer may petition FRA’s their employment was terminated by the FRA proposes to eliminate the Locomotive Engineer Review Board railroad. implementation and phase-in dates (LERB) to review the decision. 49 CFR The consequences of that Class I listed throughout part 240 and any 240.401. Following the LERB’s decision, railroad’s policy—inter alia, engineers section or section heading that the adversely affected party (either the being required to exchange their train references those dates. The dates have engineer or the railroad) has the right to service certificates for student engineer long passed and are no longer relevant. request an administrative proceeding certificates based on deficiencies not provided for by FRA. 49 CFR 240.407. specified in § 240.117(e) without B. Deletion of Prior Incident Provisions The FRA administrative proceeding is a receiving a hearing pursuant to FRA proposes to delete §§ 240.117(i) de novo hearing to find the relevant § 240.307 and the potential for disparate and (j). The dates listed in those facts and determine the correct treatment of similarly situated sections concerning prior incidents have application of federal regulations and engineers—were simply not anticipated long passed and those sections are no railroad rules and practices to those by FRA when it originally issued the longer needed. facts. Any party aggrieved by the regulations contained in part 240. presiding officer’s decision may file an However, because the regulation is C. Consistency With Other Regulations appeal with the Administrator. 49 CFR silent with respect to reclassifications, FRA proposes to revise the language 240.411. In the case of a prospective FRA has interpreted the plain language in part 240 containing references to engineer who is denied certification or of the existing regulation to permit various provisions in 49 CFR part 232
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(see, e.g., §§ 240.117(e)(3) and F. Inaccurate References system that allows reclassification based 240.309(e)(3)) in order to make them FRA proposes to amend the reference on the somewhat subjective scoring of a consistent with the language in part 232. to § 240.15 in § 240.307(j) to read skills performance test. Thus, FRA When FRA previously made substantive § 240.215. Section 240.15 does not exist. proposes to prohibit railroads from modifications to part 240, the provisions FRA proposes to amend the reference requiring an engineer to exchange his or of part 232 were still being drafted. As to 49 CFR 218.5(f) in § 240.7 (subsection her train service or locomotive servicing a result, the terms used in some sections (1) of the definition of ‘‘locomotive certification for a more restrictive class of part 240 to describe the provisions of engineer’’) to read 49 CFR 218.5. There of certificate or a student engineer part 232 (i.e., initial terminal, is no subsection (f) in § 218.5. certificate during the period in which intermediate terminal, or transfer train FRA proposes to amend the reference the recertification is otherwise valid. and yard test) differ from the actual to paragraph (c) in § 240.203(a) to read FRA has considered other options, terms used in part 232 (i.e., Class I, paragraph (b). There is no paragraph (c) including permitting reclassification Class IA, Class II, Class III, or transfer in § 240.203. while providing affected engineers with train brake test). the option of challenging the G. Appendix D FRA also proposes to revise the term reclassification through a hearing. ‘‘annually monitored’’ in § 240.129(c)(2) FRA proposes to delete the last However, allowing reclassifications, to read ‘‘monitored each calendar year.’’ paragraph of Appendix D to part 240 even with a hearing, could result in the That revision would make the provision which begins ‘‘Although the number of disparate treatment of engineers. If, for consistent with the language used in state agencies * * *.’’ The paragraph is example, two train service engineers § 240.303(b). no longer relevant because all states commit the same operating deficiency, a now participate in the National Driver railroad may decide to reprimand one of D. Consistency With FRA Guidance Register program. the engineers but reclassify the certificate of the other engineer to a FRA proposes to amend §§ 240.129(e) III. Section-by-Section Analysis and 240.303(d) in order to make them student engineer certificate. Assuming consistent with guidance provided by Section 240.107 Criteria for the reclassification is upheld during the FRA in Memorandum OP–04–13 designation of classes of service hearing process, one engineer could (February 3, 2004) which can be found FRA proposes to amend this section return to work as a train service on FRA’s Web site at http:// by adding a new paragraph (e) that engineer while the other could only www.fra.dot.gov/downloads/safety/ would prohibit a railroad from return to work as a student engineer. advisories/op0413.pdf. Although reclassifying the certification of any This proposal attempts to eliminate the §§ 240.129(e) and 240.303(d) could be type of certified engineer to a more potential for disparate treatment that read to require railroads to give restrictive class of certificate or to a could result from the practice of engineers three different tests per student engineer certificate during the reclassifying engineers’ certificates. calendar year, Memorandum OP–04–13 period in which the certification is The elimination of disparate makes clear that railroads are required otherwise valid. Although treatment of locomotive engineers to only give one test per calendar year reclassification has been referred to by accords with the original design and under those sections. Accordingly, different names by various parties (e.g., intent of part 240. As FRA noted in the §§ 240.129(e) and 240.303(d) would be demotion, diminution in the quality of 1989 NPRM: amended to make them consistent with a license, etc.), the practice that FRA is [T]here is at least anecdotal evidence to Memorandum OP–04–13. proposing to prohibit is the taking of support the proposition that similar events any type of engineering certificate, receive significantly disparate treatment. E. Civil Penalty Schedule Such differences exist both within and during the period in which the between railroads. Those differences include FRA proposes to amend the penalty certificate is valid, and replacing it with decisions on whether a particular person will schedule for § 240.203 listed in the a more restrictive class of certificate or or will not be brought before the discipline Schedule of Civil Penalties in Appendix a student engineer certificate based on system for a given course of conduct to a A to part 240. Although the text of deficiencies found during operational wide range of punishments imposed for the § 240.203 only lists two subsections ((a) and skills tests that do not require same types of failure to adhere to company and (b)), the current penalty schedule revocation of an engineer’s certification rules under similar circumstances. for § 240.203 lists three subsections ((a), under §§ 240.117(e) or 240.119(c). 54 FR 50890, 50899–50900 (December (b), and (c)). FRA proposes to delete the Although FRA has previously 11, 1989). Accordingly, part 240 reference to §§ 240.203(a)(1)–(3) in the interpreted the plain language of the requires railroads to take specific penalty schedule and revise §§ 240.203 regulation to permit reclassification, the actions for clearly articulated types of (b) and (c) in the penalty schedule to unanticipated consequences of that non-compliance in an effort to prevent reference paragraphs (a) and (b). These practice necessitate its prohibition. As disparate treatment. For example, proposed changes will make the explained earlier in this preamble, the §§ 240.117 and 240.119 establish regulatory text and the penalty schedule effect of the reclassification policy used specific revocation periods for instances consistent. by one Class I railroad has been to of non-compliance with operating rules FRA also proposes to amend the require some engineers to exchange and practices, as well as drug and penalty schedule for § 240.205 listed in their train service or locomotive alcohol regulations. The proposals in the Schedule of Civil Penalties in servicing certificates for student this NPRM further FRA’s objective to Appendix A to part 240. Although the engineer certificates without an prevent the disparate treatment of text of § 240.205 only lists subsections opportunity for review of the engineers by prohibiting the (a) and (b), the current penalty schedule reclassification decision. An engineer reclassification of an engineer certificate for § 240.205 lists subsections (a) and who is reclassified to a student could and providing that revocation of an (d). FRA proposes to amend the find it more difficult to be certified by engineer’s certificate may only occur for reference to subsection (d) in the current another U.S. railroad than an engineer the reasons specified in the regulation. penalty schedule for § 240.205 to read who has not been reclassified. Further, While the proposal would prohibit (b). there is significant room for abuse in a the practice of reclassification, it would
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not prevent the railroads from proposal would not convert a believes it should be left up to each continuing to pursue other measures to locomotive engineer certificate issued in railroad to decide the appropriate action ensure the safe operation of accordance with part 240 into a license. to take in light of various factors, locomotives. For example, this proposal Indeed, in adopting a certification including collective bargaining would not prevent a railroad from system (i.e., FRA sets eligibility criteria agreements. Indeed, FRA previously placing restrictions on a certificate but leaves it to the railroads to evaluate proposed prescribing the number of pursuant to § 240.107(d). As FRA stated candidates by those standards) rather tests and interval between retests and in the 1993 interim final rule: than a traditional licensing system (i.e., other consequences of test failure in the A second set of interpretive questions has a government agency sets eligibility 1989 NPRM (54 FR 50890, 50933–50935 been generated by the desire of some criteria and evaluates candidates), FRA (December 11, 1989)), but did not railroads to certify a person as a train service noted that part 240 ‘‘afford railroads implement those proposals based, in engineer but then impose significant limits or considerable discretion’’ in the daily part, on commenters’ concerns that the constraints on the operational authority of administration of their certification proposals would disrupt contractual that person. This section [240.107] permits program but ‘‘FRA bears responsibility agreements (56 FR 28228, 28236–28237 railroads to take such action and can be for the manner in which the railroads (June 19, 1991)). Further, FRA has found employed by them to address issues such as utilizing persons who have sufficient skills to exercise that discretion, since the that the vast majority of railroads have perform in terminal or yard service but lack performance of the railroads’’ under part adequate policies to deal with skills test the knowledge or skill to operate trains 240 will determine whether their safety failures or deficiencies and have beyond terminal areas. Railroads that elect to purposes are fulfilled. 56 FR 28228, handled them appropriately for many follow this approach will of course need to 28229–28230 (June 19, 1991). This years. structure their implementation program proposal continues that relationship. To avoid restricting the options submissions to reflect any differences in the FRA seeks comments from interested available to the railroads and employee training or testing of these engineers that parties on this proposal. representatives to develop processes for would flow from their more limited operating Additionally, FRA seeks comments handling skill test failures, FRA responsibilities. regarding the railroads’ assessment of designed this proposal to be as flexible 58 FR 18982, 18995 (April 9, 1993). It engineer performance during the period as possible. There are a variety of should be noted, however, that while in which an engineer’s certificate is actions and approaches that a railroad § 240.107(d) permits a railroad to place otherwise valid. Are the current can take in response to a skills test restrictions on a certificate, restrictions processes set up by the railroads to failure and FRA does not want to stifle are applied and reviewed in accordance assess an engineer’s performance during a railroad’s ability to adopt an approach with internal railroad rules, procedures the period of certification appropriate? that is best for its organization. Some of and processes developed in Are railroads accurately assessing the the actions railroads may want to coordination with its employees. Part skills and knowledge of engineers? Do consider include: Provide remedial 240 does not govern the issuance or engineers have a chance to seek training for engineers who fail skills review of restrictions; that is a matter meaningful review of the railroads’ tests or have deficiencies in their handled under a railroad’s internal assessments during the period in which performance; automatically download discipline system or collective an engineer’s certificate is otherwise event recorder data upon a test failure bargaining agreement. valid? FRA seeks comments from or deficient performance in order to This proposal would also not prevent interested parties on these topics. preserve evidence of the failure/ a railroad from suspending/revoking a deficiency; require two supervisors to Section 240.127 Criteria for Examining certificate pursuant to § 240.307 for ride along on a retest; and retest an Skill Performance violation of one of the provisions engineer on an actual train if the contained in § 240.117(e), or prohibiting FRA proposes to amend this section engineer failed a test on a simulator. a person from operating a locomotive as to require each railroad to indicate the Each railroad should also consider a train service or locomotive servicing action it will take, beyond those implementing a formal procedure engineer pursuant to § 240.211(c). required by § 240.211(c), in the event whereby an engineer is given the Further, this proposal would not that a person fails a skills performance opportunity to explain, in writing, the prevent a railroad from offering an test. Pursuant to § 240.101 and factors that he or she believes caused engineer the opportunity to work for the § 240.103, each railroad must submit its their skills test failure or performance railroad in any other capacity as long as written certification program, including deficiencies. This explanation may the engineer’s current certificate was not its procedures for skill performance allow a railroad to determine what areas reclassified. For example, collective testing under § 240.127 and monitoring of training to focus on or perhaps bargaining agreements often contain a operational performance under discover that the reason for the failure/ provision by which the parties agree to § 240.129, for FRA approval. That deficiency was due to something other permit flowback from an engineer job to review process, in connection with this than a lack of skills. Indeed, it is a conductor job if a locomotive engineer proposal, would permit FRA an disconcerting for FRA to be informed should somehow become ineligible to opportunity to ensure that each railroad that a certified engineer, who may have operate locomotives or trains. As FRA is handling skills test failures in been safely operating locomotives for has previously clarified, part 240 is not accordance with the intent and spirit of years, no longer has the skills necessary intended to create or prohibit flowback. the regulation. The proposal will also to operate safely; thus FRA also suggests See § 240.5(e) and 64 FR 60966, 60975 compel each railroad to carefully that each railroad consider whether a (November 8, 1999). consider the process by which it will medical examination might reveal a This proposal would not convert part handle skill test failures and reason for a diminishment in skills 240’s locomotive engineer certification demonstrate to FRA that it is dealing proficiency. system into a licensing system. with its engineers in an objective FRA believes there are numerous Although some parties have referred to manner. other approaches that could and should the practice of reclassification as a Although FRA considered other be considered and evaluated by ‘‘diminution in the quality of a license,’’ options, such as prescribing the specific railroads and their employees. FRA a certificate is not a license and the actions a railroad must take, FRA realizes that a railroad’s list of actions
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it will take in response to a skills test Additionally, for the reasons Facility located in Room W12–140 on failure or deficient performance could explained above, FRA is seeking the Ground level of the West Building, be expansive given the various comments on whether FRA should 1200 New Jersey Avenue, SE., circumstances that could contribute to a require the railroads to explain the Washington, DC 20590. Docket material test failure or deficient performance. scoring system they use to determine is also available for inspection Although a railroad will be required whether a person passes or fails a skills electronically through the Federal to update its certification program under test or operational monitoring ride. eRulemaking Portal at http:// this proposal, FRA does not consider www.regulations.gov. Photocopies may the update to be a material modification Section 240.307 Revocation of also be obtained by submitting a written pursuant to § 240.103(e). Of course, FRA Certification request to the FRA Docket Clerk at the may find issues during a review or audit FRA proposes to amend this section Office of Chief Counsel, RCC–10, Mail of the updated certification program and to clarify and ensure that railroads Stop 10, Federal Railroad will address those issues with the understand that they may revoke an Administration, 1200 New Jersey railroad at that time. FRA seeks engineer’s certificate only for that Avenue, SE., Washington, DC 20590; comments from interested parties on conduct specifically identified in please refer to Docket No. FRA–2008– this proposal. § 240.117(e) or § 240.119(c). FRA has 0091. Additionally, FRA is aware of been informed by at least one Class I In this proposed rule, FRA is concerns raised by engineers that they railroad that it believes § 240.307 could clarifying and/or amending certain have no way of knowing why and how be read to allow revocation for sections of its existing regulation they failed a skills test or monitoring deficiencies other than those specified pertaining to the qualification and ride. In particular, some engineers are in § 240.117(e) or § 240.119(c). FRA certification of locomotive engineers. concerned that they do not know how proposes to make clear that such an Costs that may be incurred due to the the scoring systems used by railroads to interpretation is incorrect and proposed rule are presented below. The grade skills and operational monitoring contravenes the intent and purpose of revision or amendments to a railroad’s rides function. FRA is seeking part 240 when it was issued. As FRA certification program will not need to be comments on whether FRA should stated in the 1993 interim final rule: submitted to FRA, but must be available require the railroads to explain the Revocation of certification can occur when to present to FRA inspectors. The table scoring system they use to determine the locomotive engineer in question is found below presents the estimated 20-year whether a person passes or fails a skills to have violated one of the five cardinal monetary costs associated with the test or operational monitoring ride. safety rules or the rules controlling alcohol proposed rule, at discount rates of 3 Requiring a railroad to explain its and drug use. percent and 7 percent. scoring system will likely have the * * * * * benefit of ensuring that the scoring When considering revocation, FRA[] * * * Total 20-year costs ($) criteria are transparent and that pass/fail contemplated that decisions to revoke determinations are arrived at certification would only be based on Revisions to engineer certification programs ...... 345,168 consistently throughout the railroad. noncompliance with an operational safety directive or a violation of FRA’s rules Total Cost ...... 345,168 Section 240.129 Criteria for controlling alcohol and drug use by railroad Total 20-Year Costs (Discounted Monitoring Operational Performance of workers. at 3%) ...... 335,115 Certified Engineers Total 20-Year Costs (Discounted * * * * * at 7%) ...... 322,587 FRA proposes to amend this section As noted above, FRA contemplated that to require railroads to indicate the decisions to revoke certification would be based on noncompliance with the This analysis determines that over a action they will take in the event they operational safety directives contained in 20-year period the discounted costs find deficiencies with an engineer’s § 240.117 and § 240.119. would be approximately $322,587. performance during an operational The benefits that would accrue cannot 58 FR 18982, 18989, 18999–19000 monitoring observation or unannounced be expressed in monetary terms; (April 9, 1993). To eliminate any compliance test. As explained in however, FRA is confident that such ambiguity, FRA is proposing to clarify § 240.127 above, FRA believes it is up benefits would meet or exceed the costs the regulation to ensure that it is to each railroad to decide the associated with implementation of the applied in accordance with FRA’s appropriate action to take in light of proposed rule. The main benefit of this intent. FRA seeks comments from various factors, including collective proposed rule is that railroads will no interested parties on this proposal. bargaining agreements. Further, FRA longer be able to use this regulation in has found that the vast majority of IV. Regulatory Impact and Notices a manner not contemplated by FRA. railroads have adequate policies to deal FRA also anticipates benefits flowing 1. Executive Order 12866 and DOT with deficiencies with an engineer’s from a more precise and complete Regulatory Policies and Procedures performance and have handled them regulation. Benefits resulting from this appropriately for many years. This proposed rule has been proposed rule are process improvements For a discussion of the benefits of this evaluated in accordance with existing that assist FRA in working with a proposal and actions railroads may want policies and procedures, and railroad to resolve problems associated to consider taking in the event they find determined to be non-significant under with the engineer certifications. The deficiencies with an engineer’s both Executive Order 12866 and DOT proposed rule works with railroad performance, see section 240.127 above. policies and procedures. See 44 FR carriers’ needs and operating Although a railroad will be required 11034 (February 26, 1979). FRA has environments to produce a regulatory to update its certification program under prepared and placed in Docket No. scheme that is economically efficient this proposal, FRA does not consider FRA–2008–0091 a Regulatory Analysis while providing FRA oversight. Savings, the update to be a material modification addressing the economic impact of this that have not been quantified, would pursuant to § 240.103(e). FRA seeks proposed rule. Document inspection accrue from the consolidated provisions comments from interested parties on and copying facilities are available at of the rule and the clarification of the this proposal. the DOT Central Docket Management railroads’ certification programs.
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2. Regulatory Flexibility Act and 500 employees for ‘‘Switching and proposed regulation would be $376 (not Executive Order 13272 Terminal Establishments.’’ ‘‘Small discounted), which small railroads The Regulatory Flexibility Act of 1980 entity’’ is defined in the Act as a small would incur during the first year of (5 U.S.C. 601 et seq.) and Executive business that is not independently implementation of the regulation. This Order 13272 (67 FR 53461, August 16, owned and operated, and is not is far less than one percent of the annual 2002) require agency review of proposed dominant in its field of operation. SBA’s average revenue for all small railroads and final rules to assess their impact on ‘‘Size Standards’’ may be altered by ((approximately $47,000 in 2006 (not small entities. Pursuant to the Federal agencies after consultation with discounted)) per small railroad. Regulatory Flexibility Act of 1980, 5 SBA and in conjunction with public Accordingly, FRA does not consider this U.S.C. 605(b), FRA has prepared and comment. Pursuant to that authority, impact to be significant. Nor does FRA placed in the docket a Certification FRA has published a final policy that anticipate that this regulation would Statement that assesses the small entity formally establishes ‘‘small entities’’ as result in long-term or short-term impact of this proposed rule, and railroads which meet the line haulage insolvency for any small railroad. revenue requirements of a Class III certifies that this proposed rule is not FRA invites comments from all railroad. The revenue requirements are expected to have a significant economic interested parties on this Certification. currently $20 million or less in annual impact on a substantial number of small FRA particularly encourages small operating revenue. The $20 million entities. entities that could potentially be limit (which is adjusted by applying the Document inspection and copying impacted by the proposed amendments railroad revenue deflator adjustment) is facilities are available at the DOT to participate in the public comment based on the Surface Transportation Central Docket Management Facility process by submitting comments on this Board’s threshold for a Class III railroad located in Room W12–140 on the assessment or this rulemaking to the carrier. FRA uses the same revenue Ground level of the West Building, 1200 official U.S. Department of New Jersey Avenue SE., Washington, dollar limit to determine whether a Transportation (DOT) docket. A draft of DC 20590. Docket material is also railroad or shipper or contractor is a the proposed rule has not been available for inspection electronically small entity. submitted to the Small Business through the Federal eRulemaking Portal There are approximately 718 railroads Administration (SBA) for formal review. at http://www.regulations.gov. that would be affected by this However, FRA will consider any Photocopies may also be obtained by regulation. Of this number, comments submitted by the SBA in submitting a written request to the FRA approximately 678, or 94 percent, are developing the final rule. Docket Clerk at the Office of Chief small entities. Consequently, this Counsel, RCC–10, Mail Stop 10, Federal regulation affects a substantial number 3. Paperwork Reduction Act Railroad Administration, 1200 New of small entities. However FRA does not Jersey Avenue, SE., Washington, DC anticipate that this regulation would The information collection 20590; please refer to Docket No. FRA– impose a significant economic impact requirements in this proposed rule have 2008–0091. on a substantial number of small been submitted for approval to the The U.S. Small Business entities. Office of Management and Budget Administration (SBA) stipulates in its The factual basis for the certification (OMB) under the Paperwork Reduction ‘‘Size Standards’’ that the largest a that this proposed rule, if promulgated, Act of 1995, 44 U.S.C. 3501 et seq. The railroad business firm that is ‘‘for- will not have a significant economic sections that contain the new profit’’ may be, and still be classified as impact on a substantial number of small information collection requirements are a ‘‘small entity,’’ is 1,500 employees for entities, is that the only net cost duly designated, and the estimated time ‘‘Line-Haul Operating Railroads,’’ and incurred by small railroads due to this to fulfill each requirement is as follows:
Total annual CFR section/subject Respondent universe Total annual responses Average time per response burden hours
240.9—Waivers—Petitions for 718 railroads ...... 3 petitions ...... 1 hour ...... 3 Waiver. 240.101/103—Certification 718 railroads ...... 50 amend. prog ...... 1 hour ...... 50 Program: Written Program 20 railroads ...... 20 new prog ...... 40 hours ...... 800 for Certifying Qualifications 20 railroads ...... 20 reviews ...... 1 hour ...... 20 of Locomotive Engineers— 718 railroads ...... 30 mod. prog ...... 45 minutes ...... 23 Amendments. —Certification Programs for New Railroads. —New Railroads Final Re- view and Submission of Certification Program. —Material Modifications to Approved Prog. 240.105—Selection Criteria 718 railroads ...... 50 examinations ...... 1 hour ...... 50 For Designated Supervisors 10 railroads ...... 10 reports ...... 1 hour ...... 10 of Locomotive Engineers (DSLEs)—Examinations of DSLEs. —Written Report by Railroad Chief Operating Officer of Testing of DSLE. 240.109—Candidate’s Review 17,667 candidates ...... 25 responses ...... 1 hour ...... 25 and Written Comments on Prior Safety Conduct Data.
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Total annual CFR section/subject Respondent universe Total annual responses Average time per response burden hours
240.111—Request for State 17,667 candidates ...... 17,667 requests ...... 15 minutes ...... 4,417 Driving Data and National 718 railroads ...... 177 notifications + 177 re- 15 minutes ...... 89 Driver Register Data—Driv- 718 railroads ...... quests. 15 minutes ...... 5 er’s License Data Requests. 53,000 candidates ...... 20 comments ...... 15 minutes ...... 1 718 railroads ...... 4 letters ...... 10 minutes ...... 33 200 calls. —National Driver Register Data: Notification by Rail- road to Employees of Matches and Employee Re- quests to State Agency for Relevant Data. —Written Responses from Candidate on Driver’s Li- cense Data. —Notice to Railroad of Ab- sence of License. —Individual Duty to Furnish Data on Prior Conduct as Motor Vehicle Operator— Ph. Calls. 240.113—Individual Duty to 17,667 candidates ...... 353 requests + 353 re- 15 min.; 30 min ...... 265 Furnish Data on Prior Safe- sponses. ty Conduct as an Employee of A Different Railroad—Re- quests to Former Employ- ing Railroad of Service Record and Railroad Re- sponses. 240.119—Employee Self-Re- 53,000 locomotive engineers 50 self-referrals ...... 5 minutes ...... 4 ferral to EAP Counselor for Substance Abuse Disorder. 240.121—Criteria—Hearing/ 20 new railroads ...... 20 copies ...... 15 min ...... 5 Vision Acuity Subsequent 718 railroads ...... 20 reports ...... 1 hours ...... 20 Years—Copies of Part 240 718 railroads ...... 10 notifications ...... 15 minutes ...... 3 Appendix F to RR Medical Examiner. —Medical Examiners Con- sultation with DSLE to Issue Conditional Certifi- cation Report. —Notification—Hearing/Vision Change by Certified Engi- neer to Railroad. New ...... 718 railroads ...... 718 amended programs ...... 5 hours ...... 3,590 New 240.201/221/223/301—List of 718 railroads ...... 718 railroads ...... 60 minutes ...... 718 DSLEs. 718 railroads ...... 718 updates ...... 60 minutes ...... 718 —List of Design. Qual. Loco- motive Engineers. 240.201/217/223/301—Loco- 53,000 candidates ...... 17,667 cert ...... 5 minutes ...... 1,472 motive Engineers Certificate. 240.205—Data to EAP Coun- 718 railroads ...... 177 records ...... 5 minutes ...... 15 selor and Furnishing of Records by Employee. 240.207—Medical Certificate 53,000 candidates ...... 17,667 cert ...... 70 minutes ...... 20,612 on Hearing/Vision Acuity— 718 railroads ...... 10 determination ...... 2 hours ...... 20 Tests and Certificate Issuance. —Written Determination by Medical Examiner Waiving Necessity of Wearing Hear- ing/Vision Corrective Device. 240.219—Denial of Certifi- 17,667 candidates ...... 30 letters + 30 responses ...... 1 hour ...... 60 cation—Notification to Em- 718 railroads ...... 30 notifications ...... 1 hour ...... 30 ployee of Adverse Informa- tion and Employee Re- sponse. —Notification of Adverse De- cision.
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Total annual CFR section/subject Respondent universe Total annual responses Average time per response burden hours
240.229—Requirements for 321 railroads ...... 184 calls ...... 5 minutes ...... 15 Joint Operations Territory— Notification by Engineer of Non-Qualification to Oper- ate Train on Track Segment. 240.309—Railroad Oversight 15 railroads ...... 6 annotations ...... 15 minutes ...... 2 Responsibilities—Instances of Identified Poor Safety Conduct. TESTING REQUIREMENTS 53,000 candidates ...... 17,667 tests ...... 2 hours ...... 35,334 240.209/213—Written Test. 240.211/213—Performance 53,000 candidates ...... 17,667 tests ...... 2 hours ...... 35,334 Test. 240.303—Annual Op. Monit. 53,000 candidates ...... 53,000 tests ...... 2 hours ...... 106,000 Obs. Test—Annual Oper- 53,000 candidates ...... 53,000 tests ...... 1 hour ...... 53,000 ating Rules Compliance Test. RECORDKEEPING RE- 718 railroads ...... 17,667 records ...... 30 minutes ...... 8,834 QUIREMENTS 240.215— Recordkeeping—Cert. Loc. Eng. 240.305—Engineer’s Non- 53,000 candidates ...... 100 notific ...... 5 minutes ...... 8 Qualification Notice. 1,060 candidates ...... 2 letters ...... 30 minutes ...... 1 —Engineer’s Notice to RR— Loss of Qualification. 240.307—Notice to Engineer 718 railroads ...... 900 notific. letters ...... 1 hour ...... 900 of Disqualification. 240.309—Railroad Oversight 51 railroads ...... 51 reviews ...... 40 hours ...... 2,040 Responsibilities. 51 railroads ...... 12 reports ...... 1 hour ...... 12 —Performance of Annual Re- views/Analysis. —Railroad Report of Findings.
All estimates include the time for submitted via e-mail to Mr. Brogan or FRA to develop an accountable process reviewing instructions; searching Ms. Jackson at the following address: to ensure ‘‘meaningful and timely input existing data sources; gathering or [email protected]; by State and local officials in the maintaining the needed data; and [email protected]. development of regulatory policies that reviewing the information. Pursuant to OMB is required to make a decision have federalism implications.’’ ‘‘Policies 44 U.S.C. 3506(c)(2)(B), FRA solicits concerning the collection of information that have federalism implications’’ are comments concerning: Whether these requirements contained in this proposed defined in the Executive Order to information collection requirements are rule between 30 and 60 days after include regulations that have necessary for the proper performance of publication of this document in the ‘‘substantial direct effects on the States, the functions of FRA, including whether Federal Register. Therefore, a comment on the relationship between the national the information has practical utility; the to OMB is best assured of having its full government and the States, or on the accuracy of FRA’s estimates of the effect if OMB receives it within 30 days distribution of power and burden of the information collection of publication. responsibilities among the various requirements; the quality, utility, and The final rule will respond to any levels of government.’’ Under Executive clarity of the information to be OMB or public comments on the Order 13132, the agency may not issue collected; and whether the burden of information collection requirements a regulation with federalism collection of information on those who contained in this proposal. FRA is not implications that imposes substantial are to respond, including through the authorized to impose a penalty on direct compliance costs and that is not use of automated collection techniques persons for violating information required by statute, unless the Federal or other forms of information collection requirements which do not government provides the funds technology, may be minimized. For display a current OMB control number, necessary to pay the direct compliance information or a copy of the paperwork if required. FRA intends to obtain costs incurred by State and local package submitted to OMB, contact Mr. current OMB control numbers for any governments, the agency consults with Robert Brogan, FRA Information new information collection State and local governments, or the Clearance Officer, at 202–493–6292, or requirements resulting from this agency consults with State and local Ms. Nakia Jackson at 202–493–6073. rulemaking action prior to the effective government officials early in the process Organizations and individuals date of the final rule. The OMB control of developing the regulation. Where a desiring to submit comments on the number, when assigned, will be regulation has federalism implications collection of information requirements announced by separate notice in the and preempts State law, the agency should direct them to Mr. Robert Brogan Federal Register. seeks to consult with State and local or Ms. Nakia Jackson, Federal Railroad officials in the process of developing the 4. Federalism Implications Administration, 1200 New Jersey regulation. Avenue, SE., 3rd Floor, Washington, DC Executive Order 13132, ‘‘Federalism’’ This NPRM has been analyzed in 20590. Comments may also be (64 FR 43255, Aug. 10, 1999), requires accordance with the principles and
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criteria contained in Executive Order In accordance with section 4(c) and significant energy action. FRA has 13132. This proposed rule would not (e) of FRA’s Procedures, the agency has evaluated this NPRM in accordance have a substantial effect on the States or further concluded that no extraordinary with Executive Order 13211. FRA has their political subdivisions; it would not circumstances exist with respect to this determined that this NPRM is not likely impose any compliance costs; and it regulation that might trigger the need for to have a significant adverse effect on would not affect the relationships a more detailed environmental review. the supply, distribution, or use of between the Federal government and As a result, FRA finds that this energy. Consequently, FRA has the States or their political subdivisions, proposed rule is not a major Federal determined that this NPRM is not a or the distribution of power and action significantly affecting the quality ‘‘significant energy action’’ within the responsibilities among the various of the human environment. meaning of Executive Order 13211. levels of government. Consequently, 7. Unfunded Mandates Reform Act of 9. Privacy Act FRA concludes that this NPRM has no 1995 federalism implications. FRA wishes to inform all potential Pursuant to section 201 of the commenters that anyone is able to 5. International Trade Impact Unfunded Mandates Reform Act of 1995 search the electronic form of all Assessment (Pub. L. 104–4, 2 U.S.C. 1531), each comments received into any agency The Trade Agreement Act of 1979 Federal agency ‘‘shall, unless otherwise docket by the name of the individual prohibits Federal agencies from prohibited by law, assess the effects of submitting the comment (or signing the engaging in any standards or related Federal regulatory actions on State, comment, if submitted on behalf of an activities that create unnecessary local, and tribal governments, and the association, business, labor union, etc.). obstacles to the foreign commerce of the private sector (other than to the extent You may review DOT’s complete United States. Legitimate domestic that such regulations incorporate Privacy Act Statement in the Federal objectives, such as safety, are not requirements specifically set forth in Register published on April 11, 2000 considered unnecessary obstacles. The law).’’ Section 202 of the Act (2 U.S.C. (65 FR 19477–78) or you may visit statute also requires consideration of 1532) further requires that ‘‘before http://www.regulations.gov/search/ international standards and where promulgating any general notice of footer/privacyanduse.jsp. appropriate, that they be the basis for proposed rulemaking that is likely to List of Subjects in 49 CFR Part 240 U.S. standards. result in the promulgation of any rule This proposed rulemaking is purely that includes any Federal mandate that Administrative practice and domestic in nature and is not expected may result in expenditure by State, procedure, Penalties, Railroad to affect trade opportunities for U.S. local, and tribal governments, in the employees, Railroad operating firms doing business overseas or for aggregate, or by the private sector, of procedures, Railroad safety, Reporting foreign firms doing business in the $100,000,000 or more (adjusted and recordkeeping requirements. United States. annually for inflation) [currently $141,000,000] in any 1 year, and before The Proposed Rule 6. Environmental Impact. promulgating any final rule for which a For the reasons discussed in the FRA has evaluated this proposed rule general notice of proposed rulemaking preamble, FRA proposes to amend Part in accordance with its ‘‘Procedures for was published, the agency shall prepare 240 of chapter II, subtitle B of title 49 Considering Environmental Impacts’’ a written statement’’ detailing the effect of the Code of Federal Regulations as (FRA’s Procedures) (64 FR 28545, May on State, local, and tribal governments follows: 26, 1999) as required by the National and the private sector. The proposed Environmental Policy Act (42 U.S.C. rule would not result in the PART 240—[AMENDED] 4321 et seq.), other environmental expenditure, in the aggregate, of $141,000,000 or more in any one year, 1. The authority citation for part 240 statutes, Executive Orders, and related continues to read as follows: regulatory requirements. FRA has and thus preparation of such a determined that this proposed rule is statement is not required. Authority: 49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311; 28 U.S.C. 2461, note; not a major FRA action (requiring the 8. Energy Impact and 49 CFR 1.49. preparation of an environmental impact Executive Order 13211 requires statement or environmental assessment) 2. Section 240.7 is amended by Federal agencies to prepare a Statement because it is categorically excluded from revising paragraph (1) of the definition of Energy Effects for any ‘‘significant detailed environmental review pursuant of ‘‘Locomotive engineer’’ to read as energy action.’’ 66 FR 28355 (May 22, to section 4(c)(20) of FRA’s Procedures. follows: 2001). Under the Executive Order, a See 64 FR 28547 (May 26, 1999). ‘‘significant energy action’’ is defined as § 240.7 Definitions. Section 4(c)(20) reads as follows: any action by an agency (normally * * * * * (c) Actions categorically excluded. Certain published in the Federal Register) that Locomotive engineer *** classes of FRA actions have been determined promulgates or is expected to lead to the (1) A person who moves a locomotive to be categorically excluded from the promulgation of a final rule or or group of locomotives within the requirements of these Procedures as they do not individually or cumulatively have a regulation, including notices of inquiry, confines of a locomotive repair or significant effect on the human environment. advance notices of proposed servicing area as provided for in 49 CFR rulemaking, and notices of proposed 218.5 and 218.29(a)(1); or * * * * * The following classes of FRA actions are rulemaking: (1)(i) That is a significant * * * * * categorically excluded: regulatory action under Executive Order 3. Section 240.101 is amended by 12866 or any successor order, and (ii) is * * * * * revising paragraphs (a), (b) and (c) (20) Promulgation of railroad safety rules likely to have a significant adverse effect introductory text to read as follows: and policy statements that do not result in on the supply, distribution, or use of § 240.101 Certification program required. significantly increased emissions or air or energy; or (2) that is designated by the water pollutants or noise or increased traffic Administrator of the Office of (a) Each railroad subject to this part congestion in any mode of transportation. Information and Regulatory Affairs as a shall have in effect a written program
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for certifying the qualifications of removing paragraphs (g)(4), (i), and (j) to directives that require affirmative locomotive engineers. read as follows: response by the locomotive engineer to (b) Each railroad shall have such a less favorable conditions than that program in effect prior to commencing § 240.117 Criteria for consideration of which existed prior to initiation of the operating rules compliance data. operations. test; or (c) Each railroad shall have a * * * * * (iii) Engineer compliance with certification program approved in (e) * * * provisions of the railroad’s operating accordance with § 240.103 that (3) Failure to adhere to procedures for rules, timetable or other mandatory includes: the safe use of train or engine brakes directives violation of which by * * * * * when the procedures are required for engineers were cited by the railroad as 4. Section 240.107 is amended by compliance with the Class I, Class IA, the cause of train accidents or train adding a new paragraph (e) to read as Class II, Class III, or transfer train brake incidents in accident reports filed in follows: test provisions of 49 CFR part 232 or compliance with part 225 of this chapter when the procedures are required for in the preceding calendar year; § 240.107 Criteria for designation of compliance with the class 1, class 1A, classes of service. (3) Designed so that the class II, or running brake test provisions administration of these tests is * * * * * of 49 CFR part 238; effectively distributed throughout (e) A railroad shall not reclassify the * * * * * whatever portion of a 24-hour day that certification of any type of certified 9. Section 240.127 is amended by the railroad conducts its operations; and engineer to a more restrictive class of adding a new paragraph (e) to read as (4) Designed so that individual tests certificate or a student engineer follows: are administered without prior notice to certificate during the period in which the engineer being tested. the certification is otherwise valid. § 240.127 Criteria for examining skill (f) Each railroad’s program shall 5. Section 240.109 is amended by performance. indicate the action the railroad will take revising paragraph (e) as follows: * * * * * in the event that it finds deficiencies § 240.109 General criteria for eligibility (e) Each railroad’s program shall with a locomotive engineer’s based on prior safety conduct. indicate the action the railroad will take performance during an operational in the event that a person fails an initial * * * * * monitoring observation or unannounced (e) When evaluating a person’s motor examination or a reexamination of his or compliance test administered in vehicle driving record or a person’s her performance skills in accordance accordance with the procedures railroad employment record, a railroad with the procedures required under required under § 240.303. shall not consider information § 240.211. 11. Section 240.201 is revised to read concerning motor vehicle driving 10. Section 240.129 is amended by as follows: revising paragraphs (c)(2) and (e) and incidents or prior railroad safety § 240.201 Implementation. conduct that occurred at a time other adding a new paragraph (f) to read as (a) Each railroad shall designate in than that specifically provided for in follows: writing any person(s) it deems qualified § 240.115, § 240.117 or § 240.119 of this § 240.129 Criteria for monitoring as a designated supervisor of locomotive subpart. operational performance of certified engineers. engineers. Each person so designated * * * * * shall have demonstrated to the railroad 6. Section 240.111 is amended by * * * * * through training, testing or prior revising paragraph (a) introductory text (c) * * * experience that he or she has the to read as follows: (2) Be designed so that each engineer knowledge, skills, and ability to be a shall be monitored each calendar year § 240.111 Individual’s duty to furnish data designated supervisor of locomotive on prior safety conduct as motor vehicle by a Designated Supervisor of engineers. operator. Locomotive Engineers, who does not (b) Each railroad shall designate in (a) Except for persons covered by need to be qualified on the physical writing all persons that it will deem to § 240.109(h), each person seeking characteristics of the territory over be qualified as certified locomotive certification or recertification under this which the operational performance engineers for the purpose of initial part shall, within 366 days preceding monitoring will be conducted; compliance with paragraph (d) of this the date of the railroad’s decision on * * * * * section, except as provided for in certification or recertification: (e) The testing and examination paragraph (h) of this section. * * * * * procedures selected by the railroad for (1) Each person so designated shall 7. Section 240.113 is amended by the conduct of a monitoring program have demonstrated to the railroad revising paragraph (a) introductory text shall be: through training, testing or prior to read as follows: (1) Designed so that each locomotive experience that he or she has the engineer shall be given at least one knowledge and skills to be a certified § 240.113 Individual’s duty to furnish data unannounced test each calendar year; locomotive engineer. on prior safety conduct as an employee of (2) Designed to test: (2) Each railroad shall issue a a different railroad. (i) Engineer compliance with certificate that complies with § 240.223 (a) Except for persons covered by provisions of the railroad’s operating to each person that it designates as § 240.109(h), each person seeking rules that require response to signals qualified under the provisions of certification under this part shall, that display less than a ‘‘clear’’ aspect, paragraph (b) of this section. within 366 days preceding the date of if the railroad operates with a signal (c) No railroad shall permit or require the railroad’s decision on certification system that must comply with part 236 a person, designated as qualified for or recertification: of this chapter; certification under the provisions of * * * * * (ii) Engineer compliance with paragraph (b) of this section, to perform 8. Section 240.117 is amended by provisions of the railroad’s operating service as a certified locomotive or train revising paragraph (e)(3) and by rules, timetable or other mandatory service engineer for more than a 36-
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month period unless that person has § 240.205 Procedures for determining a train or locomotive service engineer, been determined to be qualified in eligibility based on prior safety conduct. shall determine that the person has, in accordance with procedures that (a) Each railroad, prior to initially accordance with the requirements of comply with subpart C of this part. certifying or recertifying any person as § 240.123 of this part, the knowledge (d) No railroad shall permit or require an engineer for any class of service, and skills to safely operate a locomotive any person to operate a locomotive in shall determine that the person meets or train in the most demanding class or any class of locomotive or train service the eligibility requirements of § 240.115 type of service that the person will be unless that person has been certified as involving prior conduct as a motor permitted to perform. a qualified locomotive engineer and vehicle operator, § 240.117 involving * * * * * issued a certificate that complies with prior conduct as a railroad worker, and 18. Section 240.215 is amended by § 240.223. § 240.119 involving substance abuse revising paragraph (a) to read as follows: (e) No Class I railroad (including the disorders and alcohol/drug rules compliance. § 240.215 Retaining information National Railroad Passenger supporting determinations. Corporation) or railroad providing * * * * * (a) A railroad that issues, denies, or commuter service shall designate any 14. Section 240.207 is amended by revokes a certificate after making the person it deems qualified as a revising paragraph (a) to read as follows: determinations required under designated supervisor of locomotive § 240.207 Procedures for making the § 240.203 shall maintain a record for engineers or initially certify or recertify determination on vision and hearing acuity. each certified engineer or applicant for a person as a locomotive engineer in (a) Each railroad, prior to initially certification that contains the either locomotive or train service unless certifying or recertifying any person as information the railroad relied on in that person has been tested, evaluated, an engineer for any class of service, making the determinations. and determined to be qualified in shall determine that the person meets * * * * * accordance with procedures that the standards for visual acuity and comply with subpart C of this part. 19. Section 240.217 is amended by hearing acuity prescribed in § 240.121. revising paragraph (a) introductory text (f) No Class II railroad shall designate * * * * * to read as follows: any person it deems qualified as a 15. Section 240.209 is amended by designated supervisor of locomotive § 240.217 Time limitations for making revising paragraph (a) to read as follows: engineers or initially certify or recertify determinations. a person as a locomotive engineer in any § 240.209 Procedures for making the (a) A railroad shall not certify or class of locomotive or train service determination on knowledge. recertify a person as a qualified unless that person has been tested, (a) Each railroad, prior to initially locomotive engineer in any class of train evaluated and determined to be certifying or recertifying any person as or engine service, if the railroad is qualified in accordance with procedures an engineer for any class of train or making: that comply with subpart C of this part. locomotive service, shall determine that * * * * * (g) No Class III railroad (including a the person has, in accordance with the 20. Section 240.221 is amended by switching and terminal or other railroad requirements of § 240.125 of this part, revising paragraphs (a) and (b) to read not otherwise classified) shall designate demonstrated sufficient knowledge of as follows: any person it deems qualified as a the railroad’s rules and practices for the designated supervisor of locomotive safe operation of trains. § 240.221 Identification of qualified persons. engineers or initially certify or recertify * * * * * a person as a locomotive engineer in any 16. Section 240.211 is amended by (a) A railroad shall maintain a written class of locomotive or train service revising paragraph (a) to read as follows: record identifying each person unless that person has been tested, designated by it as a supervisor of evaluated and determined to be § 240.211 Procedures for making the locomotive engineers. qualified in accordance with procedures determination on performance skills. (b) A railroad shall maintain a written that comply with subpart C of this part. (a) Each railroad, prior to initially record identifying each person (h) Each person designated as a certifying or recertifying any person as designated as a certified locomotive locomotive engineer shall be issued a an engineer for any class of train or engineer. That listing of certified certificate that complies with § 240.223 locomotive service, shall determine that engineers shall indicate the class of prior to being required or permitted to the person has demonstrated, in service the railroad determines each operate a locomotive. accordance with the requirements of person is qualified to perform and date § 240.127 of this part, the skills to safely of the railroad’s certification decision. 12. Section 240.203 is amended by operate locomotives or locomotives and revising paragraph (a) introductory text * * * * * trains, including the proper application to read as follows: 21. Section 240.225 is amended by of the railroad’s rules and practices for revising paragraph (a) introductory text § 240.203 Determinations required as a the safe operation of locomotives or to read as follows: prerequisite to certification. trains, in the most demanding class or § 240.225 Reliance on qualification (a) Except as provided in paragraph type of service that the person will be permitted to perform. determinations made by other railroads. (b) of this section, each railroad, prior to (a) A railroad that is considering * * * * * initially certifying or recertifying any certification of a person as a qualified person as an engineer for any class of 17. Section 240.213 is amended by revising paragraph (a) to read as follows: engineer may rely on determinations service, shall, in accordance with its made by another railroad concerning FRA-approved program determine in § 240.213 Procedures for making the that person’s qualifications. The writing that: determination on completion of training railroad’s certification program shall * * * * * program. address how the railroad will 13. Section 240.205 is amended by (a) Each railroad, prior to the initial administer the training of previously revising paragraph (a) to read as follows: issuance of a certificate to any person as uncertified engineers with extensive
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operating experience or previously (3) Be conducted so that individual 25. Section 240.309 is amended by certified engineers who have had their tests are administered without prior revising paragraphs (a) and (e)(3) to read certification expire. If a railroad’s notice to the locomotive engineer being as follows: certification program fails to specify tested; and how to train a previously certified (4) Be conducted so that the results of § 240.309 Railroad oversight responsibilities. engineer hired from another railroad, the test are recorded on the certificate then the railroad shall require the newly and entered on the record established (a) No later than March 31 of each hired engineer to take the hiring under § 240.215 within 30 days of the year, each Class I railroad (including the railroad’s entire training program. A day the test is administered. National Railroad Passenger Corporation railroad relying on another’s 23. Section 240.305 is amended by and a railroad providing commuter certification shall determine that: removing the introductory text and service) and Class II railroad shall * * * * * revising paragraph (a)(3) to read as conduct a formal annual review and 22. Section 240.303 is amended by follows analysis concerning the administration of its program for responding to revising paragraphs (a) and (d) to read § 240.305 Prohibited conduct. as follows: detected instances of poor safety (a) * * * conduct by certified locomotive § 240.303 Operational monitoring (3) Operate a locomotive or train engineers during the prior calendar requirements. without adhering to procedures for the year. safe use of train or engine brakes when (a) Each railroad to which this part * * * * * applies shall, prior to FRA approval of the procedures are required for its program in accordance with compliance with the Class I, Class IA, (e) * * * § 240.201, have a program to monitor Class II, Class III, or transfer train brake (3) Incidents involving the conduct of its certified locomotive test provisions of 49 CFR part 232 or noncompliance with the procedures for engineers by performing both when the procedures are required for the safe use of train or engine brakes operational monitoring observations and compliance with the class 1, class 1A, when the procedures are required for by conducting unannounced operating class II, or running brake test provisions compliance with the Class I, Class IA, rules compliance tests. of 49 CFR part 238; Class II, Class III, or transfer train brake * * * * * * * * * * test provisions of 49 CFR part 232 or (d) The unannounced test program 24. Section 240.307 is amended by when the procedures are required for shall: revising paragraphs (a) and (j) compliance with the class 1, class 1A, (1) Test engineer compliance with: introductory text to read as follows: class II, or running brake test provisions of 49 CFR part 238; (i) One or more provisions of the § 240.307 Revocation of certification. railroad’s operating rules that require * * * * * (a) Except as provided for in response to signals that display less § 240.119(e), a railroad that certifies or Appendix A to Part 240 [Amended] than a ‘‘clear’’ aspect, if the railroad recertifies a person as a qualified operates with a signal system that must locomotive engineer and, during the 26. Appendix A to part 240— comply with part 236 of this chapter; Schedule of Civil Penalties is amended (ii) One or more provisions of the period that certification is valid, acquires information regarding by removing the entries for sections railroad’s operating rules, timetable or 240.203(a) through (a)(3); redesignating other mandatory directives that require violations of § 240.117(e) or § 240.119(c) of this chapter, which convinces the the entries for sections 240.203(b) affirmative response by the locomotive through 240.203(b)(4) as 240.203(a) engineer to less favorable conditions railroad that the person no longer meets the qualification requirements of this through (a)(4); redesignating the entries than that which existed prior to for sections 240.203(c) through (c)(3) as initiation of the test; or part, shall revoke the person’s certificate as a qualified locomotive engineer. 240.203(b) through (b)(3); and (iii) Provisions of the railroad’s redesignating the entry for section operating rules, timetable or other * * * * * 240.205(d) as 240.205(b) as follows: mandatory directives the violations of (j) The railroad shall place the which engineers were cited by the relevant information in the records Appendix D to Part 240 [Amended] railroad as the cause of train accidents maintained in compliance with § 240.309 for Class I (including the 27. Appendix D is amended by or train incidents in accident reports removing the last paragraph. filed in compliance with part 225 of this National Railroad Passenger chapter for the preceding year; Corporation) and Class II railroads, and Issued in Washington, DC, on December (2) Be conducted so that the § 240.215 for Class III railroads if 23, 2008. administration of these tests is sufficient evidence meeting the criteria Clifford C. Eby, effectively distributed throughout provided in paragraph (i) of this section, Acting Administrator. whatever portion of a 24-hour day that becomes available either: [FR Doc. E8–31062 Filed 12–30–08; 8:45 am] the railroad conducts its operations; * * * * * BILLING CODE 4910–06–P
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Notices Federal Register Vol. 73, No. 251
Wednesday, December 31, 2008
This section of the FEDERAL REGISTER of Work for Agricultural Research and 8, 2000 (7 CFR 3418) on Stakeholder contains documents other than rules or Extension Formula Grants. Input Requirements for Recipients of proposed rules that are applicable to the OMB Number: 0524–0036. Agricultural Research, Education, and public. Notices of hearings and investigations, Expiration Date of Current Approval: Extension Formula Funds. This rule committee meetings, agency decisions and May 31, 2009. rulings, delegations of authority, filing of applies not only to the land-grant petitions and applications and agency Type of Request: Revision of a institutions which receive formula statements of organization and functions are currently approved information funds but also to the veterinary and examples of documents appearing in this collection for three years. forestry schools that are not land-grant section. Abstract: The purpose of this institutions but which receive forestry collection of information is to continue research funds under the McIntire- implementing the requirements of Stennis Act of 1962 and Animal Health DEPARTMENT OF AGRICULTURE sections 202 and 225 of the Agricultural and Disease Research funds under Research, Extension, and Education section 1433 of the NARETPA. Failure Cooperative State Research, Reform Act of 1998 (AREERA) which to comply with the requirements of this Education, and Extension Service require that a plan of work must be submitted by each institution and rule may result in the withholding of a Notice of Intent To Revise a Currently approved by the Cooperative State recipient institution’s formula funds Approved Information Collection Research, Education, and Extension and redistribution of its share of formula AGENCY: Cooperative State Research, Service (CSREES) before formula funds funds to other eligible institutions. The Education, and Extension Service, may be provided to the 1862 and 1890 institutions are required to annually USDA. land-grant institutions. The formula report to CSREES: (1) The actions taken ACTION: Notice and request for funds are authorized under the Hatch to seek stakeholder input to encourage comments. Act for agricultural research activities at their participation; (2) a brief statement the 1862 land-grant institutions, under of the process used by the recipient SUMMARY: In accordance with the the Smith-Lever Act for the extension institution to identify individuals and Paperwork Reduction Act of 1995 (Pub. activities at the 1862 land-grant groups who are stakeholders and to L. 104–13) and Office of Management institutions, and under sections 1444 collect input from them; and (3) a and Budget (OMB) regulations at 5 CFR and 1445 of the National Agricultural statement of how collected input was part 1320 (60 FR 44977, August 29, Research, Extension, and Teaching considered. There is no legislatively 1995), this notice announces the Policy Act of 1977 (NARETPA) for prescribed form or format for this Cooperative State Research, Education, research and extension activities at the reporting requirement. However, the and Extension Service’s (CSREES) 1890 land-grant institutions. The plan of 1862 and 1890 land-grant institutions intention to revise a currently approved work must address critical agricultural are required to report on their information collection entitled, issues in the State and describe the Stakeholder Input Process annually as ‘‘Reporting Requirements for State Plans programs and projects targeted to of Work for Agricultural Research and part of their Annual Report of address these issues using the CSREES Accomplishments and Results. Extension Formula Funds.’’ The only formula funds. The plan of work also proposed change to the information must describe the institution’s Section 103(e) of AREERA requires collection is that the initial five year multistate activities as well as their that the 1862, 1890, and 1994 land-grant plan of work will no longer be required. integrated research and extension institutions establish a merit review DATES: Written comments on this notice activities. process, prior to October 1, 1999, in must be received by March 2, 2009 to This collection of information also order to obtain agricultural research and be assured of consideration. Comments includes the reporting requirements of extension funds. Section 104(h) of received after that date will be section 102(c) of AREERA for the 1862 AREERA also stipulated that a scientific considered to the extent practicable. and 1890 land-grant institutions. This peer review process be established for ADDRESSES: You may submit comments, section requires the 1862, 1890, and research programs funded under section identified by Docket ID# 1994 land-grant institutions receiving 3(c)(3) of the Hatch Act (commonly CSREES_FRDOC_0001, by any of the agricultural research, education, and referred to as Hatch Multistate Research following methods: Federal extension formula funds from CSREES Funds). eRulemaking Portal: http:// of the Department of Agriculture regulations.gov. Follow the instructions (USDA) to establish and implement I. Initial 5-Year Plan of Work for submitting comments. processes for obtaining input from Estimate of the Burden: The Initial 5- E-mail: [email protected]; persons who conduct or use agricultural Year Plan of Work was submitted for the Mail: Bart Hewitt, USDA/CSREES/ research, extension, or education FY 2007–2011 Plan of Work in 2006. OPA, STOP 2214, 1400 Independence concerning the use of such funds by Thus, this reporting burden has been Avenue, SW., Washington, DC 20250– October 1, 1999. Section 102(c) further 2214; requires that the Secretary of satisfied and will no longer be collected. Fax: (202) 720–7714. Agriculture promulgate regulations that Consequently, the total reporting and FOR FURTHER INFORMATION CONTACT: Bart prescribe what the institutions must do record keeping requirements for the Hewitt, (202) 720–0747. to meet this requirement and the submission of the ‘‘Initial 5-Year Plan of SUPPLEMENTARY INFORMATION: Title: consequences of not complying with Work’’ is estimated to average 0 hours Reporting Requirements for State Plans this requirement. See 65 FR 5993, Feb. per response.
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II. Annual Update to 5-Year Plan of Done in Washington, DC, this 23rd day of write, call, e-mail, or visit an NRCS Work December 2008. office, or visit the NRCS Web site at: Joseph Dunn, http://www.nrcs.usda.gov/feature/ Estimate of the Burden: The total Deputy Under Secretary, Research, volunteers/ to complete and submit the reporting and record keeping Education, and Economics. forms. requirements for the submission of the [FR Doc. E8–31143 Filed 12–30–08; 8:45 am] Title: Volunteer Program—Earth ‘‘Annual Update to the 5-Year Plan of BILLING CODE 3410–22–P Team. Work’’ is estimated to average 64 hours OMB Number: 0578–0024. per response. There are five components Expiration Date of Approval: May 31, of this ‘‘5-Year Plan of Work’’: ‘‘Planned DEPARTMENT OF AGRICULTURE 2009. Programs,’’ ‘‘Stakeholder Input Type of Request: Notice to Request for Process,’’ ‘‘Program Review Process,’’ Natural Resources Conservation Extension and Revision of Currently ‘‘Multi-state Activities,’’ and ‘‘Integrated Service Approved Information Collection. Activities.’’ Abstract: NRCS–PER–001, Volunteer Estimated Number of Respondents: Notice of Intent: To Request an Application and NRCS–PER–003, 75. Extension and Revision of a Currently Agreement for Sponsored Voluntary Approved Information Collection Services, are discontinued. The Estimated Number of Responses: 150. information collected on these forms Estimated Total Annual Burden on AGENCY: Natural Resources has been added to the Forest Service Respondents: 9,600 hours. Conservation Service (NRCS), USDA. collection packet, the Office of Frequency of Responses: Annually. ACTION: Correction and request for Management and Budget (OMB) Control comments. Number 0596–0080. III. Annual Report of Accomplishments Form NRCS–PER–002, Volunteer SUMMARY: and Results NRCS published in the Interest and Placement Summary, is an Federal Register notice of October 22, optional form and assists the volunteer’s Estimate of the Burden: The total 2008 (73 FR 62949), a document stating annual reporting and record keeping supervisor in placing the volunteer in a ‘‘Notice to Reinstate a Previously position which is beneficial to the requirements of the ‘‘Annual Report of Approved Information Collection.’’ This Accomplishments and Results’’ is volunteer and the Agency. The form is notice corrects the previously published placed in a volunteer ‘‘case file’’ and estimated to average 260 hours per document. In accordance with the response. will be destroyed 3 years after the Paperwork Reduction Act of 1995 (44 volunteer has completed service. In the Estimated Number of Respondents: U.S.C. Chapter 35), this notice event that the volunteer is injured, the 75. announces the intention of NRCS to ‘‘case file’’ will be transferred to an Estimated Number of Responses: 150. request an extension for, and a revision Official Personnel Folder (OPF). Estimated Total Annual Burden on to, the currently approved information Estimate of Burden: Public reporting Respondents: 39,000 hours. collection, Volunteer Program—Earth burden for this collection of information Team. The collected information will Frequency of Responses: Annually. is estimated to average 3 minutes per help NRCS match the skills of response. Comments: Comments are invited on: individuals who apply for volunteer Respondents: Retirees, students, (a) Whether the proposed collection of work that will further the Agency’s teachers, persons with disabilities, or information is necessary for the proper mission. Information will be collected senior citizens. performance of the functions of the from potential volunteers who are at Estimated Number of Respondents: agency, including whether the least 14 years of age. 500. information will have practical utility; DATES: Comments on this notice must be Estimated Number of Responses per (b) the accuracy of the agency’s estimate received within 60 days after Respondent: 1. of the burden of the proposed collection publication in the Federal Register to be Estimated Total Annual Burden on of information including the validity of assured of consideration. Respondents: 25 hours. the methodology and assumptions used; Additional Information or Comments: Form NRCS–PER–004, Time Sheet, is (c) ways to enhance the quality, utility Contact Michele Eginoire, National also an optional form and provides the and clarity of the information to be Volunteer Coordinator, at (515) 289– volunteer or their supervisor a collected; and (d) ways to minimize the 0325, extension 102. Submit comments simplified method for tracking the burden of the collection of information to Michele by fax at (515) 289–4561, or volunteer’s time. The form is placed in on those who are to respond, including by e-mail: [email protected]. a volunteer ‘‘case file’’ and will be through the use of appropriate destroyed 3 years after the volunteer has SUPPLEMENTARY INFORMATION: Collection completed service. In the event that the automated, electronic, mechanical, or of this information is necessary to match other technological collection volunteer is injured, the ‘‘case file’’ will volunteer assignments to Agency be transferred to an OPF. techniques or other forms of information mission as required by Federal technology. Estimate of Burden: Public reporting Personnel Manual Supplement 296–33, burden for this collection of information All responses to this notice will be Subchapter 3. Agencies are authorized is estimated to average 1 minute per summarized and included in the request to recruit, train, and accept, with regard response. for OMB approval. All comments also to Civil Service classification laws, rules Respondents: Retirees, students, will become a matter of public record. or regulations, the services of teachers, persons with disabilities, or Obtaining a Copy of the Information individuals to serve without senior citizens. Collection: A copy of the information compensation. Volunteers may assist in Estimated Number of Respondents: collection and related instructions may any Agency program/project and may 20,480. be obtained free of charge by contacting perform any activities that Agency Estimated Number of Responses per Bart Hewitt by telephone, (202) 720– employees are allowed. Volunteers must Respondent: 2. 0747, or by e-mail, be at least 14 years of age. Persons Estimated Total Annual Burden on [email protected]. interested in volunteering will have to Respondents: 683 hours.
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Comments are invited on: (1) Whether establishment of special–purpose establishing foreign–trade zones in or the proposed collection of information subzones when existing zone facilities adjacent to U.S. Customs and Border is necessary for the proper performance cannot serve the specific use involved, Protection ports of entry; of the functions of the Agency, and when the activity results in a Whereas, the Board’s regulations (15 including whether the information will significant public benefit and is in the CFR Part 400) provide for the have practical utility; (2) the accuracy of public interest; establishment of special–purpose the Agency’s estimate of the burden of Whereas, the Port of New Orleans, subzones when existing zone facilities the proposed collection of information, grantee of Foreign–Trade Zone 2, has cannot serve the specific use involved, including the validity of the made application to the Board for and when the activity results in a methodology and assumptions used; (3) authority to establish a special–purpose significant public benefit and is in the ways to enhance the quality, utility, and subzone at the barite milling facility of public interest; clarity of the information to be Haliburton Energy Services, Inc., Whereas, the Lake Charles Harbor & collected; and (4) ways to minimize the located in New Orleans, Louisiana (FTZ Terminal District, grantee of Foreign– burden of the collection of information Docket 22–2008, filed 04/01/08); Trade Zone 87, has made application to on those who are to respond, including Whereas, notice inviting public the Board for authority to establish a the use of appropriate automated, comment was given in the Federal special–purpose subzone at the barite electronic, mechanical, or other Register (73 FR 20246, 04/15/08); and, milling facility of Haliburton Energy technological collection techniques or Whereas, the Board adopts the Services, Inc., located in Westlake, other forms of information technology. findings and recommendations of the Louisiana (FTZ Docket 21–2008, filed Comments may be sent to Michele examiner’s report, and finds the 04/01/08); Eginoire, National Earth Team Office, requirements of the FTZ Act and the Whereas, notice inviting public NRCS, 5140 Park Avenue, Suite C, Des Board’s regulations are satisfied, and comment was given in the Federal Moines, Iowa 50321; telephone: (515) that approval of the application is in the Register (73 FR 20248, 04/15/08); and, 289–0325, extension 102; fax: (515) public interest; Whereas, the Board adopts the 289–4561; e-mail: Now, therefore, the Board hereby findings and recommendations of the [email protected]. All grants authority for subzone status for examiner’s report, and finds the comments received will be available for activity related to barite milling at the requirements of the FTZ Act and the public inspection during regular facility of Haliburton Energy Services, Board’s regulations are satisfied, and business hours at the same address. All Inc., located in New Orleans, Louisiana that approval of the application is in the responses to this notice will be (Subzone 2K), as described in the public interest; summarized and included in the request application and Federal Register notice, Now, therefore, the Board hereby for OMB approval. All comments also and subject to the FTZ Act and the grants authority for subzone status for will become a matter of public record. Board’s regulations, including Section activity related to barite milling at the Signed in Washington, DC on December 400.28. facility of Haliburton Energy Services, 12, 2008. Signed at Washington, D.C., this 19th Inc., located in Westlake, Louisiana Arlen L. Lancaster, day of December 2008. (Subzone 87C), as described in the application and Federal Register notice, Chief. David M. Spooner, and subject to the FTZ Act and the [FR Doc. E8–31071 Filed 12–30–08; 8:45 am] Assistant Secretary of Commerce for Import Board’s regulations, including Section BILLING CODE 3410–16–P Administration, Alternate Chairman, Foreign–Trade Zones Board. 400.28. Signed at Washington, D.C., this 19th Attest: day of December 2008. DEPARTMENT OF COMMERCE Andrew McGilvray, Executive Secretary. David M. Spooner, Foreign–Trade Zones Board [FR Doc. E8–31166 Filed 12–30–08; 8:45 am] Assistant Secretary of Commerce for Import Administration, Alternate Chairman, [Order No. 1596] BILLING CODE 3510–DS–S Foreign–Trade Zones Board. Grant of Authority for Subzone Status, Attest: Haliburton Energy Services, Inc. DEPARTMENT OF COMMERCE Andrew McGilvray. (Barite Milling), New Orleans, Executive Secretary. Louisiana Foreign–Trade Zones Board [FR Doc. E8–31167 Filed 12–30–08; 8:45 am] [Order No. 1595] BILLING CODE 3510–DS–S Pursuant to its authority under the Foreign–Trade Zones Act of June 18, 1934, as Grant of Authority for Subzone Status, amended (19 U.S.C. 81a–81u), the Foreign– Trade Zones Board (the Board) adopts the Haliburton Energy Services, Inc. DEPARTMENT OF COMMERCE following Order: (Barite Milling), Westlake, Louisiana Whereas, the Foreign–Trade Zones Foreign–Trade Zones Board Pursuant to its authority under the Act provides for ‘‘...the establishment... Foreign–Trade Zones Act of June 18, 1934, as [Order No. 1594] of foreign–trade zones in ports of entry amended (19 U.S.C. 81a–81u), the Foreign– of the United States, to expedite and Trade Zones Board (the Board) adopts the Grant of Authority for Subzone Status, encourage foreign commerce, and for following Order: Haliburton Energy Services, Inc. other purposes,’’ and authorizes the Whereas, the Foreign–Trade Zones (Barite Milling), Corpus Christi, Texas Foreign–Trade Zones Board to grant Act provides for ‘‘...the establishment... Pursuant to its authority under the qualified corporations the privilege of of foreign–trade zones in ports of entry Foreign–Trade Zones Act of June 18, 1934, as establishing foreign–trade zones in or of the United States, to expedite and amended (19 U.S.C. 81a–81u), the Foreign– adjacent to U.S. Customs and Border encourage foreign commerce, and for Trade Zones Board (the Board) adopts the Protection ports of entry; other purposes,’’ and authorizes the following Order: Whereas, the Board’s regulations (15 Foreign–Trade Zones Board to grant Whereas, the Foreign–Trade Zones CFR Part 400) provide for the qualified corporations the privilege of Act provides for ‘‘...the establishment...
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of foreign–trade zones in ports of entry DEPARTMENT OF COMMERCE Signed at Washington, D.C., this 19th of the United States, to expedite and day of December 2008. Foreign–Trade Zones Board encourage foreign commerce, and for David M. Spooner, other purposes,’’ and authorizes the Assistant Secretary of Commerce for Import Foreign–Trade Zones Board to grant [Order No. 1593] Administration, Alternate Chairman, qualified corporations the privilege of Foreign–Trade Zones Board. Grant of Authority for Subzone Status, establishing foreign–trade zones in or Attest: Hawker Beechcraft Corporation adjacent to U.S. Customs and Border Andrew McGilvray, Protection ports of entry; (Aircraft Manufacturing), Wichita and Salina, Kansas Executive Secretary. Whereas, the Board’s regulations (15 [FR Doc. E8–31169 Filed 12–30–08; 8:45 am] CFR Part 400) provide for the Pursuant to its authority under the BILLING CODE 3510–DS–S establishment of special–purpose Foreign–Trade Zones Act of June 18, 1934, as subzones when existing zone facilities amended (19 U.S.C. 81a–81u), the Foreign– cannot serve the specific use involved, Trade Zones Board (the Board) adopts the DEPARTMENT OF COMMERCE and when the activity results in a following Order: significant public benefit and is in the INTERNATIONAL TRADE Whereas, the Foreign–Trade Zones ADMINISTRATION public interest; Act provides for ‘‘...the establishment... Whereas, the Port of Corpus Christi of foreign–trade zones in ports of entry [A–570–827] Authority, grantee of Foreign–Trade of the United States, to expedite and encourage foreign commerce, and for Certain Cased Pencils from the Zone 122, has made application to the People’s Republic of China: Extension other purposes,’’ and authorizes the Board for authority to establish a of Time Limit for Preliminary Results of Foreign–Trade Zones Board to grant special–purpose subzone at the barite the Antidumping Duty Administrative qualified corporations the privilege of milling facility of Haliburton Energy Review Services, Inc., located in Corpus Christi, establishing foreign–trade zones in or Texas (FTZ Docket 20–2008, filed 04/ adjacent to U.S. Customs and Border AGENCY: Import Administration, 01/08); Protection ports of entry; International Trade Administration, Department of Commerce. Whereas, notice inviting public Whereas, the Board’s regulations (15 EFFECTIVE DATE: December 22, 2008 comment was given in the Federal CFR Part 400) provide for the Register (73 FR 20246, 04/15/08); and, establishment of special–purpose FOR FURTHER INFORMATION CONTACT: subzones when existing zone facilities Alexander Montoro at (202) 482–0238 or Whereas, the Board adopts the cannot serve the specific use involved, Shane Subler at (202) 482–0189; AD/ findings and recommendations of the and when the activity results in a CVD Operations, Office 1, Import examiner’s report, and finds the significant public benefit and is in the Administration, International Trade requirements of the FTZ Act and the public interest; Administration, U.S. Department of Board’s regulations are satisfied, and Whereas, the Board of County Commerce, 14th Street and Constitution that approval of the application is in the Commissioners of Sedgwick County, Avenue, NW, Washington, DC 20230. public interest; grantee of Foreign–Trade Zone 161, has SUPPLEMENTARY INFORMATION: Now, therefore, the Board hereby made application to the Board for Background grants authority for subzone status for authority to establish a special–purpose activity related to barite milling at the subzone at the aircraft manufacturing On January 28, 2008, the Department facility of Haliburton Energy Services, facilities of Hawker Beechcraft published a notice of initiation of Inc., located in Corpus Christi, Texas Corporation, located in Wichita and administrative review of the (Subzone 122R), as described in the Salina, Kansas (FTZ Docket 24–2008, antidumping duty order on certain cased pencils from the People’s application and Federal Register notice, filed 4/17/08); Republic of China, covering the period and subject to the FTZ Act and the Whereas, notice inviting public December 1, 2006 through November Board’s regulations, including Section comment was given in the Federal 30, 2007. See Initiation of Antidumping 400.28. Register (73 FR 21903–21904, 4/23/08); and Countervailing Duty Administrative Signed at Washington, D.C., this 19th and, Reviews and Request for Revocation in day of December 2008. Whereas, the Board adopts the Part, 73 FR 4829 (January 28, 2008). The current deadline for the preliminary David M. Spooner, findings and recommendations of the examiner’s report, and finds the results of this administrative review is Assistant Secretary of Commerce for Import requirements of the FTZ Act and the December 22, 2008.1 Administration, Alternate Chairman, Board’s regulations are satisfied, and Foreign–Trade Zones Board. Statutory Time Limits that approval of the application is in the Attest: public interest; Section 751(a)(3)(A) of the Tariff Act Andrew McGilvray, of 1930, as amended (‘‘the Act’’), Now, therefore, the Board hereby requires the Department of Commerce Executive Secretary. grants authority for subzone status for [FR Doc. E8–31168 Filed 12–30–08; 8:45 am] (‘‘the Department’’) to issue the activity related to aircraft manufacturing preliminary results of an administrative BILLING CODE 3510–DS–S at the facilities of Hawker Beechcraft Corporation, located in Wichita and 1 On August 25, 2008, we extended the Salina, Kansas (Subzone 161C), as preliminary results deadline from September 2, described in the application and 2008 to December 22, 2008. See Certain Cased Federal Register notice, and subject to Pencils from the People’s Republic of China: Extension of Time Limit for Preliminary Results of the FTZ Act and the Board’s regulations, the Antidumping Duty Administrative Review, 73 including Section 400.28. FR 49993 (August 25, 2008).
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review within 245 days after the last day initiation of antidumping duty (AD) Extension of Time Limit for Final of the anniversary month of an order for changed circumstances review (CCR). Results which a review is requested. If it is not See Certain Pasta from Italy: Notice of Under 19 CFR 351.216(e), the practicable to complete the review Initiation of Antidumping Duty Changed Department will issue the final results within the time period, section Circumstances Review, 72 FR 65010 of a CCR within 270 days after the date 751(a)(3)(A) of the Act allows the (November 19, 2007). On February 22, on which the Department initiates the Department to extend this deadline to a 2008, the Department published its changed circumstances review. maximum of 365 days. notice of preliminary results of AD CCR Currently, the final results of the AD Extension of Time Limit for Preliminary and intent to reinstate the AD order. See CCR, which cover Lensi, a producer/ Results Certain Pasta from Italy: Notice of exporter of pasta from Italy, and AIPC, Preliminary Results of Antidumping Lensi’s corporate parent and importer of The Department requires additional subject merchandise produced by Lensi, time to review and analyze the Duty Changed Circumstances Review are due by December 22, 2008. As responses in this administrative review. and Intent to Reinstate the Antidumping explained above, the Department has Moreover, the Department requires Duty Order, 73 FR 9769 (February 22, placed certain information regarding additional time to analyze complex 2008). On August 12, 2008, the Lensi on the record of the AD CCR. The issues related to surrogate value Department extended the due date of Department finds that it requires selections. Because the Department the final results of the AD CCR until additional time to review the new requires additional time to analyze the October 6, 2008. See Certain Pasta from factual information contained in the information, it is not practicable to Italy: Notice of Extension of Final October 17, 2008 submission of Lensi complete this review within the Results of Antidumping Duty Changed and AIPC. Therefore, in order to have anticipated time limit (i.e. December 22, Circumstances Review, 73 FR 46871 sufficient time to review the new factual 2008). Therefore, the Department is (August 12, 2008). On September 29, information placed on the record of the extending the time limit for completion 2008, the Department placed on the AD CCR, we are extending the due date of the preliminary results by an record of the AD CCR press releases of the final results of the AD CCR by 11 additional eight days (for a total from the United States Attorney for the days in accordance with 19 CFR extension of 120 days) to not later than Western District of Missouri and the 351.302(b). Therefore, the final results December 30, 2008, in accordance with Securities and Exchange Commission of the AD CCR are now due no later section 751(a)(3)(A) of the Act. (SEC) regarding the American Italian than January 2, 2009. We are issuing this notice in Pasta Company (AIPC). See the This notice is issued and published in accordance with sections 751(a)(3)(A) of Memorandum to the File from Eric B. accordance with sections 751(b) and the Act. Greynolds, Program Manager, ‘‘Press 777(i) of the Tariff Act of 1930, as Dated: December 22, 2008. Release from Office of the United States amended. Stephen Claeys, Attorney for the Western District of Dated: December 19, 2008. Deputy Assistant Secretary for Antidumping Missouri and the Securities and Stephen J. Claeys, and Countervailing Duty Operations. Exchange Commission Regarding the Deputy Assistant Secretary for Antidumping [FR Doc. E8–31174 Filed 12–30–08; 8:45 am] American Italian Pasta Company’’ and Countervailing Duty Operations. BILLING CODE 3510–DS–S (September 29, 2008), a public [FR Doc. E8–31145 Filed 12–30–08; 8:45 am] document on file in the Central Records BILLING CODE 3510–DS–S Unit (CRU), room 1117 of the main DEPARTMENT OF COMMERCE Department building. On October 8, 2008, David M. Spooner, the Assistant International Trade Administration DEPARTMENT OF COMMERCE Secretary for Import Administration, [A–475–818] along with other officials from the International Trade Administration Department met with an official from (A–580–809) Certain Pasta from Italy: Notice of AIPC and counsel to Lensi/AIPC to Extension of Final Results of discuss issues pertaining to the ongoing Circular Welded Non–Alloy Steel Pipe Antidumping Duty Changed AD CCR. On October 10, 2008, the from the Republic of Korea: Initiation Circumstances Review Department extended the due date of of New Shipper Antidumping Duty AGENCY: Import Administration, the final results of the AD CCR until Review International Trade Administration, December 5, 2008. See Certain Pasta AGENCY: Import Administration, from Italy: Notice of Extension of Final Department of Commerce. International Trade Administration, Results of Antidumping Duty Changed EFFECTIVE DATE: December 31, 2008. Department of Commerce. FOR FURTHER INFORMATION CONTACT: Eric Circumstances Review, 73 FR 60239 SUMMARY: On November 28, 2008, the B. Greynolds, AD/CVD Operations, (October 10, 2008). On October 17, Department of Commerce (‘‘the Office 3, Import Administration, 2008, Lensi/AIPC submitted comments Department’’) received a request for a International Trade Administration, regarding the press release issued by the new shipper review of the antidumping U.S. Department of Commerce, Room SEC and the Office of the United States duty order on circular welded non–alloy 4014, 14th Street and Constitution Ave., Attorney for the Western District of steel pipe from the Republic of Korea NW, Washington, DC 20230, telephone: Missouri. On December 12, 2008, the (‘‘Korea’’). In accordance with section (202) 482–6071. Department extended the due date of 751(a)(2)(B) of the Tariff Act of 1930, as SUPPLEMENTARY INFORMATION: the final results of the AD CCR until amended (‘‘the Act’’), and 19 CFR December 22, 2008. See Certain Pasta 351.214(d), we are initiating an Background from Italy: Notice of Extension of Final antidumping new shipper review of A– On November 19, 2007, the Results of Antidumping Duty Change JU Besteel Co., Ltd. (‘‘Ajubesteel’’) for Department of Commerce (the Circumstances Review, 73 FR 75671 the period November 1, 2007 through Department) published its notice of (December 12, 2008). October 31, 2008.
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EFFECTIVE DATE: December 31, 2008. final results within 90 days after the Background FOR FURTHER INFORMATION CONTACT: date on which we issue the preliminary Shane Subler or Joe Shuler, AD/CVD results. See section 751(a)(2)(B)(iv) of On October 31, 2007, the U.S. Operations, Office 1, Import the Act. Department of Commerce Administration, International Trade On August 17, 2006, the Pension (‘‘Department’’) published a notice of Administration, U.S. Department of Protection Act of 2006 (H.R. 4) was initiation of the administrative review of Commerce, 14th Street and Constitution signed into law. Section 1632 of H.R. 4 the antidumping duty order on certain Avenue, NW, Washington, DC 20230; temporarily suspends the authority of lined paper products from the People’s telephone: (202) 482–0189 or (202) 482– the Department to instruct U.S. Customs Republic of China, covering the period 1293, respectively. and Border Protection to collect a bond April 17, 2006 to August 31, 2007. See SUPPLEMENTARY INFORMATION: or other security in lieu of a cash Initiation of Antidumping and deposit in new–shipper reviews. Countervailing Duty Administrative Background Therefore, the posting of a bond under Reviews, 72 FR 61621 (October 31, The Department received a timely section 751(a)(2)(B)(iii) of the Act and 2007). On October 7, 2008, the request from Ajubesteel, in accordance 19 CFR 351.214(e) in lieu of a cash Department published the preliminary with 19 CFR 351.214(c), for a new deposit is not available in this case. results of this review. See Certain Lined shipper review of the antidumping duty Importers of subject merchandise Paper Products from the People’s order on circular welded non–alloy steel manufactured and exported by Republic of China: Notice of Preliminary pipe from Korea, which has a November Ajubesteel must continue to pay a cash Results of the Antidumping Duty anniversary month.1 Pursuant to 19 CFR deposit of estimated antidumping duties Administrative Review, 73 FR 58540 351.214(b), Ajubesteel certified that it is on each entry of subject merchandise at (October 7, 2008). The final results of both an exporter and producer of the the current all–others rate of 4.80 subject merchandise, that it did not this review are currently due no later percent. See Circular Welded Non–Alloy than February 4, 2009. export subject merchandise to the Steel Pipe From the Republic of Korea; United States during the period of Final Results of Administrative Review, Extension of Time Limit of Final investigation (‘‘POI’’) (April 1, 1991, 69 FR 32492 (June 10, 2004). Results through September 30, 1991), and that Interested parties may submit since the investigation was initiated, it applications for disclosure under Section 751(a)(3)(A) of the Tariff Act has never been affiliated with any administrative protective order in of 1930, as amended (‘‘Act’’), requires exporter or producer who exported the accordance with 19 CFR 351.305 and the Department to issue the final results subject merchandise to the United 351.306. of a review within 120 days after the States during the POI. Ajubesteel also This initiation and notice are in date on which the preliminary results submitted documentation establishing are published. However, if it is not the date on which the subject accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214(d). practicable to complete the review merchandise was first entered for within that time period, section Dated: December 22, 2008. consumption, the volume shipped, and 751(a)(3)(A) of the Act allows the the date of its first sale to an unaffiliated Stephen J. Claeys, Department to extend the time limit for customer in the United States. Deputy Assistant Secretary for Antidumping the final results to a maximum of 180 and Countervailing Duty Operations. Initiation of New Shipper Review days. See also 19 CFR 351.213(h)(2). [FR Doc. E8–31173 Filed 12–30–08; 8:45 am] In accordance with section 751 BILLING CODE 3510–DS–S We determine that it is not practicable (a)(2)(B) of the Act and 19 CFR to complete the final results of this 351.214(d), we are initiating a new review within the original time limit shipper review of the antidumping duty DEPARTMENT OF COMMERCE because several technical issues have order on Circular Welded Non–Alloy arisen. The mandatory respondent and Steel Pipe from Korea (produced and International Trade Administration its suppliers have complex cost exported) by Ajubesteel. See allocation issues, which require the Memorandum to the File through Susan [A–570–901] Department to further clarify and Kuhbach, Director, AD/CVD Operations analyze a significant amount of Office 1, Import Administration from Certain Lined Paper Products from the information associated with the factors the Team, ‘‘New Shipper Review People’s Republic of China: Extension of production and manufacturing costs. Initiation Checklist,’’ dated December of Time Limits for Final Results of Thus, additional time is necessary to 12, 2008, on file in the Central Records Antidumping Duty Administrative complete the final results. Therefore, the Unit, room 1117, of the main Review Department of Commerce building. This Department is fully extending the final review covers the period from AGENCY: Import Administration, results by 60 days. The final results are November 1, 2007 through October 31, International Trade Administration, now due not later than April 5, 2009. As 2008, in accordance with 19 CFR Department of Commerce. this date falls on a Sunday, the final 351.214(g)(1)(i)(A). We intend to issue EFFECTIVE DATE: December 31, 2008. results are due April 6, 2009. See Notice the preliminary results of this review no of Clarification: Application of ‘‘Next FOR FURTHER INFORMATION CONTACT: later than 180 days after the date on Business Day’’ Rule for Administrative Cindy Robinson, AD/CVD Operations, which this review is initiated, and the Determination Deadlines Pursuant of Office 3, Import Administration, International Trade Administration, the Tariff Act of 1930, As Amended, 70 1 See Notice of Antidumping Orders: Certain FR 24533 (May 10, 2005). Circular Welded Non-Alloy Steel Pipe from Brazil, U.S. Department of Commerce, 14th the Republic of Korea (Korea), Mexico, and Street and Constitution Avenue, NW, This extension is in accordance with Venezuela, and Amendment to Final Determination Washington, DC 20230, telephone: (202) section 751(a)(3)(A) of the Act and 19 of Sales at Less Than Fair Value: Certain Circular 482–3797. CFR 351.213(h)(2). Welded Non-Alloy Steel Pipe from Korea, 57 FR 49453 (November 2, 1992). SUPPLEMENTARY INFORMATION:
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Dated: December 18, 2008. operate to the disadvantage of such Act, provided the public has been Stephan J. Claeys, endangered species; and (3) is notified of the Council’s intent to take Deputy Assistant Secretary for Antidumping consistent with the purposes and final action to address the emergency. and Countervailing Duty Operations. policies set forth in section 2 of the Special Accommodations [FR Doc. E8–31139 Filed 12–30–08; 8:45 am] ESA. BILLING CODE 3510–DS–S Dated: December 23, 2008. This meeting is physically accessible to people with disabilities. Requests for P. Michael Payne, sign language interpretation or other Chief, Permits, Conservation and Education auxiliary aids should be directed to Gail DEPARTMENT OF COMMERCE Division, Office of Protected Resources, National Marine Fisheries Service. Bendixen at (907) 271–2809 at least 7 National Oceanic and Atmospheric working days prior to the meeting date. Administration [FR Doc. E8–31147 Filed 12–30–08; 8:45 am] BILLING CODE 3510–22–S Dated: December 24, 2008. RIN 0648–XM39 Tracey L. Thompson, Acting Director, Office of Sustainable Marine Mammals; File No. 704–1698 DEPARTMENT OF COMMERCE Fisheries, National Marine Fisheries Service. AGENCY: [FR Doc. E8–31075 Filed 12–30–08; 8:45 am] National Marine Fisheries National Oceanic and Atmospheric BILLING CODE 3510–22–S Service (NMFS), National Oceanic and Administration Atmospheric Administration (NOAA), Commerce. RIN 0648–XM41 ACTION: Notice; issuance of permit North Pacific Fishery Management COMMODITY FUTURES TRADING amendment. Council; Public Meeting COMMISSION SUMMARY: Notice is hereby given that AGENCY: National Marine Fisheries Request To Exempt Certain Over-the- The University of Alaska Museum, 907 Service (NMFS), National Oceanic and Yukon Drive, P.O. Box 756960, Counter Swaps From Certain of the Atmospheric Administration (NOAA), Requirements Imposed by Fairbanks, AK 99775 (Dr. Link Olsen, Commerce. Responsible Party) has been issued an Commission Regulation 35.2, Pursuant ACTION: Notice of a public meeting. amendment to scientific research Permit to the Authority in Section 4(C) of the Commodity Exchange Act; Reopening No. 704–1698–00. SUMMARY: The North Pacific Fishery of Comment Period ADDRESSES: The amendment and related Management Council’s (Council) documents are available for review Salmon Bycatch Workgroup will meet AGENCY: Commodity Futures Trading upon written request or by appointment in Anchorage, AK. Commission. in the following office(s): DATES: The meeting will be held on ACTION: Notice of request for comment Permits, Conservation and Education January 20, 2009, from 10 a.m. to 5 p.m. on exemption request; reopening of Division, Office of Protected Resources, ADDRESSES: The meeting will be held at comment period. NMFS, 1315 East-West Highway, Room the Hilton Hotel, 500 West 3rd Avenue, 13705, Silver Spring, MD 20910; phone Fireweed Room, Anchorage AK. SUMMARY: The Commodity Futures (301)713–2289; fax (301)427–2521; and Council address: North Pacific Trading Commission (‘‘Commission’’) is Alaska Region, NMFS, P.O. Box Fishery Management Council, 605 W. reopening the period for public 21668, Juneau, AK 99802–1668; phone 4th Ave., Suite 306, Anchorage, AK comment to provide interested persons (907)586–7221; fax (907)586–7249. 99501–2252. additional time to comment on whether FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: to exempt certain over-the-counter Amy Sloan or Jennifer Skidmore, Diana Stram, Council staff; telephone: (‘‘OTC’’) agricultural swaps from certain (301)713–2289. (907) 271–2809 of the requirements otherwise imposed SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION: The by Commission Regulation 35.2. The requested amendment has been granted Committee will review industry comment period is being reopened due under the authority of the Marine proposals for incentive-based salmon to the non-transmittal of a comment Mammal Protection Act of 1972, as bycatch reduction programs in letter from the Federal eRulemaking amended (16 U.S.C. 1361 et seq.), the conjunction with the Council’s Portal to the Commission. The purpose regulations governing the taking and forthcoming action on Chinook salmon of the Commission’s action is to afford importing of marine mammals (50 CFR bycatch management measures. The the commenter whose submission was part 216), the Endangered Species Act of Committee will receive presentations not received, the opportunity to 1973, as amended (ESA; 16 U.S.C. 1531 and then provide their written resubmit the comment. The Chicago et seq.), the regulations governing the comments and recommendations on Mercantile Exchange Inc. (‘‘CME’’), a taking, importing, and exporting of these proposals to the Council for its registered derivatives clearing endangered and threatened species (50 consideration. organization, and the Board of Trade of CFR parts 222–226), and the Fur Seal Although non-emergency issues not the City of Chicago, Inc. (‘‘CBOT’’), a Act of 1966, as amended (16 U.S.C. 1151 contained in this agenda may come designated contract market, requested et seq.). before this group for discussion, those an exemption that would permit the The amendment (No. 704–1698–01) issues may not be the subject of formal clearing of OTC agricultural swaps. extends the expiration date of the action during this meeting. Action will Authority for extending this relief is permit from December 31, 2008 to be restricted to those issues specifically found in Section 4(c) of the Commodity 1 December 31, 2009. listed in this notice and any issues Exchange Act. Issuance of this permit amendment, as arising after publication of this notice DATES: Comments must be received on required by the ESA, was based on a that require emergency action under or before January 21, 2009. finding that such amendment: (1) was section 305(c) of the Magnuson-Stevens applied for in good faith; (2) will not Fishery Conservation and Management 1 7 U.S.C. 6(c).
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ADDRESSES: Comments may be which the Commission accepts ADDRESSES: You may submit comments, submitted by any of the following comments. identified by docket number and title, methods: by any of the following methods: II. Specific Information • Federal eRulemaking Portal: http:// • Federal eRulemaking Portal: http:// www.regulations.gov/http:// The Commission is reopening the www.regulations.gov. Follow the frwebgate.access.gpo/cgi-bin/leaving. period for public comment specifically instructions for submitting comments. Follow the instructions for submitting to afford the commenter, whose • Mail: Federal Docket Management comments. submission was not received, the System Office, 1160 Defense Pentagon, • E-mail: [email protected]. Include opportunity to resubmit the comment. Washington, DC 20301–1160. ‘‘CME/CBOT Section 4(c) Petition’’ in In addition, any other member of the Instructions: All submissions received the subject line of the message. public may submit a comment during must include the agency name, docket • Fax: 202–418–5521. the reopened comment period. The number and title for this Federal • Mail: Send to David A. Stawick, original notice of request for public Register document. The general policy Secretary, Commodity Futures Trading comment was published on July 7, 2008, for comments and other submissions Commission, Three Lafayette Centre, and the comment period closed on from members of the public is to make 1155 21st Street, NW., Washington, DC August 21, 2008. Please refer to 73 FR these submissions available for public 20581. 38403 (July 7, 2008) for the original viewing on the Internet at http:// • Courier: Same as mail above. notice and refer to the Commission Web www.regulations.gov as they are All comments received will be posted site (http://www.cftc.gov) to view the received without change, including any without change to http://www.cftc.gov. exemption request and comments personal identifiers or contact FOR FURTHER INFORMATION CONTACT: submitted and received as of the information. publication of this notice. Sarah E. Josephson, Special Counsel, FOR FURTHER INFORMATION CONTACT: To 202–418–5684, [email protected], or Issued in Washington, DC, on December request more information on this Phyllis P. Dietz, Associate Director, 24, 2008 by the Commission. proposed information collection or to 202–418–5449, [email protected], David A. Stawick, obtain a copy of the proposal and Division of Clearing and Intermediary Secretary of the Commission. associated collection instruments, Oversight, Commodity Futures Trading [FR Doc. E8–31132 Filed 12–30–08; 8:45 am] please write to Lt. Col. Judith Schulik, Commission, Three Lafayette Centre, BILLING CODE 6351–01–P TRICARE Policy and Operations, 1155 21st Street, NW., Washington, DC TRICARE Management Activity, 5111 20581. Leesburg Pike, Suite 810, Falls Church, SUPPLEMENTARY INFORMATION: DEPARTMENT OF DEFENSE VA 22041, telephone (703) 681–0039. Title; Associated Form; and OMB I. General Information Office of the Secretary Number: Certification of non- Pursuant to the E-Government Act of contributory TRICARE supplemental [Docket ID: DoD–2008–HA–0167] 2002, Pub. L. 107–347, in January 2003, insurance plan; OMB Control Number the interagency eRulemaking Program Proposed Collection; Comment 0720–TBD. launched http://www.regulations.gov Request Needs and Uses: Section 707 of the (the Federal eRulemaking Portal) to John Warner National Defense provide citizens with an online portal to AGENCY: Office of the Assistant Authorization Act for Fiscal Year 2007 learn about proposed regulations and to Secretary of Defense for Health Affairs, added section 1097c to Title 10. Section submit comments. The Commission DoD. 1097c prohibits employers from offering receives comments through five distinct ACTION: Notice. financial or other incentives to certain methods, including the Federal TRICARE-eligible employees to not eRulemaking Portal. In compliance with section enroll in an employer-offered group- During the time from March 22, 2008 3506(c)(2)(A) of the Paperwork health plan. In other words, employers through September 8, 2008, the Federal Reduction Act of 1995, the Office of the may no longer offer TRICARE eRulemaking Portal experienced a Assistant Secretary of Defense for supplemental insurance plans as part of software problem resulting in the non- Health Affairs announces a proposed an employee benefit package. Employers transmittal of some public comments. public information collection and seeks may, however, offer TRICARE The software error affected only a few public comment on the provisions supplemental insurance plans as part of federal agencies. The eRulemaking thereof. Comments are invited on: (a) an employee benefit package provided Program informed the Commission that Whether the proposed collection of the plan is not paid for in whole or in one comment regarding CME and information is necessary for the proper part by the employer and is not CBOT’s requested 4(c) exemption to performance of the functions of the endorsed by the employer. When such permit clearing of OTC corn basis swaps agency, including whether the TRICARE supplemental plans are and corn, wheat, and soybean calendar information shall have practical utility; offered, the employer must properly swaps was not transmitted from the (b) the accuracy of the agency’s estimate document that they did not provide any eRulemaking Portal to the Commission. of the burden of the proposed payment for the benefit nor receive any The eRulemaking Program was unable information collection; (c) ways to direct or indirect consideration or to provide any information regarding enhance the quality, utility, and clarity compensation for offering the benefit; the identity of the commenter or nature of the information to be collected; and the employer’s only involvement is of the lost comment. It is the (d) ways to minimize the burden of the providing the administrative support. Commission’s understanding that the information collection on respondents, That certification will be provided upon transmission problem has been including through the use of automated request to the Department of Defense. corrected, and safeguards are now in collection techniques or other forms of Affected Public: Business or other for place to ensure this error will not occur information technology. profit; Not-for-profit institutions. in the future. This software problem DATES: Consideration will be given to all Annual Burden Hours: 250. affected none of the other methods by comments received by March 2, 2009. Number of Respondents: 1,500.
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Responses per Respondent: 1. collection of information is necessary Annual Burden Hours: 9,150. Average Burden per Response: 10 for the proper performance of the Number of Respondents: 36,599. minutes. functions of the agency, including Responses per Respondent: 1. Frequency: On occasion. whether the information shall have Average Burden per Response: 45 SUPPLEMENTARY INFORMATION: practical utility; (b) the accuracy of the minutes. agency’s estimate of the burden of the Frequency: Every 3 years. Summary of Information Collection proposed information collection; (c) SUPPLEMENTARY INFORMATION: Respondents are employers who make ways to enhance the quality, utility, and Summary of Information Collection available non-contributory TRICARE clarity of the information to be supplemental insurance plan to their collected; and (d) ways to minimize the Persons eligible to respond to this employees. This new paperwork burden of the information collection on survey are those civilians now separated requirement is consistent with section respondents, including through the use from military service who initially 707 of the John Warner National of automated collection techniques or enrolled, gave consent and participated Defense Authorization Act for Fiscal other forms of information technology. in the Millennium Cohort Study while on active duty in the Army, Navy, Air Year 2007 which added Section 1097c DATES: Consideration will be given to all to Title 10. Per Section 1097c, comments received by March 2, 2009. Force, Marine Corps or U.S. Coast Guard during the first, second, or third panel employers may no longer offer TRICARE ADDRESSES: You may submit comments, supplemental insurance plans as part of enrollment periods in 2001–2003, 2004– identified by docket number and title, 2006, or 2007–2008, respectively. an employee benefit package. They may by any of the following methods: offer TRICARE supplemental insurance • Federal eRulemaking Portal: http:// Dated: December 22, 2008. plans, however, provided the plan is not www.regulations.gov. Follow the Patricia L. Toppings, paid for in whole or in part by the instructions for submitting comments. OSD Federal Register Liaison Officer, employer and is not endorsed by the • Mail: Federal Docket Management Department of Defense. employer. When such TRICARE System Office, 1160 Defense Pentagon, [FR Doc. E8–31047 Filed 12–30–08; 8:45 am] supplemental plans are offered, the Washington, DC 20301–1160. BILLING CODE 5001–06–P employer must properly document that Instructions: All submissions received they did not provide any payment for must include the agency name, docket the benefit nor receive any direct or number and title for this Federal DEPARTMENT OF DEFENSE indirect consideration or compensation Register document. The general policy for offering the benefit; the employer’s for comments and other submissions Office of the Secretary only involvement is providing the from members of the public is to make administrative support. One these submissions available for public Announcement of Federal Funding certification must be completed per viewing on the Internet at http:// Opportunity employer. It should be kept on file by www.regulations.gov as they are AGENCY: Office of Economic the employer for as long as such plans received without change, including any Adjustment, DoD. are offered. The employer will provide personal identifiers or contact ACTION: Notice. the certification to the Department of information. Defense upon request. FOR FURTHER INFORMATION CONTACT: To SUMMARY: This notice announces the Dated: December 22, 2008. request more information on this opportunity to enter into a cooperative agreement with the Office of Economic Patricia L. Toppings, proposed information collection or to obtain a copy of the proposal and Adjustment (OEA) for Research and OSD Federal Register Liaison Officer, Technical Assistance (RTA) and invites Department of Defense. associated collection instruments, please write to Naval Health Research proposals. The OEA is authorized by 10 [FR Doc. E8–31046 Filed 12–30–08; 8:45 am] U.S.C. 2391, to make grants to, or BILLING CODE 5001–06–P Center, DoD Center for Deployment Health Research, Department 164, conclude cooperative agreements or ATTN: Tyler C. Smith, MS, PhD, 140 enter into contracts with, a State or local DEPARTMENT OF DEFENSE Sylvester Rd., San Diego, CA 92106– government or any private entity to 3521, or call (619) 553–7593. conduct research and provide technical Office of the Secretary Title; Associated Form; and OMB assistance in support of the Defense Number: Prospective Department of Economic Adjustment Program, and [Docket ID: DoD–2008–HA–0168] Defense Studies of U.S. Military Forces: assist communities, businesses and The Millennium Cohort Study—OMB workers responding to Defense changes Proposed Collection; Comment under 10 U.S.C. 2391 and Executive Request Control Number 0720–0029. Needs and Uses: The Millennium Order 12788, as amended. OEA is the AGENCY: Office of the Assistant Cohort Study responds to recent Department of Defense’s primary source Secretary of Defense for Health Affairs, recommendations by Congress and by for assisting communities that are DoD. the Institute of Medicine to perform adversely impacted by Defense program changes, including base closures or ACTION: Notice. investigations that systematically collect population-based demographic and realignments, base expansions, and In compliance with section health data so as to track and evaluate contract or program cancellations. 3506(c)(2)(A) of the Paperwork the health of military personnel Awards provided under this Reduction Act of 1995, the Office of the throughout the course of their careers announcement support the Defense Assistant Secretary of Defense for and after leaving military service. Economic Adjustment Program by: (1) Health Affairs announces the proposed Affected Public: Civilians, formerly Providing analysis and dissemination of extension of a public information Active Duty and activated Reservists in information; and (2) support to collection and seeks public comment on the U.S. Military, who enrolled and innovative approaches. the provisions thereof. Comments are participated in Panels 1, 2, and 3 of the DATES: OEA will hold a pre-proposal invited on: (a) Whether the proposed Millennium Cohort Study. teleconference on Tuesday, January 27,
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2009, at 3 p.m. EST in which all economic indicators on a recurring basis Base name State interested respondents are invited to to certain Defense-impacted locations participate. A completed proposal must engaged in defense economic Fort Drum ...... NY be received by OEA no later than sixty adjustment. Currently, OEA works with Fort Gillem ...... GA (60) days after the publication date of communities/regions experiencing base Fort Hood ...... TX this announcement. Any proposal closure, realignment, and mission Fort Knox ...... KY Fort Lee ...... VA received after this time will be growth. Implementation of a Fort Lewis/McChord Air Force Base WA considered non-responsive and the community’s plan to redevelop surplus Fort McPherson ...... GA respondent will not be invited to make property (base closure) or address Fort Meade ...... MD a formal application for funding. OEA public requirements associated with Fort Monmouth ...... NJ will invite the successful respondent(s) mission growth may be impacted by Fort Monroe ...... VA to apply for funding under this changing economic conditions, Fort Polk ...... LA announcement following its review of including, but not limited to, declining Fort Riley ...... KS proposals and determination of eligible home values, rising unemployment, Fort Sam Houston ...... TX respondents, which will occur labor surplus areas, declining tax Fort Sill ...... OK Fort Stewart/Hunter Army Air Field GA subsequent to the 61st day following revenue, and housing/business starts. Four Lakes Combat Support ...... WA publication of this announcement. Specifically, OEA is seeking proposals Galena Forward Operating Location AK ADDRESSES: All interested respondents to provide information to its program Grand Forks Air Force Base ...... ND are to submit a proposal within the customer base on: (1) Adjusted monthly Guam Military Complex ...... Guam advertised solicitation period (sixty (60) economic data for regions hosting the Kansas Army Ammunition Plant ..... KS days). Proposals may be submitted to military installations listed below; and Marine Corps Base Camp Lejeune/ NC OEA by e-mail, hand-delivery, or postal (2) a national baseline for identified Marine Corps Air Station New mail. Send submissions to the Director, economic indicators. This information River/Marine Corps Air Station will be developed with and for the Cherry Point. Office of Economic Adjustment, by mail Marine Corps Base Quantico ...... VA to 400 Army Navy Drive, Suite 200, affected communities, and posted on the Naval Air Station Brunswick ...... ME Arlington, VA 22202–4704, by facsimile Internet to further assist OEA’s Naval Air Station Corpus Christi/ TX to OEA at (703) 604–5460, or community, state and other customers Naval Station Ingleside. electronically to: in the coordination and delivery of Naval Air Station Willow Grove ...... PA [email protected]. adjustment assistance. OEA desires to Naval Medical Center Bethesda ..... MD A pre-proposal teleconference will be have the first set of information to the Naval Station Pascagoula ...... MS held on Tuesday, January 27, 2009, at 3 specific communities/regions by Naval Supply Corps School Athens GA p.m. EST to review the goals and Summer 2009, with periodic updates to Naval Support Activity Crane ...... IN extend through September 2013. Naval Support Activity New Orleans LA objectives of this funding opportunity Naval Weapons Station Seal Beach CA and answer questions from interested 2. Additional Information—The Concord Detachment. respondents. For the teleconference research and data must be dynamic, in Newport Chemical Depot ...... IN number and passcode, interested that it will be updated on a periodic Onizuka Air Force Station ...... CA respondents may contact OEA Office of basis to reflect current local economic Red River Army Depot/Lone Star TX Economic Adjustment, 400 Army Navy situations across a portfolio of regions. Army Ammunition Plant. Drive, Suite 200, Arlington, VA 22202– Respondents will be expected to engage Redstone Arsenal ...... AL 4704; telephone: (703) 604–6020; fax: the identified communities and provide Riverbank Army Ammunition Plant CA (703) 604–5843; E-mail: specific information developed by the Rock Island Arsenal ...... IL project directly to the respective Selfridge Army Activity ...... MI [email protected]. Sheppard Air Force Base ...... TX communities. OEA encourages FOR FURTHER INFORMATION CONTACT: Umatilla Army Depot ...... OR respondents to consider partnering with Daniel Glasson, (703) 604–6020. Walter Reed Army Medical Center DC public, private, and higher education SUPPLEMENTARY INFORMATION: White Sands Missile Range ...... NM sources for existing economic data or Federal Funding Opportunity Title: techniques for adjusting economic data Research and Technical Assistance. II. Award Information to reflect local conditions. Announcement Type: Federal 3. List of military installations where OEA is accepting proposals for Funding Opportunity (FFO). regional economic data is sought—(OEA Catalog of Federal Domestic Research and Technical Assistance reserves the right to add to or change Assistance (CFDA) Number: 12.615. award(s). Proposals should pertain to this list.) the identified areas of interest and will I. Funding Opportunity Description be rated on content (relevance and OEA, a Department of Defense (DoD) Base name State appropriateness to OEA’s core Field Activity, is authorized to make functions, qualifications of project Aberdeen Proving Ground ...... MD personnel, responsiveness to this grants to, or conclude cooperative Andrews Air Force Base ...... MD agreements or enter into contracts with, Army Reserve Personnel Com- MO announcement, and budget). OEA will state or local governments or any private mand St. Louis. invite successful respondent(s) to enter entity, to conduct research and provide Brooks City Base ...... TX into a cooperative agreement under this technical assistance in support of its Buckley Air Force Base Annex ...... CO announcement following its review of program activities under 10 U.S.C. 2391 Cannon Air Force Base ...... NM proposals and determination of eligible and Executive Order 12788, as Charles E. Kelly Support Facility .... PA respondents which will occur Deseret Chemical Depot ...... UT amended. subsequent to the 61st day following Eglin Air Force Base ...... FL publication of this announcement. 1. Description of opportunity— Fort Belvoir ...... VA Pursuant to the Research and Technical Fort Benning ...... GA III. Eligibility Information Assistance program, OEA is soliciting Fort Bliss ...... TX proposals that will result in one or more Fort Bragg/Pope Air Force Base .... NC Eligible respondents include any State cooperative agreements to provide Fort Carson ...... CO or local government or private entity.
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Eligible activities include research Adjustment, by mail to 400 Army Navy Education, Hospitals, and other Non- and technical assistance that pertains to Drive, Suite 200, Arlington, VA 22202– Profit Organizations; 32 CFR, Part 34, activities related to the Defense 4704, by facsimile to OEA at (703) 604– Administrative Requirements for Grants Economic Adjustment Program aimed at 5460, or electronically to: and Agreements with For-Profit assisting communities, businesses, and [email protected]. Organizations; OMB Circular A–21 Cost workers affected by Defense changes V. Application Review Information Principles for Educational Institutions; under 10 U.S.C. 2391 and Executive OMB Circular A–122, Cost Principles Order 12788, as amended. OEA 1. Selection Criteria—In reviewing for Non Profit Organizations; 32 CFR specifically seeks proposals on: proposals under this Notice, OEA Part 28, ‘‘New Restrictions on Lobbying • Research leading to the recurring considers and equally weights each of (Grants)’’; and 2 CFR Part 175, ‘‘Award presentation of current local economic the following factors as a basis for Term for Trafficking in Persons.’’ indicator data for regions impacted by inviting applications: Defense downsizing or mission growth, • Overall conformance with proposal 3. Reporting—OEA requires interim based on the two elements identified in requirements; performance reports and one final section I, subsection 1 of this • Overall quality of proposed performance report for each award. The announcement. research; performance reports will contain Proposals outside the identified areas • Overall expertise, experience, information on the following: of interest will not be considered. qualifications and ability of • A comparison of actual investigators; and IV. Application and Submission • accomplishments to the objectives Overall reasonableness of budgeted established for the reporting period; Information expenditures. The process requires each interested 2. Review and Selection Process— • Reasons for slippage if established respondent to submit a proposal within OEA will assign a Project Manager and objectives were not met; the advertised solicitation period (sixty notify respondent(s) as soon as • Additional pertinent information (60) days). OEA will hold a pre- practicable following its review of when appropriate; application teleconference on Tuesday, proposals and determination of • A comparison of actual and January 27, 2009, at 3 p.m. EST in eligibility, to advise and assist with the projected expenditures for the period; which all prospective respondents are preparation of an application. invited to participate. OEA will make a Applications will be reviewed for their • The amount of awarded funds on brief presentation that reviews the goals completeness and accuracy, and, to the hand at the beginning and end of the and objectives of the RTA funding extent possible, an award notification reporting period. opportunity and will answer questions will be issued within fourteen (14) days from the teleconference participants. of the receipt of a complete application. The final performance report must For the teleconference number and contain a summary of activities for the passcode, interested parties may contact VI. Award Administration Information entire award period. All remaining OEA as specified in section VII. 1. Award Notices—To the extent required deliverables should be Each proposal submitted must possible, successful applicants will be submitted with the final performance include a cover or transmittal letter and notified within fourteen (14) days of the report. The final SF 269A, ‘‘Financial accompanying text that shall consist of receipt at OEA of a complete application Status Report,’’ must be submitted to no more than 10 pages (single-sided), whether or not they will receive an OEA within ninety (90) days after the comprising: award. Upon notification of an award, end date of the award. Any funds • An abstract of the proposed applicants will receive an award actually advanced and not needed for research or technical assistance; agreement, signed by the Director of award purposes shall be returned • A description of the scope of work OEA on behalf of DoD. Awardees must immediately to OEA. required to address the challenge review the award agreement and OEA will provide a schedule for identified to include: indicate their consent to its terms by Æ Specific economic indicators or reporting periods and report due dates signing and returning it to OEA. in the Award Agreement. types of indicators proposed to be 2. Administrative and National Policy obtained or developed to reflect near Requirements—The Awardee, and any VII. Agency Contacts real-time economic conditions; Æ subawardee or consultant/contractor, Methods for obtaining or operating under the terms of a grant or For further information, to answer developing the indicators; questions, or for help with problems, Æ cooperative agreement shall comply The respondent’s plan for engaging with all Federal, State, and local laws contact: Daniel Glasson, Project the impacted communities for each of including the following, where Manager, Office of Economic the listed installations during applicable: 32 CFR Part 33, ‘‘Uniform Adjustment, 400 Army Navy Drive, development of the information and for Administrative Requirements for Grants Suite 200, Arlington, VA 22202–4704, evaluating the usefulness of information and Cooperative Agreements to State O: (703) 604–6020, F: (703) 604–5843, E- provided; mail: [email protected]. Æ Methods for distributing the and Local Governments’’; OMB information to the impacted Circulars A–87, ‘‘Cost Principles for VIII. Other Information communities. State and Local Governments’’ and the • A proposed budget and revised A–133, ‘‘Audits of States, Local The Office of Economic Adjustment accompanying budget justification; Governments and Non-Profit Internet address is http://www.oea.gov. • Organizations’’; 32 CFR Part 25, Detailed description of the project Dated: December 22, 2008. ‘‘Government-wide Debarment and team and their relevant experience; Patricia L. Toppings, • A project schedule for completion Suspension (Non-procurement)’’; 32 of the work; CFR Part 26, ‘‘Drug-free Workplace’’; 32 OSD Federal Register Liaison Officer, • A point of contact. CFR, Part 32, Uniform Administrative Department of Defense. Proposals must be provided to: Requirements for Grants and [FR Doc. E8–31045 Filed 12–30–08; 8:45 am] Director, Office of Economic Agreements to Institutions of Higher BILLING CODE 5001–06–P
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DEPARTMENT OF DEFENSE SYSTEM LOCATION: administration and regulation of the Office of the Professional delivery of legal services by offices and Department of the Air Force Responsibility Administrator, Office of personnel under his jurisdiction. the Air Force Judge Advocate General, To ensure the proper qualifications [Docket ID: USAF–2008–0061] 1420 Air Force Pentagon, Washington, for the practice of law are met and DC 20330–1420; maintained by each attorney practicing Privacy Act of 1974; System of Army-Air Force Exchange Service under the direct or indirect supervision Records Headquarters, General Counsel, P.O. of The Judge Advocate General. Box 660202, Dallas, TX 75266–0202; To ensure licensing agencies of the AGENCY: Department of Air Force, DoD. Defense Commissary Agency individual states (including the District ACTION: Notice to Amend Seven Systems Headquarters, General Counsel, of Columbia, Puerto Rico, Guam, of Records. Building P11200, Fort Lee, VA 23801; American Samoa, the U.S. Virgin and Islands and the Commonwealth of the SUMMARY: The Department of Air Force Defense Logistics Agency, Judge Northern Mariana Islands), and the proposes to amend seven systems of Advocate, Alexandria, VA 22310–6130. various courts that licensed Air Force records to its inventory of record The Judge Advocate’s office at attorneys are advised of adverse systems subject to the Privacy Act of headquarters of major commands, field determinations documenting violations 1974 (5 U.S.C. 552a), as amended. operating offices, and unified of the rules of professional DATES: The changes will be effective on commands. Official mailing addresses responsibility affecting an attorney’s January 30, 2009 unless comments are are published as an appendix to the Air fitness to practice law, this in an effort received that would result in a contrary Force’s compilation of systems of to protect the Air Force and the general determination. records notices. public from substandard legal National Guard Bureau, Judge ADDRESSES: Send comments to the Air practitioners. Advocate’s Office (NGB/JA), 1411 Force Privacy Act Officer, Office of To record the disposition of Jefferson Davis Highway, Arlington, VA Warfighting Integration and Chief professional responsibility complaints 22202. Information Officer, SAF/XCISI, 1800 and to document professional Air Force Pentagon, Suite 220, CATEGORIES OF INDIVIDUALS COVERED BY THE responsibility violations and corrective Washington, DC 20330–1800. SYSTEM: action taken. FOR FURTHER INFORMATION CONTACT: Mr. Judge advocates (active duty, reserve, or guard), civilian attorneys employed ROUTINE USES OF RECORDS MAINTAINED IN THE Kenneth Brodie at (703) 696–7557. SYSTEM, INCLUDING CATEGORIES OF USERS AND by The Judge Advocate General’s Corps SUPPLEMENTARY INFORMATION: The THE PURPOSES OF SUCH USES: and civilian attorneys subject to the Department of the Air Force systems of In addition to those disclosures records notices subject to the Privacy disciplinary authority of The Judge Advocate General who have been the generally permitted under 5 U.S.C. Act of 1974, (5 U.S.C. 552a), as 552a(b) of the Privacy Act, these amended, have been published in the subject of a complaint related to their professional conduct. records, or information contained Federal Register and are available from therein, may specifically be disclosed the address above. CATEGORIES OF RECORDS IN THE SYSTEM: outside the DoD as a routine use The specific changes to the record Records include, but are not limited pursuant to 5 U.S.C. 552a(b)(3) as systems being amended are set forth to name, address, social security follows: below followed by the notice, as number (SSN); complaints with To federal and state agencies or bar amended, published in its entirety. The substantiating documents; letters/ associations charged with licensing and proposed amendments are not within transcriptions of complaints, allegations authorizing attorneys to practice law, the purview of subsection (r) of the and queries; letters of appointment; and to various courts authorizing Privacy Act of 1974, (5 U.S.C. 552a), as reports of reviews, inquiries, and attorneys to practice before said courts, amended, which requires the investigations with supporting in order to protect the public and ensure submission of a new or altered system attachments, exhibits and photographs; the proper administration of justice. report. records of interviews; witness To current and potential Dated: December 23, 2008. statements; recommendations; reports of governmental employers during Morgan E. Frazier, legal reviews of case files; reports of authorized background checks to assist Alternate OSD Federal Register Liaison Advisory Committee reviews; their efforts to protect the public and Officer, Department of Defense. congressional responses; memoranda; ensure the proper administration of letters and reports of findings and justice. F051 AF JA A actions taken; letters to complainants The ‘Blanket Routine Uses’ published and subjects of investigations; letters of SYSTEM NAME: at the beginning of the Air Force’s rebuttal from subjects; financial, compilation of systems of records Judge Advocate General’s Professional personnel, administrative, adverse notices apply to this system. Conduct Files (April 30, 2008, 73 FR information, and technical reports. 23434). POLICIES AND PRACTICES FOR STORING, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RETRIEVING, ACCESSING, RETAINING, AND CHANGES: 10 U.S.C. 8037, Judge Advocate DISPOSING OF RECORDS IN THE SYSTEM: Change System ID to ‘‘F051 AFJA E.’’ General, Deputy Judge Advocate STORAGE: * * * * * General: Appointment and duties; RCM 109, Manual for Courts-Martial, 1984 Maintained in file folders, in F051 AFJA E and Executive Order 9397 (SSN). computer, and on computer output products. SYSTEM NAME: PURPOSE(S): Judge Advocate General’s Professional To assist The Judge Advocate General RETRIEVABILITY: Conduct Files. in the evaluation, management, Retrieved by name of individual.
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SAFEGUARDS: EXEMPTIONS CLAIMED FOR THE SYSTEM: personnel and civilian employees in the Records are accessed by person(s) Exemption (k)(2), 5 U.S.C. 552a. same categories when assigned to responsible for servicing the record Investigatory material compiled for law headquarters of unified and specified system in performance of their official enforcement purposes, other than commands for which Air Force is duties and by authorized personnel who material within the scope of subsection Executive Agent. are properly screened and cleared for 5 U.S.C. 552a(j)(2), may be exempt CATEGORIES OF RECORDS IN THE SYSTEM: need-to-know. Records are stored in pursuant to 5 U.S.C. 552a(k)(2). locked rooms and cabinets. Those in However, if an individual is denied any Contains the individual’s name, computer storage devices are protected right, privilege, or benefit for which he Social Security Number (SSN), title of by computer system software. would otherwise be entitled by Federal the individual’s position, date of Computers must be accessed with a law or for which he would otherwise be appointment in present position, agency password. eligible, as a result of the maintenance and major organization segment of the of the information, the individual will position, employment and financial RETENTION AND DISPOSAL: be provided access to the information interests, creditors, interest in real Retained in office files for three (3) except to the extent that disclosure property, a list of persons from whom years after year in which case is closed. would reveal the identity of a information can be obtained concerning Records are destroyed by tearing into confidential source. the individual’s financial situation, pieces, shredding, pulping, macerating supervisor’s evaluation, and Standards or burning. Computer records are F051 AF JA B of Conduct Counselor/Deputy Counselor review. destroyed by erasing, deleting or SYSTEM NAME: overwriting. Confidential Financial Disclosure AUTHORITY FOR MAINTENANCE OF THE SYSTEM: SYSTEM MANAGER(S) AND ADDRESS: Report. (December 15, 2008, 73 FR 10 U.S.C. 8013, Secretary of the Air Office of The Judge Advocate General, 76013) Force, 10 U.S.C. 8037, Judge Advocate General; Title I of the Ethics in Professional Responsibility CHANGES: Government Act of 1978 (5 U.S.C. Administrator, 1420 Air Force Pentagon, Change System ID to ‘‘F051 AFJA F.’’ Washington, DC 20330–1420. App.); E.O. 12674, Principles of Ethical * * * * * Conduct for Government Officers and NOTIFICATION PROCEDURE: Employees; 5 CFR part 2634; and E.O. F051 AFJA F Individuals seeking to determine 9397 (SSN). whether this system of records contains SYSTEM NAME: PURPOSE(S): information about themselves should Confidential Financial Disclosure Used in order to determine potential address written inquiries to the Office of Report. The Judge Advocate General, or actual conflicts of interest in the Professional Responsibility SYSTEM LOCATION: performance of official duties. Administrator, 1420 Air Force Pentagon, Office of the General Counsel, Office ROUTINE USES OF RECORDS MAINTAINED IN THE Washington, DC 20330–1420. of the Secretary of the Air Force, 1740 SYSTEM, INCLUDING CATEGORIES OF USERS AND Written inquiries should include full Air Force Pentagon, Washington, DC THE PURPOSES OF SUCH USES: name, mailing address, and Social 20330–1740; The Judge Advocate In addition to those disclosures Security Number (SSN). General, Headquarters United States Air generally permitted under 5 U.S.C. Force, 1420 Air Force Pentagon, 552a(b) of the Privacy Act, these records RECORD ACCESS PROCEDURES: Washington, DC 20330–1420; or information contained therein may Individuals seeking access to records Headquarters of major commands and at specifically be disclosed outside the about themselves contained in this all levels down to and including Air Department of Defense as a routine use system should address written requests Force installations, and unified pursuant to 5 U.S.C. 552a(b)(3) as to the Office of The Judge Advocate commands for which Air Force is follows: General, Professional Responsibility Executive Agent. Official mailing The DoD ‘Blanket Routine Uses’ Administrator, 1420 Air Force Pentagon, addresses are published as an appendix published at the beginning of the Air Washington, DC 20330–1420. to the Air Force’s compilation of Force’s compilation of systems of Written inquiries should include full systems of records notices. records notices apply to this system. name, mailing address, and Social Security Number (SSN). CATEGORIES OF INDIVIDUALS COVERED BY THE POLICIES AND PRACTICES FOR STORING, SYSTEM: RETRIEVING, ACCESSING, RETAINING, AND CONTESTING RECORD PROCEDURES: Civilian personnel; Air Force military DISPOSING OF RECORDS IN THE SYSTEM: The Air Force rules for accessing personnel in the rank of colonel or STORAGE: below whose basic duties and records, and for contesting contents and Papers records in file folders and responsibilities require the exercise of appealing initial agency determinations, electric storage media. are published in Air Force Instruction judgment on Government decision 37–132; 32 CFR part 806b; or may be making or taking action on (1) the RETRIEVABILITY: obtained from the system manager. administering or monitoring of grants or Retrieved by name or Social Security subsidies, (2) contracting or Number (SSN). RECORD SOURCE CATEGORIES: procurement, (3) auditing, or (4) any Information is received from other government activity in which the SAFEGUARDS: individuals; federal, state and local final decision or action has a significant Records are accessed by authorized authorities; other Air Force records; economic impact on the interest of any personnel as necessary to accomplish state bar records; law enforcement non-federal enterprise; and special their official duties. Paper records are records; educational records; Government employees who are stored in locked rooms and cabinets. complainants; inspectors; witnesses and ‘advisors’ or ‘consultants.’ Army, Navy, The computer storage devices are subjects of inquiries. Air Force, and Marine Corps active duty protected by computer system software.
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RETENTION AND DISPOSAL: F051 AF JA C specifically be disclosed outside the DoD as a routine use pursuant to 5 Retained for six years after which they SYSTEM NAME: U.S.C. 552a(b)(3) as follows: shall be disposed of, unless needed in Legal Assistance Administration an ongoing investigation. Those records The ‘Blanket Routine Uses’ published Records. (November 17, 2008, 73 FR at the beginning of the Air Force’s retained for an ongoing investigation 67843). will be disposed of when no longer compilation of systems of records needed in the investigation. Paper CHANGES: notices apply to this system. records are disposed of by tearing into Change System ID to ‘‘F051 AFJA G.’’ POLICIES AND PRACTICES FOR STORING, pieces, shredding, pulping, macerating * * * * * RETRIEVING, ACCESSING, RETAINING, AND or burning. Computer records are DISPOSING OF RECORDS IN THE SYSTEM: destroyed by deleting, erasing, F051 AFJA G STORAGE: degaussing, or by overwriting. SYSTEM NAME: Paper records in file folders and SYSTEM MANAGER(S) AND ADDRESS: Legal Assistance Administration electronic storage media. Records. The Assistant General Counsel for RETRIEVABILITY: Civilian Personnel and Fiscal Law, SYSTEM LOCATION: Retrieved by name or Social Security Office of the General Counsel, Office of The Judge Advocate General, Number (SSN). the Secretary of the Air Force, 1740 Air Headquarters United States Air Force, Force Pentagon, Washington, DC 20330– 1420 Air Force Pentagon, Washington, SAFEGUARDS: 1740 DC 20330–1420–1420. At Headquarters Records are accessed by person(s) The Judge Advocate General, of major commands and at all levels responsible for servicing the record Headquarters United States Air Force, down to and including Air Force system in performance of their official 1420 Air Force Pentagon, Washington, installations. duties and by authorized personnel who DC 20330–1420. Official mailing addresses are are properly screened and cleared for published as an appendix to the Air need-to-know. Records are stored in NOTIFICATION PROCEDURE: Force’s compilation of record systems locked rooms and cabinets. Those in notices. computer storage devices are protected Individuals seeking to determine by computer system software. whether this system of records contains CATEGORIES OF INDIVIDUALS COVERED BY THE Computers must be accessed with a information on themselves should SYSTEM: password. address written inquiries to or visit the Active duty and retired military system manager or Deputy Standards of personnel, and their dependents and Air RETENTION AND DISPOSAL: Conduct Counselor at any system Force civilian personnel stationed Retained in office files until location. overseas. superseded, obsolete, no longer needed Written inquiries should include a CATEGORIES OF RECORDS IN THE SYSTEM: for reference, or on inactivation, then full name, Social Security Number destroyed by tearing into pieces, Individual’s name, Social Security (SSN), address, daytime telephone shredding, pulping, macerating, or Number (SSN), financial records, number and a signature. burning. Computer records are personnel files, leases, tax documents, destroyed by erasing, deleting or personal letters and documents, and all RECORD ACCESS PROCEDURES: overwriting. other information necessary to provide Individuals seeking to access records advice and assistance to personnel SYSTEM MANAGER(S) AND ADDRESS: about themselves contained in this seeking legal assistance. system should address written requests The Judge Advocate General, to the system manager or Deputy AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Headquarters, United States Air Force, Standards of Conduct Counselor at any 10 U.S.C. 8013, Secretary of the Air 1420 Air Force Pentagon, Washington, system location. Force; 10 U.S.C. 8037, Judge Advocate DC 20330–1420. Written inquiries should include a General, Deputy Judge Advocate NOTIFICATION PROCEDURE: full name, Social Security Number General: Appointment and duties; Air Individuals seeking to determine (SSN), address, daytime telephone Force Instruction 51–504, Legal whether this system of records contains number and a signature. Assistance, Notary, and Preventive law information on themselves should Programs; and E.O. 9397(SSN). address written inquiries to The Judge CONTESTING RECORD PROCEDURES: PURPOSE(S): Advocate General, Headquarters United The Air Force rules for accessing Records are used and maintained to States Air Force, 1420 Air Force records, and for contesting contents and provide continuing legal assistance to Pentagon, Washington, DC 20330–1420. appealing initial agency determinations clients; by Department of Defense Requests should include name and are published in Air Force Instruction employees to complete their official Social Security Number (SSN). 33–332; 32 CFR part 806b; or may be duties; to manage the legal assistance RECORD ACCESS PROCEDURES: obtained from the system manager. program; and used to assist the client Individuals seeking to access records with personal legal issues. RECORD SOURCE CATEGORIES: about themselves contained in this ROUTINE USES OF RECORDS MAINTAINED IN THE system should address written requests Information is obtained from the SYSTEM, INCLUDING CATEGORIES OF USERS AND to The Judge Advocate General, individual or from personnel designated THE PURPOSES OF SUCH USES: Headquarters United States Air Force, by the individual. In addition to those disclosures 1420 Air Force Pentagon, Washington, generally permitted under 5 U.S.C. DC 20330–1420. EXEMPTIONS CLAIMED FOR THE SYSTEM: 552a(b) of the Privacy Act, these records Requests should include name and None. or information contained therein may Social Security Number (SSN).
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CONTESTING RECORD PROCEDURES: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: The computer storage devices are The Air Force rules for accessing 10 U.S.C. 8013, Secretary of the Air protected by computer system software. records, and for contesting contents and Force, 10 U.S.C. 8037, Judge Advocate RETENTION AND DISPOSAL: appealing initial agency determinations General, Air Force Instruction 51–301, are published in Air Force Instruction Civil Litigation and E.O. 9397 (SSN). Records located at AFLOA/JACL are 37–132; 32 CFR part 806b; or may be retired permanently to the Washington PURPOSE(S): obtained from the system manager. National Records Center, Washington, Used by officers, employees and DC 20409–0001. Other command levels RECORD SOURCE CATEGORIES: members of the Air Force to represent dispose of records after two years upon From the individual. the United States in civil litigation; to completion of agency action. Files enable the United States and its officers, maintained in accordance with 42 EXEMPTIONS CLAIMED FOR THE SYSTEM: employees and members who are U.S.C. 2651–3 are disposed of after two None. counsel for, parties to, or otherwise years. Medical malpractice litigation F051 AF JA D involved in an official capacity in civil files are retired to the Armed Forces domestic or foreign litigation to obtain Institute of Pathology. Paper records are SYSTEM NAME: information from or consult with other disposed of by tearing into pieces, Litigation Records (Except Patents) governmental, corporate and private shredding, macerating, pulping, or (December 15, 2008, 73 FR 76010). organizations, entities and individuals burning. Computer records are regarding litigation decisions to be made destroyed by deleting, erasing, CHANGES: by The Judge Advocate General and the degaussing, or by overwriting. Change System ID to ‘‘F051 AFJA H.’’ Department of Justice; to obtain SYSTEM MANAGER(S) AND ADDRESS: * * * * * information from or consult with other governmental, corporate and private The Judge Advocate General, F051 AFJA H organizations, entities and individuals Headquarters United States Air Force, 1420 Air Force Pentagon, Washington, SYSTEM NAME: in order to create structured settlement DC 20330–1420; or to the Staff Judge Litigation Records (Except Patents). proposals; by the Air Force Audit Agency in conducting audits; by the Air Advocate at the concerned subordinate SYSTEM LOCATION: Force Board for Correction of Military command or installation. The Judge Advocate General, Records; and by the Defense Finance NOTIFICATION PROCEDURE: Headquarters United States Air Force, and Accounting Service and any Air Individuals seeking to determine 1420 Air Force Pentagon, Washington, Force financial management office and whether information about themselves DC 20330–1420. At Headquarters of its officers and employees. is contained in this system should Major Commands and all levels down to ROUTINE USES OF RECORDS MAINTAINED IN THE address written inquiries to The Judge and including Air Force installations SYSTEM, INCLUDING CATEGORIES OF USERS AND Advocate General, Headquarters United worldwide. Official mailing addresses THE PURPOSES OF SUCH USES: States Air Force, 1420 Air Force are published as an appendix to the Air In addition to those disclosures Pentagon, Washington, DC 20330–1420; Force’s compilation of systems of generally permitted under 5 U.S.C. or to the Staff Judge Advocate at the records notices. 552a(b) of the Privacy Act, these records concerned subordinate command or CATEGORIES OF INDIVIDUALS COVERED BY THE or information contained therein may installation. SYSTEM: specifically be disclosed outside the Written requests should be signed and All individuals who have brought suit DoD as a routine use pursuant to 5 include full name and proof of identity. U.S.C. 552a(b)(3) as follows: against, or been involved in litigation RECORD ACCESS PROCEDURES: To the Court of Federal Claims on with, the United States or its officers or Individuals seeking access to employees concerning matters related to legislative referral of private relief bills; To the Department of Veterans Affairs information about themselves contained the Department of the Air Force; in this system should address written persons against whom litigation has and its officers and employees to adjudicate claims. inquiries to The Judge Advocate been filed under 28 U.S.C. 1346b, 31 General, Headquarters United States Air U.S.C. 3702, 42 U.S.C. 2651–3, and 46 The DoD ‘Blanket Routine Uses’ published at the beginning of the Air Force, 1420 Air Force Pentagon, U.S.C. App. 741–52; dependents, Washington, DC 20330–1420; or to the witnesses, and other persons providing Force’s compilation of systems of records notices apply to this system. Staff Judge Advocate at the concerned information during the course of subordinate command or installation. litigation. POLICIES AND PRACTICES FOR STORING, Written requests should be signed and RETRIEVING, ACCESSING, RETAINING, AND include full name and proof of identity. CATEGORIES OF RECORDS IN THE SYSTEM: DISPOSING OF RECORDS IN THE SYSTEM: All records required to defend the CONTESTING RECORD PROCEDURES: STORAGE: Department of the Air Force in The Air Force rules for accessing litigation, to include: Litigants’ names; Paper records in file folders and electronic storage media. records, and for contesting contents and Social Security Numbers (SSN); court appealing initial agency determinations pleadings; reports from Department of RETRIEVABILITY: are published in Air Force Instruction Defense offices, state and federal Retrieved by name of litigant, Social 33–332; 32 CFR part 806b; or may be agencies; foreign governments; witness Security Number (SSN) and year of obtained from the system manager. statements; surveys; contracts; litigation. photographs; legal opinions; personnel, RECORD SOURCE CATEGORIES: finance, medical, and business records; SAFEGUARDS: Court records, transcripts of audits; English translations of foreign Records are accessed by authorized depositions and other hearings, documents; and environmental personnel as necessary to accomplish correspondence initiated by parties to planning documents (including their official duties. Paper records are litigation, information provided through environmental impact statements). stored in locked rooms and cabinets. witness interviews or other discovery
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methods, reports prepared by or on Military Justice; Air Force Instruction SAFEGUARDS: behalf of the Air Force, reports of 51–202, Law—Nonjudicial Punishment; Records are accessed by person(s) Federal, state, local or foreign and E.O. 9397 (SSN). responsible for servicing the record government agencies and information system in performance of their official PURPOSE(S): obtained from witnesses and claimants. duties and by authorized personnel who Records are used to investigate, are properly screened and cleared for EXEMPTIONS CLAIMED FOR THE SYSTEM: adjudicate and prosecute adverse action need-to-know. Records are stored in None. cases, Article 138 complaints, and for locked rooms and cabinets. Those in other investigations, as necessary. For F051 AF JA F computer storage devices are protected review by appellate and other by computer system software. SYSTEM NAME: authorities; for use for official purposes Computers must be accessed with a Courts-martial and Article 15 Records. by Department of Defense personnel. password. (December 8, 2008, 73 FR 74472) Also used as source documents for collection of statistical information and RETENTION AND DISPOSAL: CHANGES: used to manage cases and case Courts-martial records are retained in Change System ID to ‘‘F051 AFJA I.’’ processing. office files for 2 years following date of final action and then retired as * * * * * ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND permanent. F051 AFJA I THE PURPOSES OF SUCH USES: General and special courts-martial records are retired to the Washington In addition to those disclosures SYSTEM NAME: National Records Center, Washington, generally permitted under 5 U.S.C. Courts-martial and Article 15 Records. DC 20409–0002; 552a(b) of the Privacy Act, these Summary courts-martial and Article SYSTEM LOCATION: records, or information contained 15 records are retained in office files for Primary Location: The Judge therein, may specifically be disclosed 3 years or until no longer needed, Advocate General, Headquarters United outside the DoD as a routine use whichever is later, and then retired as States Air Force, 1420 Air Force pursuant to 5 U.S.C. 552a(b)(3) as permanent. Pentagon, Washington, DC 20330–1420. follows: Summary courts-martial and Article Secondary Locations: Headquarters Records from this system may be 15 records are forwarded to the Air Air Force Personnel Center, 550 C Street disclosed to other federal agencies and Force Personnel Center for filing in the W, Randolph Air Force Base, TX 78150– federal courts for official purposes, to individual’s permanent master 4746. include a determination of rights and personnel record. Washington National Records Center, entitlements of individuals concerned Records received or prepared in 4205 Suitland Road, Suitland, MD or the government. anticipation of judicial and non-judicial 20746–8001. The records may also be disclosed to Uniform Code of Military Justice or Headquarters of Air Force major a governmental board or agency or discharge proceedings, and data commands and all levels down to and health care professional society or maintained on Judge Advocate’s including Air Force installations. organization if such record or document computer storage are maintained until Official mailing addresses are published is needed to perform licensing or action is final or no longer needed. as an appendix to the Air Force’s professional standards monitoring; to Paper records are disposed of by compilation of systems of records medical institutions or organizations for tearing into pieces, shredding, pulping, notices. official purposes, wherein the macerating or burning. Computer individual has applied for or been CATEGORIES OF INDIVIDUALS COVERED BY THE records are destroyed by deleting, granted authority or employment to erasing, degaussing, or by overwriting. SYSTEM: provide health care services if such Individuals subject to the Uniform record or document is needed to assess SYSTEM MANAGER(S) AND ADDRESS: Code of Military Justice (10 U.S.C. 802, the professional qualifications of such The Judge Advocate General, Art. 2. Persons subject). member. Headquarters United States Air Force, To victims and witnesses of a crime CATEGORIES OF RECORDS IN THE SYSTEM: 1420 Air Force Pentagon, Washington, for the purposes of providing DC 20330–1420. Individual’s name, Social Security information consistent with the Number (SSN), records of trial by requirements of the Victim and Witness NOTIFICATION PROCEDURE: courts-martial; records of Article 15 Assistance Program and the Victims’ Individuals seeking to determine punishment; discharge proceedings; Rights and Restitution Act of 1990. whether information about themselves documents received or prepared in The DoD ‘Blanket Routine Uses’ set is contained in this system of records anticipation of administrative non- forth at the beginning of the Air Force’s should address written inquiries to The judicial and judicial proceedings; compilation of systems of records Judge Advocate General, Headquarters witness statements; police reports; other notices apply to this system. United States Air Force, 1420 Air Force reports and records from local, state or Pentagon, Washington, DC 20330–1420. federal agencies. POLICIES AND PRACTICES FOR STORING, Individuals should provide their full RETRIEVING, ACCESSING, RETAINING, AND name, Social Security Number (SSN), AUTHORITY FOR MAINTENANCE OF THE SYSTEM: DISPOSING OF RECORDS IN THE SYSTEM: Unit of assignment, date of trial and 10 U.S.C. 8013, Secretary of the Air STORAGE: type of court, date of discharge action, Force; 10 U.S.C. 8037, Judge Advocate Paper records in file folders and and date of punishment imposed in the General; 10 U.S.C. 815, Art. 15 electronic storage media. case of Article 15 action may also be Commanding officer’s nonjudicial necessary, as appropriate. punishment; 10 U.S.C. 854, Record of RETRIEVABILITY: Trial; 10 U.S.C. 938, Art. 138. Individual’s name, Social Security RECORD ACCESS PROCEDURES: Complaints of wrongs; Air Force Number (SSN) or Military Service Individuals seeking to access records Instruction 51–201, Administration of Number. about themselves contained in this
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system of records should address 806b. For additional information contact the To any other federal agency for the written inquiries to The Judge Advocate system manager. purpose of adjudicating claims and civil General, Headquarters United States Air litigation. Force, 1420 Air Force Pentagon, F051 AF JA H To state and local entity for the purpose of claims processing and civil Washington, DC 20330–1420. SYSTEM NAME: Individuals should provide their full litigation involving the Air Force. Claims Records. (November 12, 2008, name, Social Security Number (SSN), To any person or entity for the 73 FR 66867). Unit of assignment, date of trial and purpose of completing the Air Force’s type of court, date of discharge action, CHANGES: structured settlements. To foreign governments and courts, and date of punishment imposed in the Change System ID to ‘‘F051 AFJA J.’’ case of Article 15 action may also be carriers and their insurance companies * * * * * necessary, as appropriate. for all purposes involving the F051 AFJA J investigation and payment of claims CONTESTING RECORD PROCEDURES: filed against the Air Force or in which The Air Force rules for accessing SYSTEM NAME: the Air Force is an interested party. records, and for contesting contents and Claims Records. The ‘Blanket Routine Uses’ published appealing initial agency determinations at the beginning of the Air Force’s are published in Air Force Instruction SYSTEM LOCATION: compilation of systems of records 33–332; 32 CFR part 806b; or may be The Judge Advocate General, notices apply to this system. obtained from the system manager. Headquarters United States Air Force, 1420 Air Force Pentagon, Washington, POLICIES AND PRACTICES FOR STORING, RECORD SOURCE CATEGORIES: DC 20330–1420. Headquarters of major RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: Information from almost any source commands and at all levels down to and can be included if it is relevant and including Air Force installations. STORAGE: material to the proceedings. These Official mailing addresses are published Paper records in file folders and on include, but are not limited to witness as an appendix to the Air Force’s electronic storage media. statements; police reports; reports from compilation of systems of records RETRIEVABILITY: local, state, and federal agencies; notices. information submitted by an individual Retrieved by name, Social Security CATEGORIES OF INDIVIDUALS COVERED BY THE Number (SSN) and/or claim number. making an Article 138 complaint; SYSTEM: Inspector General investigations and SAFEGUARDS: commander directed inquiries. Individuals filing administrative claims against the Air Force or against Records are accessed by person(s) EXEMPTIONS CLAIMED FOR THE SYSTEM: whom the Air Force has filed an responsible for servicing the record system in performance of their official Portions of this system may be exempt administrative claim. duties and by authorized personnel who pursuant to 5 U.S.C. 552a(j)(2) if the CATEGORIES OF RECORDS IN THE SYSTEM: are properly screened and cleared for information is compiled and maintained All records necessary to adjudicate a need-to-know. Records are stored in by a component of the agency that claim, to include reports from other DoD locked rooms and cabinets. Those in performs as its principle function any offices; federal and state agencies; computer storage devices are protected activity pertaining to the enforcement of foreign governments; and witness by computer system software. criminal laws from the following statements. Computers must be accessed with a subsections of 5 U.S.C. 552a(c)(3), (c)(4), password. (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H) and AUTHORITY FOR MAINTENANCE OF THE SYSTEM: (I), (e)(5), (e)(8), (f), and (g). 10 U.S.C. 8013, Secretary of the Air RETENTION AND DISPOSAL: Records compiled for law Force; U.S.C. 8037, Judge Advocate Retained in office either one or two enforcement purposes, other than General, Deputy Judge Advocate years depending upon type of claim, material within the scope of subsection General: Appointment and duties; Air then destroyed after four additional 5 U.S.C. 552a(j)(2), may be exempt Force Instruction 51–501, Tort Claims; years at staging area; after agency action pursuant to 5 U.S.C. 552a(k)(2). Air Force Instruction 51–502, Personnel completed others are held one, three, However, if an individual is denied any and Government Recovery Claims and five years or ten years, depending on the right, privilege, or benefit for which he E.O. 9397 (SSN). type of claim and type of record. Paper would otherwise be entitled by Federal files are disposed of by tearing into law or for which he would otherwise be PURPOSE(S): pieces, shredding, pulping, macerating, eligible, as a result of the maintenance Records are used for claims or burning. Computer records are of the information, the individual will adjudication and processing, budgeting, destroyed by deleting, erasing, be provided access to the information and management of claims. Records are degaussing, or by overwriting. except to the extent that disclosure also used as necessary in civil litigation would reveal the identify of a involving the United States. SYSTEM MANAGER(S) AND ADDRESS: confidential source from the following The Judge Advocate General, subsections of 5 U.S.C. 552a(c)(3), (d), ROUTINE USES OF RECORDS MAINTAINED IN THE Headquarters United States Air Force, SYSTEM, INCLUDING CATEGORIES OF USERS AND (e)(1), (e)(4)(G), (H) and (I), and (f). 1420 Air Force Pentagon, Washington, THE PURPOSES OF SUCH USES: DC 20330–1420. Note: When claimed, this exemption In addition to those disclosures allows limited protection of investigative generally permitted under 5 U.S.C. NOTIFICATION PROCEDURE: reports maintained in a system of records used in personnel or administrative actions. 552a(b) of the Privacy Act, these records Individuals seeking to determine An exemption rule for this record system or information contained therein may whether information about themselves has been promulgated in accordance with the specifically be disclosed outside the is contained in this system should requirements of 5 U.S.C. 553(b)(1), (2), and DoD as a routine use pursuant to 5 address written inquiries to the Judge (3), (c) and (e) and published in 32 CFR part U.S.C. 552a(b)(3) as follows: Advocate General, Headquarters United
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States Air Force, 1420 Air Force Force mailing addresses are published To governmental boards or agencies Pentagon, Washington, DC 20330, or to as an appendix to the Air Force’s or health care professional societies or the Staff Judge Advocate at the compilation of record systems notices. organizations, or other professional concerned subordinate command or organizations, if such record or CATEGORIES OF INDIVIDUALS COVERED BY THE installation. document is needed to perform SYSTEM: Requests should include full name licensing or professional standards and proof of identity, date of incident All persons who are the subject of monitoring. and claim number, date and type of reviews, inquiries, or investigations The DoD ‘Blanket Routine Uses’ set claim, location of incident may also be conducted under the inherent authority forth at the beginning of the Air Force’s required. of a commander or director. All persons compilation of systems of records who are the subject of administrative notices apply to this system. RECORD ACCESS PROCEDURES: command actions for which another Individuals seeking access to system of records is not applicable. POLICIES AND PRACTICES FOR STORING, information about themselves contained RETRIEVING, ACCESSING, RETAINING, AND CATEGORIES OF RECORDS IN THE SYSTEM: in this system should address written DISPOSING OF RECORDS IN THE SYSTEM: Commander directed investigations; inquiries to the Judge Advocate General, STORAGE: letters/transcriptions of complaints, Headquarters United States Air Force, Paper records in file folders and allegations and queries; letters of 1420 Air Force Pentagon, Washington, electronic storage media. DC 20330; or to the Staff Judge Advocate appointment; reports of reviews, at the concerned subordinate command inquiries and investigations with RETRIEVABILITY: or installation. supporting attachments, exhibits and Retrieved by subject’s name and/or Requests should include full name photographs, record of interviews; Social Security Number (SSN). and proof of identity, date of incident witness statements; reports of legal SAFEGUARDS: and claim number, date and type of review of case files, congressional claim, location of incident may also be responses; memoranda; letters and Records are accessed by person(s) required. reports of findings and actions taken; responsible for servicing the record letters to complainants and subjects of system in performance of their official CONTESTING RECORD PROCEDURES: investigations; letters of rebuttal from duties and by authorized personnel who The Air Force rules for accessing subjects of investigations; finance, are properly screened and cleared for records, and for contesting contents and personnel; administration; adverse need-to-know. Records are stored in appealing initial agency determinations information and technical reports; locked rooms and cabinets. Those in are published in Air Force Instruction documentation of command action. computer storage devices are protected 33–332; 32 CFR part 806b; or may be by computer system software. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: obtained from the system manager. Computers are only accessible with a 10 U.S.C. 8013, Secretary of the Air password. RECORD SOURCE CATEGORIES: Force; 10 U.S.C. 8037, Judge Advocate Information obtained from federal General; 10 U.S.C. 164, Commanders of RETENTION AND DISPOSAL: agency reports, claimants, medical Combatant Commands; Air Force Disposed of 2 years after the case is institutions, police and investigating Instruction 51–904, Complaints of closed. Paper records are disposed of by officers, the public media, bureaus of Wrongs under Article 138, Uniform tearing into pieces, shredding, pulping, motor vehicles, state or local Code of Military Justice and E.O. 9397 macerating or burning. Computer governments, and witnesses. (SSN). records are destroyed by deleting, erasing, degaussing or by overwriting. EXEMPTIONS CLAIMED FOR THE SYSTEM: PURPOSE(S): None. Used for thorough and timely SYSTEM MANAGER(S) AND ADDRESS: resolution and response to complaints, The Commander who initiated an F051 AF JA I allegations, or queries. May also be used investigation or that Commander’s SYSTEM NAME: for personnel actions involving civilian successor in command, at that or military employees. Commander’s installation office. Official Commander Directed Inquiries Documents received or prepared in Air Force mailing addresses are (December 12, 2008, 73 FR 75686) anticipation of litigation are used by published as an appendix to the Air CHANGES: attorneys for the government to prepare Force’s compilation of record systems Change System ID to ‘‘F051 AFJA K.’’ for trials and hearings; to analyze notices. evidence; to prepare for examination of * * * * * witnesses; to prepare for argument NOTIFICATION PROCEDURE: F051 AFJA K before courts, magistrates, and Individuals seeking to determine investigating officers; and to advise whether this system of records contains SYSTEM NAME: commanders. information about themselves should Commander Directed Inquiries. address written inquiries to the ROUTINE USES OF RECORDS MAINTAINED IN THE Commander who initiated the SYSTEM LOCATION: SYSTEM, INCLUDING CATEGORIES OF USERS AND investigation, or that Commander’s THE PURPOSE OF SUCH USES: Commander Directed Inquiries are successor, at the Commander’s maintained at the installation where the In addition to those disclosures installation office. Commander’s office is located. generally permitted under 5 U.S.C. Requests should provide their full Information copies of a report are kept 552a(b) of the Privacy Act, these name, mailing address, and proof of at the individual’s organization and at records, or information contained identity. other organizations which have an therein, may specifically be disclosed interest in a particular incident or outside the DoD as a routine use RECORD ACCESS PROCEDURES: problem involving that individual that pursuant to 5 U.S.C. 552a(b)(3) as Individuals seeking to access records is addressed in the report. Official Air follows: about themselves contained in this
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system should address requests to the ACTION: Notice To Amend Two Systems CATEGORIES OF RECORDS IN THE SYSTEM: Commander who initiated the of Records. The system contains personnel data investigation, or that Commander’s which includes, but is not limited to successor in command, at the SUMMARY: The U.S. Marine Corps is name, rank/grade, Social Security Commander’s installation office. proposing to amend two systems of Number (SSN), current address/contact Requests should provide their full records notices in its existing inventory information, duty status, component name, mailing address and proof of of record systems subject to the Privacy code, gender, security investigation identity. Act of 1974, (5 U.S.C. 552a), as date/type, education, enlistment amended. contract details, end of active service CONTESTING RECORD PROCEDURES: DATES: This proposed action will be (EAS), end of current contract (ECC), The Air Force rules for accessing effective without further notice on end of obligated service (EOS), training records, and for contesting contents and January 30, 2009, unless comments are information to include military appealing initial agency determinations, received which result in a contrary occupational specialties (MOS), and are published in Air Force Instruction determination. related data. 33–332; 32 CFR part 806b; or may be obtained from the system manager. ADDRESSES: Send comments to AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Headquarters, U.S. Marine Corps, FOIA/ 10 U.S.C. 5013, Department of the RECORD SOURCE CATEGORIES: PA Section (ARSF), 2 Navy Annex, Navy; 10 U.S.C. 5042, Headquarters, Complainants, subjects, reports of Room 3134, Washington, DC 20380– Marine Corps: general duties; 5 U.S.C. investigations, witnesses, third parties, 1775. 301, Departmental Regulations; and E.O. state and local governments and FOR FURTHER INFORMATION CONTACT: Ms. 9397 (SSN). agencies, other federal agencies, Tracy Ross at (703) 614–4008. members of Congress, and civilian PURPOSE(S): police reports. Information from almost SUPPLEMENTARY INFORMATION: The U.S. To redesign and develop appropriate any source can be included if it is Marine Corps systems of records notices information management, provide relevant and material to the subject to the Privacy Act of 1974, (5 simulation, analysis, and forecasting investigation, inquiry, or subsequent U.S.C. 552a), as amended, have been tools to capture and process manpower command action. published in the Federal Register and information, making data visible to the are available from the address above. appropriate Marine Corps decision EXEMPTIONS CLAIMED FOR THE SYSTEM: The specific changes to the record makers. Through a single entry point in Investigatory material compiled for systems being amended are set forth the system, manpower analysis law enforcement purposes, other than below followed by the notice, as managers will be able to control material within the scope of subsection amended, published in its entirety. The publication of applicable data across the 5 U.S.C. 552a(j)(2), may be exempt proposed amendments are not within entire enterprise through their pursuant to 5 U.S.C. 552a(k)(2). the purview of subsection (r) of the respective chain of command. However, if an individual is denied any Privacy Act of 1974, (5 U.S.C. 552a), as right, privilege, or benefit for which he amended, which requires the ROUTINE USES OF RECORDS MAINTAINED IN THE submission of a new or altered system SYSTEM, INCLUDING CATEGORIES OF USERS AND would otherwise be entitled by Federal THE PURPOSES OF SUCH USES: law or for which he would otherwise be report. eligible, as a result of the maintenance In addition to those disclosures Dated: December 23, 2008. generally permitted under 5 U.S.C. of the information, the individual will Morgan E. Frazier, be provided access to the information 552a(b) of the Privacy Act, these records Alternate OSD Federal Register Liaison or information contained therein may exempt to the extent that disclosure Officer, Department of Defense. would reveal the identify of a specifically be disclosed outside the confidential source. M–01080–2 DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: Note: When claimed, this exemption SYSTEM NAME: To officials and employees of other allows limited protection of investigative U.S. Marine Corps Manpower departments and agencies of the reports maintained in a system of records Executive Branch of government, upon used in personnel or administrative actions. Personnel Analysis Record (December 22, 2008, 73 FR 73258). request, in the performance of their An exemption rule for this system has official duties related to the oversight of been promulgated in accordance with CHANGES: Navy/Marine Corps management. requirements of 5 U.S.C. 553(b)(1), (2), Change System ID to ‘‘M01080–2.’’ The DoD ‘Blanket Routine Uses’ set and (3), (c) and (e) published in 32 CFR * * * * * forth at the beginning of the Marine part 806b. For additional information Corps’ compilation of systems of records contact the system manager. M01080–2 notices also apply to this system.
[FR Doc. E8–31044 Filed 12–30–08; 8:45 am] SYSTEM NAME: POLICIES AND PRACTICES FOR STORING, BILLING CODE 5001–06–P U.S. Marine Corps Manpower RETRIEVING, ACCESSING, RETAINING, AND Personnel Analysis Records. DISPOSING OF RECORDS IN THE SYSTEM: STORAGE: DEPARTMENT OF DEFENSE SYSTEM LOCATION: Electronic Storage Media. Department of the Navy Manpower and Reserve Affairs (M&RA), Manpower Information RETRIEVABILITY: [Docket ID: USN–2008–0067] Systems Division (MI), 3280 Russell Rd., By individual’s name and Social Quantico, VA 22134–5103. Security Number (SSN). Privacy Act of 1974; System of CATEGORIES OF INDIVIDUALS COVERED BY THE SAFEGUARDS: Records SYSTEM: Records are maintained in a secure, AGENCY: U.S. Marine Corps, DoD. All active duty and reserve Marines. limited access, or monitored work area.
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Physical entry by unauthorized persons M–01080–1 accountability for all active duty U.S. is restricted by the use of locks, guards, Marines, as well as DoD members who SYSTEM NAME: or administrative procedures. Access to are Title 10 OPCON to Marine Force personal information is restricted to Total Force Administration System Commands to include Army National those who require the records in the Secure Personnel Accountability (TFAS Guard, and reserve military service performance of their official duties. SPA) Records (November 12, 2008, 73 members of the Air Force, Navy, Army, Access to computer records is further FR 66882). and approved foreign military restricted by the use of passwords CHANGES: personnel. which are changed periodically. Change System ID to ‘‘M01080–1.’’ ROUTINE USES OF RECORDS MAINTAINED IN THE RETENTION AND DISPOSAL: * * * * * SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: The records retention has not been M01080–1 approved by National Archives and In addition to those disclosures Records Administration, until then treat SYSTEM NAME: generally permitted under 5 U.S.C. as permanent. Total Force Administration System 552a(b) of the Privacy Act, these records Secure Personnel Accountability (TFAS or information contained therein may SYSTEM MANAGER(S) AND ADDRESS: SPA) Records. specifically be disclosed outside the Director, Manpower Information (MI), DoD as a routine use pursuant to 5 3280 Russell Rd., Quantico, VA 22134– SYSTEM LOCATION: U.S.C. 552a(b)(3) as follows: 5103. Web servers will be located at To officials and employees of other Information Systems Management departments and agencies of the NOTIFICATION PROCEDURE: Branch (ARI), Headquarters Marine Executive Branch of government, upon Individuals seeking to determine Corps, #2 Navy Annex, Washington, DC request, in the performance of their whether information about themselves 20380–1775. The Cross Domain official duties related to the is contained in this system should Solution (CDS) server will be located at management of deployed Marine address written inquiries to Director, the Defense Information Support individuals at locations worldwide, as Manpower Information (MI), 3280 Agency (DISA), 701 South Courthouse well as officials and investigating bodies Russell Rd., Quantico, VA 22134–5103. Road, Arlington, VA 22204–2199. for health surveillance purposes. The ‘Blanket Routine Uses’ that The request must be signed and CATEGORIES OF INDIVIDUALS COVERED BY THE include full name and Social Security appear at the beginning of the Marine SYSTEM: Corps’ compilation of systems of records Number (SSN), as well as your complete Deployed active duty Marines, as well mailing address. notices also apply to this system. The as DoD members who are under the Blanket Routine Uses’ appear at http:// RECORD ACCESS PROCEDURES: status of United States Code, Title 10, www.privacy.navy.mil/. Armed Forces Operational Control Individuals seeking access to Marine Forces delegated Title 10 (OPCON), and Administrative Control information about themselves contained operational control (OPCON) authority (ADCON) to Marine Force Commands to in this system should address written from a U.S. Armed Forces Combatant include Army National Guard, and inquiries to: Director Manpower command. The Office of Secretary of reserve military service members of the Information (MI), 3280 Russell Rd., Defense (OSD) has mandated that Air Force, Navy, Army, and approved Quantico, VA 22134–5103. Marine operational forces are foreign military personnel. The request must be signed and responsible to report the location of all include full name and Social Security CATEGORIES OF RECORDS IN THE SYSTEM: Service Members’ classified location under Marine Forces’ command Number (SSN), as well as your complete Deployed service data such as: worldwide. mailing address. Current location (Country, Area of Operation, Military Grid, Lat/Long, etc.), POLICIES AND PRACTICES FOR STORING, CONTESTING RECORD PROCEDURES: Title 10 OPCON, Title 10 ADCON, RETRIEVING, ACCESSING, RETAINING, AND The USMC rules for contesting assigned, attached, tenant command DISPOSING OF RECORDS IN THE SYSTEM: contents and appealing initial agency relationships; full name, rank, Social STORAGE: determinations are published in Security Number (SSN), date of birth, Electronic storage media. Secretary of the Navy Instruction sex, death date, marital status, 5211.5; Marine Corps Order P5211.2; 32 citizenship, country code, personnel RETRIEVEABILITY: CFR part 701; or may be obtained from category code, personnel entitlement Name and/or Social Security Number Director, Manpower Information (MI), condition type code, service, primary and/or Unit. 3280 Russell Rd., Quantico, VA 22134– occupation code, and pay plan code. SAFEGUARDS: 5103. The system contains specific unit Records are maintained in area only RECORD SOURCE CATEGORIES: information (commander name and unit location), for the personnel it tracks. accessible to authorized ARI personnel Operational Data Store Enterprise that are properly screened, cleared, and (ODSE); Total Force Data Warehouse AUTHORITY FOR MAINTENANCE OF THE SYSTEM: trained. System software uses a user (TFDW); Marine Corps Recruiting 10 U.S.C. 5013, Secretary of the Navy; name and password challenge to lock Information Support System (MCRISS); 10 U.S.C. 5041, Headquarters, Marine out unauthorized access. System Marine Corps Training Information Corps; CJCSM 3150.13B Joint Reporting software contains authorization Management System (MCTIMS); Structure—Personnel Manual; Title 10 permission lists and role partitioning to Manpower Assignment Support System U.S.C. 136, Uniform Code of Military limit access to appropriate (MASS) and Total Force Structure Justice and E.O. 9397 (SSN). organizational level. Management System (TFSMS). PURPOSE(S): RETENTION AND DISPOSAL: EXEMPTIONS CLAIMED FOR THE SYSTEM: The TFAS SPA Module provides a The records retention has not been None. tool to implement deployed approved by The National Archives and
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Records Administration, until then treat DEPARTMENT OF DEFENSE Information Officer, 2200 Lester Street, as permanent. Quantico, VA 22143–6050. Department of the Navy SYSTEM MANAGER AND ADDRESS: CATEGORIES OF INDIVIDUALS COVERED BY THE [Docket ID: USN–2008–0066] SYSTEM: Policy Official and Records Holder is Privacy Act of 1974; System of Marine Corps Systems Command Director, Manpower Information (MI), Records active duty, reservists, civilians, and 3280 Russell Rd., Quantico, VA 22134– contractors personnel. 5103. AGENCY: U.S. Marine Corps, DoD. ACTION: Notice to amend a system of CATEGORIES OF RECORDS IN THE SYSTEM: NOTIFICATION PROCEDURES: records. The system contains personnel data Individuals seeking to determine SUMMARY: The U.S. Marine Corps is which includes, but is not limited to whether information about themselves proposing to amend a system of records individual’s name, rank/grade, Social is contained in this system should notice in its existing inventory of record Security Number (SSN), current address written inquiries to Director, systems subject to the Privacy Act of address, contact information, duty Manpower Information (MI), 3280 1974, (5 U.S.C. 552a), as amended. status, component code, sex, security Russell Rd., Quantico, VA 22134–5103. DATES: This proposed action will be investigation date/type, education, training information to include military Your request must be signed and effective without further notice on occupational specialties and related include your full name and SSN, as well January 30, 2009 unless comments are data. as your complete mailing address. received which result in a contrary determination. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RECORD ACCESS PROCEDURES: ADDRESSES: Send comments to 10 U.S.C. 5013, Secretary of the Navy; Individuals seeking access to Headquarters, U.S. Marine Corps, FOIA/ 10 U.S.C. 5041, United States Marine information about themselves contained PA Section (ARSF), 2 Navy Annex, Corps; 5 U.S.C. 301, Departmental Room 3134, Washington, DC 20380– in this system should address written Regulations; E.O. 10450, Security 1775. inquiries to Director, Manpower Requirements for Government Information (MI), 3280 Russell Rd., FOR FURTHER INFORMATION CONTACT: Ms. Employment and E.O. 9397 (SSN). Quantico, VA 22134–5103. Tracy Ross at (703) 614–4008. SUPPLEMENTARY INFORMATION: The U.S. PURPOSE(S): Your request must be signed and Marine Corps systems of records notices include your full name and SSN, as well The Total Information Gateway- subject to the Privacy Act of 1974, (5 Enterprise Resources System is a system as your complete mailing address. U.S.C. 552a), as amended, have been of records that serves as a controlled published in the Federal Register and CONTESTING RECORD PROCEDURES: repository for information needed by are available from the address above. personnel necessary for performance of The USMC rules for contesting The specific changes to the record duties and other DoD-related functions. contents and appealing initial agency system being amended are set forth It supports the following strategically determinations are published in below followed by the notice, as essential business processes: Facilities Secretary of the Navy Instruction amended, published in its entirety. The Management, Knowledge Management, 5211.5; Marine Corps Order P5211.2; 32 proposed amendments are not within Task Management, Document CFR part 701; or may be obtained from the purview of subsection (r) of the Management, Personnel Management the system manager, Director, Privacy Act of 1974, (5 U.S.C. 552a), as and additional Business support Manpower Information (MI), 3280 amended, which requires the functions such as Security services. It is submission of a new or altered system Russell Rd., Quantico, VA 22134–5103. an ongoing, growing, flexible system report. that encompasses a number of strategic RECORD SOURCE CATEGORIES: Dated: December 23, 2008. applications including: Online all hands Morgan E. Frazier, messages, knowledge centers, calendars, Name, SSN, and associated personnel Alternate OSD Federal Register Liaison the command tasker system and other data is pulled from the Operational Data Officer, Department of Defense. workflow applications. As a Store Enterprise (ODSE) and Defense management tool, statistical data, with Manpower Data Center (DMDC). M06320–X all personal identifiers removed, may be SYSTEM NAME: used for system efficiency, workload EXEMPTIONS CLAIMED FOR THE SYSTEM: Marine Corps Total Information calculation, or reporting purposes. Information specifically authorized to Management Records. (December 8, ROUTINE USES OF RECORDS MAINTAINED IN THE be classified under E.O. 12958, as 2008, 73 FR 74474). SYSTEM, INCLUDING CATEGORIES OF USERS AND implemented by DoD 5200.1–R, may be CHANGES: THE PURPOSES OF SUCH USES: exempt pursuant to 5 U.S.C. 552(k)(1). Change System ID to ‘‘M06320–1.’’ In addition to those disclosures An exemption rule for this system has * * * * * generally permitted under 5 U.S.C. been promulgated in accordance with 552a(b) of the Privacy Act, these records requirements of 5 U.S.C. 553(b)(1), (2), M06320–1 or information contained therein may and (3), (c) and (e) published in 32 CFR SYSTEM NAME: specifically be disclosed outside the part 806b. For additional information DoD as a routine use pursuant to 5 Marine Corps Total Information contact the system manager. U.S.C. 552a(b)(3) as follows: Management Records. [FR Doc. E8–31055 Filed 12–30–08; 8:45 am] The DoD ‘Blanket Routine Uses’ set SYSTEM LOCATION: forth at the beginning of the Marine BILLING CODE 5001–06–P United States Marine Corps Systems Corps’ compilation of systems of records Command, Office of the Command notices apply to this system.
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POLICIES AND PRACTICES FOR STORING, 5211.5E; 32 CFR part 701; or may be Reporting and/or Recordkeeping RETRIEVING, ACCESSING, RETAINING, AND obtained from the system manager. burden. OMB invites public comment. DISPOSING OF RECORDS IN THE SYSTEM: RECORD SOURCE CATEGORIES: Dated: December 24, 2008. STORAGE: Individuals. Stephanie Valentine, Electronic storage media. Acting IC Clearance Official, Regulatory EXEMPTIONS CLAIMED FOR THE SYSTEM: RETRIEVABILITY: Information Management Services, Office of Management. Individual’s name and/or Social None. Security Number (SSN). [FR Doc. E8–31072 Filed 12–30–08; 8:45 am] Office of Elementary and Secondary BILLING CODE 5001–06–P Education SAFEGUARDS: Access is restricted only by Type of Review: New Collection. authorized persons who are properly Title: Reading First Expenditure Study. screened. This system is password and/ DEPARTMENT OF EDUCATION or System software uses Primary Key Frequency: Annually. Infrastructure (PKI)/Common Access Submission for OMB Review; Affected Public: Not-for-profit Card (CAC) protected. Based on user Comment Request institutions; State, Local, or Tribal profiles, there are different levels of Gov’t, SEAs or LEAs. AGENCY: Department of Education. access. Full access to information Reporting and Recordkeeping Hour maintained in the database is available SUMMARY: The Director, Information Burden: only to authorized Agency personnel Collection Clearance Division, Responses: 4,420. with established official need-to-know. Regulatory Information Management Burden Hours: 13,260. Records are maintained in secure, Services, Office of Management invites Abstract: The U.S. Department of limited access, or monitored work areas comments on the submission for OMB Education Reading First program has no accessible only to authorized personnel. review as required by the Paperwork formal mechanism for grantees to report Reduction Act of 1995. on specific uses of grant funds. The RETENTION AND DISPOSAL: DATES: Interested persons are invited to proposed surveys will collect data on Records are retained for three years submit comments on or before January the use and allocation of Reading First and then destroyed. 30, 2009. grants from current SEA grantees and their LEA subgrantees. Collecting such SYSTEM MANAGER(S) AND ADDRESS: ADDRESSES: Written comments should be addressed to the Office of information will help satisfy the Marine Corps Systems Command, informational needs of key stakeholders, Office of the Command Information Information and Regulatory Affairs, Attention: Education Desk Officer, and inform future grant-making efforts. Officer, 2200 Lester Street, Quantico, Requests for copies of the information VA 22134–6050. Office of Management and Budget, 725 17th Street, NW., Room 10222, New collection submission for OMB review NOTIFICATION PROCEDURE: Executive Office Building, Washington, may be accessed from http:// Individuals seeking to determine DC 20503 or faxed to (202) 395–6974. edicsweb.ed.gov, by selecting the ‘‘Browse Pending Collections’’ link and whether information about themselves SUPPLEMENTARY INFORMATION: Section is contained in this system should by clicking on link number 3844. When 3506 of the Paperwork Reduction Act of you access the information collection, address written inquiries to U.S Marine 1995 (44 U.S.C. Chapter 35) requires Corps System Command, Office of the click on ‘‘Download Attachments’’ to that the Office of Management and view. Written requests for information Command Information Officer, Budget (OMB) provide interested Information Systems Management should be addressed to U.S. Department Federal agencies and the public an early of Education, 400 Maryland Avenue, Team, 2200 Lester Street, Quantico, VA opportunity to comment on information 22134–6050. SW., LBJ, Washington, DC 20202–4537. collection requests. OMB may amend or Requests may also be electronically Requests should contain individual’s waive the requirement for public name, Social Security Number (SSN), mailed to the Internet address consultation to the extent that public [email protected] or faxed to 202– current mailing address, and must be participation in the approval process signed. 401–0920. Please specify the complete would defeat the purpose of the title of the information collection when RECORD ACCESS PROCEDURES: information collection, violate State or making your request. Individuals seeking access to Federal law, or substantially interfere Comments regarding burden and/or information about themselves contained with any agency’s ability to perform its the collection activity requirements in this system should address written statutory obligations. The IC Clearance should be electronically mailed to inquiries to U.S Marine Corps System Official, Regulatory Information [email protected]. Individuals who Command, Office of the Command Management Services, Office of use a telecommunications device for the Information Officer, Information Management, publishes that notice deaf (TDD) may call the Federal Systems Management Team, 2200 Lester containing proposed information Information Relay Service (FIRS) at Street, Quantico, VA 22134–6050. collection requests prior to submission 1–800–877–8339. of these requests to OMB. Each Requests should contain individual’s [FR Doc. E8–31164 Filed 12–30–08; 8:45 am] name, Social Security Number (SSN), proposed information collection, BILLING CODE 4000–01–P current mailing address and must be grouped by office, contains the signed. following: (1) Type of review requested, e.g., new, revision, extension, existing DEPARTMENT OF EDUCATION CONTESTING RECORD PROCEDURES: or reinstatement; (2) Title; (3) Summary The USMC rules for contesting of the collection; (4) Description of the Notice of Proposed Information contents and appealing initial agency need for, and proposed use of, the Collection Requests determinations are published in information; (5) Respondents and Secretary of the Navy Instruction frequency of collection; and (6) AGENCY: Department of Education.
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SUMMARY: The Leader, Information Title: Local Flexibility Demonstration DEPARTMENT OF ENERGY Collection Clearance Division, Program (Local-Flex) Application Regulatory Information Management Package. Federal Energy Regulatory Commission Services, Office of Management, invites Frequency: Annually. comments on the proposed information [Project No. 6885–009] collection requests as required by the Affected Public: Businesses or other Paperwork Reduction Act of 1995. for-profit; State, Local, or Tribal Gov’t, Richard Moss; Notice of Application SEAs or LEAs. DATES: Interested persons are invited to Ready for Environmental Analysis and submit comments on or before March 2, Reporting and Recordkeeping Hour Soliciting Comments, 2009. Burden: Recommendations, Terms and Conditions, and Prescriptions SUPPLEMENTARY INFORMATION: Section Responses: 50. 3506 of the Paperwork Reduction Act of Burden Hours: 4,000. December 23, 2008. 1995 (44 U.S.C. Chapter 35) requires Abstract: The Local Flexibility Take notice that the following that the Office of Management and Demonstration (Local-Flex) program hydroelectric application has been filed Budget (OMB) provide interested provides participating local educational with the Commission and is available Federal agencies and the public an early for public inspection. agencies (LEAs) with unprecedented opportunity to comment on information a. Type of Application: A Subsequent flexibility to consolidate certain Federal collection requests. OMB may amend or License. (Minor Project). waive the requirement for public education funds and to use those funds b. Project No.: 6885–009. consultation to the extent that public for any educational purpose under the c. Date filed: December 31, 2007. participation in the approval process Elementary and Secondary Education d. Applicant: Richard Moss. would defeat the purpose of the Act (ESEA) in order to meet the State’s e. Name of Project: Cinnamon Ranch information collection, violate State or definition of adequate yearly progress Hydroelectric Project. Federal law, or substantially interfere and attain specific measurable goals for f. Location: On Middle Creek and with any agency’s ability to perform its improving student achievement and Birch Creek, in the Hammil Valley area statutory obligations. The Leader, narrowing achievement gaps. The of Mono County, near the Town of Regulatory Information Management application package contains Benton, California. The project occupies Services, Office of Management, information applicants will need to 0.13 acre of Forest Service lands within publishes that notice containing prepare and submit their Local-Flex Inyo National Forest and 7.4 acres of proposed information collection proposals. lands administered by the Bureau of requests prior to submission of these Land Management. Requests for copies of the proposed g. Filed Pursuant to: Federal Power requests to OMB. Each proposed information collection request may be information collection, grouped by Act 16 U.S.C. 791 (a)–825(r). accessed from http://edicsweb.ed.gov, office, contains the following: (1) Type h. Applicant Contact: Don Moss, 8381 by selecting the ‘‘Browse Pending of review requested, e.g., new, revision, Foppiano Way, Sacramento, CA 95829, Collections’’ link and by clicking on extension, existing or reinstatement; (2) (916) 715–6023. Title; (3) Summary of the collection; (4) link number 3923. When you access the i. FERC Contact: Gaylord Hoisington, Description of the need for, and information collection, click on (202) 502–6032 or proposed use of, the information; (5) ‘‘Download Attachments’’ to view. [email protected]. Respondents and frequency of Written requests for information should j. Deadline for filing comments, collection; and (6) Reporting and/or be addressed to U.S. Department of recommendations, terms and Recordkeeping burden. OMB invites Education, 400 Maryland Avenue, SW., conditions, and prescriptions is 60 days public comment. LBJ, Washington, DC 20202–4537. from the issuance of this notice; reply comments are due 105 days from the The Department of Education is Requests may also be electronically issuance date of this notice. especially interested in public comment mailed to [email protected] or faxed to 202–401–0920. Please specify the All documents (original and eight addressing the following issues: (1) Is copies) should be filed with: Kimberly this collection necessary to the proper complete title of the information collection when making your request. D. Bose, Secretary, Federal Energy functions of the Department; (2) will Regulatory Commission, 888 First this information be processed and used Comments regarding burden and/or Street, NE., Washington, DC 20426. in a timely manner; (3) is the estimate the collection activity requirements The Commission’s Rules of Practice of burden accurate; (4) how might the should be electronically mailed to require all intervenors filing documents Department enhance the quality, utility, [email protected]. Individuals who with the Commission to serve a copy of and clarity of the information to be use a telecommunications device for the that document on each person on the collected; and (5) how might the deaf (TDD) may call the Federal official service list for the project. Department minimize the burden of this Information Relay Service (FIRS) at 1– Further, if an intervenor files comments collection on the respondents, including 800–877–8339. or documents with the Commission through the use of information relating to the merits of an issue that [FR Doc. E8–31177 Filed 12–30–08; 8:45 am] technology. may affect the responsibilities of a Dated: December 23, 2008. BILLING CODE 4000–01–P particular resource agency, they must Stephanie Valentine, also serve a copy of the document on Acting Leader, Information Collections that resource agency. Clearance Division, Regulatory Information Comments, recommendations, terms Management Services, Office of Management. and conditions, and prescriptions may be filed electronically via the Internet in Office of Elementary and Secondary lieu of paper. The Commission strongly Education encourages electronic filings. See 18 Type of Review: Extension. CFR 385.2001(a)(1)(iii) and the
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instructions on the Commission’s Web the service list prepared by the Take notice that the Commission site (http://www.ferc.gov) under the Commission in this proceeding, in received the following exempt ‘‘e-Filing’’ link. accordance with 18 CFR 4.34(b), and wholesale generator filings: k. This application has been accepted, 385.2010. Docket Numbers: EG09–15–000. and is ready for environmental analysis You may also register online at Applicants: Buffalo Ridge I LLC. at this time. http://www.ferc.gov/docs-filing/ Description: Notice of Self- l. The existing operating project was esubscription.asp to be notified via Certification of Exempt Wholesale built in 1960 and has been furnishing e-mail of new filings and issuances Generator Status re Buffalo Ridge I LLC. electric power to the Cinnamon ranch related to this or other pending projects. Filed Date: 11/18/2008. since that time. The project consists of: For assistance, contact FERC Online Accession Number: 20081118–5049. (1) Two existing diversion flumes; (2) a Support. Comment Date: 5 p.m. Eastern Time 5,940-foot-long penstock; (3) a on Tuesday, December 9, 2008. powerhouse containing a turbine and Kimberly D. Bose, generator for a total installed capacity of Secretary. Docket Numbers: EG09–16–000. 150 kilowatts; (4) a 5,176-foot-long, 12 [FR Doc. E8–31108 Filed 12–30–08; 8:45 am] Applicants: Moraine Wind II LLC. kilvolt transmission line and (5) BILLING CODE 6717–01–P Description: Notice of Self- appurtenant facilities. The applicant Certification of Exempt Wholesale proposes no changes to the project Generator Status. facilities or operations. The project is DEPARTMENT OF ENERGY Filed Date: 11/18/2008. estimated to generate an average of Accession Number: 20081118–5050. 421,184 kilowatt-hours annually. Federal Energy Regulatory Comment Date: 5 p.m. Eastern Time The existing project operates run-of- Commission on Tuesday, December 9, 2008. river, with no peaking capabilities. Two Docket Numbers: EG09–17–000. small diversions, one on Birch Creek Combined Notice of Filings # 1 Applicants: Pebble Springs Wind and one on Middle Creek provide water November 18, 2008. LLC. through open ditches to a 3.57-acre-foot Take notice that the Commission Description: Notice of Self- de-silting pond. In the de-silting pond, received the following electric corporate Certification of Exempt Wholesale a screened stand pipe functions as the filings: Generator Status. intake for the 12-inch-diameter, 5,940- Filed Date: 11/18/2008. Docket Numbers: EC09–20–000. foot-long steel penstock. Water from the Accession Number: 20081118–5051. Applicants: E.ON AG. turbine tailrace is delivered directly into Comment Date: 5 p.m. Eastern Time the Cinnamon Ranch irrigation system. Description: Dewey & LeBoeuf LLP reports to accept for filing the on Tuesday, December 9, 2008. m. A copy of the application is Take notice that the Commission available for review at the Commission application under Section 203 of the Federal Power Act for modification of received the following electric rate in the Public Reference Room or may be filings: viewed on the Commission’s Web site at the foreign utility company acquisitions http://www.ferc.gov using the verification procedure under rule Docket Numbers: ER00–1712–010; ‘‘eLibrary’’ link. Enter the docket 33.1(c)(5) etc. ER00–1703–005; ER00–744–008; ER02– number excluding the last three digits in Filed Date: 11/12/2008. 1327–007; ER02–2408–005; ER02–1749– the docket number field to access the Accession Number: 20081114–0233. 005; ER02–1747–005; ER99–4503–007; document. For assistance, contact FERC Comment Date: 5 p.m. Eastern Time ER00–2186–005; ER01–1559–006. Online Support at on Wednesday, December 3, 2008. Applicants: Lower Mount Bethel [email protected] or toll- Docket Numbers: EC09–21–000. Energy, LLC, PPL Brunner Island, LLC, free at 1–866–208–3676, or for TTY, Applicants: BE Red Oak LLC, JP PPL Edgewood Energy, LLC, PPL (202) 502–8659. A copy is also available Morgan Ventures Energy Corporation, EnergyPlus, LLC, PPL Great Works, LLC, for inspection and reproduction at the Sempra Energy Trading LLC. PPL Holtwood, LLC, PPL Maine, LLC, address in item h above. Description: Joint Application for PPL Martins Creek, LLC, PPL Montour, All filings must (1) bear in all capital Authorization under Section 203 of the LLC, PPL Shoreham Energy, LLC, PPL letters the title ‘‘COMMENTS’’, ‘‘REPLY FPA, Request for Waiver of Certain Susquehanna, LLC, PPL University COMMENTS’’, Commission Requirements, and Park, LLC, PPL Wallingford Energy LLC, ‘‘RECOMMENDATIONS,’’ ‘‘TERMS Requests for Confidential and Expedited PPL Electric Utilities Corporation. AND CONDITIONS,’’ or Treatment. Description: PPL East Companies’ ‘‘PRESCRIPTIONS;’’ (2) set forth in the Filed Date: 11/14/2008. compliance filing. heading the name of the applicant and Accession Number: 20081114–5122. Filed Date: 11/17/2008. the project number of the application to Comment Date: 5 p.m. Eastern Time Accession Number: 20081117–5172. which the filing responds; (3) furnish on Friday, December 5, 2008. Comment Date: 5 p.m. Eastern Time the name, address, and telephone Docket Numbers: EC09–23–000. on Monday, December 8, 2008. number of the person submitting the Applicants: Shiloh Wind Project 2, Docket Numbers: ER01–2569–007; filing; and (4) otherwise comply with LLC. ER01–2568–006; ER02–1175–006; the requirements of 18 CFR 385.2001 Description: Application of Shiloh ER98–4652–007. through 385.2005. All comments, Wind Project 2, LLC for Authorization Applicants: Boralex Ashland, LP; recommendations, terms and conditions Under Section 203 of the Federal Power Boralex Livermore Falls LP; Boralex or prescriptions must set forth their Act, Request for Expedited Fort Fairfield LP; Boralex Stratton evidentiary basis and otherwise comply Consideration and Confidential Energy LP. with the requirements of 18 CFR 4.34(b). Treatment. Description: Boralex Livermore Falls Agencies may obtain copies of the Filed Date: 11/17/2008. LP et al. submits a revision to the application directly from the applicant. Accession Number: 20081117–5041. market-based rate tariffs in accordance Each filing must be accompanied by Comment Date: 5 p.m. Eastern Time with Order No. 697. proof of service on all persons listed on on Monday, December 8, 2008. Filed Date: 11/13/2008.
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Accession Number: 20081114–0152. Description: PJM Interconnection, Docket Numbers: ER09–281–000. Comment Date: 5 p.m. Eastern Time LLC submits revisions to Schedule 12— Applicants: Pebble Springs Wind. on Thursday, December 4, 2008. Appendix of the PJM Tariff in Description: Pebble Springs Wind LLC Docket Numbers: ER02–579–007. incorporate cost responsibility submits FERC Electric Tariff, Original Applicants: Capital District Energy assignments for below 500 kV upgrades Volume No. 1 etc. under ER09–281. Center Cogen. included in the PJM Regional Filed Date: 11/14/2008. Description: Capitol District Energy Transmission Expansion Plan etc. Accession Number: 20081117–0028. Center Cogeneration Associates submits Filed Date: 11/14/2008. Comment Date: 5 p.m. Eastern Time a revised FERC Electric tariff to Accession Number: 20081118–0048. on Friday, December 5, 2008. accompany the Application. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER09–282–000. Filed Date: 11/12/2008. on Friday, December 5, 2008. Applicants: Moraine Wind II LLC. Accession Number: 20081114–0150. Docket Numbers: ER06–635–004; Description: Moraine Wind II LLC Comment Date: 5 p.m. Eastern Time ER95–1007–023; ER06–634–004. submits FERC Electric Tariff, Original on Wednesday, December 3, 2008. Applicants: Edgecombe Genco, LLC; Volume No. 1 etc. under ER09–282. Filed Date: 11/14/2008. Docket Numbers: ER02–580–008. Logan Generating Company, LP Accession Number: 20081117–0030. Applicants: Pawtucket Power Spruance Genco, LLC. Comment Date: 5 p.m. Eastern Time Associates Limited Partn. Description: Edgecombe Genco, LLC on Friday, December 5, 2008. Description: Pawtucket Power et al. submits an updated market power Associates, LP submits a revised tariff in analysis in compliance with Order 697– Docket Numbers: ER09–284–000. compliance with standardized tariff A. Applicants: Southern California requirements of Order No. 697–A. Filed Date: 11/12/2008. Edison Company. Filed Date: 11/12/2008. Accession Number: 20081114–0149. Description: Southern California Comment Date: 5 p.m. Eastern Time Accession Number: 20081114–0146. Edison Co submits revised rate sheets to on Wednesday, December 3, 2008. Comment Date: 5 p.m. Eastern Time the amended and restated Edison— on Wednesday, December 3, 2008. Docket Numbers: ER06–758–005. AEPCO Load Control Agreement with Applicants: Chambers Cogeneration, Arizona Electric Power Cooperative, Inc. Docket Numbers: ER02–237–011. Limited Partnership. Filed Date: 11/13/2008. Applicants: J. Aron & Company. Description: Chambers Cogeneration, Accession Number: 20081114–0119. Description: J. Aron & Company LP submits a revised tariff in Comment Date: 5 p.m. Eastern Time submits a revised tariff sheet to include compliance with standardized tariff on Thursday, December 4, 2008. in its rate schedule a separate provision requirements of Order No. 697–A. Docket Numbers: ER09–285–000. regarding its Seller Category status. Filed Date: 11/12/2008. Applicants: Florida Power Filed Date: 11/14/2008. Accession Number: 20081114–0145. Corporation. Accession Number: 20081117–0112. Comment Date: 5 p.m. Eastern Time Description: Progress Energy Florida, Comment Date: 5 p.m. Eastern Time on Wednesday, December 3, 2008. Inc submits an executed operating on Monday, December 1, 2008. Docket Numbers: ER06–1367–004; agreement with Tampa Electric. Docket Numbers: ER05–320–005; ER07–239–003; ER99–1714–007; ER06– Filed Date: 11/13/2008. ER02–999–007; ER97–2460–010; ER97– 745–003. Accession Number: 20081114–0118. 2463–007. Applicants: BG Dighton Power, LLC, Comment Date: 5 p.m. Eastern Time Applicants: Unitil Energy Systems, BG Energy Merchants, LLC, Lake Road on Thursday, December 4, 2008. Inc.; Unitil Power Corporation; Generating Company, LP, Masspower. Docket Numbers: ER09–286–000. Fitchburg Gas & Electric Light Co. Description: BG Dighton Power, LLC Applicants: Nevada Power Company. Description: Unitil Energy Systems, et al. submits a revised updated market Description: NV Energy submits Inc et al. submits a supplement to the power analysis and compliance filing Notice of Cancellation of the Rate 1/14/08 filing of updated market power pursuant to Orders 697 and 697–A. Schedule 6 for reactive Supply and analysis. Filed Date: 11/13/2008. Voltage Control that became effective as Filed Date: 11/12/2008. Accession Number: 20081114–0151. of 11/1/05. Accession Number: 20081114–0153. Comment Date: 5 p.m. Eastern Time Filed Date: 11/13/2008. Comment Date: 5 p.m. Eastern Time on Thursday, December 4, 2008. Accession Number: 20081114–0117. on Wednesday, December 3, 2008. Docket Numbers: ER07–1212–001. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER05–968–004. Applicants: Forked River Power LLC. on Thursday, December 4, 2008. Applicants: Basin Creek Equity Description: Forked River Power, LLC Docket Numbers: ER09–288–000. Partners, LLC. submits a revised tariff in compliance Applicants: Appalachian Power Description: Basin Creek Equity with standardized tariff requirements of Company. Partners, LLC submits an application for Order No. 697 and 697–A. Description: Appalachian Power a finding by the Commission that it Filed Date: 11/12/2008. Company submits an Amended and qualifies for Category 1 status and is Accession Number: 20081114–0147. Restated Interconnection Agreement, exempt from the requirement to submit Comment Date: 5 p.m. Eastern Time dated 11/13/08 with Kingsport Power updated market power analyses etc. on Wednesday, December 3, 2008. Co, to be effective 1/1/09. Filed Date: 11/12/2008. Docket Numbers: ER09–279–000. Filed Date: 11/13/2008. Accession Number: 20081114–0234. Applicants: Buffalo Ridge I LLC. Accession Number: 20081117–0027. Comment Date: 5 p.m. Eastern Time Description: Buffalo Ridge I LLC Comment Date: 5 p.m. Eastern Time on Wednesday, December 3, 2008. submits FERC Electric Tariff, Original on Friday, November 28, 2008. Docket Numbers: ER06–456–017; Volume No. 1 etc. under ER09–279. Docket Numbers: ER09–289–000. ER05–880–001; ER06–1271–012; ER06– Filed Date: 11/14/2008. Applicants: New York Independent 954–013; ER07–424–008; EL07–57–004. Accession Number: 20081117–0029. System Operator, In. Applicants: PJM Interconnection Comment Date: 5 p.m. Eastern Time Description: New York Independent L.L.C. on Friday, December 5, 2008. System Operator, Inc submits the
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executed Coordination Agreement in conncetion with the acquisition by call (866) 208–3676 (toll free). For TTY, Between ISO New England, Inc and the John Deere Renewables, LLC from Noble call (202) 502–8659. NYISO. Thumb Windpark, LLC of 100 percent Nathaniel J. Davis, Sr., Filed Date: 11/13/2008. ownership interests. Accession Number: 20081117–0026. Deputy Secretary. Filed Date: 11/13/2008. Comment Date: 5 p.m. Eastern Time [FR Doc. E8–31066 Filed 12–30–08; 8:45 am] on Thursday, December 4, 2008. Accession Number: 20081117–0056. BILLING CODE 6717–01–P Docket Numbers: ER09–291–000. Comment Date: 5 p.m. Eastern Time Applicants: ISO New England Inc. on Thursday, December 4, 2008. Description: ISO New England Inc DEPARTMENT OF ENERGY submits revisions to the Coordination Any person desiring to intervene or to protest in any of the above proceedings Federal Energy Regulatory Agreement with New York Independent Commission System Operator, Inc. must file in accordance with Rules 211 Filed Date: 11/13/2008. and 214 of the Commission’s Rules of [Docket No. NJ08–3–001] Accession Number: 20081117–0031. Practice and Procedure (18 CFR 385.211 Comment Date: 5 p.m. Eastern Time and 385.214) on or before 5 p.m. Eastern Southwestern Power Administration; on Thursday, December 4, 2008. time on the specified comment date. It Notice of Filing Docket Numbers: ER09–292–000. is not necessary to separately intervene December 23, 2008. Applicants: California Independent again in a subdocket related to a Take notice that on December 16, System Operator C. compliance filing if you have previously 2008, Southwestern Power Description: California Independent intervened in the same docket. Protests Administration filed revisions to its System Operator Corp submits an will be considered by the Commission non-jurisdictional open access Amended and Restated Metered in determining the appropriate action to transmission tariff, incorporating Subsystem Agreement with City of be taken, but will not serve to make changes to its Attachment O— Santa Clara. protestants parties to the proceeding. Transmission Planning Process in Filed Date: 11/13/2008. Anyone filing a motion to intervene or compliance with the Commission’s Accession Number: 20081117–0033. protest must serve a copy of that September 18, 2008 Order. Comment Date: 5 p.m. Eastern Time document on the Applicant. In reference Southwestern Power Administration, on Thursday, December 4, 2008. to filings initiating a new proceeding, 124 FERC ¶ 61, 261 (2008). Docket Numbers: ER09–293–000. interventions or protests submitted on Any person desiring to intervene or to Applicants: Tri-Valley Corporation. or before the comment deadline need protest this filing must file in Description: Tri-Valley Corp submits a not be served on persons other than the accordance with Rules 211 and 214 of notice of cancellation of its FERC Applicant. the Commission’s Rules of Practice and Electric Tariff, Original Volume 1. Procedure (18 CFR 385.211, 385.214). Filed Date: 11/14/2008. The Commission encourages Protests will be considered by the Accession Number: 20081117–0055. electronic submission of protests and Commission in determining the Comment Date: 5 p.m. Eastern Time interventions in lieu of paper, using the appropriate action to be taken, but will on Friday, December 5, 2008. FERC Online links at http:// not serve to make protestants parties to Docket Numbers: ER09–294–000. www.ferc.gov. To facilitate electronic the proceeding. Any person wishing to Applicants: PacifiCorp. service, persons with Internet access become a party must file a notice of Description: PacifiCorp submits who will eFile a document and/or be intervention or motion to intervene, as revised Original Sheet 47A et al. to its listed as a contact for an intervenor appropriate. Such notices, motions, or FERC Electric Tariff, Seventh Revised must create and validate an protests must be filed on or before the Volume 11, effective 11/14/08. eRegistration account using the comment date. Anyone filing a motion Filed Date: 11/14/2008. eRegistration link. Select the eFiling to intervene or protest must serve a copy Accession Number: 20081117–0054. link to log on and submit the of that document on the Applicant and Comment Date: 5 p.m. Eastern Time intervention or protests. all the parties in this proceeding. on Friday, December 5, 2008. Persons unable to file electronically The Commission encourages Docket Numbers: ER09–296–000. should submit an original and 14 copies electronic submission of protests and Applicants: New York Independent interventions in lieu of paper using the of the intervention or protest to the System Operator, Inc. ‘‘eFiling’’ link at http://www.ferc.gov. Federal Energy Regulatory Commission, Description: New York Independent Persons unable to file electronically System, Operator, Inc et al. submits an 888 First St., NE., Washington, DC should submit an original and 14 copies executed Amended and Restated 20426. of the protest or intervention to the Standard Small Generator The filings in the above proceedings Federal Energy Regulatory Commission, Interconnection Agreement with are accessible in the Commission’s 888 First Street, NE., Washington, DC Innovative Energy Systems, Inc. eLibrary system by clicking on the 20426. Filed Date: 11/13/2008. appropriate link in the above list. They This filing is accessible on-line at Accession Number: 20081117–0032. are also available for review in the http://www.ferc.gov, using the Comment Date: 5 p.m. Eastern Time Commission’s Public Reference Room in ‘‘eLibrary’’ link and is available for on Thursday, December 4, 2008. Washington, DC. There is an review in the Commission’s Public Docket Numbers: ER09–297–000; eSubscription link on the Web site that Reference Room in Washington, DC. ER05–1511–004; ER07–1246–001. enables subscribers to receive e-mail There is an ‘‘eSubscription’’ link on the Applicants: Michigan Wind 1, LLC; notification when a document is added Web site that enables subscribers to Noble Thumb Windpark I, LLC; Harvest to a subscribed docket(s). For assistance receive e-mail notification when a WindFarm, LLC. with any FERC Online service, please e- document is added to a subscribed Description: Michigan Wind 1, LLC mail [email protected] or docket(s). For assistance with any FERC et al. submits Notice of Change in Status Online service, please e-mail
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[email protected], or call off-the-record communication relevant document on all parties listed on the (866) 208–3676 (toll free). For TTY, call to the merits of a contested proceeding, official service list for the applicable (202) 502–8659. to deliver to the Secretary of the proceeding in accordance with Rule Comment Date: 5 p.m. Eastern Time Commission, a copy of the 2010, 18 CFR 385.2010. on January 6, 2009. communication, if written, or a Exempt off-the-record summary of the substance of any oral Kimberly D. Bose, communications are included in the communication. decisional record of the proceeding, Secretary. Prohibited communications are unless the communication was with a [FR Doc. E8–31107 Filed 12–30–08; 8:45 am] included in a public, non-decisional file cooperating agency as described by 40 BILLING CODE 6717–01–P associated with, but not a part of, the CFR 1501.6, made under 18 CFR decisional record of the proceeding. 385.2201(e)(1)(v). Unless the Commission determines that DEPARTMENT OF ENERGY the prohibited communication and any The following is a list of off-the- responses thereto should become a part record communications recently Federal Energy Regulatory of the decisional record, the prohibited received by the Secretary of the Commission off-the-record communication will not Commission. The communications listed are grouped by docket numbers in [Docket No. RM98–1–000] be considered by the Commission in reaching its decision. Parties to a ascending order. These filings are Records Governing Off-the-Record proceeding may seek the opportunity to available for review at the Commission Communications; Public Notice respond to any facts or contentions in the Public Reference Room or may be made in a prohibited off-the-record viewed on the Commission’s Web site at December 23, 2008. communication, and may request that http://www.ferc.gov using the eLibrary This constitutes notice, in accordance the Commission place the prohibited link. Enter the docket number, with 18 CFR 385.2201(b), of the receipt communication and responses thereto excluding the last three digits, in the of prohibited and exempt off-the-record in the decisional record. The docket number field to access the communications. Commission will grant such a request document. For assistance, please contact Order No. 607 (64 FR 51222, only when it determines that fairness so FERC, Online Support at September 22, 1999) requires requires. Any person identified below as [email protected] or toll- Commission decisional employees, who having made a prohibited off-the-record free at (866) 208–3676, or for TTY, make or receive a prohibited or exempt communication shall serve the contact (202) 502–8659.
Docket No. File date Presenter or requester
Prohibited: 1. EC09–6–000 ...... 12–19–08 Mr. Prescott Lovern 1. 1 Memorandum for the Record of phone call communication.
Kimberly D. Bose, to public inspection. The filing may also Crossroads also asserts that there will be Secretary. be viewed on the Web at http:// no impact on Crossroads’ existing [FR Doc. E8–31106 Filed 12–30–08; 8:45 am] www.ferc.gov using the ‘‘eLibrary’’ link. design day and annual obligations to its BILLING CODE 6717–01–P Enter the docket number excluding the customers. last three digits in the docket number Any questions regarding the field to access the document. For application should be directed to DEPARTMENT OF ENERGY assistance, contact FERC at Fredric J. George, Lead Counsel, [email protected] or call Crossroads Pipeline Company, P.O. Box Federal Energy Regulatory toll-free, (866) 208–3676 or TTY, (202) 1273, Charleston, West Virginia 25325– Commission 502–8659. 1273, at (304) 357–2359. Specifically, Crossroads requests NGA Any person may, within 60 days after [Docket No. CP09–41–000] certification for its existing 3,000 the issuance of the instant notice by the Crossroads Pipeline Company; Notice horsepower Schererville Compressor Commission, file pursuant to Rule 214 of Request Under Blanket Station located in Lake County, Indiana. of the Commission’s Procedural Rules Authorization Crossroads states that the Schererville (18 CFR 385.214) a motion to intervene Compressor Station was constructed for or notice of intervention. Any person December 23, 2008. transactions under the Natural Gas filing to intervene or the Commission’s Take notice that on December 22, Policy Act (NGPA) section 311 to staff may, pursuant to section 157.205 of 2008, Crossroads Pipeline Company provide transportation. Crossroads the Commission’s regulations under the (Crossroads), 801 East 86th Avenue, asserts that the Schererville Compressor NGA (18 CFR 157.205) file a protest to Merrillville, IN 46410, filed a prior Station was placed in service on January the request. If no protest is filed within notice request pursuant to sections 27, 1997, and constructed at a cost of the time allowed therefore, the proposed 157.205 and 157.208 of the approximately $4.7 million to allow for activity shall be deemed to be Commission’s regulations under the the receipt of natural gas into authorized effective the day after the Natural Gas Act (NGA) and Crossroads’ Crossroads system from the pipeline time allowed for protest. If a protest is blanket certificate issued in Docket No. facilities of Natural Gas Pipeline filed and not withdrawn within 30 days CP94–342–000, for NGA certification of Company of America (Natural). after the time allowed for filing a an existing compressor station located Crossroads states that Natural protest, the instant request shall be in Lake County, Indiana, all as more constructed approximately 7 miles of treated as an application for fully set forth in the application, which pipeline facilities to interconnect with authorization pursuant to section 7 of is on file with the Commission and open the Schererville Compressor Station. the NGA.
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The Commission strongly encourages ADDRESSES: Submit your comments, copy. Publicly available docket electronic filings of comments, protests, identified by Docket ID No. EPA–R01– materials are available either and interventions via the Internet in lieu OW–2008–0910 by one of the following electronically in http:// of paper. See 18 CFR 385.2001(a)(1)(iii) methods: www.regulations.gov or in hard copy at and the instructions on the • http://www.regulations.gov: Follow the U.S. Environmental Protection Commission’s Web site (http:// the on-line instructions for submitting Agency, New England Region, One www.ferc.gov) under the ‘‘e-Filing’’ link. comments. Congress Street, Suite 1100, Boston, • E-mail: [email protected]. Massachusetts. To inspect the hard copy Kimberly D. Bose, • Mail and hand delivery: U.S. materials, please schedule an Secretary. Environmental Protection Agency, New appointment during normal business [FR Doc. E8–31109 Filed 12–30–08; 8:45 am] England Region, One Congress Street, hours with the contact listed in the FOR BILLING CODE 6717–01–P Suite 1100, Mail code CWQ, Boston, FURTHER INFORMATION CONTACT section. MA 02114–2023. Deliveries are only FOR FURTHER INFORMATION CONTACT: accepted during the Regional Office’s Jennie Bridge, EPA New England ENVIRONMENTAL PROTECTION normal hours of operation (8 a.m. to 5 Region, One Congress Street, Suite 1100, AGENCY p.m., Monday through Friday, excluding Mail code CWQ, (617) 918–1685, legal holidays), and special [email protected]. [FRL–8759–3] arrangements should be made for deliveries of boxed information. SUPPLEMENTARY INFORMATION: The Notice of Availability of Preliminary Instructions: Direct your comments to Regional Administrator of EPA’s New Residual Desigination of Certain Storm Docket ID No. EPA–R01–OW–2008– England Regional Office is providing Water Discharges in the State of Maine 0910. EPA’s policy is that all comments notice of availability of a preliminary Under the National Pollutant Discharge received will be included in the public determination that certain storm water Elimination System of the Clean Water docket without change and may be discharges in the Long Creek watershed Act made available online at http:// located in South Portland, Westbrook, www.regulations.gov, including any Scarborough, and Portland, Maine will AGENCY: Environmental Protection personal information provided, unless be required to obtain NPDES permits. Agency. the comment includes information Under Clean Water Act (CWA) Section ACTION: Notice and request for public claimed to be Confidential Business 402(p), 33 U.S.C. 1342(p), Congress comment. Information (CBI) or other information required the EPA to establish permitting whose disclosure is restricted by statute. requirements for certain storm water SUMMARY: The Regional Administrator Do not submit information that you discharges. In addition, CWA Sections of the Environmental Protection consider to be CBI or otherwise 402(p)(2)(E) and 402(p)(6) and Agency’s (EPA) New England Regional protected through http:// implementing regulations at 40 CFR Office is providing notice of availability www.regulations.gov, or e-mail. The 122.26 (a)(9)(i)(D) provide that the EPA of a preliminary determination that http://www.regulations.gov Web site is Regional Administrator may designate certain storm water discharges in the an ‘‘anonymous access’’ system, which additional storm water discharges as Long Creek watershed located in South means EPA will not know your identity requiring NPDES permits where he Portland, Westbrook, Scarborough, and or contact information unless you determines that the discharge, or Portland, Maine will be required to provide it in the body of your comment. category of discharges within a obtain permit coverage under the If you send an e-mail comment directly geographic area, contributes to a National Pollutant Discharge to EPA without going through http:// violation of a water quality standard or Elimination System (NPDES) permits www.regulations.gov your e-mail is a significant contributor of pollutants under the Clean Water Act. EPA is address will be automatically captured to waters of the United States. seeking public comment on the nature and included as part of the comment The EPA Regional Administrator for and scope of this preliminary residual that is placed in the public docket and the New England Region has made a designation. The period for comment on made available on the Internet. If you preliminary determination pursuant to this preliminary residual designation submit an electronic comment, EPA Section 402(p) of the Clean Water Act will remain open until the close of the recommends that you include your and 40 CFR 122.26 (9)(i)(D) that storm public comment period on any NPDES name and other contact information in water controls and NPDES permits are general or individual permit related to the body of your comment and with any needed for discharges to waters of the this preliminary residual designation. disk or CD–ROM you submit. If EPA United States from impervious surfaces However, EPA strongly encourages cannot read your comment due to equal to or greater than one acre in the interested parties to submit their technical difficulties and cannot contact Long Creek watershed located in South comments within 45 days of the you for clarification, EPA may not be Portland, Westbrook, Scarborough, and commencement of the comment period, able to consider your comment. Portland, Maine. Details of the after which EPA intends to review this Electronic files should avoid the use of preliminary determination are available preliminary residual designation and to special characters, any form of in the preliminary residual designation decide whether to make any changes to encryption, and be free of any defects or document. This document may be it. It is EPA’s intention to make a final viruses. viewed on the EPA New England residual designation following the close Docket: All documents in the docket Regional Office’s Web page http:// of the comment period on any are listed in the http:// www.epa.gov/region01/npdes/ associated NPDES permit. Copies of the www.regulations.gov index. Although stormwater/assets/pdfs/ preliminary residual designation are listed in the index, some information is LongCreekRD.pdf and at http:// available for inspection online and in not publicly available, e.g., CBI or other www.regulations.gov. Ancillary hardcopy as described elsewhere in this information whose disclosure is materials may be viewed at the EPA notice document. restricted by statute. Certain other New England Regional Office’s Web DATES: Comments must be submitted on material, such as copyrighted material, page http://www.epa.gov/region01/ or before February 17, 2009. will be publicly available only in hard npdes/stormwater/index.html.
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Dated: December 16, 2008. whose disclosure is restricted by statute. • Crop production (NAICS code 111). Robert W. Varney, Do not submit information that you • Animal production (NAICS code Regional Administrator, New England Region. consider to be CBI or otherwise 112). [FR Doc. E8–31178 Filed 12–30–08; 8:45 am] protected through regulations.gov or e- • Food manufacturing (NAICS code BILLING CODE 6560–50–P mail. The Federal regulations.gov 311). website is an ‘‘anonymous access’’ • Pesticide manufacturing (NAICS system, which means EPA will not code 32532). know your identity or contact ENVIRONMENTAL PROTECTION This listing is not intended to be AGENCY information unless you provide it in the body of your comment. If you send an exhaustive, but rather provides a guide [EPA–HQ–OPP–2008–0533; FRL–8392–1] e-mail comment directly to EPA without for readers regarding entities likely to be going through regulations.gov, your e- affected by this action. Other types of Notice of Filing of Pesticide Petition on entities not listed in this unit could also Food Contact Surfaces mail address will be automatically captured and included as part of the be affected. The North American Industrial Classification System AGENCY: Environmental Protection comment that is placed in the docket (NAICS) codes have been provided to Agency (EPA). and made available on the Internet. If assist you and others in determining ACTION: Notice. you submit an electronic comment, EPA recommends that you include your whether this action might apply to SUMMARY: This notice announces the name and other contact information in certain entities. If you have any initial filing of pesticide petitions the body of your comment and with any questions regarding the applicability of proposing the amendment of regulations disk or CD-ROM you submit. If EPA this action to a particular entity, consult 40 CFR 180.940(a) for residues of cannot read your comment due to the person listed at the end of the antimicrobial pesticide formulation technical difficulties and cannot contact pesticide petition summary of interest. containing n-Alkyl(C12-C14) dimethyl you for clarification, EPA may not be B. What Should I Consider as I Prepare ethylbenzyl ammonium chlorides able to consider your comment. My Comments for EPA? applied to food contact surfaces in Electronic files should avoid the use of public eating places, dairy processing special characters, any form of 1. Submitting CBI. Do not submit this equipment, and food processing encryption, and be free of any defects or information to EPA through equipment and utensils. viruses. regulations.gov or e-mail. Clearly mark the part or all of the information that DATES: Docket: All documents in the docket Comments must be received on you claim to be CBI. For CBI or before January 30, 2009. are listed in the docket index. Although listed in the index, some information is information in a disk or CD ROM that ADDRESSES: Submit your comments, not publicly available, e.g., CBI or other you mail to EPA, mark the outside of the identified by docket identification (ID) information whose disclosure is disk or CD ROM as CBI and then number EPA–HQ–OPP–2008–0533 and restricted by statute. Certain other identify electronically within the disk or pesticide petition number (PP), by one material, such as copyrighted material, CD ROM the specific information that is of the following methods: claimed as CBI. In addition to one • is not placed on the Internet and will be Federal eRulemaking Portal: http:// publicly available only in hard copy complete version of the comment that www.regulations.gov. Follow the on-line form. Publicly available docket includes information claimed as CBI, a instructions for submitting comments. materials are available either in the copy of the comment that does not • Mail: Office of Pesticide Programs electronic docket at http:// contain the information claimed as CBI (OPP) Regulatory Public Docket (7502P), www.regulations.gov, or, if only must be submitted for inclusion in the Environmental Protection Agency, 1200 available in hard copy, at the OPP public docket. Information so marked Pennsylvania Ave., NW., Washington, Regulatory Public Docket in Rm. S-4400, will not be disclosed except in DC 20460–0001. One Potomac Yard (South Bldg.), 2777 accordance with procedures set forth in • Delivery: OPP Regulatory Public S. Crystal Dr., Arlington, VA. The hours 40 CFR part 2. Docket (7502P), Environmental of operation of this Docket Facility are 2. Tips for preparing your comments. Protection Agency, Rm. S-4400, One from 8:30 a.m. to 4 p.m., Monday When submitting comments, remember Potomac Yard (South Bldg.), 2777 S. through Friday, excluding legal to: Crystal Dr., Arlington, VA. Deliveries holidays. The Docket telephone number i. Identify the document by docket are only accepted during the Docket’s is (703) 305–5805. number and other identifying normal hours of operation (8:30 a.m. to FOR FURTHER INFORMATION CONTACT: information (subject heading, Federal 4 p.m., Monday through Friday, Register date and page number). excluding legal holidays). Special Velma Noble, Antimicrobials Division arrangements should be made for (7510 P), Office of Pesticide Programs, ii. Follow directions. The Agency may deliveries of boxed information. The Environmental Protection Agency, 1200 ask you to respond to specific questions Docket telephone number is (703) 305– Pennsylvania Ave., NW., Washington, or organize comments by referencing a 5805. DC 20460; telephone number: (703) Code of Federal Regulations (CFR) part Instructions: Direct your comments to 308–6233, email; [email protected]. or section number. docket ID number EPA–HQ–OPP–2008– SUPPLEMENTARY INFORMATION: iii. Explain why you agree or disagree; 0533. EPA’s policy is that all comments I. General Information suggest alternatives and substitute received will be included in the docket language for your requested changes. without change and may be made A. Does this Action Apply to Me? iv. Describe any assumptions and available on-line at http:// You may be potentially affected by provide any technical information and/ www.regulations.gov, including any this action if you are an agricultural or data that you used. personal information provided, unless producer, food manufacturer, or v. If you estimate potential costs or the comment includes information pesticide manufacturer. Potentially burdens, explain how you arrived at claimed to be Confidential Business affected entities may include, but are your estimate in sufficient detail to Information (CBI) or other information not limited to: allow for it to be reproduced.
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vi. Provide specific examples to List of Subjects Pennsylvania Avenue, NW., illustrate your concerns, and suggest Environmental protection, Food Washington, DC 20460. alternatives. Contact Sanitizers, ADBAC, Food SUPPLEMENTARY INFORMATION: Requests vii. Explain your views as clearly as additives, Pesticides and pests, to make oral comments or to provide possible, avoiding the use of profanity Reporting and recordkeeping written comments to the FRRCC should or personal threats. requirements. be sent to Alicia Kaiser, Designated viii. Make sure to submit your Federal Officer, at the contact comments by the comment period Dated: December 17, 2008. information above by Wednesday, deadline identified. Joan Harrigan-Farrelly, January 7, 2009. The public is welcome II. What Action is the Agency Taking? Director, Antimicrobials Division, Office of to attend all portions of the meeting, but EPA is printing a summary of each Pesticide Programs. seating is limited and is allocated on a first-come, first-serve basis. Members of pesticide petition received under [FR Doc. E8–31008 Filed 12–30–08; 8:45 am] the public wishing to gain access to the section 408 of the Federal Food, Drug, BILLING CODE 6560–50–S and Cosmetic Act (FFDCA), 21 U.S.C. teleconference must contact Alicia 346a, proposing the establishment or Kaiser at (202) 564–7273 or amendment of regulations in 40 CFR ENVIRONMENTAL PROTECTION [email protected] by January 7, part 180 for residues of pesticide AGENCY 2009. chemicals in or on various food Meeting Access: For information on commodities. EPA has determined that [FRL–8756–9] access or services for individuals with this pesticide petition contains data or disabilities, please contact Alicia Kaiser Farm, Ranch, and Rural Communities information regarding the elements set at 202–564–7273 or Committee forth in FFDCA section 408(d)(2); [email protected]. To request accommodation of a disability, please however, EPA has not fully evaluated AGENCY: Environmental Protection the sufficiency of the submitted data at contact Alicia Kaiser, preferably at least Agency (EPA). 10 days prior to the meeting, to give this time or whether the data support ACTION: Notice of meeting. granting of the pesticide petition. EPA as much time as possible to process your request. Additional data may be needed before SUMMARY: Under the Federal Advisory EPA rules on this pesticide petition. Committee Act, Public Law 92–463, Dated: December 18, 2008. Pursuant to 40 CFR 180.7(f), a EPA gives notice of a meeting of the Alicia Kaiser, summary of the petition included in this Farm, Ranch, and Rural Communities Designated Federal Officer. notice, prepared by the petitioner along Committee (FRRCC). The purpose of the [FR Doc. E8–30723 Filed 12–30–08; 8:45 am] with a description of the analytical FRRCC is to provide advice to the BILLING CODE 6560–50–M method available for the detection and Administrator of EPA on environmental measurement of the pesticide chemical issues and programs that impact, or are residues is available on EPA’s Electronic of concern to, farms, ranches, and rural ENVIRONMENTAL PROTECTION Docket at http://www.regulations.gov/. communities. The FRRCC is a part of AGENCY To locate this information on the home EPA’s efforts to expand cooperative [EPA–HQ–OPP–2008–0893; FRL–8395–3] page of EPA’s Electronic Docket, select working relationships with the ‘‘Quick Search’’ and type the OPP agriculture industry and others who are Fomesafen; Notice of Receipt of docket ID number. Once the search has interested in agricultural issues to Request To Voluntarily Cancel located the docket, clicking on the achieve greater progress in Pesticide Registrations ‘‘Docket ID’’ will bring up a list of all environmental protection. documents in the docket for the The purpose of this teleconference is AGENCY: Environmental Protection pesticide including the petition to discuss and approve the draft FRRCC Agency (EPA). summary. recommendations on EPA’s Draft ACTION: Notice. Biofuels Strategy. A copy of the meeting Amendment to Existing Tolerance SUMMARY: In accordance with section Exemption agenda will be posted at http:// www.epa.gov/ocemlfrrcc. 6(f)(1) of the Federal Insecticide, PP 8F7323. Stepan Company, 22 West Fungicide, and Rodenticide Act Frontage Rd., Northfield, IL 60093, DATES: FRRCC will hold a public (FIFRA), as amended, EPA is issuing a proposes to amend the tolerance in 40 teleconference on Wednesday, January notice of receipt of a request by the CFR 180.190(a) for residues of the 14, 2009, from 4 p.m.–6 p.m. Eastern registrant to voluntarily cancel the antimicrobial pesticide formulations Standard Time. registration of certain products containing n-Alkyl (C12-C14) dimethyl ADDRESSES: The meeting will be held in containing the pesticide fomesafen. The ethylbenzyl ammonium chlorides that the U.S. EPA East Building, 1201 request would not terminate the last may be applied to food contact surfaces Constitution Ave., NW., Room 1132, fomesafen products registered for use in in public eating places, dairy processing Washington, DC 20004. the United States. EPA intends to grant equipment, and food processing FOR FURTHER INFORMATION CONTACT: this request at the close of the comment equipment and utensils. When ready for Alicia Kaiser, Designated Federal period for this announcement unless the use, end-use concentration of total Officer, kaiser.aliciaepa.gov, 202–564– Agency receives substantive comments quaternary chemicals, n-Alkyl (C12- 7273, U.S. EPA, Office of the within the comment period that would C14) dimethyl ethylbenzyl ammonium Administrator (1 1O1A), 1200 merit its further review of the request, chlorides, in solution is not to exceed Pennsylvania Avenue, NW., or unless the registrant withdraws the 400 parts per million (ppm). Analytical Washington, DC 20460, or Christopher request within this period. Upon method is not necessary since these Ashcraft, Junior Designated Federal acceptance of this request, any sale, quaternary ammonium compounds are Officer, [email protected], distribution, or use of products listed in exempt from the requirement of a 202–564–2432, U.S. EPA, Office of the this notice will be permitted only if tolerance. Administrator (1601M), 1200 such sale, distribution, or use is
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consistent with the terms as described Docket: All documents in the docket includes information claimed as CBI, a in the final order. are listed in the docket index available copy of the comment that does not DATES: Comments must be received on at http://www.regulations.gov. Although contain the information claimed as CBI or before January 30, 2009. listed in the index, some information is must be submitted for inclusion in the ADDRESSES: Submit your comments, not publicly available, e.g., CBI or other public docket. Information so marked identified by docket identification (ID) information whose disclosure is will not be disclosed except in number EPA–HQ–OPP–2008-0893, by restricted by statute. Certain other accordance with procedures set forth in one of the following methods: material, such as copyrighted material, 40 CFR part 2. • Federal eRulemaking Portal: http:// is not placed on the Internet and will be 2. Tips for preparing your comments. www.regulations.gov. Follow the on-line publicly available only in hard copy When submitting comments, remember instructions for submitting comments. form. Publicly available docket to: • Mail: Office of Pesticide Programs materials are available either in the i. Identify the document by docket ID (OPP) Regulatory Public Docket (7502P), electronic docket at http:// number and other identifying Environmental Protection Agency, 1200 www.regulations.gov, or, if only information (subject heading, Federal Pennsylvania Ave., NW., Washington, available in hard copy, at the OPP Register date and page number). DC 20460–0001. Regulatory Public Docket in Rm. S– ii. Follow directions. The Agency may • Delivery: OPP Regulatory Public 4400, One Potomac Yard (South Bldg.), ask you to respond to specific questions Docket (7502P), Environmental 2777 S. Crystal Dr., Arlington, VA. The or organize comments by referencing a Protection Agency, Rm. S–4400, One hours of operation of this Docket Code of Federal Regulations (CFR) part Potomac Yard (South Bldg.), 2777 S. Facility are from 8:30 a.m. to 4 p.m., or section number. iii. Explain why you agree or disagree; Crystal Dr., Arlington, VA. Deliveries Monday through Friday, excluding legal suggest alternatives and substitute are only accepted during the Docket holidays. The Docket Facility telephone number is (703) 305–5805. language for your requested changes. Facility’s normal hours of operation iv. Describe any assumptions and (8:30 a.m. to 4 p.m., Monday through FOR FURTHER INFORMATION CONTACT: provide any technical information and/ Friday, excluding legal holidays). Wilhelmena Livingston, Special Review or data that you used. Special arrangements should be made and Reregistration Division (7508P), Office of Pesticide Programs, v. If you estimate potential costs or for deliveries of boxed information. The burdens, explain how you arrived at Docket Facility telephone number is Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, your estimate in sufficient detail to (703) 305–5805. allow for it to be reproduced. Instructions: Direct your comments to DC 20460–0001; telephone number: (703) 308–8025; fax number: (703) 308– vi. Provide specific examples to docket ID number EPA–HQ–OPP–2008– illustrate your concerns and suggest 0893. EPA’s policy is that all comments 8005; e-mail address: [email protected]. alternatives. received will be included in the docket vii. Explain your views as clearly as SUPPLEMENTARY INFORMATION: without change and may be made possible, avoiding the use of profanity available on-line at http:// I. General Information or personal threats. www.regulations.gov, including any viii. Make sure to submit your personal information provided, unless A. Does This Action Apply to Me? comments by the comment period the comment includes information This action is directed to the public deadline identified. claimed to be Confidential Business in general, and may be of interest to a Information (CBI) or other information wide range of stakeholders including II. Background on the Receipt of whose disclosure is restricted by statute. environmental, human health, and Requests to Cancel Registrations Do not submit information that you agricultural advocates; the chemical This notice announces receipt by EPA consider to be CBI or otherwise industry; pesticide users; and members of a request from BASF to cancel two protected through regulations.gov or e- of the public interested in the sale, fomesafen product registrations. mail. The regulations.gov website is an distribution, or use of pesticides. Since Fomesafen is a pre-plant, pre-emergence ‘‘anonymous access’’ system, which others also may be interested, the and post-emergence herbicide used on means EPA will not know your identity Agency has not attempted to describe all soybeans, snap beans, dry beans, and or contact information unless you the specific entities that may be affected cotton. It is also registered for use on provide it in the body of your comment. by this action. If you have any questions agricultural fallow/idleland, If you send an e-mail comment directly regarding the applicability of this action nonagricultural uncultivated areas/soils, to EPA without going through to a particular entity, consult the person pine (forest/shelterbelt) and pine (seed regulations.gov, your e-mail address listed under FOR FURTHER INFORMATION orchard). In a letter dated November 4, will be automatically captured and CONTACT. 2008, BASF requested EPA to cancel included as part of the comment that is affected product registrations of B. What Should I Consider as I Prepare placed in the docket and made available pesticide product registrations My Comments for EPA? on the Internet. If you submit an identified in this notice in Table 1. electronic comment, EPA recommends 1. Submitting CBI. Do not submit this Specifically, BASF request cancellation that you include your name and other information to EPA through of their two end-use products for contact information in the body of your regulations.gov or e-mail. Clearly mark fomesafen registered in the United comment and with any disk or CD-ROM the part or all of the information that States. you submit. If EPA cannot read your you claim to be CBI. For CBI comment due to technical difficulties information in a disk or CD-ROM that III. What Action is the Agency Taking? and cannot contact you for clarification, you mail to EPA, mark the outside of the This notice announces receipt by EPA EPA may not be able to consider your disk or CD-ROM as CBI and then of a request from a registrant to cancel comment. Electronic files should avoid identify electronically within the disk or fomesafen product registrations. The the use of special characters, any form CD-ROM the specific information that is affected products and the registrant of encryption, and be free of any defects claimed as CBI. In addition to one making the request are identified in or viruses. complete version of the comment that Tables 1 and 2 of this unit.
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Under section 6(f)(1)(A) of FIFRA, at any time request that any of its ENVIRONMENTAL PROTECTION registrants may request, at any time, that pesticide registrations be canceled or AGENCY their pesticide registrations be canceled amended to terminate one or more uses. [FRL–8759–4] or amended to terminate one or more FIFRA further provides that, before pesticide uses. Section 6(f)(1)(B) of acting on the request, EPA must publish Recent Posting to the Applicability FIFRA requires that before acting on a a notice of receipt of any such request Determination Index (ADI) Database request for voluntary cancellation, EPA in the Federal Register. Thereafter, System of Agency Applicability must provide a 30–day public comment following the public comment period, Determinations, Alternative Monitoring period on the request for voluntary the Administrator may approve such a Decisions, and Regulatory cancellation or use termination. In request. Interpretations Pertaining to Standards addition, section 6(f)(1)(C) of FIFRA V. Procedures for Withdrawal of of Performance for New Stationary requires that EPA provide a 180–day Request and Considerations for Sources, National Emission Standards comment period on a request for Reregistration of Fomesafen for Hazardous Air Pollutants, and the voluntary cancellation or termination of Stratospheric Ozone Protection any minor agricultural use before Registrants who choose to withdraw a Program granting the request, unless: request for cancellation must submit 1. The registrant requests a waiver of such withdrawal in writing to the AGENCY: Environmental Protection the comment period, or person listed under FOR FURTHER Agency (EPA). 2. The Administrator determines that INFORMATION CONTACT, postmarked ACTION: Notice of Availability. continued use of the pesticide would before January 30, 2009. This written pose an unreasonable adverse effect on withdrawal of the request for SUMMARY: This notice announces the environment. cancellation will apply only to the applicability determinations, alternative The fomesafen registrant has applicable FIFRA section 6(f)(1) request monitoring decisions, and regulatory requested that EPA waive the 180–day listed in this notice. If the products(s) interpretations that EPA has made comment period. EPA will provide a have been subject to a previous under the New Source Performance 30–day comment period on the cancellation action, the effective date of Standards (NSPS); the National proposed request. cancellation and all other provisions of Emission Standards for Hazardous Air Unless a request is withdrawn by the any earlier cancellation action are Pollutants (NESHAP); and the registrant within 30 days of publication controlling. Stratospheric Ozone Protection of this notice, or if the Agency Program. determines that there are substantive VI. Provisions for Disposition of Existing Stocks FOR FURTHER INFORMATION CONTACT: An comments that warrant further review of electronic copy of each complete this request, an order will be issued Existing stocks are those stocks of document posted on the Applicability canceling the affected registrations. registered pesticide products which are Determination Index (ADI) database currently in the United States and system is available on the Internet TABLE 1.— FOMESAFEN PRODUCT which were packaged, labeled, and through the Office of Enforcement and REGISTRATIONS WITH PENDING RE- released for shipment prior to the Compliance Assurance (OECA) Web site QUESTS FOR CANCELLATION effective date of the cancellation action. at: http://www.epa.gov/compliance/ In any order issued in response to this monitoring/programs/caa/adi.html. The Registration Product request for cancellation of product document may be located by control Number Name Company registrations, EPA proposes to include number, date, author, subpart, or subject the following provisions for the 7969-82 BAS 530 BASF search. For questions about the ADI or 04 H treatment of any existing stocks of the this notice, contact Maria Malave at EPA herbi- products identified or referenced in by phone at: (202) 564–7027, or by cide. Table 1 in Unit III. Registrants may sell e-mail at: [email protected]. For and distribute existing stocks for 1 year technical questions about the individual 7969-83 FASTER BASF from the date of the use termination applicability determinations or TM her- request. The products may be sold, monitoring decisions, refer to the bicide. distributed, and used by people other contact person identified in the than the registrant until existing stocks individual documents, or in the absence Table 2 of this unit includes the name have been exhausted, provided that and address of record for the registrant of a contact person, refer to the author such sale, distribution, and use of the document. of the products listed in Table 1 of this complies with the EPA-approved label unit. SUPPLEMENTARY INFORMATION: and labeling of the product. Background: The General Provisions to If the request for voluntary the NSPS in 40 Code of Federal TABLE 2.— REGISTRANT REQUESTING cancellation is granted, the Agency VOLUNTARY CANCELLATION Regulations (CFR) part 60 and the intends to publish the cancellation NESHAP in 40 CFR part 61 provide that order in the Federal Register. EPA Company Company Name and a source owner or operator may request Number Address a determination of whether certain List of Subjects intended actions constitute the 7969 BASF, 26 Davis Drive, Environmental protection, Pesticides commencement of construction, Triangle Park, North and pests. reconstruction, or modification. EPA’s Carolina 27709-3528 written responses to these inquiries are Steven Bradbury, commonly referred to as applicability IV. What is the Agency’s Authority for Director, Special Review and Reregistration determinations. See 40 CFR 60.5 and Taking this Action? Division, Office of Pesticide Programs. 61.06. Although the part 63 NESHAP Section 6(f)(1) of FIFRA provides that [FR Doc. E8–31009 Filed 12–30–08; 8:45 am] and section 111(d) of the Clean Air Act a registrant of a pesticide product may BILLING CODE 6560–50–S regulations contain no specific
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regulatory provision that sources may interpretations, and posts them on the Summary of Headers and Abstracts request applicability determinations, ADI on a quarterly basis. In addition, The following table identifies the EPA does respond to written inquiries the ADI contains EPA-issued responses database control number for each regarding applicability for the part 63 to requests pursuant to the stratospheric document posted on the ADI database and section 111(d) programs. The NSPS ozone regulations, contained in 40 CFR system on December 12, 2008 and and NESHAP also allow sources to seek part 82. The ADI is an electronic index December 23, 2008; the applicable permission to use monitoring or on the Internet with over one thousand category; the subpart(s) of 40 CFR part recordkeeping that are different from the EPA letters and memoranda pertaining 60, 61, or 63 (as applicable) covered by promulgated requirements. See 40 CFR to the applicability, monitoring, the document; and the title of the 60.13(i), 61.14(g), 63.8(b)(1), 63.8(f), and recordkeeping, and reporting document, which provides a brief 63.10(f). EPA’s written responses to requirements of the NSPS and NESHAP. description of the subject matter. these inquiries are commonly referred to The letters and memoranda may be We have also included an abstract of as alternative monitoring decisions. searched by date, office of issuance, each document identified with its Furthermore, EPA responds to written subpart, citation, control number or by control number after the table. These inquiries about the broad range of NSPS string word searches. abstracts are provided solely to alert the and NESHAP regulatory requirements as public to possible items of interest and Today’s notice comprises a summary they pertain to a whole source category. are not intended as substitutes for the of 107 such documents added to the These inquiries may pertain, for full text of the documents. This notice example, to the type of sources to which ADI on December 12, 2008 and does not change the status of any the regulation applies, or to the testing, December 23, 2008. The subject, author, document with respect to whether it is monitoring, recordkeeping or reporting recipient, date and header of each letter ‘‘of nationwide scope or effect’’ for requirements contained in the and memorandum are listed in this purposes of section 307(b)(1) of the regulation. EPA’s written responses to notice, as well as a brief abstract of the Clean Air Act. For example, this notice these inquiries are commonly referred to letter or memorandum. Complete copies does not make an applicability as regulatory interpretations. of these documents may be obtained determination for a particular source EPA currently compiles EPA-issued from the ADI through the OECA Web into a nationwide rule. Neither does it NSPS and NESHAP applicability site at: http://www.epa.gov/compliance/ purport to make any document that was determinations, alternative monitoring monitoring/programs/caa/adi.html. previously non-binding into a binding decisions, and regulatory document.
ADI DETERMINATIONS UPLOADED ON DECEMBER 12, 2008
Control number Category Subpart Title
A080001 ...... NSPS ...... J ...... Alternative Monitoring Plan for Refinery Fuel Gas. M080005 ...... MACT ...... EEEEE Force Majeure Events Delaying Initial Performance Testing for an Iron and Steel Foundry. M080006 ...... MACT ...... EEEEE Disapproval of Alternative Stack Testing Request. M080007 ...... MACT ...... DDDDD Request to Substitute Flue Gas Temperature Monitoring for Pressure Drop Monitoring. M080008 ...... MACT ...... YY ...... Control Requirement for Plant Exhaust from Primary Bag Filter Vents when Routed and not Routed to a Cogeneration Unit. M080009 ...... MACT ...... IIIII ...... Continuous Compliance Requirements for Mercury Recovery Units. M080010 ...... MACT ...... EEEEE Storage and Transfer of Toluene Used as Fuel. M080011 ...... MACT ...... FFFF .... Multiple Standard Batches to Define a Process within a Single MCPU. M080012 ...... MACT ...... GGG, MON Rule and Pharmaceuticals NESHAP for Glucosamine Hydrochloride. FFFF. M080013 ...... MACT ...... FFFF .... Manufacture of Poly Methyl Methacrylate (PMMA) Acrylic Sheet. M080014 ...... MACT ...... MMM, Initial Compliance Demonstration for Thermal Treatment Units. SS. M080016 ...... MACT ...... GGG ..... Process Condensers and 20 ppmv Limit without Calculating Uncontrolled Emissions. M080017 ...... MACT ...... MMM, Use of Previously Conducted Performance Tests for Initial Compliance Demonstration. SS. M080018 ...... MACT ...... N ...... Alternative Testing, Monitoring, and Work Practice Standards. M080019 ...... MACT ...... RRR ..... Request for Waiver of Performance Tests for Low-speed Aluminum Scrap Shredders. M080020 ...... MACT ...... UUUU ... Request for Alternative Monitoring Plan Following Replacement of GC/PID Instrument. Z080003 ...... NESHAP ... F ...... Alternative Monitoring Plan Modification. 800017 ...... NSPS ...... Db ...... Alternative Monitoring Procedure for Opacity. 800018 ...... NSPS ...... WWW ... Alternative Monitoring Requests. 800019 ...... NSPS ...... WWW ... Alternative Monitoring Requests. 800020 ...... NSPS ...... WWW ... Alternative Monitoring Requests. 800021 ...... NSPS ...... J, Ja ..... Gap in Continuous Program of Construction for Process Heater. 800022 ...... NSPS ...... WWW ... Request for Higher Operating Temperature at Landfill Wellhead. 800023 ...... NSPS ...... WWW ... Request for Higher Operating Temperature at Landfill Wellhead. 800024 ...... NSPS ...... WWW ... Alternative Compliance Timeline for Landfill. 800025 ...... NSPS ...... CC ...... Bridgewall Optical Temperature (BWOT) Alternative Monitoring Proposal. 800026 ...... NSPS ...... WWW ... Alternative Compliance Timeline for Landfill Well. 800027 ...... NSPS ...... Db, Dc .. Indirect-Fired Dryers used in the Ethanol Industry. 800028 ...... NSPS ...... UUU ..... Synthetic Alumina Applicability Determination. 800029 ...... NSPS ...... D ...... Continuous Particulate Emission Monitoring System. 800030 ...... NSPS ...... D ...... Continuous Particulate Emission Monitoring System. 800031 ...... NSPS ...... KKKK ... Reconstruction of a Stationary Combustion Turbine. 800032 ...... NSPS ...... VV, VVa Alternative Monitoring Procedure for Leak Detection. 800033 ...... NSPS ...... J ...... Revised Alternative Monitoring Plan Conditions for Hydrogen Sulfide.
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ADI DETERMINATIONS UPLOADED ON DECEMBER 12, 2008—Continued
Control number Category Subpart Title
800034 ...... NSPS ...... Dc ...... Boiler Derate Proposal. 800035 ...... NSPS ...... WWW ... Alternative Compliance Timeline for Landfill Well. 800036 ...... NSPS ...... KKK ...... Applicability to Expansion Project at Propane Refrigeration Plant. 800037 ...... NSPS ...... UUU ..... Alternative Monitoring for Calciner. 800038 ...... NSPS ...... WWW ... Alternative Compliance Timeline for Leachate Recirculation Line. 800039 ...... NSPS ...... WWW ... Alternative Timeline to Correct Positive Pressure at Landfill Wells. 800040 ...... NSPS ...... WWW ... Alternative Standards/Procedures for Oxygen/Pressure. 800041 ...... NSPS ...... Kb ...... Process Tanks Defined. 800042 ...... NSPS ...... Kb ...... Request for Reconsideration of Gasoline Storage Vessel Decision. 800043 ...... NSPS ...... GG, Original owner/operator of Gas Turbine. KKKK. 800044 ...... NSPS ...... Da ...... Modification to Increase Feed Rate with Bottleneck. 800045 ...... NSPS ...... Da ...... Modification to Increase Feed Rate with Bottleneck. M080021 ...... MACT ...... RRR ..... Applicability to Aluminum Shredder/Baler. M080022 ...... MACT ...... NNNNN Alternative Monitoring for Water Scrubber/Mist Eliminator. M080023 ...... MACT ...... RRR ..... Thermal Chip Dryer Operation Prior to Performance Testing. M080024 ...... MACT ...... KKKK ... Applicability determination for Metal Can Surface Coating NESHAP. M080025 ...... MACT ...... G ...... Alternative Monitoring Parameters for HON Carbon Adsorber System. M080026 ...... MACT ...... G ...... Alternative Monitoring Parameters for HON Carbon Adsorber System. M080027 ...... MACT ...... RRR ..... Dioxin/Furan Stack Test Waiver Request. M080028 ...... MACT ...... RRR ..... Dioxin/Furan State Test Waiver Request, OM & M Plan Deficiencies, and Lime Injection. M080029 ...... MACT ...... CC, R ... Alternate Monitoring Parameter for Assist Gas in Flare. M080031 ...... MACT ...... DDDDD Definition of Process Heater. M080034 ...... MACT ...... FFFFF .. Stack Test Waiver Request. M080035 ...... MACT ...... JJJJ ...... Compliance Demonstration for Paper and Other Web Coating. Z080004 ...... NESHAP ... E ...... Applicability for Sludge Dryer. 800046 ...... NSPS ...... DD ...... Applicability and Alternative Control Conditions for Malting Facility. 800047 ...... NSPS ...... WWW ... Treated Landfill Gas Exemption. 800048 ...... NSPS ...... J ...... Alternative Monitoring Plan at Petroleum Refinery. 800049 ...... NSPS ...... J ...... Alternative Monitoring for Petroleum Refinery Vapor Combustion Unit. 800050 ...... NSPS ...... J ...... Alternative Monitoring for Petroleum Refinery Vapor Combustion Unit. 800051 ...... NESHAP ... E ...... Waiver of Mercury Emissions Testing for Refinery. 800052 ...... NSPS ...... UUU ..... Alternative Monitoring for Wet Scrubber. 800053 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedances at Landfill Well. 800054 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedances at Landfill Well. 800055 ...... NSPS ...... J ...... Alternative Monitoring for Vapors from Disulfide Separator Venting. 800056 ...... NSPS ...... OOO ..... Preparatory Processes for Gypsum Stucco Production. 800057 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedances at Landfill Well. 800058 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedances at Landfill Well. 800059 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedances at Landfill Well. 800060 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedances at Landfill Wells. 800061 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedances at Landfill Well. 800062 ...... NSPS ...... WWW ... Alternative Temperature at Recycling and Disposal Facility. 800063 ...... NSPS ...... WWW ... Alternative Temperature at Recycling and Disposal Facility. 800064 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedances at Landfill Well. 800065 ...... NSPS ...... WWW ... Alternative Monitoring Procedures at a Landfill. 800066 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedance at Landfill Well. 800067 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedance at Landfill Well. 800068 ...... NSPS ...... WWW ... Alternative Monitoring, Testing, and Other Requirements for a Landfill. 800069 ...... NSPS ...... WWW ... Treated Landfill Gas Exemption. 800070 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedance at Landfill Well. 800071 ...... NSPS ...... GG ...... Revision of Custom Fuel Monitoring Schedule. 800072 ...... NSPS ...... WWW ... Emissions Rate Reporting Requirements at Landfill. 800073 ...... NSPS ...... BB ...... Applicability Determination for Kraft Pulp Mill TRS Emissions. 800074 ...... NSPS ...... OOO ..... Performance Testing Requirement Condition D.4.6. 800075 ...... NSPS ...... AAa ...... Installation of a Capacitor/Reactor at an Electric Arc Furnace. 800076 ...... NSPS ...... J ...... Alternative Monitoring for Opacity Due to Wet Gas Scrubber. 800077 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedance at a Landfill Well. 800078 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedance at a Landfill Well. 800079 ...... NSPS ...... AAAA, Landfill Gas Treatment Exemption. WWW. 800080 ...... NSPS ...... J ...... Alternative Monitoring for Thermal Vapor Incinerator. 800081 ...... NSPS ...... J ...... Alternative Monitoring Plan for Propane Vapor from a Vent Gas Absorber. 800082 ...... NSPS ...... J ...... Alternative Monitoring Request for FCCU COMS at a Refinery. 800083 ...... NSPS ...... DD ...... Applicability for Co-Located Grain Elevators. 800084 ...... NSPS ...... OOO ..... Alternative Testing Method Request for Wallboard Shredder. 800085 ...... NSPS ...... WWW ... Alternative Timeline to Correct Exceedance at a Landfill Well. 800086 ...... NSPS ...... WWW ... Change to Standard Operating Procedure at a Landfill. 800087 ...... NSPS ...... H ...... Applicability for Sulfuric Acid Plants with Hydrogen Sulfide Burning Processes. M080037 ...... MACT ...... RRR ..... Compliance with ACGIH Ventilation Manual. M080036 ...... MACT ...... RRR ..... Clean Charge Defined. 0800088 ...... NSPS ...... J ...... Applicability to a Refinery Flare.
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ADI DETERMINATIONS UPLOADED ON DECEMBER 12, 2008—Continued
Control number Category Subpart Title
ADI Determinations Uploaded on December 23, 2008
0800089 ...... NSPS ...... Db ...... Dryers at OSB Bark Burner System. 0800090 ...... NSPS ...... J, Ja ..... Integrated Gasification Combined Cycle Power Plant. Z080005 ...... NESHAP ... CC ...... Integrated Gasification Combined Cycle Power Plant.
Abstracts collected meets or exceeds 60 dry (SSM). When the plant exhaust from the Abstract for [A080001] standard cubic feet for each sampling primary bag filter vents for Units 1, 2, run as specifically required under 40 and 3 bypasses the cogeneration unit Q: Does EPA allow ConocoPhillips’ CFR 63.7732(b)(2). during SSM, the facility must follow its Wood River Refinery in Roxana, Illinois, SSM plan. to monitor the liquid benzene at the Abstract for [M080007] finished product tanks under 40 CFR Q: Does EPA allow S.D. Warren to Abstract for [M080009] part 60, subpart J, in lieu of monitor the flue gas temperature of the Q: Does 40 CFR part 63, subpart IIIII continuously monitoring the sulfur wet scrubber outlet in lieu of monitoring require a daily average or an hourly dioxide concentration of the displaced the pressure drop across the wet average to determine continuous barge vapors from benzene loading? scrubber under 40 CFR part 63, subpart compliance with the emissions standard These displaced barge vapors are DDDDD? The S.D. Warren Company/ for mercury recovery units under directed to the Marine Vapor Control SAPPI Fine Paper of North America’s Section 63.8190(a)(3)? system thermal oxidizer. Skowhegan, Maine, pulp mill has a A: When determining continuous A: Yes. EPA finds that the proposed large multi-fuel boiler with an compliance with the emissions standard alternative monitoring proposal from associated wet scrubber that does not for mercury recovery units under 40 ConocoPhillips meets the requirements experience a significant pressure drop CFR 63.8190(a)(3), a facility should of EPA’s guidance entitled ‘‘Alternative because it is an open vessel. calculate a daily average mercury Monitoring Plan for NSPS subpart J A: Yes. EPA finds this acceptable concentration, using Equation 2 at 40 Refinery Fuel Gas.’’ The displaced under MACT subpart DDDDD. A CFR 63.8240(a). benzene vapors from the benzene temperature drop in the range of 250 Abstract for [M080010] loading are inherently low in sulfur degrees Fahrenheit at the scrubber content. outlet will indicate that the flue gases Q: Does the exemption from the Abstract for [M080005] are coming into contact with the definition of ‘‘organic liquid’’ for gasoline (including aviation gasoline), Q: Does EPA consider, as force scrubber water in order to control kerosene (No. 1 distillate oil), diesel majeure, certain furnace malfunctions particulate matter emissions. A (No. 2 distillate oil), asphalt, and and labor strikes that prevented stack continuous monitoring system that can heavier distillate oils and fuel oils in 40 tests from being conducted before the be used to determine and record the flue compliance deadline under 40 CFR part gas temperature of the boiler wet CFR 63.2406 of the Organic Liquid 63, subpart EEEEE, at the Indianapolis scrubber outlet at least once every Distribution National Emissions Casting facility in Indianapolis, Indiana? successive 15-minute period should be Standard for Hazardous Air Pollutants A: Yes. EPA finds that the certain installed, calibrated, maintained, and (NESHAP), 40 CFR part 63, subpart events, such as furnace malfunctions operated. EEEE (OLD MACT) include the use of toluene as a fuel in the inorganic and labor strikes, as described in EPA’s Abstract for [M080008] response to Indianapolis Casting, can be chemical process that manufactures considered as force majeure under Q: What are the applicability and titanium dioxide (TiO2) at the DuPont MACT subpart A. The furnace control requirements under 40 CFR part Company (DuPont) of Wilmington, malfunctions were safety related and 63, subpart YY, for the plant exhaust Delaware? required extended furnace shut downs from the primary bag filter vents for A: No. EPA concludes that the OLD for repair, and labor actions are beyond Units 1, 2, and 3 at the Sid Richardson MACT applies to the storage and the control of the company. Big Springs facility in Howard County, transfer of toluene used as fuel in the Texas, which are primarily routed to a production of TiO2. The exemption in Abstract for [M080006] cogeneration unit but also can be routed 40 CFR 63.2406(3)(i) in the definition of Q: Does EPA accept stack test results away from the facility’s cogeneration ‘‘organic liquid’’ applies only to those performed before the compliance unit to a flare? expressly listed liquids. Because toluene deadline of 40 CFR part 63, subpart A: The facility would be subject to is an organic liquid and is not gasoline, EEEEE, as the required initial different requirements under MACT kerosene, diesel, asphalt, or a heavier compliance demonstration at the subpart YY depending upon the use of distillate oil or fuel oil, it is not eligible Indianapolis Casting facility in the exhaust gas. When the facility routes for the exemption under 40 CFR Indianapolis, Indiana? the exhaust gas to the cogeneration unit, 63.2406(3)(i) merely because it may be A: Yes. EPA accepts stack test results no control requirements would apply. used as a fuel. before the compliance deadline under During the times the facility bypasses MACT subpart EEEEE as the initial the cogeneration system to the flare, the Abstract for [M080011] compliance demonstration only if the plant exhaust from the primary bag filter Q: Does EPA allow a facility to use production rates achieved during the vents for Units 1, 2, and 3 must meet the multiple standard batches to define a April 2005 tests are representative of the requirements under MACT subpart YY process within a single miscellaneous highest production rates currently for process vents, unless there is a chemical manufacturing process unit achievable, and the gas sample volume startup, shutdown, or malfunction (MCPU) under 40 CFR part 63, subpart
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FFFF, National Emission Standards for 40 CFR part 63, subpart FFFF (the Michigan, facility, the use of the results Hazardous Air Pollutants: MON)? of performance tests conducted on three Miscellaneous Organic Chemical A: Yes. EPA approves the use of these thermal treatment units per 40 CFR part Manufacturing (the MON rule)? previously conducted performance tests 63, subparts GGG and MMM, in lieu of A: EPA finds that a facility may as the initial compliance demonstration conducting an initial compliance request that EPA exercise its authority for the MON, based in part on Dow demonstration for 40 CFR part 63, under 40 CFR 63.10(f) to modify the Chemical’s use of test methods subpart FFFF (the MON)? recordkeeping and reporting referenced in MACT subpart FFFF and A: Yes. EPA approves the use of these requirements in the MON rule and its declaration that no significant previously conducted performance tests allow multiple standard batches per process changes have occurred since as the initial compliance demonstration process. Facilities can request approvals these tests. for the MON, based on Dow’s use of test methods referenced in 40 CFR part 63, of alternative recordkeeping and Abstract for [M080016] reporting in their precompliance subpart FFFF and statement that no reports. [See 40 CFR 63.2520(c)]. Q1: Does EPA approve Dow significant process changes have Alternatively, requests submitted after AgroSciences’ (DAS) request to monitor occurred since these tests. the liquid temperature of its condensers the due date of the precompliance Abstract for [M080018] report (i.e., after November 13, 2007) at its Harbor Beach, Michigan, facility as may be submitted under 40 CFR an alternative to measuring the exhaust Q: Does EPA approve alternative test 63.10(f). gas temperature when demonstrating methods, monitoring, and work practice initial compliance with 40 CFR part 63, standards under 40 CFR part 63, subpart Abstract for [M080012] subpart GGG (the Pharma-MACT)? N, for Finishing Innovation’s proposed Q1: Which Standard Industrial A1: No. In regards to the initial new hard chrome electroplating tank in Classification (SIC) code applies to the compliance demonstration for process Warsaw, Indiana? The proposed new glucosamine hydrochloride production condensers under MACT subpart GGG, tank will be equipped with an Emission process at Cargill Incorporated in EPA will not approve DAS’s request to Elimination Device (EED), or formerly Eddyville, Iowa? monitor the liquid temperature as an known as the Merlin Cover, which is a A1: The appropriate SIC code for the alternative to monitoring the exhaust patented system which totally encloses glucosamine hydrochloride production gas temperature because DAS started the chrome tank while plating takes process is 289, Miscellaneous Chemical operating its condensers before the place. Products. compliance date, and it did not present A: Yes. EPA approves the proposed Q2: Is the process subject to 40 CFR sufficient technical justification for the alternative test method, monitoring part 63, subpart FFFF, the National alternative method. procedures and work practices Emission Standards for Hazardous Air Q2: Does EPA approve DAS’s request consistent with previous approvals. Pollutants: Miscellaneous Organic to comply with the 20 ppmv outlet EPA’s Office of Air Quality Planning Chemical Manufacturing (MON) Rule? concentration limit under and Standards (OAQPS) approved an A2: Yes. The glucosamine § 63.1254(a)(1)(ii)(A) without alternative test method utilizing a hydrochloride production process is calculating uncontrolled hazardous air smoke generation device. This device subject to the MON Rule. pollutant emissions from all emission would be ignited and placed inside the Q3: If this process is not subject to the episodes using the equations specified EED and the absence of leaking smoke MON Rule, is it subject to the in § 63.1257(d)(2)(i), or developing an confirmed to demonstrate that the EED Pharmaceuticals NESHAP or another engineering assessment as allowed in completely encloses the atmosphere NESHAP? Section 63.1257(d)(2)(ii), or developing over the chrome electroplating tank. A3: No, the facility is not subject to an emission profile as required by EPA Region 5 has also approved the Pharmaceuticals NESHAP or § 63.1257(b)(8)(ii)? alternative monitoring requirements and another NESHAP. A2: No. In regards to complying with work practices to monitor continuous the 20 ppmv outlet concentration limit compliance of the EED and to ensure Abstract for [M080013] under 40 CFR 63.1254(a)(1)(ii)(A), EPA that it maintains compliance. Q. Is the process by which the will not approve DAS’s request to forgo Spartech Polycast facility in Stamford, calculating uncontrolled emissions, Abstract for [M080019] Connecticut, manufactures poly methyl developing an engineering assessment, Q: Does J.L. French Corporation’s methacrylate (PMMA) acrylic sheet or developing an emission profile variance request letter contain adequate subject to 40 CFR part 63, subpart FFFF? because the alternative standard, at information for the EPA to approve a A. Yes. Spartech’s operations produce § 63.1254(c), is the only process-vent request for waiver of initial performance a material (PMMA) classified using compliance option for the Pharma- tests as well as all subsequent Standard Industrial Classification (SIC) MACT that does not require calculation performance tests for the existing code 282 or The North American of uncontrolled emissions because it aluminum scrap shredders located at Industry Classification System (NAICS) requires continuous monitoring through J.L. French Corporation’s Gateway and NAICS code 325, and its operations a continuous emission monitoring Taylor secondary aluminum production meet all the other criteria for MACT system (CEMS). As DAS does not facilities in Sheboygan, Wisconsin? subpart FFFF to apply. employ a CEMS, the only way it can A: No. EPA finds that based on the ensure compliance with 40 CFR information submitted to the EPA, we Abstract for [M080014] 63.1254(a)(1)(ii)(A) is if it calculates cannot approve J.L. French Q: Does EPA approve the use at Dow uncontrolled emissions and develops an Corporation’s request for waiver of Chemical’s Midland, Michigan, facility emission profile under worst-case initial performance tests, as well as all of the results of performance tests conditions. subsequent performance tests for the conducted on three thermal treatment existing aluminum scrap shredders. For units under 40 CFR part 63, subparts Abstract for [M080017] the EPA to make an informed decision GGG and MMM, in lieu of conducting Q: Does EPA approve at Dow either approving or denying such a an initial compliance demonstration for Chemical Company’s Midland, request, J.L. French Corporation’s
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application for waiver of performance alternative to the use of a continuous Abstract for [0800020] tests must be accompanied by a opacity monitoring system (COMS), Q: Does EPA approve changes to comprehensive compliance status report EPA finds that there is no justification monitoring and operational proving compliance with the relevant for now allowing the use of parametric requirements for the landfill operated by aluminum scrap shredder standards at monitoring of the ESP. Therefore, unless Lee County in Dixon, Illinois, under 40 40 CFR part 63, subpart RRR. In U.S. Sugar can demonstrate that a PM CFR part 60, subpart WWW? addition, 40 CFR 63.7(h)(3)(iii) provides CEMS is not a viable alternative to a A: Conditional. EPA finds that it that any application for a waiver of a COMS, EPA does not approve the needs to approve alternatives to performance test shall include request to use parametric monitoring, monitoring and operational information justifying the owner or which is a less accurate and reliable requirements that are part of the design operator’s request for a waiver, such as alternative. plan, and EPA’s Office of Air Quality the technical or economic infeasibility, Abstract for [0800018] Planning and Standards (OAQPS) needs or the impracticality, of the affected to approve alternative test methods. source performing the required test. Q: Does EPA approve changes to However, IEPA has the authority to Abstract for [M080020] monitoring and operational approve non-monitoring, non- Q: Does EPA approve a change to requirements for the landfill operated by operational changes to the design plan. Viscofan’s (formerly Teepak) alternative Environtech in Morris, Illinois, under 40 EPA refers to several previous monitoring plan under 40 CFR part 63, CFR part 60, subpart WWW? applicability determinations on the Applicability Determination Index (ADI) subpart UUUU, originally approved in A: Conditional. EPA finds that it with ADI Control Numbers 03000120, February 2005 at its facility in Danville, needs to approve alternatives to 0400033, 0600062, 0600063, and Illinois? Viscofan would like to replace monitoring and operational one of its GC/PID instruments with a M040028, and the modifications of requirements that are part of the design September 21, 2006, to part 60 (71 FR new Baseline-MOCON, Incorporated plan, and EPA’s Office of Air Quality Model 8900 GC/PID to measure 55127) in addressing many specific Planning and Standards (OAQPS)needs requests. hydrogen sulfide and carbon disulfide. to approve such alternative test A: Conditional. EPA has determined methods. However, the Illinois Abstract for [0800021] that it is acceptable under MACT Environmental Protection Agency Q: Does EPA allow the gas-fired subpart UUUU for Viscofan to perform (IEPA) has the authority to approve non- process heater (new 77F–1) installed at a carrier gas (zero) and a single upscale monitoring, non-operational changes to the Marathon Ashland Petroleum gas Quality Control (QC) check on a the design plan. EPA refers to several refinery (Marathon) in Robinson, daily basis for each chemical monitored. previous determinations on the However, Viscofan must still do a full Illinois, to be exempt from 40 CFR part Applicability Determination Index (ADI) linearity-type calibration (zero and at 60, subpart Ja, given that the heater was with ADI Control Numbers 03000120, least three upscale gas concentrations) purchased in 2001 but never installed? 0400033, 0600062, 0600063, and initially and at least quarterly thereafter A: No. Given the six-year gap since M040028, and the modifications of for each chemical monitored. the purchase of the heater and its September 21, 2006, to 40 CFR part 60 incomplete fabrication, and given Abstract for [Z080003] (71 FR 55127) in addressing many further that Marathon has not started the Q: Does EPA allow modification in specific requests. bidding process to ship and install the process heater, EPA finds that Marathon the existing vinyl chloride alternative Abstract for [0800019] monitoring plan under 40 CFR part 61, has not undertaken a continuous subpart F, for Lubrizol Advanced Q: Does EPA approve changes to program of construction and has not Material’s polyvinyl chloride plant in monitoring and operational ‘‘commenced construction’’ of an Louisville, Kentucky? requirements for the landfill operated by ‘‘affected facility’’ on or prior to May 14, A: Yes. Based upon a statistical LandComp in Ottawa, Illinois, under 40 2007. Thus, when the heater is analysis presented by Lubrizol, EPA CFR part 60, subpart WWW? constructed at the refinery and upon the finds that there are only minor effective date of NSPS subpart Ja, the A: Conditional. EPA finds that it differences between individual and heater will be subject to NSPS subpart composite resin samples that the needs to approve alternatives to Ja. monitoring and operational company analyzes on a monthly basis Abstract for [0800022 & 0800023] under NESHAP subpart F. Therefore, requirements that are part of the design EPA waives the requirement to compare plan, and EPA’s Office of Air Quality Q: Does EPA allow the Milam the results of individual and composite Planning and Standards (OAQPS) Recycling and Disposal facility (Milam) samples on a monthly basis. specifically within EPA needs to in East Street Louis, Illinois, to obtain a approve alternative test methods. higher operating temperature for landfill Abstract for [0800017] However, the Illinois Environmental gas extraction wells MW 39 and MW58 Q: Does EPA approve an alternative Protection Agency (‘‘IEPA’’) has the under 40 CFR part 60, subpart WWW? opacity monitoring procedure, which authority to approve non-monitoring, A: Yes. The NSPS requires that each consists of monitoring the secondary non-operational changes to the design interior wellhead in the collection power input to the electrostatic plan. EPA refers to a several previous system operate with a landfill gas precipitator (ESP), for a boiler at the applicability determinations on the temperature less than 131 degrees U.S. Sugar facility in Clewiston, Florida, Applicability Determination Index (ADI) Fahrenheit. The facility may request a which is subject to 40 CFR part 60, with ADI Control Numbers 03000120, higher operating temperature under subpart Db? 0400033, 0600062, 0600063, and NSPS subpart WWW if supporting data A: No. Because NSPS subpart Db was M040028, and the modifications of demonstrate that the elevated modified to allow the use of a September 21, 2006, to part 60 (71 temperature does not cause fires or particulate matter continuous emission Federal Register 55127) in addressing inhibit anaerobic decomposition by monitoring system (PM CEMS) as an many specific requests. killing methanogens. As Milam has
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submitted such data, EPA approves a Spherical Catalyst Manufacturing (SCM) monitoring systems (PM CEMS) for higher operating temperature of 140 Line 1 at UOP’s Shreveport, Louisiana, continuous opacity monitoring systems degrees Fahrenheit for well MW39 and plant, a ‘‘mineral’’ as term is used in the (COMS) under 40 CFR part 60, subpart MW58. definition of ‘‘mineral processing D, on Unit 3 at its Mill Ghent Station in plant,’’ under NSPS subpart UUU? Ghent, Kentucky? Abstract for [0800024] A1: No. EPA finds that none of the A: Yes. Because EPA believes that PM Q: Does EPA approve an alternative feed materials used on SCM Line 1 CEMS will be superior to COMS for timeline, under 40 CFR part 60, subpart (pure aluminum, hydrochloric acid, verifying compliance with the WWW, to correct oxygen exceedances at and/or aluminum hydroxychloride applicable particulate emission limit leachate cleanout riser LCO–02A at the solution) is a ‘‘mineral,’’ as the term is under NSPS subpart D for Unit 3, EPA Veolia Orchard Hills Landfill in Davis used in the definition of ‘‘mineral approves KU’s alternative monitoring Junction, Illinois? processing plant,’’ under at 40 CFR request, provided that a number of A: Yes. EPA approves the alternative 60.731. conditions outlined in the EPA response timeline under NSPS subpart WWW. Q2: Does synthetic alumina produced are met. Veolia Orchard Hills Landfill may have on the Spherical Catalyst Manufacturing until 45 days of the initial exceedance (SCM) Line 1 at UOP’s Shreveport, Abstract for [0800031] to correct the oxygen exceedances. Louisiana, plant, using a combination of Q: Does the replacement of the gas Abstract for [0800025] pure aluminum, hydrochloric acid, and/ turbine at the Bristol-Myers Squibb or aluminum hydroxychloride solution, facility in New Brunswick, New Jersey, Q: Does EPA allow the Owens- meet the definition of a ‘‘mineral,’’ as constitute reconstruction under 40 CFR Brockway Glass Container facility in the term is used in NSPS CFR subpart part 60, subpart KKKK? Lapel, Indiana, to measure the UUU in the definition of the affected A: Conditional. For the purpose of bridgewall optical temperature (BWOT), facility: each calciner and dryer at a NSPS subpart KKKK, EPA finds that the under 40 CFR part 60, subpart CC, three ‘‘mineral processing plant,’’ located in affected facility is not limited to the times per shift instead of installing and NSPS subpart UUU at 40 CFR 60.730? turbine itself. It is not clear from the operating a continuous opacity monitor A2: No. EPA finds that the synthetic submittal what the fixed capital cost of on its Furnace Number 32? alumina produced on SCM Line 1 does the new components is as compared to A: No. NSPS subpart CC requires that not meet the definition of ‘‘mineral.’’ a similar entirely new facility. Costs continuous parameter monitoring Q3: Is SCM Line 1, located at UOP’s outside of the affected facility, such as systems complete a minimum cycle of Shreveport, Louisiana, plant, processing the building, air pollution control, operation (sampling, analyzing and data a ‘‘mineral,’’ as the term is used in 40 testing, and monitoring equipment, site recording) every 15 minutes. EPA CFR part 60, subpart UUU, or producing preparation, removal of the old turbine, determines that if the BWOT cannot be a ‘‘mineral,’’ as the term is used in the and contingency costs should not be measured continuously, then it is not an definition of the affected facility (each included. appropriate alternative monitoring calciner and dryer at a ‘‘mineral parameter to opacity, and the facility Abstract for [0800032] processing plant’’) in subpart UUU, should install a COM. potentially subject to NSPS part 60, Q: Does EPA approve the use of Abstract for [0800026] subpart UUU? sensory means (i.e., visual, audible, or olfactory), as an alternative, under 40 Q: Does EPA approve an alternative A3: No. EPA finds that SCM Line 1 CFR part 60, subparts VV and VVa, to timeline under 40 CFR part 60, subpart cannot be subject to subpart UUU, using EPA Method 21 for the WWW, to correct oxygen exceedances at because it neither processes a identification of leaks from equipment Veolia’s Valley View Landfill in ‘‘mineral,’’ nor does it produce a in acetic acid service at the Eastman Decatur, Illinois? ‘‘mineral,’’ and, therefore, it does not A: Yes. EPA approves an extension of meet the NSPS subpart UUU definition Chemical Company facility in up to 53 days from the date of the initial of a ‘‘mineral processing plant’’ Columbia, South Carolina? A: Yes. EPA finds that the proposed exceedance to bring wells 19R and 26R Abstract for [0800029] into compliance with the oxygen alternative is acceptable under NSPS concentration standard under NSPS Q: Does EPA allow Louisville Gas and subparts VV and VVa. Monitoring subpart WWW. Electric (LG&E) to substitute particulate results provided by Eastman indicate matter continuous emission monitoring that leaks from equipment in acetic acid Abstract for [0800027] systems (PM CEMS) for continuous service are more easily identified Q1: Does EPA consider indirect-fired opacity monitoring systems (COMS) through sensory methods than by using dryers used in the ethanol industry under 40 CFR part 60, subpart D, on Method 21 because of the physical subject to 40 CFR part 60, subparts Db Units 3 and 4 at its Mill Creek Station properties (high boiling point, high or Dc? in Louisville, Kentucky? corrosivity, and low odor threshold) of A1: EPA finds that both NSPS A: Yes. Because EPA believes that PM acetic acid and the process conditions at subparts Db and Dc apply to indirect- CEMS will be superior to COMS for the plant. verifying compliance with the fired dryers as they use the process of Abstract for [0800033] drying in a closed steam loop system applicable particulate emission limit for with an integrated thermal oxidizer to Units 3 and 4, LG&E’s alternative Q: May Air Products and Chemicals, transfer heat across a physical barrier. In monitoring proposal under NSPS Inc. (Air Products) use the process the indirect heating method being used, subpart D is approved, provided that a monitor as the primary method to they meet the definition of a steam number of conditions outlined in the measure hydrogen sulfide (H2S) for two generating unit under 40 CFR 60.41b approval are met. furnaces located within the ExxonMobil and 60.41c. Joliet, Illinois, refinery, and eliminate Abstract for [0800030] the previously stipulated alternative Abstract for [0800028] Q: Does EPA allow the Kentucky monitoring plan (AMP) conditions that Q1: Does EPA considered any of the Utilities Company (KU) to substitute require random H2S grab sampling, material used as a feedstock on the particulate matter continuous emission under the New Source Performance
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Standards for Petroleum Refineries, 40 A: Yes. EPA finds that the 3M oxygen/pressure exceedances are not CFR part 60, subpart J. Company has demonstrated that the due to operational or maintenance A: No. EPA finds that the conditions nozzle pressure is a reasonable issues. Instead of decommissioning or of the AMP cannot be revised, because alternative under NSPS subpart UUU to permanently disconnecting such monitoring a process parameter is not a the pressure loss of the gas stream extraction locations, which would result substitute for H2S grab sampling. Please through the Venturi scrubber. in no gas control, it is better to keep refer to a previous EPA approved AMP operating them and allow the locations Abstract for [0800038] available on the Applicability to remain shut off, under positive Determination Index (AD)) under ADI Q: Does EPA approve an alternative pressure, with monthly monitoring and Control Number 0100037. timeline under 40 CFR part 60, subpart periodic adjustment to vacuum to WWW, to correct oxygen exceedances at remove accumulated landfill gas. Abstract for [0800034] Veolia Orchard Hills Landfill’s Leachate Q: Does EPA approve a boiler derate Recirculation Line LRW–12, located in Abstract for [0800041] proposal , under 40 CFR part 60, subpart Davis Junction, Illinois? Q1: Do the process and alcohol day Dc, based on changes made to the A. Yes. On February 14, 19, and 26, tanks at Archer Daniels Midland’s natural gas-fired boiler at the facility 2008, Veolia’s leachate recirculation (ADM) dry mill ethanol production located in Dearborn, Michigan? line, LRW–12, exceeded the 5 percent facility at its existing corn wet mill in A: Yes. EPA approves this proposal oxygen concentration standard. EPA Columbus, Nebraska, meet the process under NSPS subpart Dc, as it will approved an alternate timeline under tank definition which exempts them reduce the capacity of the boiler and NSPS subpart WWW for Veolia to from the control requirements of 40 CFR will comply with EPA’s policy on correct the oxygen exceedances until part 60, subpart Kb? derates. May 14, 2008. EPA finds that if the A1: Yes. EPA finds that these tanks oxygen standard cannot be met by May are used within the process, are process Abstract for [0800035] 14, 2008, the landfill will need to apply tanks, and are not considered storage Q: Does EPA approve an alternative to have the well decommissioned. If vessels subject to NSPS subpart Kb compliance timeline under 40 CFR part Illinois EPA does not approve such Q2: Is the alcohol QC tank also a 60, subpart WWW, to correct a pressure decommissioning, and Veolia cannot process tank and not a storage vessel exceedance at the Livingston Landfill, achieve an oxygen concentration below under NSPS subpart Kb? Well GW10, located in Pontiac, Illinois? 5 percent by May 14, 2008, then Veolia A2: No. EPA finds that this tank does A: No. On November 20, 2007, the must have the gas collection system not engage in the type of unit operations GW10 well at Livingston Landfill expanded by 120 days of the initial or other functions described for process showed a positive pressure reading. On exceedance. tanks, and is outside of the process. The December 3, 2007, Livingston requested sampling performed at the tank does not an extension to bring the well into Abstract for [0800039] qualify this tank as a process tank. It is compliance. However, according to a Q: Does EPA approve an alternative subject to NSPS subpart Kb as a storage phone conversation between EPA and timeline under 40 CFR part 60, subpart vessel. Cornerstone Environmental Group on WWW, for Roxana Landfill, in Roxana, Q3: Is the alcohol reclaim tank a January 4, 2008, the well had achieved Illinois, to correct positive pressure at process tank and not a storage vessel compliance within 15 days of the initial the wells number 6, 7, 8, 18, 20, 22, 23, under NSPS subpart Kb? exceedance. Therefore, EPA determines 24, 38, 39, 40, 41, 42, 43, 44, 45, and 46 A3: No. EPA finds that this tank that an alternative compliance timeline wells? serves as a feed vessel for reintroduction was not required. A: Yes. EPA approves Roxana’s of material back into the process. It is proposed alternative timeline under not within the process, and is a storage Abstract for [0800036] NSPS subpart WWW. However, if vessel subject to NSPS subpart Kb. Q: Does EPA concur with Michigan Roxana cannot measure and achieve Consolidated Gas Company (MichCon), negative pressure without excess air Abstract for [0800042] a solely owned subsidiary of DTE infiltration at the wells number 6, 7, 8, Q: Does EPA rescind two Energy LLC, that 40 CFR part 60, 18, 20, 22, 23, 24, 38, 39, 40, 41, 42, 43, determinations posted to the subpart KKK, does not apply to the 44, 45, and 46 by the alternative Applicability Determination Index (ADI) recent expansion project of a propane compliance date, Roxana must expand with ADI Control Numbers 0400015 and refrigeration plant at MichCon’s Belle the gas collection system within 120 0500014 regarding modification of River Mills facility? days of the initial exceedances. storage tanks due to storage of gasoline A: No. EPA determines that NSPS under 40 CFR part 60, concerning which subpart KKK is applicable to the recent Abstract for [0800040] the American Petroleum Institute (API) expansion project because the propane Q: Does EPA approve alternative believes the sources are exempt? refrigeration system uses a process that operational standards and procedures A: No. EPA finds that the facilities at extracts ‘‘natural gas liquids.’’ Thus, the under 40 CFR part 60, subpart WWW, issue are not facilities owned or facility meets the definition of a natural for oxygen/pressure for six low gas operated by API, and reconsideration of gas processing plant set forth in 40 CFR producing wells at Veolia one of the determinations has already 60.631. Environmental Services’ Zion Landfill been requested by the source owner/ in Zion, Illinois? operator and is being addressed by the Abstract for [0800037] A: Yes. EPA approves adjusted Agency. Q: Does EPA approve an alternative standards and procedures under NSPS monitoring plan, under 40 CFR part 60, subpart WWW for oxygen and pressure Abstract for [0800043] subpart UUU, to monitor the nozzle for low gas producing extraction points Q: For Missouri River Energy pressure of a Venturi scrubber instead of where gas flows are so low that applying Services’ (MRES) facility in Audubon, the pressure loss of the gas stream even minimal vacuum results in Iowa, does EPA consider the through the Venturi scrubber at 3M’s exceedances of the applicable oxygen manufacturer the original owner or Cottage Grove, Minnesota, facility? concentration limit and the persistent operator of a stationary gas turbine
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under 40 CFR part 60, subpart GG, and Abstract for [M080022] followed by a carbon adsorber system 40 CFR part 60, subpart KKKK? Q: Does EPA approve the alternative for the maleic anhydride (MAN) A: Conditional. EPA finds that it monitoring request for the Cognis process. Instead of regenerating the depends on whether the entire affected facility in Kankakee, Illinois, under 40 carbon adsorbers on site, FHR planned facility was completely manufactured CFR part 63, subpart NNNNN? The to send the spent canisters off site. and fabricated by the manufacturer and facility requests approval to remove A: Yes. Joliet’s June 20, 2006, request purchased in completed form. In the scrubber effluent pH as one of the amended the original request dated analysis of this specific case, EPA monitoring parameters for a water October 3, 2005, stating that the carbon determined that the turbine scrubber/mist eliminator. canister system would contain 4 parallel manufacturer was the original owner or A: Yes. EPA approves the alternative trains with two carbon canisters in operator. However, it is not true as a monitoring plan requested by Cognis series, in addition to other details general matter that manufacturers of gas under MACT subpart NNNNN. Cognis’s sufficient for EPA’s approval. (See ADI turbines are always the original owners water scrubber is a ‘‘once through’’ Control Number M080026.) Thus, per or operators. scrubber system, and the scrubber the amendments in the June 20, 2006, always has enough absorptive capacity request, EPA approves the revised Abstract for [0800044] for the CHI, regardless of the pH. alternative monitoring plan pursuant to 40 CFR 63.151(f). Q1: Do physical changes to increase Abstract for [M080023] Abstract for [M080026] the coal feed rate to maintain generating Q: Does EPA approve the request from capacity when switching coal type at Allied Metal Company (Allied), located Q: May Flint Hills Resource, LP, at its NRG Energy’s Indian River Generating in Chicago, Illinois, to begin operation Joliet Facility in Joliet, Illinois, re-route Station in Millsboro, Delaware, of a thermal chip dryer, under 40 CFR the emissions from a vent header system constitute a modification of the boiler part 63, subpart RRR? to a vent condenser followed by a under 40 CFR part 60, subpart Da? A: Conditional. EPA approves Allied’s carbon adsorber system for the maleic A1: Yes. EPA finds that physical request under MACT subpart RRR, but anhydride (MAN) process and send the changes to increase the coal feed rate only if Allied operates the thermal chip spent canisters off site, under 40 CFR would enable an increase in kg/hr dryer and all associated emission part 63, subpart G? emissions under NSPS subpart Da. control equipment for performance test A: No. EPA finds that this monitoring Q2: If the dedicated steam turbines preparation beginning in January 2007. method is insufficient for demonstrating physically limit the amount of steam All performance testing must be continuous compliance. Additionally, that may be generated, does this prevent completed by March 1, 2007. If Allied there is no proposed backup system for the boiler from being modified? cannot follow this schedule, Allied the ‘‘channel’’ analyzer in between the must cease operating the thermal chip carbon canisters in each canister train. A2: No. EPA finds that applicability is dryer and notify EPA. Finally, it is unclear exactly how many determined based on the affected carbon canisters will be included in the Abstract for [M080024] facility alone. Changes made to a proposed carbon adsorber system. downstream unit which is not part of Q: How does EPA find that the the affected facility do not affect delisting of 2-butoxyethanol from the Abstract for [M080027] applicability of the boiler. list of hazardous air pollutants (HAPs) Q: Does EPA waive the dioxin/furan Abstract for [0800045] affects the Hydrite Chemical Company (D/F) performance testing on Furnaces 2 (Hydrite) in Oshkosh, Wisconsin, under and 6 of Jupiter Aluminum Corporation Q: Does EPA consider the pressure 40 CFR part 63, subpart KKKK? The (Jupiter) in Hammond, Indiana, under limitations on boilers at the NRG Energy facility had obtained permits to limit the 40 CFR part 63, subpart RRR? Jupiter Indian River Generating Station in potential-to-emit of HAPs to less than 25 has provided the baghouse inlet and Millsboro, Delaware, as a limiting factor tons of all combined HAPs and less than outlet temperatures for both furnaces. in the source’s ability to increase ten tons of any individual HAP. The inlet and outlet temperatures for the emissions due to a proposed increase in A: EPA finds that if the permit limits baghouses on Furnaces 2 and 6 are feed rate under 40 CFR part 60, subpart for Hydrite were federally enforceable below 130 degrees F, the D/F formation Da? before the first major compliance date temperature. A: EPA believes the proposed changes for existing sources, which is November A: Based on the information could enable an increase in kg/hr 13, 2006, the facility would be submitted, EPA waives Jupiter’s emissions under NSPS subpart Da. considered a minor source for purposes requirement to test Furnace 2 for D/F. of MACT subpart KKKK applicability. If However, EPA believes for Furnace 6, a Abstract for [M080021] the facility is subject to a MACT hole may have been in the ductwork standard for which the first major during the testing on the old baghouse, Q: Does EPA waive the applicability compliance date has passed, the facility and Jupiter has not repaired the hole. of 40 CFR 63.1511(e) for the aluminum remains subject to that standard, Therefore, at this time, EPA does not shredder/baler at the Alcoa facility in regardless of any reduction in potential waive the requirement to test Furnace 6 Newburgh, Indiana, under MACT emissions which may result from no for D/F. (See also ADI Control Number subpart RRR? longer using the delisted HAP. M080028.) A: No. EPA does not waive the applicability of 40 CFR 63.1511(e), Abstract for [M080025] Abstract for [M080028] including all monitoring and testing Q: Does EPA approve the alternative Q1: Does EPA waive the dioxin/furan requirements, to the aluminum monitoring procedures at the Flint Hills (D/F) performance testing on Furnaces 2 shredder/baler. EPA does not believe Resource’s Joliet Facility (Joliet) in and 6 of Jupiter Aluminum Corporation the performance testing proposed by Joliet, Illinois, under 40 CFR part 63, (Jupiter) in Hammond, Indiana, under Alcoa provides sufficient evidence for subpart G? The facility has requested to 40 CFR part 63, subpart RRR? the waiver because one test is reroute the emissions from a vent A1: No. EPA is clarifying that the insufficient. header system to a vent condenser D/F test waiver provided to Jupiter for
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Furnace 2 by letter dated December 19, annealing furnaces, each consisting of and unloads it by a self-unloading leg 2005, is rescinded. (See ADI Control thirty (30) individual burners and U- that dumps the barley into a hopper Number M080027.) Until Jupiter tubes. Under 40 CFR part 63, subpart controlled by a flexible transition boot conducts performance testing that DDDDD, does EPA consider this as a covering the end of the ship’s self- demonstrates compliance with 40 CFR whole a ‘‘process heater,’’ or does it unloading conveyor and the malt plant’s 63.1515(i), EPA considers Jupiter to be consider each individual U-tube burner, grain receiving hopper. Does EPA in continuous noncompliance which each exhausting through an individual consider this adequate control for may result in civil penalties under the stack to the atmosphere, itself a particulate emissions under 40 CFR part Clean Air Act. As previously stated in ‘‘process heater’’? 60 subpart DD? EPA’s letter to Jupiter dated October 10, A: EPA finds that the entire annealing A: No. EPA considers the entire self- 2006, EPA views any previous testing furnace, with all 30 U-tubes and unloading leg to be subject to the Jupiter conducted on Furnaces 2 and 6 burners, is considered a single ‘‘process requirements of 40 CFR part 60 subpart as unreliable and unacceptable. heater’’ with respect to this rule. EPA DD. EPA finds that a flexible transition Q2: Does EPA approve the current understands that each U-tube in a boot will adequately control particulate method Jupiter uses of weighing the furnace cannot operate individually, emissions from the end of the self- final end product instead of weighing because in order for the steel to be unloading leg and the grain receiving the scrap charged in each furnace under heated evenly, all three main zones hopper at least as well as the 40 CFR part 63, subpart RRR? must be used when operating. requirements listed in 40 CFR A2: No. EPA does not approve the 60.302(d)(1) and (d)(2). However, the current method of weighing the final Abstract for [M080034] flexible transition boot does not control end product. Jupiter must propose a Q: Does EPA approve the waiver emissions from the portion of the self- weighing plan that records the weight of request from United States Steel in unloading leg that the boot does not scrap charged in each furnace. Granite City, Illinois, to test particulate cover. Q3: Does EPA approve the emissions from two argon stir stations Abstract for [0800047] intermittent lime injection schedule under 40 CFR part 63, subpart FFFFF? used by Jupiter under 40 CFR part 63, A: Yes. EPA finds that the Q: Does EPA approve a gas treatment subpart RRR? justification for a waiver provided by exemption for the Beecher Energy LLC A3: No. EPA is clarifying that since United States Steel under MACT (Beecher) facility located in Beecher, Jupiter has not demonstrated subpart FFFFF adequately demonstrates Illinois, under 40 CFR part 60, subpart compliance with the emission limits in the impracticability of testing the same WWW? Beecher uses landfill gas as a NESHAP subpart RRR through the baghouse again during operation of only fuel to power internal combustion required compliance testing, EPA has the argon stir stations, and EPA engines for electricity generators. not approved the intermittent lime determines that it is within United A: EPA finds that pursuant to 40 CFR injection schedule used by Jupiter. States Environmental Protection Agency 60.752(b)(2)(iii), collected landfill gas is Abstract for [M080029] guidance regarding the granting of such required to be routed to a control system waivers. that complies with the requirements in Q: Does EPA approve the use of the either an open flare or a control system presence of a pilot flame as an Abstract for [M080035] or enclosed combustor designed to alternative monitoring parameter Q: Does EPA find that a performance reduce nonmethane organic compounds (AMP), even without the use of assist test can be used to demonstrate (NMOC), or a treatment system that gas in the flare, at the Murphy Oil USA, compliance with the Paper and Other processes the collected gas for Incorporated refinery located in Web Coating MACT under 40 CFR part subsequent sale or use. The landfill gas Superior, Wisconsin, which operates a 63, subpart JJJJ, at the Rollprint applicable to Beecher has been treated gasoline loading rack subject to 40 CFR Packaging Products, Inc. (Rollprint) for sale or use. Once the landfill gas is part 63, subpart R and 40 CFR part 63, facility in Addison, Illinois? treated, such facilities that buy or use subpart CC? A: Yes. EPA finds that the testing the gas have no further associated A: No. EPA determines that the data demonstrates compliance with the obligations in regards to the NSPS presented by Murphy does not requirements of 40 CFR 63.3320(1). subpart WWW. adequately assure continuous compliance sufficiently to allow for Abstract for [Z080004] Abstract for [0800048] pilot presence to be used in lieu of Q: Does EPA find that the Mercury Q: British Petroleum Whiting control device temperature. The method NESHAP, under 40 CFR part 61, subpart Business Unit (BP) requests a review of that Murphy plans to use to demonstrate E, applies to the sludge dryer within a an alternative monitoring plan (AMP) to continuous compliance was not used wastewater pretreatment facility at the the New Source Performance Standards during the performance test, and we are Chem-Plate Industries facility, located for Petroleum Refineries at 40 CFR part unable to determine if such AMP is in Elk Grove Village, Illinois? 60, subpart J for its Beavon Stretford appropriate. In a previous A: Yes. EPA finds that the Mercury Tail Gas Treatment unit. May BP determination, EPA discussed a NESHAP applies to all sludge treatment mathematically calculate the expected proposed alternative monitoring processes, regardless of process sulfur dioxide (SO2) concentration using program for a thermal oxidizer system, location. The provision does not the existing TRS measurements and including the importance of flame provide for any special circumstances, equation 15–2 in Method 15 rather than stability. (See ADI Control number such as the size of the waste treatment physically converting the total reduced M000002 dated 10/05/1998.) plant of likelihood of mercury in the sulfur (TRS) compounds and then Abstract for [M080030] Deleted effluent. measuring the SO2 with a continuous Abstract emissions monitor (CEM) following Abstract for [0800046] Method 15A as specified in 40 CFR part Abstract for [M080031] Q: Anheuser-Busch, Incorporated 60, Appendix A? Q: Nucor Sheet Mill Group of receives barley by ship at its A: Yes. EPA approves this change Crawfordsville, Indiana, operates Manitowoc, Wisconsin, malting facility because this monitoring method is
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consistent with the provisions of NSPS, subpart UUU requirements at the times per week the weight percent of the subpart J. The SO2 concentration Criterion Catalysts & Technologies spent wash for the Caustic Wash Drums calculated above must comply with the (Criterion) facility in Michigan City, as the alternative parameter in 250 parts per million limit established Indiana? Criterion requests approval to accordance with the AMP enclose with in 40 CFR 60.105(a)(7)(ii). continuously monitor the gas flow rate EPA’s response. entering or exiting the wet scrubber in Abstract for [0800049] Abstract for [0800056] lieu of continuously monitoring the gas Q: May British Petroleum Products phase pressure drop across the scrubber. Q: Does EPA find the ALLU unit North America, Incorporated (British), A: Yes, conditionally. EPA concurs associated with the preparatory Whiting Business Unit in Whiting, that the gas phase pressure drop is not processes leading to gypsum stucco Indiana, use fourteen hydrogen sulfide an appropriate continuous monitoring production, at the GP-Gypsum grab samples of loading rack emissions parameter for a wet scrubber that does Corporation (GP) facility in Wheatfield, in lieu of installing a continuous not use a Venturi design for particulate Indiana, is not subject to 40 CFR part 60, emission monitoring system (CEM) as is matter emission control. Pursuant to subpart OOO? required by 40 CFR part 60, subpart J NSPS subpart UUU, EPA approves this A: Yes. EPA finds that the ALLU unit (NSPS subpart J) for a vapor combustion alternative monitoring plan subject to is not subject to NSPS subpart OOO unit (VCU)? the conditions specified in EPA’s provisions. The ALLU unit is not part of A: Yes. Based upon the information response letter to Criterion on the actual nonmetallic mineral provided by British, EPA approves this September 6, 2007. production line and it does not function alternative monitoring plan for the VCU as a crusher, screener, or grinder; thus pursuant to NSPS subpart J. Abstract for [0800053] is not an affected facility subject to Abstract for [0800050] Q: Does EPA approve an alternative subpart OOO. Q: May British Petroleum Products timeline for well 49 at Davis Junction Abstract for [0800057] North America, Incorporated (British), Landfill in Davis Junction, Illinois, to Whiting Business Unit in Whiting, correct an exceedance of the five Q: Does EPA approve the alternative Indiana, use seven hydrogen sulfide percent oxygen concentration standard compliance timeline to correct grab samples of loading rack emissions under 40 CFR part 60, subpart WWW? exeedances under CFR part 60, subpart in lieu of installing a continuous A: Yes. EPA conditionally approves WWW, at the Landcomp Corporation emission monitoring system as is Davis Junction’s alternative timeline Landfill (Landcomp), located in Ottawa, required by 40 CFR part 60, subpart J for under NSPS subpart WWW. If Davis Illinois? a vapor combustion unit (VCU)? Junction cannot achieve an oxygen A: No. EPA does not approve of A: No. British has not provided concentration below 5 percent by July 1, Landcomp’s request under NSPS sufficient information to allow EPA to 2006, Davis Junction must expand the subpart WWW. EPA does grant make a determination. British needs to gas collection system within 120 days of alternative compliance timelines to provide additional information the initial measurement of the correct exceedances, but such requests including: (1) An explanation of the exceedance, April 5, 2006. need to be made within 15 days of the conditions that ensures low amounts of initial exceedance when the landfill sulfur in the gas stream at all times; (2) Abstract for [0800054] determines that the exceedance cannot two weeks of additional daily H2S Q: Does EPA approve an alternative be corrected. monitoring (14 samples); and (3) a timeline to correct exceedances at the Abstract for [0800058] description of how the two weeks of BFI Waste Systems of North American monitoring results compare to the Davis Junction Landfill, located in Davis Q: Does EPA approve the alternative typical range of H2S concentration (fuel Junction, Illinois, under 40 CFR part 60, timeline request from American quality) expected for the gas stream/ subpart WWW? Disposal Services of Illinois, Inc.’s system going to the affected fuel gas A: Yes. EPA conditionally approves Livingston Landfill (Livingston device. Davis Junction Landfill’s alternative Landfill), located in Pontiac, Illinois, timeline under NSPS subpart WWW. under 40 CFR part 60, subpart WWW? Abstract for [0800051] However, if Davis Junction Landfill A: Yes. EPA conditionally approves Q: Does EPA waive the mercury cannot achieve an oxygen concentration the alternative timeline under NSPS testing requirement under the National below five percent by September 1, subpart WWW from Livingston’s Well Emissions Standards for Mercury at 40 2007, the gas collection system must be GW51R until December 6, 2007, to CFR 61.53 for BP Products North expanded within 120 days of the initial correct the August 8, 2007, positive America, Inc. (BP) units in Indiana, exceedance. pressure. If Livingston Landfill cannot since BP has demonstrated compliance achieve negative pressure at Well Abstract for [0800055] with the mercury limits under the GW5IR by December 6, 2007, then National Emission Standards for Q: Does EPA approve an alternative Livingston Landfill must expand the gas Hazardous Air Pollutants for Hazardous monitoring plan (AMP) for the collection system within 120 days of the Waste Combustors (HWC MACT)? ExxonMobil (Exxon) facility in Joliet, initial exceedance, August 8, 2007. A: Yes. EPA approves BP’s request to Illinois, under 40 CFR part 60, subpart Abstract for [0800059] use the HWC MACT testing to J? Exxon requests to continue the demonstrate compliance with the continuous monitoring of the Refinery Q: Does EPA approve the alternative National Emission Standards for Fuel Gas Mix Drum stream, and monitor timeline request from American Mercury since the mercury emissions an alternate parameter for the disulfide Disposal Services of Illinois, Inc.’s are well below the standard in the vent stream. Livingston Landfill (Livingston regulations. A: Yes. EPA approves this alternative Landfill), located in Pontiac, Illinois, monitoring request under NSPS subpart under 40 CFR part 60, subpart WWW? Abstract for [0800052] J. Exxon will continue to continuously A: Yes. EPA conditionally approves Q: Does EPA approve an alternative monitor the refinery fuel gas mix drum the alternative timeline under NSPS monitoring plan for 40 CFR part 60, stream and will monitor at least three subpart WWW from Livingston’s Well
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GW90 until October 5, 2007, to correct temperature does not cause subsurface Davis Junction, Illinois, to widen the the July 12, 2007, positive pressure. If fires or affect levels of carbon monoxide, spacing between intervals from 30 Livingston Landfill cannot achieve oxygen, or other landfill gas meters to 60 meters in areas that have negative pressure at Well GW90 by constituents, including the had or will have synthetic October 5, 2007, then Livingston methanogenic process. geomembrane-final cover installed after Landfill must expand the gas collection three consecutive quarters of surface Abstract for [0800063] system within 120 days of the initial emissions monitoring compliance has exceedance, July 12, 2007. Q: Waste Management’s Milam been met, under 40 CFR part 60, subpart Recycling and Disposal Facility (Milam) WWW? Abstract for [0800060] located in East St. Louis, Illinois, is A2: Yes. EPA conditionally approves Q: Does EPA approve the alternative subject to 40 CFR part 60, subpart VES-Orchard’s proposal. VES-Orchard’s timeline request from American WWW (NSPS). Does EPA approve an can adopt the 60 meters-spacing under Disposal Services of Illinois, Inc.’s alternative temperature of 140 degrees NSPS subpart WWW, but only after data Livingston Landfill (Livingston Fahrenheit at wellheads numbers collected from three quarterly Landfill), located in Pontiac, Illinois, MW10, MW11, MW19, MW23, MW24, monitoring events demonstrate that under 40 CFR part 60, subpart WWW? MW27, MW29, MW31, MW32, MW38, such widening is appropriate and there A: No. EPA does not approve MW43, MW47, MW48, MW49, MW50, is no exceedances. Livingston Landfill’s request for an MW51, MW55, MW56, MW57, and Q3: Could EPA clarify for the Veolia alternative compliance timeline as of MW53? Environmental Services (VES) Orchard July 31, 2007, under NSPS subpart A: Yes. EPA finds that Milam has Hills Landfill located in Davis Junction, WWW. Although EPA does grant demonstrated that the higher operating Illinois, whether gas collection and alternative compliance timelines to temperatures do not cause subsurface control system connections to leachate correct exceedances, these requests need oxidation. Therefore, EPA approves the management structures or to interim to be made within 15 days of the initial higher operating temperature of 140 landfill gas collectors in areas of the exceedance when the landfill degrees Fahrenheit at the wells. Refer landfill, which are not yet required to determines that the exceedance cannot also to Abstract ADI Control No. have controls, are subject to the be corrected. 0800062. monitoring and operating requirements Abstract for [0800061] Abstract for [0800064] of 40 CFR part 60, subpart WWW? A3: No. EPA finds that if the landfill Q: Does EPA approve the alternative Q: Does EPA approve the alternative is not required to install the gas timeline request from American timeline request to correct exceedances collection and control system under Disposal Services of Illinois, Inc.’s of the five percent oxygen concentration NSPS subpart WWW, then it is not Livingston Landfill (Livingston at the Onyx-Valley View Landfill required to monitor or operate that Landfill), located in Pontiac, Illinois, (Onyx), which is located in Decatur, system. under 40 CFR part 60, subpart WWW? Illinois, under 40 CFR part 60, subpart A: No. EPA does not approve of WWW? Onyx is specifically requesting Abstract for [0800066] Livingston Landfill’s request for an an extension of 30 days to reduce the Q: Does EPA approve the alternative alternative compliance timeline of May oxygen concentration levels below 5 timeline to correct exceedances at the 30, 2007 under NSPS subpart WWW. percent. Allied Waste Industries, inc. Quad Although EPA does grant alternative A: Yes. EPA conditionally approves Cities Landfill (Quad Cities) located in compliance timelines to correct Onyx’s alternative timeline of 30 days Milan, Illinois, under 40 CFR part 60, exceedances, these requests need to be under NSPS subpart WWW. If Onyx subpart WWW? made within 15 days of the initial cannot achieve an oxygen concentration A: Yes. EPA approves of Quad Cities’ exceedance when the landfill below 5 percent within 30 days, Onyx alternative timeline under NSPS subpart determines that the exceedance cannot must expand the gas collection system WWW. However, if Quad Cities cannot be corrected. within 120 days of the initial achieve an oxygen concentration below measurement of the exceedance. 5 percent by June 30, 2007, Quad Cities Abstract for [0800062] must expand the gas collection system Abstract for [0800065] Q: Does EPA approve a request for within 120 days of the initial alternative temperatures at Waste Q1: Does EPA approve the proposal exceedance. Management’s Milam Recycling and from the Veolia Environmental Services Disposal Facility (Milam) located in East (VES) Orchard Hills Landfill located in Abstract for [0800067] St. Louis, Illinois, under 40 CFR part 60, Davis Junction, Illinois, to reduce the Q: Quad Cities Landfill (Quad Cities) subpart WWW, at wellheads MW48, surface monitoring frequency in capped located in Milan, Illinois, is subject to MW49, MW50, MW51, MW55, MW56, areas of the landfill to an annual basis, 40 CFR part 60, subpart WWW. Does and MW57? once three consecutive quarters without EPA approve its request to extend the A: Yes, on an interim basis. Milam a monitored exceedance of the deadline until December 1, 2006, to needs to provide EPA with data that operational standard has been correct an exceedance of the five demonstrate that the increased demonstrated in these capped areas, percent oxygen concentration standard temperature at the specific wells will under 40 CFR part 60, subpart WWW? at one of its gas collection wells (Well not cause detrimental results, before it A1: No. EPA finds that the reduced 12)? can provide final approval. EPA will monitoring provision of NSPS does not A: No. EPA will give Quad Cities until allow Milam, in the interim, to operate apply under NSPS subpart WWW. VES- November 2, 2006, which is 120 days wells MW48, MW49, MW50, MW51, Orchard Hills Landfill must continue to from the original measured exceedance, MW55, MW56, and MW57 at the conduct surface monitoring each quarter to bring the well into compliance. If alternative temperature 140 degrees on areas with cover in place. Quad Cities cannot achieve an oxygen Fahrenheit and require Milam to report Q2: Does EPA approve the proposal concentration below 5 percent by at least three (3) months worth of data, from the Veolia Environmental Services November 2, 2006, Quad Cities must demonstrating that the increased (VES) Orchard Hills Landfill located in expand the gas collection system within
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120 days of the initial measurement of Milan, Illinois, be exempt from the Illinois, under 40 CFR part 60, subpart the exceedance, July 5, 2006. testing requirement under CFR part 60 WWW? subpart WWW since the landfill gas is Abstract for [0800068] A: Yes. EPA conditionally approves treated? an alternate timeline for Quad Cities Q1: Pursuant to 40 CFR 60 subpart A6: Yes. EPA approved this request in Landfill to correct the oxygen WWW, may BFI Waste Systems of North the BFI Quad Cities treatment of landfill exceedances at Well 12 but only until America, Inc., Quad Cities Landfill, gas determination letter dated April 5, August 29, 2007 (not August 31, 2007 as Milan, Illinois, waive nitrogen 2006. As a clarification, EPA approves Quad Cities Landfill requested). EPA monitoring at interior wellheads and the flare as part of the treatment system will only approve an alternate timeline monitor only oxygen? when it is combusting treated gas. If the for correction of oxygen exceedances up A1: Yes. EPA approves this request flare is controlling emissions that are to 120 days of the initial exceedance since the NSPS subpart WWW rule not treated, then it is subject to the which in this case is August 29, 2007. allows for a landfill to monitor either requirements of 40 CFR 60.752(b)(2)(iii) If Quad Cities Landfill cannot achieve nitrogen or oxygen. (A) and (B). Q2: Pursuant to 40 CFR 60 subpart an oxygen concentration below 5 WWW, may BFI Waste Systems of North Abstract for [0800069] percent by August 29, 2007, then Quad America, Inc., Quad Cities Landfill, Cities Landfill must have the gas Q1: Does EPA consider compression, collection system expanded by August Milan, Illinois, meet all operating de-watering, and filtering the landfill conditions 180 days after start-up of 29, 2007, which is 120 days of the initial gas down to at least 10 microns a exceedance, May 1, 2007. new wells? treatment under 40 CFR part 60, subpart A2: No. EPA has reviewed this WWW, at the BFI Waste Systems of Abstract for [0800071] request further and still cannot approve North America, Incorporated’s Quad Q: Does EPA approve Natural Gas this request. Cities Landfill (BFI) facility located in Q3: Pursuant to 40 CFR 60 subpart Pipeline Company of America’s request Milam, Illinois? WWW, may BFI Waste Systems of North not to monitor the total sulfur content A1: Yes. EPA considers compression, America, Inc., Quad Cities Landfill, of the gaseous fuel combusted in the de-watering, and filtering the landfill Milan, Illinois, treat Quad Cities nine Solar Model Saturn and one Solar gas down to at least ten microns a Landfill as a separate landfill from Model Taurus natural gas-fired turbines treatment for the purposes of 40 CFR Millennium Waste Landfill to reduce at its Compressor Station 113 in 60.752(b)(2)(iii)(C). This response is the frequency of surface scan Shorewood, Illinois, as allowed by the consistent with several previous requirements? revised Standards of Performance for A3: No. EPA finds that the Quad determinations made by the Agency and Stationary Gas Turbines, 40 CFR part Cities Landfill and the Millennium with the Federal Register Proposed Rule 60, subpart GG? Waste Landfill are considered one Amendments dated May 23, 2002. Q2: How does EPA clarify that once A: Yes. EPA approves NGPL’s request landfill under the NSPS requirements. not to monitor the total sulfur content Q4: Pursuant to 40 CFR 60 subpart the landfill gas at the BFI facility is treated pursuant to 40 CFR because NGPL provided a Federal WWW, may BFI Waste Systems of North Energy Regulatory Commission (FERC) America, Inc., Quad Cities Landfill, 60.752(b)(2)(iii)(C), it is no longer subject to the testing, monitoring, and tariff sheet for the gaseous fuel, Milan, Illinois, be exempt from the demonstrating that the ‘‘maximum total monitoring, recordkeeping, and recordkeeping requirements found at 60.752(b)(2)(iii)(B)? sulfur content of the fuel is less than reporting requirements for treated 20.0 grains/100 scf or less’’ as required A2: The Federal Register Proposed landfill gas? by 40 CFR 60.334(h)(3)(1). The State of Rule Amendments clarify that once the A4: Yes. EPA approved this request in Illinois is the delegated authority and landfill gas is treated, the facilities that the BFI Quad Cities treatment of landfill maintains the right to implement more buy or use the gas have no further gas determination letter dated April 5, stringent requirements than those obligations related to the NSPS. 2006. As a clarification, EPA approves outlined above. the flare as part of the treatment system Therefore, EPA finds that BFI would not when it is combusting treated gas. If the be subject to the testing, monitoring, Abstract for [0800072] flare is controlling emissions that are and recordkeeping requirements located Q: Does EPA approve the request from not treated, then it is subject to the at 60.752(b)(2)(iii)(B). However, Spoon Ridge Landfill in Fairview, requirements of 40 CFR 60.752(b)(2)(iii) emissions from any atmospheric vent Illinois, to return to Tier 1 nonmethane (A) and (B). from the gas treatment system, Q5: Pursuant to 40 CFR 60, subpart including any compressor, are subject to organic compound (NMOC) emission WWW, may BFI Waste Systems of North the requirements of 40 CFR rate reporting requirements after the America, Inc., Quad Cities Landfill, 60.752(b)(2)(iii)(A) and (B). This does current Tier 2 sampling and NMOC rate Milan, Illinois, consider as approved the not include exhaust from an energy demonstration expires on April 23, closure report BFI submitted? recovery device. This determination is 2012, under 40 CFR part 60, subpart A5: No. EPA rejects the report, consistent with previous EPA WWW? In lieu of conducting Tier 2 because Quad Cities Landfills and determinations. The Federal Register sampling in 2012, Spoon Ridge would Millennium Landfill are considered one Proposed Rule Amendments from 2002 like approval to return to annual NMOC landfill under NSPS, and EPA requires are meant to be a clarification of the emission rate reporting in accordance the closure report to be submitted when existing NSPS, not changes in the rule. with 40 CFR 60.752(b)(1)(ii) after 2012. the landfill, including Quad Cities and A: Yes. EPA finds that Tier 2 Abstract for [0800070] Millennium Landfills, ceases accepting sampling would be normally required wastes at the landfill, which has not yet Q: Does EPA approve the request for by April 23, 2012, under NSPS subpart occurred. an alternative timeline to correct WWW. If Spoon Ridge does not conduct Q6: Pursuant to 40 CFR 60, subpart exceedances at the Allied Waste this Tier 2 sampling, then 2012 WWW, may BFI Waste Systems of North Industries, Inc. Quad Cities Landfill emission would be calculated using Tier America, Inc., Quad Cities Landfill, (Quad Cities Landfill) located in Milan, 1 analysis.
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Abstract for [0800073] Abstract for [0800076] CFR 60.756(b) and 60.758(b) and (c). Q: Does EPA approve the alternative The determination letter includes Q: Does EPA consider that 40 CFR further compliance information. 60.283 applies to total reduced sulfur monitoring plan requested by CITGO’s (TRS) emissions from digesters’ Lemont Refinery for the continuous Abstract for [0800080] opacity monitoring system (COMS) on condensate streams that are discharged Q: Does EPA find it acceptable to to the waste water treatment system and the fluid catalytic cracking unit (FCCU), under 40 CFR part 60, subpart J? CITGO inject an excess of hydrogen peroxide released through a sewer stack for entered into a Consent Decree in (H2O2) into the wastewater stream as a Thilmany, LLC’s Kraft Pulp Mills in January 2005, which required the means to control the hydrogen sulfide Kaukauna, Wisconsin, under 40 CFR Lemont Refinery to install a wet gas (H2S) emissions, instead of using a part 63, subpart BB? scrubber (WGS) on the FCCU unit. continuous monitoring system (CMS) on A: No. EPA finds that the emission CITGO maintains that the moisture in the infrequently operated North limits provided under 40 CFR 60.283 do the exhaust from the WGS will interfere Benzene Removal Unit (NBRU), at the not apply to the condensate streams with the ability of the COMBS to take ExxonMobil Joliet Refinery, in Joliet, discharged from Thilmany’s digesters. accurate readings. Illinois, under 40 CFR part 60, subpart The background information documents A: Yes. EPA approves an alternative J? (BID) for the Kraft Pulp Mill NSPS monitoring plan for CITGO pursuant to A: Yes. EPA finds that the hydrogen indicates that the intent of subpart BB 40 CFR 60.13(i)(1). The specific points peroxide injection and residual was to regulate the TRS emissions in the of the alternative monitoring plan are hydrogen peroxide meter are a sufficient non-condensable gases emitted from the specified in EPA’s response to CITGO replacement of the H2S CMS. However, digester systems and not the emissions on July 23, 2007. EPA is not assured that 5 ppm H2O2 is caused by the dissolved TRS in the an adequate limit to ensure compliance. Abstract for [0800077] condensate streams. Furthermore, the EPA requires a preliminary value of at NSPS does not show the sewer stack as Q: Does EPA approve the alternative least 10 parts per million. Once being part of the affected facilities. timeline to correct exceedances at the ExxonMobil has submitted sufficient Davis, Junction Landfill (Davis data to show that this limit can be Abstract for [0800074] Junction), located in Davis Junction, lower, EPA will consider reducing the Illinois, under 40 CFR part 60, subpart limit. EPA’s May 2, 2007 response letter Q: Does EPA approve the request from WWW? contains further details. United States Gypsum Company (USG), A: Yes. EPA approves Davis located in East Chicago, Indiana, to Abstract for [0800081] Junction’s alternative timeline under waive, under 40 CFR part 60, subpart NSPS subpart WWW. If Davis Junction Q: Does EPA approve the alternative OOO, the minimum of 60 dry standard cannot achieve an oxygen concentration monitoring plan for propane vapor from cubic feet (dscf) of sampling air below five percent by June 1, 2007, the a vent gas absorber (VGA), requested by collected per run at 40 CFR 60.675(b)(1), facility must expand the gas collection the ExxonMobil Joliet Refinery, located in addition to waiving the two minutes system within 120 days of the initial in Joliet, Illinois, under 40 CFR part 60, per point sampling requirement in exceedance. subpart J? ExxonMobil’s proposal is to Method 5? remove the car seal and allow vent gas A: Yes. EPA conditionally approves Abstract for [0800078] from the VGA to be routed either to the USG to carry out performance testing as Q: Does EPA approve the alternative alkylation unit’s isostripper reboiler described in the EPA response. This timeline to correct exceedances at the heater, or to a flare. proposal suggested the sampling volume Davis, Junction Landfill (Davis A: Yes. EPA conditionally approves be scaled down to 30 dsfc, and that Junction), located in Davis Junction, the alternative monitoring plan under twelve points in the stack be sampled Illinois, under 40 CFR part 60, subpart NSPS subpart J. However, the Joliet for a duration of two and a half minutes WWW? facility is required to conduct a each under 40 CFR part 60, subpart A: Yes. EPA conditionally approves monitoring schedule per the conditions OOO. USG must operate the shredder Davis Junction’s alternative timeline detailed in EPA’s April 26, 2008 system at its maximum wallboard under NSPS subpart WWW. If Davis response letter. Junction cannot achieve an oxygen processing rate and comply with all Abstract for [0800082] other testing guidelines. concentration below five percent by June 1, 2007, the facility must expand Q: Does EPA approve the alternative Abstract for [0800075] the gas collection system within 120 monitoring plan (AMP) submitted by ExxonMobil’s Joliet Refinery, located in Q: Does EPA find that 40 CFR part 60, days of the initial exceedance. Joliet, Illinois, for demonstrating subpart AAa, applies to Alton Steel, Abstract for [0800079] compliance with the opacity limit under Inc.’s (Alton) Furnace No. 7 (furnace) as Q: Does EPA consider the landfill gas 40 CFR part 60, subpart J? The Joliet a result of a construction project at the at the Devonshire Power partners, LLC Refinery currently operates a facility? (Devonshire) Landfill, located in Dolton, continuous monitoring system (COMS) A: Yes. EPA finds that it is not Illinois, subject to the New Source to demonstrate compliance. necessary to determine whether the Performance Standards (NSPS) and A: Conditional. EPA approves projects meets one of the modification National Emission Standard for alternative monitoring pursuant to 40 exemptions set forth at 40 CFR 60.14(e). Hazardous Air Pollutants (NESHAP) CFR part NSPS, subpart J, given five NSPS subpart AAa applies to electric requirements once treated per 40 CFR conditions are met, as outlined in the arc furnaces that are modified after 60.752(b)(2)(iii)(c)? Agency’s response to ExxonMobil on August 17, 1983, and a modification is A: No. EPA finds that once landfill February 5, 2007. any physical or operational change gas is treated pursuant to 40 CFR which results in an increase in the 60.752(b)(2)(iii)(c), that the gas is no Abstract for [0800083] emission rate to the atmosphere of any longer subject to the monitoring and Q: Does EPA find that 40 CFR part 60, pollutant to which a standard applies. recordkeeping requirements found at 40 subpart DD, applies to a grain terminal
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elevator when co-located with other VOHL must continue to monitor wells One method would be to maintain facilities, as described per the request of for pressure, oxygen, and temperature, direct control of the scrap material being the Illinois Environmental Protection as well as surface monitoring for processed by processing scrap generated Agency? methane. VOHL must perform all within the facility or from other A: Yes. EPA finds that the necessary actions to bring oxygen facilities within the same company that applicability of NSPS subpart DD to a concentrations below the five percent the owner or operator knows has not grain terminal elevator would not be threshold and report any exceedances. been subjected to paints, coatings and impacted by entering into a contractual Specific changes to the standard lubricants or where they know paints, agreement with an ethanol plant. In operating procedures are listed in EPA’s coatings and lubricants have been respect to NSPS subpart DD, EPA response letter dated March 28, 2007. removed consistent with the definition outlined several issues regarding of ‘‘Clean charge.’’ Similarly, the owner ownership and facilities with multiple Abstract for [0800087] or operator also may process scrap from products, as described in the EPA Q: Is a process that will collect outside entities where they are familiar response letter of April 12, 2007. hydrogen sulfide and other sulfur with the history of the scrap and, compounds and further process them to therefore, know that the scrap meets the Abstract for [0800084] produce sulfuric acid at a synthetic definition of ‘‘Clean charge.’’ Q: Does EPA approve the request from natural gas plant at Power Holdings, the United States Gypsum Company LLC, in Illinois, subject to the New Abstract for [0800088] (USG), for an alternative method for Source Performance Standards for Q1. Is the addition of three vent fulfilling the testing requirements at 40 Sulfuric Acid Plants at 40 CFR part 60, streams from the Delayed Coker Unit CFR part 60, subpart OOO? Specifically, subpart H? (DCU) to the common flare header USG requests that Method 9 visible A: Yes. EPA finds that NSPS subpart connecting three flares at the Shell’s emission readings be utilized as an H applies to Power Holdings because Puget Sound Refinery (PSR) facility alternative method of fulfilling the test the plant will collect hydrogen sulfide (DCU Project) that occurred in 1983 methods and procedures for and other sulfur compounds and further considered a modification of the flare determining compliance with the process them to produce sulfuric acid. under the New Source Performance particulate matter standards. Hydrogen sulfide will be burned. Standards (NSPS) for Petroleum A: No. EPA denies USG’s request Furthermore, the plant would not be Refineries, subpart J? under NSPS subpart OOO. EPA will exempt from the rule because it is not A1. Yes. EPA has determined that the allow USG to reduce the time of each of a metallurgical plant, a chamber process DCU Project resulted in a modification the three test runs to thirty minutes as plant, or an acid concentrator. of the PSR flares triggering NSPS an alternative performance testing subpart J applicability. The physical Abstract for [M080037] arrangement to fulfill the testing change that was made upstream of the requirements of NSPS subpart OOO. Q: Request for guidance on flares at a refinery process unit occurred USG must operate the shredder system implementation and compliance after the effective date of the rule and it at its maximum wallboard processing monitoring of the capture, collection resulted in an operational change to the rate and comply with all other testing and ventilation requirements in the PSR flares since combusting gas streams guidelines required. Secondary Aluminum MACT, subpart not previously combusted in the flare is RRR. a change in how the flare operates. The Abstract for [0800085] A: The Secondary Aluminum MACT operational change to the PSR flares Q: Does EPA approve the alternative adopts by reference Chapters 3 and 5 of resulted in an increase in the sulfur timeline request from the Valley View the Industrial Ventilation: A Manual of dioxide emissions rate to the Landfill (Valley View), located in Recommended Practice, 23rd edition, atmosphere such that they were Decatur, Illinois, to correct an published by the American Conference modified under the NSPS. exceedance under 40 CFR part 60, of Governmental Industrial Hygienists Q2. Is the redesign and replacement of subpart WWW? (ACGIH). As required by 40 CFR the flare tip, a physical change to the A: Yes. EPA conditionally approves 63.1506(c) of subpart RRR, owners or PSR East Flare facility made in 1990, Valley View’s alternative timeline under operators of affected sources or considered a modification of the flare NSPS subpart WWW. If Valley cannot emissions units with add-on air under the NSPS subpart J? achieve an oxygen concentration below pollution control devices must: Design A2. EPA agrees that if in fact the five percent by October 7, 2006, Valley and install a system for the capture and replacement of the PSR flare tip resulted View must expand the gas collection collection of emissions to meet the in a decrease of its maximum capacity, system within 120 days of the initial engineering standards for minimum the redesigned flare was not modified measurement of the exceedance. exhaust rates as published by the under the NSPS provisions and is not American Conference of Governmental subject to NSPS subpart J. The change Abstract for [0800086] Industrial Hygienists in chapters 3 and would decrease the kilograms per hour Q: Does EPA approve the change in 5 of ‘‘Industrial Ventilation: A Manual of hydrogen sulfide routed to the flare, standard operating procedures for Wells of Recommended Practice.’’ resulting in an emissions decrease of GEW–14, GEW–16, and GEW–28 at the sulfur dioxide emissions to the Abstract for [M080036] Veolia Orchard Hills Landfill (VOHL), atmosphere. located in Davis Junction, Illinois, under Q: How can an owner or operator of 40 CFR part 60, subpart WWW? a secondary aluminum production Abstract for [0800089] Specifically, VOHL requests a change facility know that the scrap they are Q: Are the dryers at a bark burner involving oxygen concentration processing is ‘‘entirely free of paints, system at a Louisiana-Pacific OSB monitoring. coatings, and lubricants’’? facility in Thomasville, Alabama, A: Yes. EPA conditionally approves, A: Knowledge of whether the scrap ‘‘process heaters’’ and thereby excluded in part, VOHL’s request to change material being processed is ‘‘entirely from 40 CFR part 60, subpart Db? standard operating procedures for the free of paints, coatings, and lubricants’’ A: No. The definition of steam specified Wells under NSPS subpart 60. can be gained through two methods. generating unit under NSPS subpart Db
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excludes ‘‘process heaters,’’ which are contacting one or more of the HAPs of this information collection request defined as devices used primarily to listed in Table 1 of Subpart CC. (ICR) submitted to OMB: (1) Go to the heat a material to initiate or promote a Dated: December 23, 2008. Web page http://www.reginfo.gov/ chemical reaction. The primary purpose Lisa Lund, public/do/PRAMain, (2) look for the of heating wood flakes in the dryers is section of the Web page called Director, Office of Compliance. to dry them, rather than to invoke a ‘‘Currently Under Review’’, (3) click on chemical reaction either within the [FR Doc. E8–31117 Filed 12–30–08; 8:45 am] the downward-pointing arrow in the dryers or downstream of the dryers. BILLING CODE 6560–50–P ‘‘Select Agency’’ box below the Therefore, the dryers do not qualify for ‘‘Currently Under Review’’ heading, (4) the process heater exclusion. select ‘‘Federal Communications FEDERAL COMMUNICATIONS Abstract for [0800090] Commission’’ from the list of agencies COMMISSION presented in the ‘‘Select Agency’’ box, Q1: Does NSPS subpart J apply to the (5) click the ‘‘Submit’’ button to the proposed Hyperion Energy Center (HEC) Notice of Public Information Collection(s) Being Submitted for right of the ‘‘Select Agency’’ box, and (6) near Elk Point, South Dakota? when the list of FCC ICRs currently A1: No. Subpart J applies to various Review to the Office of Management and Budget under review appears, look for the title affected facilities at petroleum refineries of this ICR (or its OMB Control Number, based on the date the affected facility December 19, 2008. if there is one) and then click on the ICR commenced construction, SUMMARY: The Federal Communications Reference Number to view detailed reconstruction, or modification. Since Commission, as part of its continuing information about this ICR. the Hyperion Energy Center has not yet effort to reduce paperwork burden FOR FURTHER INFORMATION CONTACT: For begun construction it is not subject to invites the general public and other additional information, contact Judith B. Subpart J. To be subject to subpart J, Federal agencies to take this Herman at 202–418–0214 or via the HEC’s Claus sulfur recovery plant and opportunity to comment on the Internet at [email protected]. fuel gas combustion devices would have following information collection(s), as had to begin construction on or before SUPPLEMENTARY INFORMATION: required by the Paperwork Reduction OMB Control Number: 3060–0848. May 14, 2007, except for flares, which Act (PRA) of 1995, 44 U.S.C. 3501–3520. would have had to begin construction Title: Deployment of Wireline An agency may not conduct or sponsor Services Offering Advanced on or before June 24, 2008. a collection of information unless it Q2: Do the synthetic gas and pressure Telecommunications Capability, CC displays a currently valid control Docket No. 98–147. swing adsorption (PSA) tail gas to be number. No person shall be subject to produced at the integrated gasification Form No.: N/A. any penalty for failing to comply with Type of Review: Revision of a combined cycle power plant gasification a collection of information subject to the block at the proposed Hyperion Energy currently approved collection. Paperwork Reduction Act (PRA) that Respondents: Business or other for- Center near Elk Point, South Dakota, does not display a valid control number. constitute ‘‘fuel gas’’ under 40 CFR part profit. Comments are requested concerning (a) Number of Respondents: 1,400 60, subpart Ja? whether the proposed collection of A2: Yes. Because the synthetic gas respondents; 17,340 responses. information is necessary for the proper and PSA tail gas will be generated at a Estimated Time per Response: .50–26 performance of the functions of the petroleum refinery and combusted and hours. Commission, including whether the meet the definition of ‘‘fuel gas’’ in 40 Frequency of Response: On occasion information shall have practical utility; CFR 60.101a, therefore these are subject reporting requirement and third party (b) the accuracy of the Commission’s to NSPS subpart Ja. This definition is disclosure requirement. burden estimate; (c) ways to enhance not restricted to gas produced by a Obligation To Respond: Required to the quality, utility, and clarity of the refinery process unit, but even if it were, obtain or retain benefits. Statutory information collected; and (d) ways to the gasification block will be a refinery authority for these information minimize the burden of the collection of process unit, because it is a segment of collections are contained in 47 U.S.C. information on the respondents, a refinery in which gasification, a Sections 151–154, 201–203, 251–254, including the use of automated specific processing operation, will be 256 and 303(r) of the Communications collection techniques or other forms of conducted. Act of 1934, as amended. information technology. Total Annual Burden: 61,490 hours. Abstract for [Z080005] DATES: Written Paperwork Reduction Total Annual Cost: N/A. Q: Is a proposed integrated Act (PRA) comments should be Privacy Act Impact Assessment: N/A. gasification combined cycle (IGCC) submitted on or before March 2, 2009. Nature and Extent of Confidentiality: power plant at the Hyperion Energy If you anticipate that you will be The Commission is not requesting Center near Elk Point, South Dakota, submitting PRA comments, but find it respondents to submit confidential subject to 40 CFR part 63, subpart CC? difficult to do so within the period of information to the Commission. If the A: Yes. Subpart CC applies to the time allowed by this notice, you should Commission requests respondents IGCC system. The IGCC system is a advise the FCC contact listed below as submit information which respondents ‘‘petroleum refining process unit’’ soon as possible. believe is confidential, respondents may because it will be located at an ADDRESSES: Direct all PRA comments to request confidential treatment of such establishment primarily engaged in Nicholas A. Fraser, Office of information under 47 CFR 0.459 of the petroleum refining and because it Management and Budget, (202) 395– Commission’s rules. produces hydrogen. Additionally, the 5887, or via fax at 202–395–5167 or via Needs and Uses: The Commission IGCC system will be located at a plant Internet at will submit this information collection site where: (1) The plant site is a major [email protected] and to the Office of Management and Budget source of hazardous air pollutants to [email protected], Federal (OMB) after this 60 day comment period (HAPs), and (2) the IGCC system emits Communications Commission, or an in order to obtain the full three year or has equipment containing or e-mail to [email protected]. To view a copy clearance from them. The Commission
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is requesting a revision due to Non-Vessel Operating Common Carrier Maritime Services, 1809 Fashion elimination of previously approved data Ocean Transportation Intermediary Court, Joppa, MD 21085. Officer: element. The item eliminated is request Applicants Roland Meier, President (Qualifying for alternative physical access which The 0123 Van Lines, Inc., 501 Individual). was estimated at 700 burden hours. Penhorn Ave., Unit 2, Secaucus, NJ Sesame Auto, 780 N. Euclid Street, Other reporting requirement estimates 07094. Officer: Shinichi Hada, #204A, Anaheim, CA 92801, were updated since the last submission Secretary (Qualifying Individual). Ahmed Alhussaini, Sole Proprietor. to the OMB in 2006. Therefore, the Streamline Trade Management Inc. Caribbean Cargo Agencies, Inc. dba Commission is reporting a ¥700 hour dba Teamwork Logistic, 177–25 Interline Connections, 8240 zmE 52 program change and a ¥103,410 hourly Rockaway Blvd., Jamaica, NY Terrace, Miami, FL 33166. Officer: adjustment of the total annual burden 11434, Officer: Hsin-Hsuan Chen, Lilia F. Dorticos, President resulting in a new estimated burden of President (Qualifying Individual). (Qualifying Individual). 61,490 hours (previously estimated at CNC Worldwide, Inc., 5343 N. Supreme International LLC dba 165,600 total annual burden hours) Imperial Hwy., Ste. 300, Los Supreme Maritime Services, 1021 H since this collection was last submitted Angeles, CA 90045, Officers: Zaskia Street, NE., Washington, DC 20002. to the OMB for review and approval in M. Barahona, Secretary (Qualifying Officers: Jacquelyn A. Roberson, 2006. Individual), Henry Kim, President. Gen. Manager (Qualifying This collection identifies 16 different Hermes Logistics, Inc., 17588 E. Individual), Thomas A. Tanimowo, information collection requirements. Rowland, #A136, City of Industry, President. The Commission sought to further CA 91748, Officer: Zhengqi Qian Global Ocean and Air Cargo Services Congress’s goal of promoting innovation aka Jason Chien, President Corp., dba Global Shipping and investment by all participating in (Qualifying Individual). Services, 1808 Woodlawn Drive, the telecommunications marketplace, in Miami Envios Express Inc., 7468 SW Ste. S, Baltimore, MD 21207. order to stimulate competition for all 117th Ave., Miami, FL 33183. Officers: Kebede Tadesse, President services, including advanced Officer: Mauricio Perez, President (Qualifying Individual), Meskerem telecommunications services. In (Qualifying Individual). Bogale, Director. furtherance of this goal, the Commission JTS Freight Systems, LLC, 81 Adora International, LLC dba Adora, imposes certain information collection Belvidere Rd., Glen Rock, NJ 07452. 16813 FM 1485, Conroe, TX 77306, requirements on incumbent local Officer: Frank Savino, President Officer: Nancy E. Catchings, exchange carriers (LECs) in order to (Qualifying Individual). Member (Qualifying Individual). ensure compliance with the incumbent Kenny Logistics Co. dba Kenny Philbox Express, Inc., 500 Alakawa LEC’s collocation obligations and to International USA Inc., 1835 S. St., #120, Honolulu, HI 96817. assist incumbent LECs in protecting Nordic Rd., Mount Prospect, IL Officers: Maria Elisa Estrada, network integrity. All of the collections 60056. Officer: Jong Chang Song, Manager, Leandro Estrada, will be used by the Commission and by President (Qualifying Individual). President (Qualifying Individuals). competitive carriers to facilitate the ABC Trucking and Logistics, LLC, Futura Logistics Corp., 6500 NW 72nd deployment of advanced services and to 3130 Locke Drive, Atlanta, GA Ave., Miami, FL 33166. Officer: implement section 251 of the 30315. Officers: Anthony C. Rodolfo Perez, President Communications Act of 1934, as Ogbodo, Manager, Cyril O. (Qualifying Individual). amended. Nwanjoku, Manager (Qualifying Bekins A–1 Movers, Inc., 3 S. 140 Federal Communications Commission. Individuals). Barkley, Warrenville, IL 60555. William F. Caton, Jam’n International Cargo, Inc., 2140 Officers: Kenneth S. Ogden, Vice E. University Drive, Rancho President (Qualifying Individual), Deputy Secretary. Dominguez, CA 90220. Officers: Terrence G. Kostoff, President. [FR Doc. E8–31004 Filed 12–30–08; 8:45 am] Brian Rock, Vice President International Cargo Logistics, LLC, BILLING CODE 6712–01–P (Qualifying Individual), John 2416 S 11th Street, Philadelphia, Watkins, President. PA 19148. Officers: Frank Buono, Non-Vessel Operating Common Carrier Managing Member, (Qualifying FEDERAL MARITIME COMMISSION and Ocean Freight Forwarder Individual), Vincent Buono, Owner. Ocean Transportation Intermediary Transportation Intermediary Ocean Freight Forwarder—Ocean License Applicants Applicants Transportation Intermediary PAL Shipping Lines, Inc. dba Pro Ag Applicants Notice is hereby given that the Logistics, LLC, 12588 318th Ave., Amobelge Shipping Limited Liability following applicants have filed with the Princeton, MN 55371. Officer: Scott Company, 934 Broadway, Bayonne, Federal Maritime Commission an A. Frame, President (Qualifying NJ 07002. Officer: Alice M. Smerda, application for license as a Non-Vessel Individual). Member (Qualifying Individual). Operating Common Carrier and Ocean Avanti Transport Services, Highlights Express International, LLC, Freight Forwarder—Ocean Incorporated, 9133 S. La Cienega 4274 Exeter Drive, Dumfries, VA Transportation Intermediary pursuant to Blvd, #220, Inglewood, CA 90301. 22025, Officers: James So Yu, section 19 of the Shipping Act of 1984 Officers: Morris C. Palana, Member (Qualifying Individual), as amended (46 U.S.C. Chapter 409 and President, (Qualifying Individual), Wilheimina T. Yu, Member. 46 CFR part 515). Erica Jo Formoso Plana, Secretary. Barcol International Corporation, Persons knowing of any reason why Hyundai Shipping USA Inc., 277 E. 6952 NW 51st, Miami, FL 33168. the following applicants should not Redondo Beach Blvd., Gardena, CA Officers: Jun Salvat, President receive a license are requested to 90248. Officers: Lufina Kim, (Qualifying Individual), Carmen S. contact the Office of Transportation Secretary (Qualifying Individual), Salvat, Vice President. Intermediaries, Federal Maritime Myeong H. Cho, President. Ecuamerica International, Inc., 5737 Commission, Washington, DC 20573. Allround Logistics Inc. dba Allround Benjamin Center Drive, Tampa, FL
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33634. Officers: Susana M. (Qualifying Individual). Commission and the Assistant Attorney Crecchiolo, Vice President, General advance notice and to wait Tanga S. FitzGibbon, (Qualifying Individual), Susana de designated periods before la Llana, President. Alternate Federal Register Liaison Officer. consummation of such plans. Section [FR Doc. E8–31160 Filed 12–30–08; 8:45 am] 7A(b)(2) of the Act permits the agencies, FM Shipping, LLC, 14482 Beach BILLING CODE 6730–01–P Blvd., Westminster, CA 92683. in individual cases, to terminate this Officer: Ryan A. Mashaqi, President waiting period prior to its expiration (Qualifying Individual). and requires that notice of this action be FEDERAL TRADE COMMISSION published in the Federal Register. CMX Global Freight Services, Inc., The following transactions were Granting of Request for Early 5353 W. Imperial Hwy., #300, Los granted early termination of the waiting Termination of the Waiting Period Angeles, CA 90045. Officers: period provided by law and the Charles W. Dobeck, President Under the Premerger Notification Rules premerger notification rules. The grants (Qualifying Individual), Judith were made by the Federal Trade Dobeck, Treasurer. Section 7A of the Clayton Act, 15 Commission and the Assistant Attorney Cargo Connections NC, LLC dba U.S.C. 18a, as added by Title II of the General for the Antitrust Division of the Transgroup International, 4119–G Hart-Scott-Rodino Antitrust Department of Justice. Neither agency Rose Lake Drive, Charlotte, NC Improvements Act of 1976, requires intends to take any action with respect 28217. Officer: Anita Sanders, persons contemplating certain mergers to these proposed acquisitions during Managing Member or acquisitions to give the Federal Trade the applicable waiting period.
Trans No. Acquiring Acquired Entities
TRANSACTIONS GRANTED EARLY TERMINATION—12/01/2008
20090097 ...... Bank of America Corporation ...... Ray Investment S.a.r.l...... Ray Investment S.a.r.l. 20090122 ...... Electro Scientific Industries, Inc ...... Zygo Corporation ...... Zygo Corporation. 20090124 ...... Hamburgische Seefahrtsbeteiligung TUI AG ...... Hapag-Lloyd Aktiengesellschaft. ‘‘Albert BalIin’’ GmbH. 20090137 ...... Riverside Capital Appreciation Fund V, Alan Bowden ...... Sencore, Inc. L.P. 20090144 ...... Esterline Technologies Corporation ...... NMC Group, Inc...... NMC Group, Inc. 20090156 ...... Insituform Technologies, Inc ...... The Bayou Companies, LLC ...... The Bayou Companies, LLC. 20090157 ...... Audax Private Equity Fund III LP ...... Summerset Enterprises, L.P ...... United Recovery Systems, LP URS Management, LLC.
TRANSACTIONS GRANTED EARLY TERMINATION—12/02/2008
20090134 ...... Precision Castparts Corp ...... Levine Leichtman Capital Partners III, Hackney Ladish Holding Corp. L.P. 20090147 ...... Ryan Kavanaugh ...... General Electric Company ...... Rogue Pictures. 20090149 ...... Odyssey Investment Partners Fund III, SM&A ...... SM&A. L.P. 20090162 ...... Texas Farm Bureau ...... Southern Farm Bureau Casualty Insur- Texas Farm Bureau Casualty Bureau ance Company. Insurance Company.
TRANSACTIONS GRANTED EARLY TERMINATION—12/03/2008
20090016 ...... Blue Cross and Blue Shield of Florida, Florida Health Care Plan, Inc ...... NAC Health Plan, Inc. Inc. 20090108 ...... Silver Lake Partners II TSA, L.P...... The NASDAQ OMX Group, Inc ...... The NASDAQ OMX Group, Inc. 20090140 ...... Allianz SE ...... The Hartford Financial Services Group, The Hartford Financial Services Group, Inc. Inc. 20090155 ...... General Dynamics Corporation ...... Carlyle Partners IV, L.P...... AXT Acquisition Holdings, Inc.
TRANSACTIONS GRANTED EARLY TERMINATION—12/05/2008
20081392 ...... Republic Services, Inc ...... Allied Waste Services, Inc ...... Allied Waste Services, Inc. 20090105 ...... Hellman & Friedman Capital Partners Jupitermedia Corporation ...... Jupiterimages Corporation. VI, L.P.. 20090110 ...... AT&T Inc ...... Wayport, Inc ...... Wayport, Inc. 20090161 ...... 2003 TIL Settlement ...... Tim & Stacy Welu ...... Paisley Consulting Group, Inc. 20090165 ...... ProAssurance Corporation ...... Podiatry Insurance Company of Amer- Podiatry Insurance Company of Amer- ica, a Mutual Company. ica, a Mutual Company. 20090166 ...... CBIZ, Inc ...... Mark D. Garten ...... Mahoney Cohen & Company, CPA, P.C. Mahoney Cohen Consulting Corp. 20090167 ...... Eaton Vance Corp ...... Martin D. Sass ...... M.D. Sass Tax Advantaged Bond Strat- egies, LLC. 20090169 ...... JAKKS Pacific, Inc ...... France Private Equity II ...... Cesar Asia Limited Cesar S.A. Disguise Holding Corporation Disguise, Inc. 20090173 ...... QBE Insurance Group Limited ...... Trident III, LLP ...... ZC Sterling Corporation. 20090174 ...... ITOCHU Corporation ...... General Electric Company ...... Fox Energy Company, LLC. 20090176 ...... United Technologies Corporation ...... Siamak Katal ...... Detection Logic Fire Protection, Inc.
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Trans No. Acquiring Acquired Entities
20090177 ...... TransDigm Group Incorporated ...... General Electric Company ...... Aircraft Parts Corporation. 20090183 ...... Tenaska Energy, Inc ...... American International Group, Inc ...... TMV Holdings, LLC. 20090184 ...... Tenaska Energy Holdings LLC ...... American International Group, Inc ...... TMV Holdings, LLC.
TRANSACTIONS GRANTED EARLY TERMINATION—12/08/2008
20090115 ...... Fairholme Funds, Inc ...... AmeriCredit Corp ...... AmeriCredit Corp. 20090145 ...... Samsung SDI Co., Ltd ...... Samsung Mobile Display Co., Ltd ...... Samsung Mobile Display Co., Ltd.
TRANSACTIONS GRANTED EARLY TERMINATION—12/09/2008
20081463 ...... Verizon Communications Inc ...... Atlantis Holdings LLC ...... Alltel Corporation. 20090148 ...... Clarian Health Partners, Inc ...... Cardinal Health System, Inc ...... Ball Memorial Hospital, Inc. 20090175 ...... Partners Limited ...... Norbord Inc ...... Norbord Inc.
TRANSACTIONS GRANTED EARLY TERMINATION—12/10/2008
20090180 ...... Windjammer Senior Equity Fund III, L.P. SPC Partners II, L.P ...... S.T. Specialty Foods, Inc. 20090187 ...... Compass Group PLC ...... Kimco Facilities Services Corporation ... Kimco Facilities Services Corporation.
TRANSACTIONS GRANTED EARLY TERMINATION—12/11/2008
20090182 ...... Prime Financial Credit Union ...... Guardian Credit Union ...... Guardian Credit Union.
TRANSACTIONS GRANTED EARLY TERMINATION—12/12/2008
20090190 ...... Nestucca Forests LLC ...... Stimson Lumber Company, Inc ...... Stimson Lumber Company, Inc. 20090192 ...... Sierra Wireless, Inc ...... Wavecom S.A ...... Wavecom S.A. 20090196 ...... New Mountain Partners III, L.P ...... Tygris Commercial Finance Group, Inc Tygris Commercial Finance Group, Inc. 20090197 ...... TPG Partners VI, L.P ...... Tygris Commercial Finance Group, Inc Tygris Commercial Finance Group, Inc. 20090199 ...... Platinum Equity Capital Partners II, L.P. Stephen J. Williams ...... International Offshore Services, LLC.
FOR FURTHER INFORMATION CONTACT: 1995, 44 U.S.C. 3506(c)(2)(A), AHRQ health service utilization. AHRQ seeks Sandra M. Peay, Contact Representative invites the public to comment on this to better understand issues in or Renee Hallman, Contact proposed information collection. developing data collection initiatives, Representative, Federal Trade This proposed information collection redundancies in these initiatives, uses Commission, Premerger Notification was previously published in the Federal of available data, gaps in available Office, Bureau of Competition, Room Register on October 24th, 2008 and information, similarities across data H–303, Washington, DC 20580, (202) allowed 60 days for public comment. projects, and areas for possible 326–3100. One comment was received. The collaboration and coordination. AHRQ’s By Direction of the Commission. purpose of this notice is to allow an initial focus is on those data sets that Donald S. Clark, additional 30 days for public comment. would inform healthcare providers, Secretary. DATES: Comments on this notice must be policymakers, and consumers about [FR Doc. E8–30872 Filed 12–30–08; 8:45 am] received by January 30, 2009. outpatient health service utilization and BILLING CODE 6750–01–M ADDRESSES: Written comments should episodes of care. be submitted to: AHRQ’s OMB Desk The primary purpose of this Officer by fax at (202) 395–6974 information collection is to DEPARTMENT OF HEALTH AND (Attention: AHRQs desk officer) or by e- _ comprehensively document outpatient HUMAN SERVICES mail at OIRA [email protected] (attention: AHRQ’s desk officer). health care data collection initiatives in the 50 states, the District of Columbia, Agency for Healthcare Research and Copies of the proposed collection Quality plans, data collection instruments, and and other geographic units. Information specific details on the estimated burden being collected about the data sets is not Agency Information Collection can be obtained from the AHRQ Reports readily available to the public. In-depth Activities: Proposed Collection; Clearance Officer. information about the data sets will Comment Request FOR FURTHER INFORMATION CONTACT: provide guidance to AHRQ on the potential synergy across such initiatives AGENCY: Agency for Healthcare Research Doris Lefkowitz, AHRQ Reports and suggest how the information can and Quality, HHS. Clearance Officer, (301) 427–1477, or by e-mail at [email protected]. inform Federal, State, and local health ACTION: Notice. SUPPLEMENTARY INFORMATION: care policymakers, clinicians, and SUMMARY: This notice announces the consumers. Information collected intention of the Agency for Healthcare Proposed Project: ‘‘The AHRQ Data during the interviews will Research and Quality (AHRQ) to request Inventory’’ comprehensively document outpatient that the Office of Management and The Agency for Healthcare Research health care data collection initiatives. Budget (OMB) approve the proposed and Quality (AHRQ) is interested in This project is important for several information collection project: ‘‘The determining the availability of regularly reasons. First, many data collection AHRQ Data Inventory.’’ In accordance collected administrative and other data initiatives exist or are in the planning with the Paperwork Reduction Act of collection initiatives about outpatient
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stages, but there is limited collaboration costs and utilization of, and access to, information about the nondisclosure of and synthesis among initiatives. With health care and the ways in which their responses, and a request to have limited resources and common goals, it health care services are organized, respondents review information is imperative to understand the issues in delivered, and financed (42 U.S.C. captured from the Internet about their developing data collection initiatives, 299(b)(l)(D) and (E)); (2) conduct and data sets. In addition, respondents will redundancies in such initiatives, and support research on health care and on be informed that they have the option to gaps in available information. Second, systems for the delivery of such care (42 complete and return the questionnaire with the increasing costs of health care, U.S.C. 299a(a)); and (3) conduct and electronically or participate in a it has become more important than ever support research to advance the creation telephone interview. Respondents who to use health services efficiently, yet of effective linkages between various do not return their questionnaires by the care and information about care is often sources of health information (42 U.S.C. requested time will get an e-mail collected and delivered in isolation 299b–3(a)(3)). reminder. The e-mail reminder will be without coordination across sites or followed by a telephone reminder. Method of Collection providers of care. The results of this Estimated Annual Respondent Burden project will provide AHRQ and other The survey will be initiated with an policymakers with the information they e-mail message from AHRQ to Exhibit 1 shows the estimated annual need to serve as a catalyst to promote managers/administrators of each data burden hours for the respondent’s time coordinated standardization, reduce set selected for inclusion in the to participate in this project. A redundancies, identify gaps in Inventory. Data sets listed in the maximum of 80 respondents will information, and assist in further inventory were identified from a search complete the survey questionnaire development of needed data efforts. of Web-based information about which will require about 45 minutes to This project is being conducted outpatient and ambulatory patient care complete. The total estimated burden pursuant to AHRQ’s statutory mandates data sets. The initial contact will be hours for this information collection is to (1) promote health care quality followed by an e-mail distribution of a 60 hours. improvement by conducting and cover letter and the questionnaire. The Exhibit 2 show the estimated cost supporting research that develops and cover letter will include information burden based on the respondent’s time presents scientific evidence regarding about the purpose of the study, reason to participate in this project. The total all aspects of health care, including the respondents are being contacted, cost burden is approximately $2,993.
EXHIBIT 1—ESTIMATED ANNUALIZED BURDEN HOURS
Number of Form name Number of responses per Hours per Total burden respondents respondent response hours
Inventory Survey ...... 80 1 45/60 60
Total ...... 80 1 na 60
EXHIBIT 2—ESTIMATED ANNUALIZED COST BURDEN
Average Form name Number of Total burden hourly wage Total costs respondents hours rate * burden
Inventory Survey ...... 80 60 $49.89 $2,993
Total ...... 80 60 na 2,993 * Based upon the mean of general and operations managers (11–102 1), National Compensation Survey: Occupational Wages in the United States 2007, U.S. Department of Labor, Bureau of Labor Statistics.
Estimated Annual Costs to the Federal EXHIBIT 3—PROJECT COSTS— AHRQ health care research and health Government Continued care information dissemination This one-year project is estimated to functions, including whether the cost the government $136,000. Exhibit 3 Cost component Total cost information will have practical utility; details the costs associated with this (b) the accuracy of AHRQ’s estimate of Project Management ...... 20,000.00 burden (including hours and costs) of project, which include $11,000 for Overhead ...... 21,000.00 the proposed collection(s) of project development, $72,500 for data information; (c) ways to enhance the collection and analysis, $12,000 for Total ...... 136,500.00 quality, utility, and clarity of the preparing reports, $20,000 for project information to be collected; and (d) management and $21,000 for overhead. Request for Comments ways to minimize the burden of the In accordance with the above-cited collection of information upon the EXHIBIT 3—PROJECT COSTS Paperwork Reduction Act legislation, respondents, including the use of comments on AHRQ’s information Cost component Total cost automated collection techniques or collection are requested with regard to other forms of information technology. Project Development ...... $11,000.00 any of the following: (a) Whether the Comments submitted in response to Data Collection and Analysis 72,500.00 proposed collection of information is this notice will be summarized and Preparation of Reports ...... 12,000.00 necessary for the proper performance of included in the Agency’s subsequent
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request for OMB approval of the Prevention and the Agency for Toxic who are successful electronic proposed information collection. All Substances and Disease Registry. prescribers. This requirement is codified comments will become a matter of Dated: December 17, 2008. at section 1848(m)(5)(G) of the Act. public record. Elaine L. Baker, Accordingly, CMS is adding §§ 131 and Dated: December 17, 2008. 132 of MIPPA, § 101 of MMSEA, Director, Management Analysis and Services § 1848(k) of the Act, and § 1848(m) of Carolyn M. Clancy, Office, Centers for Disease Control and the Act to the PMRS’ legal authority Director. Prevention. section. [FR Doc. E8–30762 Filed 12–30–08; 8:45 am] [FR Doc. E8–31111 Filed 12–30–08; 8:45 am] In addition, we are clarifying in this BILLING CODE 4160–90–M BILLING CODE 4163–18–P notice that the term, ‘‘performance measurement results’’ used in the PMRS DEPARTMENT OF HEALTH AND includes, but is not limited to, DEPARTMENT OF HEALTH AND submission of data on measures, e- HUMAN SERVICES HUMAN SERVICES prescribing usage, frequency of Centers for Disease Control and Centers for Medicare & Medicaid reporting or performance, as well as Prevention Services rates or scores based on application of specific measures. We consider all of Board of Scientific Counselors, Privacy Act of 1974; Notice of Modified these types of information to be valid National Center for Injury Prevention System of Records indicators of a physician’s, and Control: Notice of Charter practitioner’s, or other provider’s AGENCY: Department of Health and Amendment commitment to and delivery of high Human Services (HHS), Centers for quality, high value health care. This gives notice under the Federal Medicare & Medicaid Services (CMS). The primary purpose of this system is Advisory Committee Act (Pub. L. 92– ACTION: Notice of a Modified System of to support the collection, maintenance, 463) of October 6, 1972, that the Records. and processing of information to statutory requirements of the Advisory promote the delivery of high quality, Committee for Injury Prevention and SUMMARY: In accordance with the efficient, effective, and economical Control (ACIPC) have been transferred requirements of the Privacy Act of 1974, health care services, and promoting the to the Board of Scientific Counselors, CMS is proposing to make minor quality and efficiency of services of the National Center for Injury Prevention amendments to an existing system of type for which payment may be made and Control (BSC, NCIPC). records (SOR) titled, ‘‘Performance under title XVIII by allowing for the The ACIPC was established on Measurement and Reporting System establishment and implementation of October 18, 1988, in accordance with (PMRS),’’ System No. 09–70–0584, performance measures, the provision of Public Law 92–463, as amended (5 published at 72 FR 52133 (September feedback to physicians, and public U.S.C. App. 2). Section 394(a) of the 12, 2007). PMRS serves as a master reporting of performance information. Public Health Service Act, (42 U.S.C. system of records to assist in projects Information in this system will also be 280b–2(a)), as amended, directed the that provide transparency in health care disclosed to: (1) Support regulatory, Secretary, Department of Health and on a broad scale enabling consumers to reimbursement, and policy functions Human Services, acting through the compare the quality and price of health performed for the Agency or by a Director, CDC, to establish an advisory care services so that they can make contractor, consultant, or a CMS committee to provide advice with informed choices among individual grantee; (2) assist another Federal and/ respect to the prevention and control of physicians, practitioners, and other or state agency, agency of a state injuries. On October 28, 1994, ACIPC providers of services. We are making government, or an agency established by was reestablished under statute. minor amendments to PMRS to include state law; (3) promote more informed The responsibilities of ACIPC have two additional legal authorities: The choices by Medicare beneficiaries been assumed by the BSC, NCIPC. By Medicare, Medicaid, and SCHIP among their Medicare group options by assuming the statutorily mandated Extension Act of 2007 (MMSEA) (Pub. making physician performance responsibilities of ACIPC, the BSC, L. 110–173) and the Medicare measurement information available to NCIPC will thereby become a statutorily Improvements for Patients and Medicare beneficiaries through a Web mandated committee, continuing to Providers Act of 2008 (MIPPA) (Pub. L. site and other forms of data serve the purposes set forth by Section 110–275). Section 101(b) of the MMSEA dissemination; (4) provide CVEs and 394(a) of the Public Health Service Act. amended section 1848(k)(2)(B) of the data aggregators with information that For information, contact Gwendolyn Social Security Act (the Act) (42 U.S.C. will assist in generating single or multi- Cattledge, Ph.D., Executive Secretary, 1395w–4) and section 101(c) of division payer performance measurement results Board of Scientific Counselors, National B of the Tax Relief and Health Care Act to promote transparency in health care Center for Injury Prevention and of 2006 to extend the Physician Quality to members of their community; (5) Control, Centers for Disease Control and Reporting Initiative (PQRI). MIPPA, assist individual physicians, Prevention, Department of Health and effective July 15, 2008, extended the practitioners, providers of services, Human Services, 4770 Buford Highway, PQRI for 2010 and subsequent years and suppliers, laboratories, and other health Mailstop K02, Atlanta, Georgia 30341, authorized a new incentive program for care professionals who are participating telephone (770) 488–4655 or fax (770) successful electronic prescribers under in health care transparency projects; (6) 488–4422. section 1848(m)(2) of the Act. In assist individuals or organizations with The Director, Management Analysis addition, the MIPPA requires the projects that provide transparency in and Services Office, has been delegated Secretary to post on the CMS Web site health care on a broad scale enabling the authority to sign Federal Register the names of eligible professionals or consumers to compare the quality and notices pertaining to announcements of group practices who satisfactorily price of health care services; or for meetings and other committee submit data on quality measures research, evaluation, and management activities, for both the through PQRI and the names of those epidemiological projects related to the Centers for Disease Control and eligible professionals or group practices prevention of disease or disability;
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restoration or maintenance of health or (including working with providers, choose to participate and are successful for payment purposes; (7) assist Quality payers, or other HIPAA covered entities) electronic prescribers may earn an Improvement Organizations; (8) support for purposes for generating these results. incentive payment. MIPPA also requires litigation involving the agency; and (9) The patient de-identified results will be CMS to publicly report the names of and (10) combat fraud, waste, and abuse calculated using Medicare claims data eligible professionals or group practices in certain health benefits programs. We based on consensus-based measures as who satisfactorily submit data on have provided background information determined by CMS, including but not quality measures through PQRI and the about this modified system in the limited to quality, resource use, names of those eligible professionals or SUPPLEMENTARY INFORMATION section efficiency, and utilization metrics. group practices who are successful e- below Available results may include single prescribers. DATES: Effective Dates: The minor payer (i.e., Medicare only and private CMS may publicly report additional amendments contained in this notice payer only performance measurement performance information, including are effective upon publication in the results) and/or multi-payer (i.e., results submission of data on measures, e- Federal Register. generated from merging or combining prescribing usage, frequency of Medicare results with private payer FOR FURTHER INFORMATION CONTACT: reporting or performance, as well as results) patient de-identified, individual Aucha Prachanronarong, Health specific rates or scores based on physician-level performance Insurance Specialist, Division of application of specific measures. CMS measurement results. CMS also may Ambulatory Care and Measure considers all of these types of make patient de-identified and Management, Quality Measurement and information to be valid indicators of a individual physician-level or group Health Assessment Group, Office of physician, practitioner, or other health practice level performance measurement Clinical Standards and Quality, CMS, care provider’s commitment to and results available to Medicare Room C1–23–14, 7500 Security delivery of high quality, high value beneficiaries, and others that meet CMS Boulevard, Baltimore, Maryland 21244– health care. requirements for disclosure. 1850. The telephone number is (410) CMS also has implemented a pilot I. Description of the Proposed System of 786–1879 or contact project known as, ‘‘The Better Quality Records [email protected]. Information to Improve Care for A. Statutory and Regulatory Basis for SUPPLEMENTARY INFORMATION: The Medicare Beneficiaries (BQI) Project’’ to System Value-driven Health Care Initiative is develop a model to combine data, designed to achieve four cornerstones: quality measurement, and public Authority for the collection, Interoperable health information reporting. Through the BQI project, each maintenance, and disclosures from this technology (HIT); transparency of price pilot collaborative, as a QIO system is given under provisions of information; transparency of quality subcontractor, is combining private §§ 1152, 1153(c), 1153(e), 1154, 1160, information; and the use of incentives to claims data with Medicare claims data 1848(k), 1848(m), 1851(d) and 1862(g) of promote high-quality and cost-efficient and, in some cases, Medicaid claims the Social Security Act; § 101 of health care. Regional/local public- data to produce single payer and/or division B of the Tax Relief and Health private collaboration is essential to the multi-payer, patient de-identified, Care Act of 2006; § 101 of the Medicare, success of this Initiative. As such, the individual physician-level or group Medicaid, and SCHIP Extension Act of Initiative is encouraging the growth of practice level performance measurement 2007, §§ 131 and 132 of MIPPA, and regional public-private collaboratives results using quality measures that are §§ 901, 912, and 914 of the Public that will be chartered by the Agency for approved by CMS. These performance Health Service Act. Healthcare Research and Quality measurement results were made B. Collection and Maintenance of Data (AHRQ) to support and achieve the four available to Medicare beneficiaries by in the System cornerstones. Only mature, sustainable, CMS or a CMS contractor. multi-stakeholder entities that are In addition, as required by the Tax The system contains single and multi- committed to achieving the four Relief and Health Care Act of 2006, CMS payer, patient de-identified, individual cornerstones, including publicly implemented a voluntary Physician physician-level performance reporting physician-level and other Quality Reporting Initiative (PQRI). measurement results as well as, patient provider performance measurement Under PQRI, eligible professionals who identifiable clinical and claims information and facilitating the use of choose to participate and satisfactorily information provided by individual this information to improve the quality report on a designated set of quality physicians, practitioners and providers and efficiency of health care delivery, measures for services paid under the of services, individuals assigned to will become Chartered Value Exchanges Medicare Physician Fee Schedule and provider groups, insurance and provider (CVEs). provided to Medicare beneficiaries associations, government agencies, Provided they meet certain criteria under the traditional fee-for-service accrediting and quality organizations, established by CMS and disclosure is program, may earn an incentive and others who are committed to consistent with the Privacy Act, the payment. Participating eligible improving the quality of physician Health Insurance Portability and professionals whose Medicare patients services. This system contains the Accountability Act (HIPAA) Privacy in the traditional fee-for-service program patient’s or beneficiary’s name, sex, Rule and other applicable laws, CMS fit the specifications of the PQRI quality health insurance claim number (HIC), may provide CVEs with patient de- measures will report the corresponding Social Security Number (SSN), address, identified Medicare-inclusive appropriate Common Procedural date of birth, medical record number(s), individual physician-level or group Terminology (CPT) Category II codes or prior stay information, provider name practice level performance measurement G-codes on their claims or through and address, physician’s name, and/or results. CMS also may provide qualified PQRI registries. identification number, date of physician and patient identifiable In 2009, CMS also will implement an admission or discharge, other health protected health claims data Electronic Prescribing (E-Prescribing) insurance, diagnosis, surgical information to data aggregators that are Incentive Program as required by the procedures, and a statement of services HIPAA business associates of CMS MIPPA. Eligible professionals who rendered for related charges and other
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data needed to substantiate claims. The policies and standards include but are measurement results as well as, clinical system contains provider not limited to: All pertinent National and claims information provided by characteristics, prescriber identification Institute of Standards and Technology individual physicians, practitioners and number(s), assigned provider number(s) publications; the HHS Information providers of services, individuals (facility, referring/servicing physician), Systems Program Handbook and the assigned to provider groups, insurance and national drug code information, CMS Information Security Handbook. and provider associations, government total charges, and Medicare payment agencies, accrediting and quality V. Effects of the New System on the amounts. organizations, and others who are Rights of Individuals committed to improving the quality of II. Agency Policies, Procedures, and CMS proposes to establish this system Restrictions on Routine Uses physician, practitioner, and other in accordance with the principles and providers’ services. The Privacy Act permits us to disclose requirements of the Privacy Act and will information without an individual’s collect, use, and disseminate CATEGORIES OF RECORDS IN THE SYSTEM: consent/authorization if the information information only as prescribed therein. This system contains the patient’s or is to be used for a purpose that is We will only disclose the minimum beneficiary’s name, sex, health compatible with the purpose(s) for personal data necessary to achieve the insurance claim number (HIC), Social which the information was collected. purpose of PMRS. Disclosure of Security Number (SSN), address, date of Any such disclosure of data is known as information from the system will be birth, medical record number(s), prior a ‘‘routine use.’’ The agency policies, approved only to the extent necessary to stay information, provider name and procedures, and restriction on routine accomplish the purpose of the address, physician’s name, and/or uses for the PMRS were published in disclosure. CMS has assigned a higher identification number, date of the Federal Register on September 12, level of security clearance for the admission or discharge, other health 2007. See 72 FR 52133 (Sept. 12, 2007) information maintained in this system insurance, diagnosis, surgical for further information. in an effort to provide added security procedures, and a statement of services III. Routine Use Disclosures of Data In and protection of data in this system. rendered for related charges and other the System CMS will take precautionary data needed to substantiate claims. The measures to minimize the risks of system contains provider For further information on the routine unauthorized access to the records and characteristics, prescriber identification uses for the PMRS, please see 72 FR the potential harm to individual privacy number(s), assigned provider number(s) 52133. or other personal or property rights. (facility, referring/servicing physician), IV. Safeguards CMS will collect only that information and national drug code information, necessary to perform the system’s total charges, and Medicare payment CMS has safeguards in place for functions. In addition, CMS will make amounts. authorized users and monitors such disclosure from the proposed system users to ensure against unauthorized AUTHORITY FOR MAINTENANCE OF THE SYSTEM: only with consent of the subject use. Personnel having access to the individual, or his/her legal Authority for the collection, system have been trained in the Privacy representative, or in accordance with an maintenance, and disclosures from this Act and information security applicable exception provision of the system is given under provisions of requirements. Employees who maintain Privacy Act. CMS, therefore, does not §§ 1152, 1153(c), 1153(e), 1154, 1160, records in this system are instructed not anticipate an unfavorable effect on 1848(k), 1848(m), 1851(d) and 1862(g) of to release data until the intended individual privacy as a result of the the Social Security Act; § 101 of recipient agrees to implement disclosure of information relating to division B of the Tax Relief and Health appropriate management, operational individuals. Care Act of 2006; § 101 of the Medicare, and technical safeguards sufficient to Medicaid, and SCHIP Extension Act of protect the confidentiality, integrity and Dated: December 18, 2008. 2007, §§ 131 and 132 of the Medicare availability of the information and Charlene Frizzera, Improvements for Patients and information systems and to prevent Chief Operating Officer, Centers for Medicare Providers Act of 2008, and §§ 901, 912, unauthorized access. & Medicaid Services. and 914 of the Public Health Service This system will conform to all System No. 09–70–0584 Act. applicable Federal laws and regulations and Federal, HHS, and CMS policies SYSTEM NAME: PURPOSE(S) OF THE SYSTEM: and standards as they relate to ‘‘Performance Measurement and The primary purpose of this system is information security and data privacy. Reporting System (PMRS),’’ HHS/CMS/ to support the collection, maintenance, These laws and regulations include but OCSQ. and processing of information to are not limited to: The Privacy Act of promote the delivery of high quality, 1974; the Federal Information Security SECURITY CLASSIFICATION: efficient, effective and economical Management Act of 2002; the Computer Level Three Privacy Act Sensitive. delivery of health care services, and Fraud and Abuse Act of 1986; the SYSTEM LOCATION: promoting the quality of services of the Health Insurance Portability and type for which payment may be made CMS Data Center, 7500 Security Accountability Act of 1996; the E- under title XVIII by allowing for the Boulevard, North Building, First Floor, Government Act of 2002, the Clinger- establishment and implementation of Baltimore, Maryland 21244–1850 and at Cohen Act of 1996; the Medicare performance measures, provision of various contractor sites. Modernization Act of 2003, and the feedback to physicians, and public corresponding implementing CATEGORIES OF INDIVIDUALS COVERED BY THE reporting of performance information. regulations. OMB Circular A–130, SYSTEM: Information in this system will also be Management of Federal Resources, The system contains single and multi- disclosed to: (1) Support regulatory, Appendix III, Security of Federal payer, patient de-identified, individual reimbursement, and policy functions Automated Information Resources also physician, practitioner or other performed for the Agency or by a applies. Federal, HHS, and CMS provider-level performance contractor, consultant, or a CMS
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grantee; (2) assist another Federal and/ a. Contribute to projects that provide data aggregators should complete a Data or state agency, agency of a state transparency in health care on a broad- Use Agreement (CMS Form 0235) in government, or an agency established by scale enabling consumers to compare accordance with current CMS policies. state law; (3) promote more informed the quality and price of health care 5. To assist individual physicians, choices by Medicare beneficiaries services, practitioners, providers of services, among their Medicare group options by b. Contribute to the accuracy of CMS’s suppliers, laboratories, and others making physician performance proper payment of Medicare benefits, health care professionals who are measurement information available to c. Enable such agency to administer a participating in health care transparency Medicare beneficiaries through a Web Federal health benefits program, or as projects. site and other forms of data necessary to enable such agency to 6. To assist an individual or dissemination; (4) provide CVEs and fulfill a requirement of a Federal statute organization with projects that provide data aggregators with information that or regulation that implements a health transparency in health care on a broad- will assist in generating single or multi- benefits program funded in whole or in scale enabling consumers to compare payer performance measurement results part with Federal funds, and/or the quality and price of health care to promote transparency in health care d. Assist Federal/state Medicaid services; or for research, evaluation, and to members of their community; (5) programs which may require PMRS epidemiological projects related to the assist individual physicians, information for purposes related to this prevention of disease or disability; practitioners, providers of services, system. restoration or maintenance of health or suppliers, laboratories, and other health 3. To assist in making the individual for payment purposes if CMS: care professionals who are participating physician-level performance a. Determines that the use or in health care transparency projects; (6) measurement results available to disclosure does not violate legal assist individuals or organizations with Medicare beneficiaries, through a Web limitations under which the record was projects that provide transparency in site and other forms of data provided, collected, or obtained; health care on a broad-scale enabling dissemination, in order to promote more b. Determines that the purpose for consumers to compare the quality and informed choices by Medicare which the disclosure is to be made: price of health care services; or for beneficiaries among their Medicare (1) Cannot be reasonably research, evaluation, and coverage options. accomplished unless the record is epidemiological projects related to the 4. To provide Chartered Value provided in individually identifiable prevention of disease or disability; Exchanges (CVE) and data aggregators form, restoration or maintenance of health or with information that will assist in (2) Is of sufficient importance to for payment purposes; (7) assist Quality generating single or multi-payer warrant the effect and/or risk on the Improvement Organizations; (8) support performance measurement results that privacy of the individual that additional litigation involving the agency; and (9) will assist beneficiaries in making exposure of the record might bring, and and (10) combat fraud, waste, and abuse informed choices among individual (3) There is reasonable probability in certain health benefits programs. physicians, practitioners and providers that the objective for the use would be of services; enable consumers to accomplished; ROUTINE USES OF RECORDS MAINTAINED IN THE compare the quality and price of health SYSTEM, INCLUDING CATEGORIES OR USERS AND c. Requires the recipient of the care services; and assist in providing THE PURPOSES OF SUCH USES: information to: transparency in health care at the local A. Entities Who May Receive (1) Establish reasonable level if CMS: administrative, technical, and physical Disclosures Under Routine Use determines that the use or disclosure safeguards to prevent unauthorized use These routine uses specify does not violate legal limitations under or disclosure of the record, and circumstances, in addition to those which the record was provided, (2) Remove or destroy the information provided by statute in the Privacy Act collected, or obtained; of 1974, under which CMS may release a. Determines that the purpose for that allows the individual to be information from the PMRS without the which the disclosure is to be made: identified at the earliest time at which consent/authorization of the individual (1) Is of sufficient importance to removal or destruction can be to whom such information pertains. warrant the effect and/or risk on the accomplished consistent with the Each proposed disclosure of information privacy of the individual that additional purpose of the project, unless the under these routine uses will be exposure of the record might bring, and recipient presents an adequate evaluated to ensure that the disclosure (2) There is reasonable probability justification of a research or health is legally permissible, including but not that the objective for the use would be nature for retaining such information, limited to ensuring that the purpose of accomplished; and the disclosure is compatible with the b. Requires the recipient of the (3) Make no further use or disclosure purpose for which the information was information to establish reasonable of the record except: collected. We propose to establish the administrative, technical, and physical (a) For disclosure to a properly following routine use disclosures of safeguards to prevent unauthorized use identified person, for purposes of information maintained in the system: or disclosure of the record, providing transparency in health care 1. To support Agency contractors, c. Make no further use or disclosure enabling consumers to compare the consultants, or CMS grantees who have of the record except: quality and price of health care services been engaged by the Agency to assist in (1) For use in another project so that they can make informed choices accomplishment of a CMS function providing transparency in health care, among individual physicians, relating to the purposes for this SOR under these same conditions, and with practitioners and providers of services; and who need to have access to the written authorization of CMS; (b) In emergency circumstances records in order to assist CMS. (2) When required by law. affecting the health or safety of any 2. Pursuant to agreements with CMS d. Secures a written statement individual; to assist another Federal or state agency, attesting to the information recipient’s (c) For use in another research project, agency of a state government, or an understanding of and willingness to under these same conditions, and with agency established by state law to: abide by these provisions. CVEs and written authorization of CMS;
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(d) For disclosure to a properly whole or in part by Federal funds, when Government Act of 2002, the Clinger- identified person for the purpose of an disclosure is deemed reasonably Cohen Act of 1996; the Medicare audit related to the research project, if necessary by CMS to prevent, deter, Modernization Act of 2003, and the information that would enable research discover, detect, investigate, examine, corresponding implementing subjects to be identified is removed or prosecute, sue with respect to, defend regulations. OMB Circular A–130, destroyed at the earliest opportunity against, correct, remedy, or otherwise Management of Federal Resources, consistent with the purpose of the audit; combat fraud, waste or abuse in such Appendix III, Security of Federal or programs. Automated Information Resources also (e) When required by law. B. Additional Circumstances applies. Federal, HHS, and CMS d. Secures a written statement Affecting Routine Use Disclosures policies and standards include but are attesting to the information recipient’s To the extent this system contains not limited to: All pertinent National understanding of and willingness to Protected Health Information (PHI) as Institute of Standards and Technology abide by these provisions. Researchers defined by HHS regulation ‘‘Standards publications; the HHS Information should complete a Data Use Agreement for Privacy of Individually Identifiable Systems Program Handbook and the (CMS Form 0235) in accordance with Health Information’’ (45 CFR Parts 160 CMS Information Security Handbook. current CMS policies. and 164, Subparts A and E) 65 Fed. Reg. 7. To support Quality Improvement RETENTION AND DISPOSAL: 82462 (12–28–00). Disclosures of such Organizations (QIO) in connection with Records are maintained with PHI that are otherwise authorized by review of claims, or in connection with identifiers for all transactions after they these routine uses may only be made if, studies or other review activities are entered into the system for a period and as, permitted or required by the conducted pursuant to Part B of Title XI of 20 years. Records are housed in both ‘‘Standards for Privacy of Individually of the Act and in performing affirmative active and archival files. All claims- Identifiable Health Information.’’ (See outreach activities to individuals for the related records are encompassed by the 45 CFR 164–512(a)(1).) purpose of establishing and maintaining document preservation order and will their entitlement to Medicare benefits or POLICIES AND PRACTICES FOR STORING, be retained until notification is received health insurance plans. RETRIEVING, ACCESSING, RETAINING, AND from the Department of Justice. 8. To support the Department of DISPOSING OF RECORDS IN THE SYSTEM: SYSTEM MANAGER AND ADDRESS: Justice (DOJ), court, or adjudicatory STORAGE: Director, Quality Measurement and body when: Records are stored on both tape a. The Agency or any component Health Assessment Group, Office of cartridges (magnetic storage media) and Clinical Standards and Quality, CMS, thereof, or in a DB2 relational database b. Any employee of the Agency in his Room C1–23–14, 7500 Security management environment (DASD data or her official capacity, or Boulevard, Baltimore, Maryland 21244– storage media). c. Any employee of the Agency in his 1850. or her individual capacity where the RETRIEVABILITY: NOTIFICATION PROCEDURE: DOJ has agreed to represent the Information is most frequently For purpose of notification, the employee, or retrieved by HICN, provider number subject individual should write to the d. The United States Government, (facility, physician, IDs), service dates, system manager who will require the is a party to litigation or has an and beneficiary state code. interest in such litigation, and by careful system name, and the retrieval selection review, CMS determines that the SAFEGUARDS: criteria (e.g., HICN, Provider number, records are both relevant and necessary CMS has safeguards in place for etc.). to the litigation and that the use of such authorized users and monitors such RECORD ACCESS PROCEDURE: records by the DOJ, court or users to ensure against unauthorized For purpose of access, use the same adjudicatory body is compatible with use. Personnel having access to the procedures outlined in Notification the purpose for which the agency system have been trained in the Privacy Procedures above. Requestors should collected the records. Act and information security also reasonably specify the record 9. To assist a CMS contractor requirements. Employees who maintain contents being sought. (These (including, but not limited to MACs, records in this system are instructed not procedures are in accordance with fiscal intermediaries and carriers) that to release data until the intended Department regulation 45 CFR assists in the administration of a CMS- recipient agrees to implement 5b.5(a)(2).) administered health benefits program, appropriate management, operational or to a grantee of a CMS-administered and technical safeguards sufficient to CONTESTING RECORD PROCEDURES: grant program, when disclosure is protect the confidentiality, integrity and The subject individual should contact deemed reasonably necessary by CMS to availability of the information and the system manager named above, and prevent, deter, discover, detect, information systems and to prevent reasonably identify the record and investigate, examine, prosecute, sue unauthorized access. specify the information to be contested. with respect to, defend against, correct, This system will conform to all State the corrective action sought and remedy, or otherwise combat fraud, applicable Federal laws and regulations the reasons for the correction with waste or abuse in such program. and Federal, HHS, and CMS policies supporting justification. (These 10. To assist another Federal agency and standards as they relate to procedures are in accordance with or to an instrumentality of any information security and data privacy. Department regulation 45 CFR 5b.7.) governmental jurisdiction within or These laws and regulations include but under the control of the United States are not limited to: The Privacy Act of RECORD SOURCE CATEGORIES: (including any state or local 1974; the Federal Information Security Medicare Beneficiary Database (09– governmental agency), that administers, Management Act of 2002; the Computer 70–0536), National Claims History File or that has the authority to investigate Fraud and Abuse Act of 1986; the (09–70–0558), and private physicians, potential fraud, waste or abuse in a Health Insurance Portability and private providers, laboratories, other health benefits program funded in Accountability Act of 1996; the E- providers and suppliers who are
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participating in health care transparency Agenda: To review and evaluate grant Genomics, Computational Biology and projects sponsored by the Agency. applications. Technology Study Section. Place: National Institutes of Health, 6701 Date: February 3–4, 2009. SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS Rockledge Drive, Bethesda, MD 20892, Time: 8:30 a.m. to 5 p.m. OF THE ACT: (Telephone Conference Call). Agenda: To review and evaluate grant None. Contact Person: Manjit Hanspal, PhD, applications. Scientific Review Officer, Center for Place: Hyatt Regency Bethesda, One [FR Doc. E8–31146 Filed 12–30–08; 8:45 am] Scientific Review, National Institutes of Bethesda Metro Center, 7400 Wisconsin BILLING CODE 4120–03–P Health, 6701 Rockledge Drive, Room 4138, Avenue, Bethesda, MD 20814. MSC 7804, Bethesda, MD 20892, 301–435– Contact Person: Barbara J. Thomas, PhD, 1195, [email protected]. Scientific Review Officer, Center for DEPARTMENT OF HEALTH AND Name of Committee: Bioengineering Scientific Review, National Institutes of HUMAN SERVICES Sciences & Technologies Integrated Review Health, 6701 Rockledge Drive, Room 2218, Group; Nanotechnology Study Section. MSC 7890, Bethesda, MD 20892, 301–435– National Institutes of Health Date: January 28–29, 2009. 0603, [email protected]. Time: 8:30 a.m. to 5:30 p.m. Name of Committee: Center for Scientific Center for Scientific Review; Notice of Agenda: To review and evaluate grant Review Special Emphasis Panel; Member Closed Meetings applications. Conflict: Mechanisms of Cancer Prevention. Place: Hilton Alexandria Old Town, 1767 Date: February 3, 2009. Pursuant to section 10(d) of the King Street, Alexandria, VA 22314. Time: 1 p.m. to 3 p.m. Federal Advisory Committee Act, as Contact Person: Joseph D. Mosca, PhD, Agenda: To review and evaluate grant Scientific Review Officer, Center for applications. amended (5 U.S.C. Appendix 2), notice Scientific Review, National Institutes of Place: National Institutes of Health, 6701 is hereby given of the following Health, 6701 Rockledge Drive, Room 5158, Rockledge Drive, Bethesda, MD 20892, meetings. MSC 7808, Bethesda, MD 20892, (301) 435– (Telephone Conference Call). The meetings will be closed to the 2344, [email protected]. Contact Person: Zhiqiang Zou, MD, PhD, public in accordance with the Name of Committee: Molecular, Cellular Scientific Review Officer, Center for provisions set forth in sections and Developmental Neuroscience Integrated Scientific Review, National Institutes of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Review Group; Biophysics of Neural Systems Health, 6701 Rockledge Drive, Room 6190, as amended. The grant applications and Study Section. MSC 7804, Bethesda, MD 20892, 301–451– the discussions could disclose Date: January 29, 2009. 0132, [email protected]. confidential trade secrets or commercial Time: 8 a.m. to 8 p.m. Name of Committee: Digestive Sciences Agenda: To review and evaluate grant Integrated Review Group; Xenobiotic and property such as patentable material, applications. Nutrient Disposition and Action Study and personal information concerning Place: Fairmont Hotel, 2401 M Street, NW., Section. individuals associated with the grant Washington, DC 20037. Date: February 4, 2009. applications, the disclosure of which Contact Person: Geoffrey G. Schofield, Time: 8 a.m. to 6 p.m. would constitute a clearly unwarranted PhD, Scientific Review Officer, Center for Agenda: To review and evaluate grant invasion of personal privacy. Scientific Review, National Institutes of applications. Health, 6701 Rockledge Drive, Room 4040–A, Place: Hyatt Regency Bethesda, One Name of Committee: Bioengineering MSC 7850, Bethesda, MD 20892, 301–435– Bethesda Metro Center, 7400 Wisconsin Sciences & Technologies; Integrated Review 1235, [email protected]. Avenue, Bethesda, MD 20814. Group Instrumentation and Systems Name of Committee: Brain Disorders and Contact Person: Patricia Greenwel, PhD, Development Study Section. Clinical Neuroscience Integrated Review Scientific Review Officer, Center for Date: January 20–21, 2009. Group; Clinical Neuroscience and Scientific Review, National Institutes of Time: 7 p.m. to 5 p.m. Neurodegeneration Study Section. Health, 6701 Rockledge Drive, Room 2172, Agenda: To review and evaluate grant Date: January 29, 2009. MSC 7818, Bethesda, MD 20892, 301–435– applications. Time: 8 a.m. to 5 p.m. 1169, [email protected]. Place: Hotel Kabuki, 1625 Post Street, San Agenda: To review and evaluate grant Name of Committee: Health of the Francisco, CA 94155. applications. Population Integrated Review Group; Kidney, Contact Person: Marc Rigas, PhD, Scientific Place: Mark Hopkins San Francisco Hotel, Nutrition, Obesity and Diabetes Study Review Officer, Center for Scientific Review, One Nob Hill, San Francisco, CA 94108. Section. National Institutes of Health, 6701 Rockledge Contact Person: Rene Etcheberrigaray, MD, Date: February 4–5, 2009. Drive, Room 5158, MSC 7849, Bethesda, MD Scientific Review Officer, Center for Time: 8 a.m. to 11 a.m. 20892, 301–402–1074, [email protected]. Scientific Review, National Institutes of Agenda: To review and evaluate grant Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 5196, applications. Review Special Emphasis Panel; Research on MSC 7846, Bethesda, MD 20892, (301) 435– Place: Bahia Resort Hotel, 998 W. Mission Ethical Issues in Human Studies. 1246, [email protected]. Bay Drive, San Diego, CA 92109. Date: January 22, 2009. Name of Committee: Oncological Sciences Contact Person: Fungai F. Chanetsa, PhD, Time: 12 p.m. to 4 p.m. Integrated Review Group; Cancer Biomarkers Scientific Review Officer, Center for Agenda: To review and evaluate grant Study Section. Scientific Review, National Institutes of applications. Date: February 3–4, 2009. Health, 6701 Rockledge Drive, Room 3135, Place: National Institutes of Health, 6701 Time: 8 a.m. to 5 p.m. MSC 7770, Bethesda, MD 20892, 301–435– Rockledge Drive, Bethesda, MD 20892, Agenda: To review and evaluate grant 1262, [email protected]. (Virtual Meeting). applications. Name of Committee: Bioengineering Contact Person: Ellen K. Schwartz, EDD, Place: Holiday Inn Georgetown, 2101 Sciences & Technologies Integrated Review Scientific Review Officer, Center for Wisconsin Avenue, NW., Washington, DC Group; Gene and Drug Delivery Systems Scientific Review, National Institutes of 20007. Study Section. Health, 6701 Rockledge Drive, Room 3168, Contact Person: Steven B. Scholnick, PhD, Date: February 4–5, 2009. MSC 7770, Bethesda, MD 20892, 301–435– Scientific Review Officer, Center for Time: 8 a.m. to 5 p.m. 0681, [email protected]. Scientific Review, National Institutes of Agenda: To review and evaluate grant Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 6152, applications. Review Special Emphasis Panel; Platelet MSC 7804, Bethesda, MD 20892, 301–435– Place: Sir Francis Drake Hotel, 450 Powell Biology. 1719, [email protected]. Street, San Francisco, CA 94102. Date: January 26, 2009. Name of Committee: Genes, Genomes, and Contact Person: Steven J. Zullo, PhD, Time: 2 p.m. to 4 p.m. Genetics Integrated Review Group; Scientific Review Officer, Center for
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Scientific Review, National Institutes of Dated: December 22, 2008. 20894, 301–435–5985, Health, 6701 Rockledge Drive, Room 5146, Jennifer Spaeth, [email protected]. Any interested person may file written MSC 7849, Bethesda, MD 20892, 301–435– Director, Office of Federal Advisory comments with the committee by forwarding 2810, [email protected]. Committee Policy. the statement to the Contact Person listed on (Catalogue of Federal Domestic Assistance [FR Doc. E8–30853 Filed 12–30–08; 8:45 am] Program Nos. 93.306, Comparative Medicine; this notice. The statement should include the 93.333, Clinical Research, 93.306, 93.333, BILLING CODE 4140–01–M name, address, telephone number and when 93.337, 93.393–93.396, 93.837–93.844, applicable, the business or professional 93.846–93.878, 93.892, 93.893, National affiliation of the interested person. Institutes of Health, HHS) DEPARTMENT OF HEALTH AND In the interest of security, NIH has HUMAN SERVICES instituted stringent procedures for entrance Dated: December 18, 2008. onto the NIH campus. All visitor vehicles, Jennifer Spaeth, National Institutes of Health including taxicabs, hotel, and airport shuttles Director, Office of Federal Advisory will be inspected before being allowed on Committee Policy. National Library of Medicine; Notice of campus. Visitors will be asked to show one form of identification (for example, a [FR Doc. E8–30725 Filed 12–30–08; 8:45 am] Meeting government-issued photo ID, driver’s license, BILLING CODE 4140–01–M Pursuant to section 10(d) of the or passport) and to state the purpose of their Federal Advisory Committee Act, as visit. DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice (Catalogue of Federal Domestic Assistance HUMAN SERVICES is hereby given of a meeting of the Program Nos. 93.879, Medical Library Board of Scientific Counselors, National Assistance, National Institutes of Health, National Institutes of Health Center for Biotechnology Information. HHS) The meeting will be open to the Dated: December 18, 2008. Eunice Kennedy Shriver National public as indicated below, with Jennifer Spaeth, Institute of Child Health & Human attendance limited to space available. Director, Office of Federal Advisory Development; Notice of Meeting Individuals who plan to attend and Committee Policy. Pursuant to section 10(a) of the need special assistance, such as sign [FR Doc. E8–30722 Filed 12–30–08; 8:45 am] Federal Advisory Committee Act, as language interpretation or other BILLING CODE 4140–01–M amended (5 U.S.C. Appendix 2), notice reasonable accommodations, should is hereby given of a meeting of the notify the Contact Person listed below National Advisory Child Health and in advance of the meeting. DEPARTMENT OF HOMELAND Human Development Council. The meeting will be closed to the SECURITY The meeting will be open to the public as indicated below in accordance public, with attendance limited to space with the provisions set forth in section Coast Guard 552b(c)(6), Title 5 U.S.C., as amended available. Individuals who plan to [Docket No. USCG–2008–0333] attend and need special assistance, such for the review, discussion, and as sign language interpretation or other evaluation of individual other Delaware River and Bay Oil Spill reasonable accommodations, should conducted by the National Library of Advisory Committee; Meeting notify the Contact Person listed below Medicine, including consideration of AGENCY: Coast Guard, DHS. in advance of the meeting. personnel qualifications and performance, and the competence of ACTION: Notice of meeting. Name of Committee: National Advisory individual investigators, the disclosure Child Health and Human Development SUMMARY: of which would constitute a clearly The Delaware River and Bay Council; NACHHD Subcommittee on Oil Spill Advisory Committee Planning and Policy. unwarranted invasion of personal privacy. (DRBOSAC) will hold an administrative Date: January 8, 2009. meeting in Philadelphia, PA to discuss Time: 12 p.m. to 1 p.m. Name of Committee: Board of Scientific various issues to improve oil spill Agenda: Topics to be discussed include: Counselors, National Center for (1) Report of the Director; (2) Budget prevention and response strategies for Biotechnology Information. the Delaware River and Bay. During the Updates; (3) Legislative Updates. Date: April 28, 2009. Place: National Institutes of Health Open: 8:30 a.m. to 12 p.m. meeting, the items concerning the Building 31, 31 Center Drive, Room 2A–03, Agenda: Program Discussion. Committee’s organization and action Bethesda, MD 20892, (Telephone Conference Place: National Library of Medicine, items will be discussed. This meeting Call). Building 38, 2nd Floor, Board Room, 8600 will be open to the public. Contact Person: Elizabeth Wehr, Senior Rockville Pike, Bethesda, MD 20892. DATES: The Committee will meet on Public Health Analyst, Office of Science Closed: 12 p.m. to 2 p.m. Policy, Analysis and Communication, Wednesday, January 21, 2009, from 10 Agenda: To review and evaluate personal a.m. to 1 p.m. Written material should NICHD/NIH/DHHS, 31 Center Drive, Suite qualifications and performance, and 2A–18, Bethesda, MD 20892, 301–496–0805. competence of individual investigators. reach the Coast Guard on or before Information is also available on the Place: National Library of Medicine, January 14, 2009. Institute’s/Center’s home page: http:// Building 38, 2nd Floor, Board Room, 8600 ADDRESSES: The Committee will meet at www.nichd.nih.gov/about/nachhd.htm, Rockville Pike, Bethesda, MD 20892. Coast Guard Sector Delaware Bay, 1 where an agenda and any additional Open: 2 p.m. to 3 p.m. Washington Ave., Philadelphia, PA information for the meeting will be posted Agenda: Program Discussion. 19147. Send written material to Gerald when available. Place: National Library of Medicine, Conrad, liaison to the Designated (Catalogue of Federal Domestic Assistance Building 38, 2nd Floor, Board Room, 8600 Federal Officer (DFO) of the DRBOSAC, Program Nos. 93.864, Population Research; Rockville Pike, Bethesda, MD 20892. 93.865, Research for Mothers and Children; Contact Person: David J. Lipman, MD., at the address above. This notice and 93929, Center for Medical Rehabilitation Director, Natl Ctr For Biotechnology any documents identified in the Research; 93.209, Contraception and Information, National Library of Medicine, SUPPLEMENTARY INFORMATION section as Infertility Loan Repayment Program, National Department of Health and Human Services, being available in the docket may be Institutes of Health, HHS) Building 38A, Room 8N805, Bethesda, MD viewed online, at http://
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www.regulations.gov, using docket DEPARTMENT OF HOMELAND Agendas of the Meetings number USCG–2008–0333. SECURITY Houston/Galveston Navigation Safety FOR FURTHER INFORMATION CONTACT: Advisory Committee (HOGANSAC). The Coast Guard Gerald Conrad, liaison to the DFO of the tentative agenda is as follows: DRBOSAC, telephone 215–271–4824. (1) Opening remarks by the SUPPLEMENTARY INFORMATION: Notice of [Docket No. USCG–2008–1172] Committee Sponsor (RADM Whitehead) this meeting is given under the Federal or the Committee Sponsor’s Advisory Committee Act, 5 U.S.C. App. Houston/Galveston Navigation Safety representative, Executive Director (Pub. L. 92–463). Advisory Committee (CAPT Diehl) and Chairperson (Ms. Agenda of the Meeting Tava Foret). AGENCY: Coast Guard, DHS. (2) Approval of the May 22, 2008 The agenda for the meeting will be as ACTION: Notice of meetings. minutes. follows: (3) Old Business: (1) Opening comments. SUMMARY: The Houston/Galveston (a) Navigation Operations (NAVOPS)/ (2) Introduction. Maritime Incident Review (3) Review of committee timeline and Navigation Safety Advisory Committee (HOGANSAC) and its working groups subcommittee report; milestones. (b) Dredging subcommittee report; (4) Prioritization of final report topics will meet in Houston, Texas to discuss waterway improvements, aids to (c) Technology subcommittee report; (under development). (d) Waterways Optimization (5) Establishment and purpose of sub- navigation, area projects impacting safety on the Houston Ship Channel, subcommittee report; committees. (e) HOGANSAC Outreach (6) Future Committee business. and various other navigation safety subcommittee report; (7) Closing. matters in the Galveston Bay area. All meetings will be open to the public. (f) Commercial Recovery Contingency More information and detail on the (CRC) subcommittee report; meeting will be available at the DATES: The Committee will meet on (g) Area Maritime Security Committee committee Web site, located at http:// Thursday, February 5, 2009 from 9 a.m. (AMSC) Liaison’s report. www.uscg.mil/d5/sectDelawarebay/ to 12 p.m. The Committee’s working (4) New Business: DRBOSAC.asp. Additional detail may groups will meet on Thursday, January (a) State of the Waterway Address— be added to the agenda up to January 14, 22, 2009 from 9 a.m. to 12 p.m. These CDR Hal R. Pitts; 2009. meetings may close early if all business (b) Homeport 101—LT Sean Hughes; Procedural is finished. Written material and (c) Transportation Workers requests to make oral presentations Identification Card (TWIC) Update/ This meeting will be open to the should reach the Coast Guard on or Status—LT Sarah Hayes. public. All persons entering the before January 29, 2009. Requests to Working Groups Meeting. The building will have to present have a copy of your materials tentative agenda for the working groups identification and may be subject to distributed to each member of the meeting is as follows: screening. Please note that the meeting committee or working group should (1) Presentation by each working may close early if all business is reach the Coast Guard on or before group of its accomplishments and plans finished. January 22, 2009. for the future; The public will not be able to make (2) Review and discuss the work oral presentations during the meeting. ADDRESSES: The full Committee will completed by each working group; The public may file written statements meet at Western Gulf Maritime (3) Put forth any action items for with the committee; written material Association (WGMA), 1717 East Loop, consideration at full committee meeting. should reach the Coast Guard no later Suite 200, Houston, Texas 77029, (713) than January 14, 2009. If you would like 678–7655. The working group meeting Procedural will be held at same location above. a copy of your material distributed to Both meetings are open to the public. Send written material and requests to each member of the committee in Please note that meetings may close make oral presentations to Lieutenant advance of the meeting, please submit early if all business is finished. At the Sean Hughes, Assistant to the Executive 35 copies to the liaison to the DFO no Chairs’ discretion, members of the Secretary of HOGANSAC, 9640 Clinton later than January 14, 2009. public may make oral presentations Please register your attendance with Drive, Houston, Texas 77029. This during the meetings. If you would like the liaison to the DFO no later than notice is available in our online docket, to make an oral presentation at a January 14, 2009. USCG–2008–1172, at http:// meeting, please notify the Coast Guard www.regulations.gov. Information on Services for Individuals no later than January 29, 2009. Written With Disabilities FOR FURTHER INFORMATION CONTACT: material for distribution at a meeting For information on facilities, or Commander Hal R. Pitts, Executive should reach the Coast Guard no later services for individuals with Secretary of HOGANSAC, telephone than January 22, 2009. If you would like disabilities, or to request special (713) 671–5164, e-mail a copy of your material distributed to assistance at the meeting, contact the [email protected] or Lieutenant Sean each member of the committee in Liaison to the DFO as soon as possible. Hughes, Assistant to the Executive advance of the meetings, please submit Secretary of HOGANSAC, telephone 19 copies to the Coast Guard no later Dated: December 19, 2008. (713) 678–9001, e-mail than January 22, 2009. David L. Scott, [email protected]. Captain, U.S. Coast Guard, Commander, Information on Services for Individuals Sector Delaware Bay, Designated Federal SUPPLEMENTARY INFORMATION: Notice of With Disabilities Officer. these meetings is given pursuant to the For information on facilities or [FR Doc. E8–31123 Filed 12–30–08; 8:45 am] Federal Advisory Committee Act, 5 services for individuals with disabilities BILLING CODE 4910–15–P U.S.C. App. (Pub. L. 92–463). or to request special assistance at the
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meetings, contact the Executive When submitting comments by e-mail surplus Federal property reviewed by Secretary or Assistant to the Executive please make sure to add OMB Control HUD for suitability for possible use to Secretary as soon as possible. Number 1615–0097 in the subject box. assist the homeless. Dated: December 10, 2008. Written comments and suggestions from DATES: Effective Date: December 31, J.R. Whitehead, the public and affected agencies should 2008. address one or more of the following Commander, 8th Coast Guard District. FOR FURTHER INFORMATION CONTACT: four points: Kathy Ezzell, Department of Housing [FR Doc. E8–31124 Filed 12–30–08; 8:45 am] Overview of this information and Urban Development, 451 Seventh BILLING CODE 4910–15–P collection: (1) Type of Information Collection: Street, SW., Room 7262, Washington, Revision of a currently approved DC 20410; telephone (202) 708–1234; DEPARTMENT OF HOMELAND information collection. TTY number for the hearing- and SECURITY (2) Title of the Form/Collection: speech-impaired (202) 708–2565, (these Sworn Statement of Refugee Applying telephone numbers are not toll-free), or U.S. Citizenship and Immigration call the toll-free Title V information line Services for Admission into the United States. (3) Agency form number, if any, and at 800–927–7588. Agency Information Collection the applicable component sponsoring SUPPLEMENTARY INFORMATION: In Activities: Form G–646, Revision of a the collection: Form G–646, U.S. accordance with the December 12, 1988 Currently Approved Information Citizenship and Immigration Services. court order in National Coalition for the Collection; Comment Request (4) Affected public who will be asked Homeless v. Veterans Administration, or required to respond, as well as a brief No. 88–2503–OG (D.D.C.), HUD ACTION: 30-Day Notice of Information abstract: Primary: Individuals or publishes a Notice, on a weekly basis, Collection Under Review: Form G–646, households. The data collected on this identifying unutilized, underutilized, Sworn Statement of Refugee Applying form is used by the DHS to determine excess and surplus Federal buildings for Admission to the United States; eligibility for the admission of and real property that HUD has OMB Control No. 1615–0097. applicants to the United States as reviewed for suitability for use to assist refugees. the homeless. Today’s Notice is for the The Department of Homeland (5) An estimate of the total number of purpose of announcing that no Security, U.S. Citizenship and respondents and the amount of time additional properties have been Immigration Services (USCIS) has estimated for an average respondent to determined suitable or unsuitable this submitted the following information respond: 75,000 responses at 20 minutes week. collection request to the Office of (.333 hours) per response. Dated: December 23, 2008. Management and Budget (OMB) for (6) An estimate of the total public Mark R. Johnston, review and clearance in accordance burden (in hours) associated with the Deputy Assistant Secretary for Special Needs. with the Paperwork Reduction Act of collection: 24,975 annual burden hours. [FR Doc. E8–31059 Filed 12–30–08; 8:45 am] 1995. The information collection was If you have additional comments, BILLING CODE 4210–67–P previously published in the Federal suggestions, or need a copy of the Register on August 27, 2008, at 73 FR information collection instrument, 50633 allowing for a 60-day public please visit the USCIS Web site at: DEPARTMENT OF THE INTERIOR comment period. USCIS did not receive http://www.regulations.gov/. any comments for this information We may also be contacted at: USCIS, Fish and Wildlife Service collection. Regulatory Management Division, 111 The purpose of this notice is to allow Massachusetts Avenue, NW., Suite [FWS–R2–ES–2008–N0316; 20124–1113– 0000–F5] an additional 30 days for public 3008, Washington, DC 20529–2210, Telephone number 202–272–8377. comments. Comments are encouraged Endangered and Threatened Species and will be accepted until January 30, Dated: December 24, 2008. Permit Applications 2009. This process is conducted in Stephen Tarragon, accordance with 5 CFR 1320.10. Deputy Chief, Regulatory Management AGENCY: Fish and Wildlife Service, Written comments and/or suggestions Division, U.S. Citizenship and Immigration Interior. regarding the item(s) contained in this Services, Department of Homeland Security. ACTION: Notice of receipt of applications. notice, especially regarding the [FR Doc. E8–31138 Filed 12–30–08; 8:45 am] SUMMARY: The following applicants have estimated public burden and associated BILLING CODE 9111–97–P response time, should be directed to the applied for scientific research permits to Department of Homeland Security conduct certain activities with (DHS), and to the Office of Information endangered species under the DEPARTMENT OF HOUSING AND Endangered Species Act of 1973, as and Regulatory Affairs, Office of URBAN DEVELOPMENT Management and Budget (OMB), USCIS amended (Act). Desk Officer. Comments may be [Docket No. FR–5186–N–53] DATES: To ensure consideration, written submitted to: USCIS, Chief, Regulatory comments must be received on or before Federal Property Suitable as Facilities Management Division, Clearance Office, January 30, 2009. To Assist the Homeless 111 Massachusetts Avenue, Suite 3008, ADDRESSES: Written comments should Washington, DC 20529–2210. AGENCY: Office of the Assistant be submitted to the Chief, Endangered Comments may also be submitted to Secretary for Community Planning and Species Division, Ecological Services, DHS via facsimile to 202–272–8352 or Development, HUD. P.O. Box 1306, Room 6034, via e-mail at [email protected], and to the ACTION: Notice. Albuquerque, New Mexico 87103. OMB USCIS Desk Officer via facsimile Documents and other information at 202–395–6974 or via e-mail at SUMMARY: This Notice identifies submitted with these applications are [email protected] . unutilized, underutilized, excess, and available for review, subject to the
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requirements of the Privacy Act and Permit TE–198057 Introduction Freedom of Information Act. Documents Applicant: Blackbird Environmental, With this notice, we finalize the CCP will be available for public inspection, LLC, Norman, Oklahoma. process for Mattamuskeet NWR. We by appointment only, during normal Applicant requests a new permit for started this process through a notice in business hours at the U.S. Fish and research and recovery purposes to the Federal Register on February 7, Wildlife Service, 500 Gold Ave., SW., conduct presence/absence surveys of 2001 (66 FR 9353). For more about the Room 6034, Albuquerque, New Mexico. American burying beetle (Nicrophorus process, see that notice. Please refer to the respective permit americanus) within Texas, Oklahoma, Mattamuskeet NWR was established number for each application when and Arkansas. in 1934, and conserves 50,180 acres of submitting comments. habitats around Lake Mattamuskeet, FOR FURTHER INFORMATION CONTACT: Permit TE–195191 including the lake itself. At 40,000 Susan Jacobsen, Chief, Endangered Applicant: Baer Engineering and acres, Lake Mattamuskeet is North Species Division, P.O. Box 1306, Room Environmental Consultants, Inc., Carolina’s largest natural lake. The 4102, Albuquerque, New Mexico 87103, Austin, Texas. refuge supports significant wintering (505) 248–6920. Applicant requests a new permit for populations of ducks, Canada geese, SUPPLEMENTARY INFORMATION: research and recovery purposes to snow geese, and tundra swans. conduct presence/absence surveys of Concentrations of bald eagles and other Public Availability of Comments black-capped vireo (Vireo atricapilla) raptors, wading birds, and shorebirds Before including your address, phone and golden-cheeked warbler (Dendroica occur seasonally. Significant fishery number, e-mail address, or other chrysoparia) within Texas. resources including largemouth bass, sunfish (bream), white perch, crappie, personal identifying information in your Authority: 16 U.S.C. 1531 et seq. comment, you should be aware that alewives (herring), and blue crabs are your entire comment—including your Dated: December 4, 2008. associated with Lake Mattamuskeet and personal identifying information—may Thomas L. Nauer, canals. Habitats consist of open water be made publicly available at any time. Regional Director, Southwest Region, Fish (40,000 acres), freshwater marsh (3,640 While you can ask us in your comment and Wildlife Service. acres), forested wetlands (3,503 acres), to withhold your personal identifying [FR Doc. E8–31119 Filed 12–30–08; 8:45 am] managed wetlands or impoundments information from public review, we BILLING CODE 4310–55–P (2,600 acres), croplands (400 acres), and cannot guarantee that we will be able to forested uplands/administrative lands do so. (37 acres). DEPARTMENT OF THE INTERIOR Popular recreation uses at Permit TE–819477 Mattamuskeet NWR include hunting, Applicant: Parametrix, Albuquerque, Fish and Wildlife Service sport fishing, and wildlife observation New Mexico. [FWS–R4–R–2008–N0245; 40136–1265– and photography. Quota hunting for Applicant requests an amendment to 0000–S3] white-tailed deer and waterfowl is a current permit for research and allowed on portions of the refuge. The recovery purposes to conduct presence/ Mattamuskeet National Wildlife Refuge, Service selects hunters through a absence surveys of the following Hyde County, NC random drawing of applicants for deer and resident goose hunting. The State of species: Rio Grande silvery minnow AGENCY: Fish and Wildlife Service, (Hybognathus amarus), lesser long- Department of the Interior. North Carolina receives application requests for waterfowl hunting on the nosed bat (Leptonycteris yerbabuenae), ACTION: Notice of availability: Final Mexican long-nosed bat (Leptonycteris refuge through their special hunts comprehensive conservation plan and program. Hunting for white-tailed deer nivalis), and Pima pineapple cactus finding of no significant impact. (Coryphantha robustispina) within New and resident Canada geese is primarily Mexico and Arizona. SUMMARY: We, the Fish and Wildlife conducted to control population levels. Service (Service), announce the Mattamuskeet NWR receives 18,000 Permit TE–195991 availability of our final comprehensive anglers annually. Most people fish along Applicant: Bonnie Doggett, Austin, conservation plan (CCP) and finding of canal banks, bridges, or the Highway 94 Texas. no significant impact (FONSI) for Causeway. Boaters mostly use the lake in the spring and fall when water depths Applicant requests a new permit for Mattamuskeet National Wildlife Refuge (NWR). In the final CCP, we describe in the shallow lake are generally the research and recovery purposes to highest. Boat fishermen generally seek conduct presence/absence surveys of how we will manage this refuge for the next 15 years. largemouth and striped bass, while bank golden-cheeked warbler (Dendroica fishermen mostly seek catfish, white ADDRESSES: A copy of the CCP may be chrysoparia) within Texas. perch, and crappie. Crappie fishing is obtained by writing to: Mr. Bruce especially popular in the spring when Permit TE–198059 Freske, Refuge Manager, Mattamuskeet spawning fish move into the deeper Applicant: Christopher Taylor, Plano, NWR, 38 Mattamuskeet Road, Swan canals attached to the lake. Quarter, NC 27885. The CCP may also Texas. During the fall and winter, be accessed and downloaded from the Applicant requests a new permit for concentrations of Canada geese, tundra Service’s Internet site: http:// research and recovery purposes to swans, and ducks of many species southeast.fws.gov/planning. conduct presence/absence surveys of delight both wildlife observers and the following species: Northern FOR FURTHER INFORMATION CONTACT: Mr. photographers. The formerly threatened aplomado falcon (Falco femeralis), Bruce Freske, Refuge Manager, bald eagle may also be observed during black-capped vireo (Vireo atricapilla), Mattamuskeet NWR; Telephone: 252/ the fall, winter, and early spring. During 926–4021; fax: 252/926–1743; e-mail: and golden-cheeked warbler (Dendroica _ the summer months, many species of chrysoparia) within Arizona, Texas, and bruce [email protected]. songbirds and marsh birds are a New Mexico. SUPPLEMENTARY INFORMATION: common sight. Occasionally, broods of
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black and wood ducks can be observed wildlife observation, wildlife mammals, and reptiles and amphibians. in the canals and around the lake’s edge. photography, and environmental It re-initiates nest counts of ospreys, Osprey, wood duck, and bald eagle education and interpretation. We will ground surveys for marsh and wading nests are occasionally visible. Year- review and update the CCP at least birds, and implements passerine point round residents include the white-tailed every 15 years in accordance with the counts. Furthermore, the refuge will deer, marsh and cottontail rabbits, gray Improvement Act. evaluate alternative management squirrels, and many other mammals, as Comments strategies for moist-soil units as to their well as amphibians and reptiles. Species benefit for spring and fall migration of Approximately 150 copies of the Draft less observed are the bobcat and river shorebirds. otter. The black bear population in CCP/EA were made available for a 30- northeastern North Carolina is one of day public review period as announced The CCP expands on current the largest on the east coast and lucky in the Federal Register on July 18, 2008 management’s habitat objectives. It visitors to the refuge occasionally (73 FR 41371). Nineteen written investigates the desirability and glimpse a wild bear. comments were received from private feasibility of restoring Salyer’s Ridge We announce our decision and the citizens, four North Carolina state pinewoods and considers new availability of the final CCP and FONSI agencies, and the Hyde County Chamber management options for the for Mattamuskeet NWR in accordance of Commerce. Members of the public Conservation Reserve Program cropland. with the National Environmental Policy were broadly supportive of the proposed The CCP expands resource protection by Act (NEPA) (40 CFR 1506.6(b)) plan, although several commented that increasing control of invasive plant and requirements. We completed a thorough they would have preferred Alternative animal species such as common reed, analysis of impacts on the human C, which would have expanded alligatorweed, and nutria. The refuge environment, which we included in the management, programs, visitor services, will also prepare and begin to and public use even more than the draft comprehensive conservation plan implement a Cultural Resources and environmental assessment (Draft alternative selected by the Service. Management Plan. To enhance law CCP/EA). The four state agencies that The CCP will guide us in managing commented were the North Carolina enforcement, the refuge will add one and administering Mattamuskeet NWR Office of Geospatial and Technology full-time law enforcement officer for the next 15 years. Alternative B, as Management; Aquifer Protection dedicated solely to Mattamuskeet NWR. we described, is the foundation for the Section, Washington Regional Office, To better support public use, the CCP. North Carolina Department of refuge will prepare and implement a The compatibility determinations for Environment and Natural Resources; Visitor Services’ Plan. Existing hunts (1) Animal control; (2) bicycling, North Carolina Department of will continue and the refuge will jogging, walking, walking dogs, Environment and Natural Resources; explore how to increase youth hunting horseback riding; (3) boating—power and North Carolina Division of Coastal opportunities for deer and waterfowl boats; (4) boating—non-motorized; (5) Management. Representatives of the and cooperate with North Carolina dredge or fill; (6) environmental North Carolina Wildlife Resources Wildlife Resources Commission to education and interpretation; (7) Commission participated in preparing conduct activities promoting hunter farming; (8) fishing—recreational and the CCP but did not provide written recruitment and retention. Fishing tournament; (9) fishing—guided; (10) comments on the Draft CCP/EA. hunting—big game; (11) hunting— opportunities will increase by adding waterfowl; (12) photography; (13) Selected Alternative one boat ramp to support an additional photography—commercial; (14) small After considering the comments we 5,000 angler visits annually. Nature public gatherings; (15) research; (16) received, we have selected Alternative B Week will be re-instituted and the tree harvest—firewood—other; and (17) for implementation. This choice is refuge will begin to host ten K–12 wildlife observation—guiding or reflected in the CCP. While each of the school programs annually. outfitting, are also available in the CCP. alternatives offered benefits for wildlife, Interpretation opportunities will be habitat, and public use, Alternative B expanded by adding kiosks, annually Background was more ambitious than Alternative A revised brochures, and interpretive The National Wildlife Refuge System and more feasible and realistic than signage along the wildlife drive and Improvement Act of 1997 (16 U.S.C. Alternative C. New Holland boardwalk trail. Opening 668dd–668ee) (Improvement Act), Alternative B provides an effective and staffing the visitor contact station which amended the National Wildlife management action to meet the with volunteer(s) on weekends will also Refuge System Administration Act of purposes of Mattamuskeet NWR by promote further interpretation. The 1966, requires us to develop a CCP for optimizing habitat management and refuge will reinstall an 8-mile canoe and each national wildlife refuge. The visitor services. This long-term kayak loop trail and construct one purpose for developing a CCP is to management plan enhances or slightly additional photo-blind. As under provide refuge managers with a 15-year expands various aspects of current current management, the refuge will plan for achieving refuge purposes and management. For wintering waterfowl, cooperate with partners to encourage contributing toward the mission of the objectives for tundra swan and northern commercial ecotours. Refuge National Wildlife Refuge System, pintail are the same, but the Canada management will also increase outreach. consistent with sound principles of fish goose objective is 5,000 higher and the and wildlife management, conservation, duck objective is 40,000 to 60,000 Authority: This notice is published under legal mandates, and our policies. In higher than current management. The the authority of the National Wildlife Refuge addition to outlining broad management CCP replicates most elements and System Improvement Act of 1997, Public direction on conserving wildlife and expands upon other aspects of current Law 105–57. their habitats, CCPs identify wildlife- fisheries management. dependent recreational opportunities The CCP also expands upon current available to the public, including management of raptors, passerine birds, opportunities for hunting, fishing, shorebirds, marsh and wading birds,
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Dated: September 17, 2008. DATES: The time limits for filing an thereof and 162⁄3 percent, respectively. Cynthia K. Dohner, appeal are: The lessee has paid the required Acting Regional Director. 1. Any party claiming a property $500.00 administrative fee and has interest which is adversely affected by reimbursed the Bureau of Land Editorial Note: This document was the decision shall have until January 30, Management for the cost of this Federal received in the Office of the Federal Register 2009 to file an appeal. on December 24, 2008. Register notice. The lessee has met all 2. Parties receiving service of the the requirements for reinstatement of [FR Doc. E8–31120 Filed 12–30–08; 8:45 am] decision by certified mail shall have 30 the leases as set out in Sections 31(d) BILLING CODE 4310–55–P days from the date of receipt to file an and (e) of the Mineral Leasing Act of appeal. 1920 (30 U.S.C. 188), and the Bureau of Parties who do not file an appeal in DEPARTMENT OF THE INTERIOR Land Management is proposing to accordance with the requirements of 43 reinstate the leases effective March 1, Bureau of Land Management CFR Part 4, Subpart E, shall be deemed 2008, subject to the original terms and to have waived their rights. conditions of the leases and the [F–14824–A and F–14824–A2; AK–965– ADDRESSES: A copy of the decision may increased rentals and royalty rates cited 1410–KC–P] be obtained from: Bureau of Land above. Management, Alaska State Office, 222 Dated: December 19, 2008. Alaska Native Claims Selection West Seventh Avenue, #13, Anchorage, Becky C. Olivas, Alaska 99513–7504. AGENCY: Bureau of Land Management, Land Law Examiner, Fluids Adjudication Interior. FOR FURTHER INFORMATION CONTACT: The Team 1. Bureau of Land Management by phone ACTION: [FR Doc. E8–30772 Filed 12–30–08; 8:45 am] Notice of decision approving at 907–271–5960, or by e-mail at BILLING CODE 4310–FB–P lands for conveyance. [email protected]. Persons SUMMARY: As required by 43 CFR who use a telecommunication device 2650.7(d), notice is hereby given that an (TTD) may call the Federal Information DEPARTMENT OF THE INTERIOR appealable decision approving lands for Relay Service (FIRS) at 1–800–877– conveyance pursuant to the Alaska 8330, 24 hours a day, seven days a National Park Service Native Claims Settlement Act will be week, to contact the Bureau of Land issued to Kokarmuit Corporation. The Management. Native American Graves Protection lands are in the vicinity of Akiak, and Repatriation Review Committee: Gina A. Kendall, Meeting Alaska, and are located in: Land Law Examiner, Land Transfer Adjudication II. AGENCY: National Park Service, Interior. Seward Meridian, Alaska [FR Doc. E8–31158 Filed 12–30–08; 8:45 am] ACTION: Notice. T. 9 N., R. 65 W., BILLING CODE 4310–JA–P Sec. 19; Notice is here given in accordance Secs. 25 to 28, inclusive; with the Federal Advisory Committee Secs. 33 to 36, inclusive. DEPARTMENT OF THE INTERIOR Act, 5 U.S.C. Appendix (1988), of a Containing approximately 5,575 acres. meeting of the Native American Graves T. 8 N., R. 66 W., Bureau of Land Management Protection and Repatriation Review Secs. 22, 23, and 24. Committee (Review Committee). The [NM–920–1310–08); (OKNM 117608; OKNM Containing approximately 1,747 acres. 117609] Review Committee will meet on May T. 9 N., R. 66 W., 23–24, 2009, at The Red Lion Hotel on Secs. 1, 2, and 3; Proposed Reinstatement of Terminated Fifth Avenue, 1415 Fifth Avenue, Secs. 11 to 14, inclusive; Oil and Gas Leases OKNM 117608; Seattle, WA 98101. Meeting sessions Secs. 23 and 24. OKNM 117609 will begin at 8:30 a.m. and end at 5 p.m. Containing approximately 5,409 acres. each day. T. 10 N., R. 66 W., AGENCY: Bureau of Land Management, The agenda for the meeting includes Secs. 3 and 10; Interior. an update on National NAGPRA Secs. 15 and 22; ACTION: Notice of reinstatement of Program activities during the first half of Secs. 27 and 34. terminated oil and gas leases. fiscal year 2009; activity reports from Containing approximately 3,126 acres. the National NAGPRA Program as T. 11 N., R. 67 W., SUMMARY: Pursuant to the provisions of requested by the Review Committee; Secs. 6, 8, and 9; 43 CFR 3108.2–3(b)(2), Capital Land requests for recommendations regarding Secs. 14 to 19, inclusive; Services, Inc. timely filed a petition for the disposition of culturally Secs. 22 and 23; reinstatement of oil and gas leases unidentifiable human remains; disputes; Secs. 26 and 27; OKNM 117608 and OKNM 117609 for Secs. 34 and 35. presentations by Indian tribes, Native lands in Woodward County, Oklahoma, Hawaiian organizations, museums, Containing approximately 8,543 acres. and was accompanied by all required Federal agencies, and the public; and T. 11 N., R. 68 W., rentals and royalties accruing from the selection of dates and a site for the Secs. 12, 13, and 24. March 1, 2008, the date of termination. spring 2010 meeting. Containing approximately 1,593 acres. FOR FURTHER INFORMATION CONTACT: A detailed agenda for this meeting Aggregating approximately 25,993 acres. Becky C. Olivas, BLM, New Mexico will be posted on or before March 27, The subsurface in these lands will be State Office, (505) 438–7609. 2009, at http://www.nps.gov/history/ conveyed to Calista Corporation when SUPPLEMENTARY INFORMATION: No valid nagpra/. the surface estate is conveyed to lease has been issued affecting the The Review Committee will consider Kokarmuit Corporation. Notice of the lands. The lessee has agreed to new the following requests: By anyone, to decision will also be published four lease terms for rentals and royalties at make a presentation; by museums and times in the Tundra Drums. rates of $10.00 per acre or fraction Federal agencies, to act on an agreement
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concerning the disposition of human and Review Committee meetings is Postal Service mail, at the National remains determined to be culturally available at the National NAGPRA Register of Historic Places, 2280, unidentifiable (CUI); and by Indian Program Web site, http://www.nps.gov/ National Park Service, 1849 C St., NW., tribes, Native Hawaiian organizations, history/nagpra/. For the Review Washington, DC 20240; in person (by lineal descendants, museums, and Committee’s meeting procedures, click appointment), 1201 Eye St. NW., 8th Federal agencies, to facilitate a dispute on ‘‘Review Committee,’’ then click on floor, Washington, DC 20005; by fax, and make findings of fact and ‘‘Procedures.’’ 202–371–2229; by phone, 202–354– recommendations related to the The Review Committee was 2255; or by e-mail, identity, cultural affiliation, and/or established by Section 8 of Native [email protected]. return of human remains and other American Graves Protection and Dated: December 22, 2008. Repatriation Act of 1990 (NAGPRA), 25 cultural items. J. Paul Loether, Requests to make a presentation must U.S.C. 3006. Review Committee include an abstract of the presentation members are appointed by the Secretary Chief, National Register of Historic Places/ National Historic Landmarks Program. and contact information for the of the Interior. The Review Committee presenter(s). is responsible for monitoring the KEY: State, County, Property Name, Address/ Boundary, City, Vicinity, Reference Number, Requests to act on a CUI agreement NAGPRA inventory and identification NHL, Action, Date, Multiple Name should be made on the form posted on process; reviewing and making findings the National NAGPRA Program Web related to the identity or cultural DISTRICT OF COLUMBIA site, and also should include all the affiliation of cultural items, or the return District of Columbia State Equivalent materials requested on the form. To of such items; facilitating the resolution Engine House No. 10, 1341 Maryland Ave., access and download the form, go to of disputes; compiling an inventory of NE., Washington, DC, 08001063, LISTED, http://www.nps.gov/history/nagpra; culturally unidentifiable human 11/19/08 (Firehouses in Washington, DC then click on ‘‘Review Committee;’’ then remains that are in the possession or MPS) click on ‘‘Procedures;’’ then, under control of each Federal agency and Nathaniel Parker Gage School, 2035 2nd St., ‘‘Request by a Museum/Federal Agency museum, and recommending specific NW., Washington, DC, 08001064, LISTED, for a CUI Disposition Agreement,’’ click actions for developing a process for 11/19/08 (Public School Buildings of on the highlighted word ‘‘form.’’ disposition of such human remains; Washington, DC MPS) Requests to consider a dispute should consulting with Indian tribes and Native HAWAII include— Hawaiian organizations and museums Maui County a. A statement outlining the relevant on matters affecting such tribes or facts of the dispute, including citations organizations lying within the scope of Ka’ahumanu Avenue—Naniloa Drive of applicable portions of NAGPRA and Overpass, Naniloa Dr. at Kaahumanu Ave., work of the Committee; consulting with Wailuku, 08001065, LISTED, 11/19/08 NAGPRA regulations. the Secretary of the Interior on the b. Copies of any primary documents development of regulations to carry out IOWA that are directly relevant to the issues in NAGPRA; and making Jones County dispute, including, but not limited to, recommendations regarding future care field notes, catalog records, consultation Stone City Historic District, 12828–12573 of repatriated cultural items. The Stone City Rd., 12392–12340 Dearborn Rd., documents, relevant studies, and other Review Committee’s work is carried out 12381–12551 County Rd. X28, Anamosa pertinent data. during the course of meetings that are vicinity, 08001099, LISTED, 11/21/08 c. A statement describing the open to the public. requesting party’s interpretation of the KANSAS Dated: November 21, 2008. facts. Ellis County d. A statement identifying all David Tarler, St. Joseph’s Church and Parochial School, interested parties and describing the Designated Federal Officer, Native American Graves Protection and Repatriation Review 210 W. 13th and 217 W. 13th, Hays, requesting party’s understanding of the 08001066, LISTED, 11/19/08 other party’s/parties’ interpretation of Committee. the facts. [FR Doc. E8–30902 Filed 12–30–08; 8:45 am] Reno County e. A summary of the consultation BILLING CODE 4310–70–M Ranson Hotel, 4918 E. Main, Medora, record. 08001067, LISTED, 11/20/08 f. A statement of previous efforts to Riley County resolve the dispute, including, where DEPARTMENT OF THE INTERIOR First Congregational Church, 700 Poyntz applicable, the results of alternative National Park Service Ave., Manhattan, 08001068, LISTED, dispute resolution efforts. 11/13/08 g. Proposed solutions. National Register of Historic Places; The Review Committee will consider MARYLAND Weekly Listing of Historic Properties requests received on or before February Allegheny County 23, 2009. Send requests to: Designated Pursuant to (36 CFR 60.13(b,c)) and Folck’s Mill, Address Restricted, Cumberland Federal Officer, NAGPRA Review (36 CFR 63.5), this notice, through vicinity, 08001071, LISTED, 11/21/08 Committee, National Park Service, publication of the information included National NAGPRA Program, 1201 Eye herein, is to appraise the public as well Howard County Street, NW., 8th Floor (2253), as governmental agencies, associations Round About Hills, 15505 Cattail Oaks, Washington, DC 20005. and all other organizations and Glenwood vicinity, 08001072, LISTED, The transcript of the May Review individuals interested in historic 11/20/08 Committee meeting will be available, on preservation, of the properties added to, Montgomery County request, approximately ten weeks after or determined eligible for listing in, the Carderock Springs Historic District, Roughly the meeting. For a transcript, contact the National Register of Historic Places from bounded by I–495, Cabin John Regional Designated Federal Officer, at November 17 to November 21, 2008. Park, Seven Locks Rd., Fenway Rd. and [email protected]. Information For further information, please Persimmon Tree Ln., Bethesda, 08001074, about NAGPRA, the Review Committee, contact Edson Beall via: United States LISTED, 11/21/08 (Subdivisions by
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Edmund Bennett and Keyes, Lethbridge or related actions in the National Hempstead County and Condon in Montgomery County, MD, Register were received by the National Southwestern Proving Ground Building No. 1956–1973, MPS) Park Service before December 13, 2008. 4, (World War II Home Front Efforts in MASSACHUSETTS Pursuant to section 60.13 of 36 CFR Part Arkansas, MPS) 259 Hempstead Co. Rd. 60 written comments concerning the 279, Hope, 08001339 Hampden County significance of these properties under Nevada County Prospect Hill School, 33 Montgomery St., the National Register criteria for Ephesus Cemetery, 1⁄4 mi. N. of Emmet on Westfield, 08001069, LISTED, 11/19/08 evaluation may be forwarded by United U.S. 67, Emmet, 08001340 Middlesex County States Postal Service, to the National Dennison Manufacturing Co. Paper Box Register of Historic Places, National Pope County Factory, 175 Maple St., Marlborough, Park Service, 1849 C St. NW., 2280, Little Rock to Cantonment Gibson Rd— 08001070, LISTED, 11/19/08 Washington, DC 20240; by all other Fourth Street Segment, (Cherokee Trail of Tears MPS) 4th St. between Union Grove MICHIGAN carriers, National Register of Historic Places, National Park Service, 1201 Eye and Blackland Sts., Atkins, 08001342 Montcalm County St. NW., 8th floor, Washington, DC Pulaski County Greenville Downtown Historic District, 20005; or by fax, 202–371–6447. Written Block 35 Cobblestone Alley, W. of the N. end Lafayette between Montcalm and Benton or faxed comments should be submitted of Rock St., Little Rock, 08001343 and adjacent block of Montcaolm, Grove, by January 15, 2009. Cass, and Washington on either side, West 7th Street Historic District, Portions of Greenville, 08001104, LISTED, 11/19/08 J. Paul Loether, 800–1100 blocks of W. 7th St., Little Rock, Chief, National Register of Historic Places/ 08001341 MISSOURI National Historic Landmarks Program. Washington County Macon County ALABAMA Illinois River Bridge at Phillips Ford, La Plata Square Historic District, Along (Historic Bridges of Arkansas MPS) Co. Rd. Montgomery County portions of Gex, Sanders, and Moore St., La 848 over the Illinois River, Savoy, Plata, 08000696, LISTED, 11/20/08 Tankersley Rosenwald School, (The 08001344 Rosenwald School Building Fund and NEW YORK Associated Buildings MPS) 10 mi. S. on CALIFORNIA Erie County Montgomery on U.S. 31 to Pettus Rd. to Amador County School Spur on W. side, Hope Hull, Lancaster District School No. 6, 3703 Bowen 08001332 Kennedy Mine Historic District, 12594 Rd., Lancaster, 08001076, LISTED, Kennedy Mine Rd., Jackson, 08001347 11/18/08 ARIZONA KANSAS Ontario County Maricopa County Cloud County Dickson, John and Mary, House, 9010 Main Myrtle Avenue Residential Historic District, St., West Bloomfield, 08001077, LISTED, 6305–6423 W. Myrtle Ave., Glendale, Clyde School, (Public Schools of Kansas 11/19/08 08001345 MPS) 620 Broadway St., Clyde, 08001348 Seneca County Pinal County Dickinson County Ritter, Simon, Cobblestone Farmhouse, 5102 Evergreen Addition Historic District, Wilson Pratt Truss Bridge, (Metal Truss NY Rt. 89, Varick, 08001081, LISTED, Generally bounded by McMurray Blvd., Bridges in Kansas 1861–1939 MPS) 2.9 m. 11/18/08 (Cobblestone Architecture of New Gilbert Ave., Florence Blvd., and Casa W. of Rain Rd. on 3200 Ave., Chapman, York State MPS) Grande Ave., Casa Grande, 08001346 08001349 Warren County ARKANSAS Rice County FORWARD shipwreck site (motor launch), Ashley County Beckett, Charles K., House, 210 W. Main, Lake George (submerged) near Diamond Hamburg Commercial Historic District, 100– Sterling, 08001350 Island, Lake George vicinity, 08001082, 200 block of E. Adams; 100 block N. Riley County LISTED, 11/21/08 Mulberry; 201 S. Mulberry; 201 and 205 N. Persons Barn and Granary, (Agriculture- TENNESSEE Main St., Hamburg, 08001333 Related Resources of Kansas) 2103 Hwy. Davidson County Carroll County 18, Manhattan, 08001351 Concord School House, 805 Co. Rd. 309, Glen Leven, 4000 Franklin Rd., Oak Hill, Rush County 08001085, LISTED, 11/19/08 (Historic Eureka Springs, 08001334 Lone Star School, District 64, (Public Schools Family Farms in Middle Tennessee MPS) Cleburne County 1 Home for Aged Masons, Ben Allen Ln. and of Kansas MPS) RR, 1 ⁄4 m. W. of Bison Disfarmer, Mike Meyer, Gravesite, In the R.S. Glass Blvd., Nashville, 08001086, Ave. M., Bison, 08001352 Heber Springs Cemetery at the NR corner LISTED, 11/19/08 of Oak St. and S. 4th St., Heber Springs, Shawnee County [FR Doc. E8–31068 Filed 12–30–08; 8:45 am] 08001335 Hopkins House, 6033 SE U.S. Hwy. 40, Tecumseh, 08001353 BILLING CODE 4310–70–P Conway County Shoemaker, J.A., House, 1434 SW. Pass Ave., Eral Building, (Arkansas Highway History Topeka, 08001354 and Architecture MPS) 201 N. St. Joseph DEPARTMENT OF THE INTERIOR St., Morrilton, 08001336 MAINE National Park Service Drew County Androscoggin County Ridgeway Hotel Historic District, 200–206 E. Main Street-Frye Street Historic District, Frye National Register of Historic Places; Gaines St., Monticello, 08001337 St. and portions of Main St. and College Notification of Pending Nominations St., Lewiston, 08001355 and Related Actions Fulton County AR 289 Bridge Over English Creek, (Historic Aroostook County Nominations for the following Bridges of Arkansas MPS) AR289 over Lagassey Farm, 786 Main St., Saint Agatha, properties being considered for listing English Creek, Mammoth Spring, 08001338 08001356
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Somerset County ARKANSAS contacting the Commission’s TDD Kromberg Barn, E. side of E. Pond Rd., across Sebastian County terminal on (202) 205–1810. from number 462, Smithfield, 08001357 Old U.S. 71–Devil’s Backbone Segment S. SUPPLEMENTARY INFORMATION: This investigation was instituted on Washington County Coker St. From just SW of Stewart Ct. to current U.S. 71 Greenwood, 04000488 September 18, 2007, based on a Plummer, Capt. John, House, 23 Pleasant St., complaint filed by Pass & Seymour, Inc. MAINE Addison, 08001358 (‘‘P&S’’) of Syracuse, New York. The MISSOURI Cumberland County complaint, as supplemented, alleged Portland Stove Foundry, 57 Kennebec St. violations of section 337 of the Tariff Jackson County Portland, 74000164 Act of 1930 (19 U.S.C. **1337) in the 1901 McGee Street Automotive Service [FR Doc. E8–31069 Filed 12–30–08; 8:45 am] importation into the United States, the Building, 1901–1907 McGee St., Kansas BILLING CODE 4310–70–P sale for importation, and the sale within City, 08001359 the United States after importation of St. Francois County certain ground fault circuit interrupters INTERNATIONAL TRADE and products containing the same by Farmington State Hospital No. 4 Cemetery, 1⁄4 COMMISSION reason of infringement of certain claims mi. S. of Doubet Rd. on E. side of Pullan of certain United States patents. The Rd., Farmington, 08001360 [Investigation No. 337–TA–615] complaint named 15 respondents: NORTH CAROLINA General Protecht Group, Inc. (‘‘GPG’’) of In the Matter of: Certain Ground Fault Zhejiang, China; General Protecht Group Brunswick County Circuit Interrupters and Products U.S., Inc. of Atlanta, Georgia; Shanghai Containing Same; Notice of Kilgo, Bishop John C., House, 2100 The ELE Manufacturing Corporation (‘‘ELE’’) Commission Determination To Extend Plaza, Charlotte, 08001364 of Shanghai, China; Shanghai Meihao the Deadline for Receiving Written Electric, Inc. (‘‘Meihao’’) of Shanghai, Buncombe County Submissions on Remedy, the Public China; Wenzhou Trimone Company Smith, Richard Sharp, House, 655 Chunns Interest and Bonding; Extension of (‘‘Trimone’’) of Zhejiang, China; Cove Rd., Asheville, 08001361 Target Date Cheetah USA Corp. (‘‘Cheetah’’) of Forsyth County AGENCY: U.S. International Trade Sandy, Utah; GX Electric (‘‘GX’’) of Old Richmond Schoolhouse and Commission. Pompano Beach, Florida; Nicor Inc. Gymnasium, 6315 and 6375 Tobaccoville ACTION: Notice. (‘‘Nicor’’) of Albuquerque, New Mexico; Rd., Tobaccoville, 08001362 Orbit Industries, Inc. (‘‘Orbit’’) of Los SUMMARY: Notice is hereby given that Angeles, California; The Designer’s Edge Harnett County the U.S. International Trade (‘‘TDE’’) of Bellevue, Washington; Harrington-Dewar House, 994 Fred Burns Commission has determined to extend Universal Security Instruments, Inc. Rd., Holly Springs, 08001363 the deadline for receiving written (‘‘USI’’) of Owings Mills, Maryland; Mecklenburg County submissions on remedy, the public Colacino Electric Supply, Inc. interest, and bonding until two weeks (‘‘Colacino’’) of Newark, New York; Robinson Rock House Ruin and Plantation from the date of issuance of the public Ingram Products, Inc. of Jacksonville, Site, Reedy Creek Park-2900 Rocky River version of the presiding administrative Florida; Lunar Industrial & Electrical, Rd., Charlotte, 08001365 law judge’s (ALJ) recommended Inc. of Miami, Florida; and Quality Polk County determination on remedy and bonding Distributing, LLC. (‘‘Quality’’) of Mill Farm Inn, 701 Harmon Field Rd., Tryon, (‘‘RD’’) and to extend the target date for Hillsboro, Oregon. 08001366 completion of the above-captioned On September 24, 2008, the ALJ investigation by thirty (30) days to issued his final ID, finding a violation NORTH DAKOTA Friday, March 6, 2009. with respect to each patent by each Richland County FOR FURTHER INFORMATION CONTACT: Paul remaining respondent. The ALJ issued Fort Abercrombie, Richland Co. Rt. 4, M. Bartkowski, Office of the General his recommended determination on Abercrombie, 08001367 Counsel, U.S. International Trade remedy and bonding (RD) on October 8, Commission, 500 E Street, SW., 2008. Respondents ELE (in a joint brief OREGON Washington, DC 20436, telephone (202) with its respondent customers Cheetah, Lane County 708–5432. Copies of non-confidential Colacino, Orbit, and Nicor), Meihao (in documents filed in connection with this a joint brief with its respondent Willakenzie Grange Hall, 3055 Willakenzie investigation are or will be available for customer TDE), GPG, and Trimone each Rd., Eugene, 08001368 inspection during official business filed a petition for review of the ID. P&S SOUTH CAROLINA hours (8:45 a.m. to 5:15 p.m.) in the and the Commission investigative Office of the Secretary, U.S. attorney (‘‘IA’’) each filed a response to Newberry County International Trade Commission, 500 E the respondents’ petitions for review. Hannah Rosenwald School, (Rosenwald Street, SW., Washington, DC 20436, On December 8, 2008, after considering School Building Program in South telephone (202) 205–2000. General the petitions for review and the Carolina, 1917–1932) 61 Deadfall Rd., information concerning the Commission responses thereto, the Commission Newberry, 08001369 may also be obtained by accessing its determined to review the ALJ’s ID in WISCONSIN Internet server at http://www.usitc.gov. part. The Commission requested written The public record for this investigation submissions on certain issues relating to Columbia County may be viewed on the Commission’s violation as well as remedy, the public Robertson, John A. and Martha, House, 456 electronic docket (EDIS) at http:// interest, and bonding. The Commission Seminary St., Lodi, 08001370 edis.usitc.gov. Hearing-impaired set a deadline of December 22, 2008, for Request for removal has been made for the persons are advised that information on written submissions, and December 31, following resources: this matter can be obtained by 2008, for reply submissions thereon.
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In light of the fact that the ALJ has not DEPARTMENT OF JUSTICE provide containment for oil storage yet issued a public version of his RD, facilities, and prepare appropriate the Commission has determined to Notice of Extension of the Public operating plans. Comment Period Regarding Stipulated extend the deadline for receiving initial On December 2, 2008, a Notice of written submissions on remedy, the Orders Under the Clean Water Act and the Safe Drinking Water Act Lodging was published informing the public interest, and bonding until two public of the lodging of the Stipulated weeks from the date of issuance of the Notice is hereby given that on Orders and the 30 day public comment public version of the ALJ’s RD. November 19, 2008, two Stipulated period. 73 FR at 73,348. The public Complainants and the IA are also Orders for Preliminary Injunctive Relief comment period was to expire on requested to submit proposed remedial (‘‘Stipulated Orders’’) in United States January 1, 2009. orders for the Commission’s v. Commonwealth Utilities Corporation On December 23, 2008, the United consideration by the extended deadline. and the Commonwealth of the Northern States District Court for the Northern The Commission has also determined to Mariana Islands, Civil Action No. 08– Marina Islands granted an Order extend the deadline for reply 0051, were lodged with the United extending the public comment period to submissions on remedy, the public States District Court for the January 31, 2009. interest, and bonding until ten (10) days Commonwealth of the Northern Mariana after the filing date of the initial written Islands. The Commonwealth Utilities Therefore, the Department of Justice submissions. This extension does not Corporation (‘‘CUC’’) is a public will continue to receive, until January affect the due dates for the parties’ corporation that owns and operates the 31, 2009, comments relating to the written submissions on issues relating Agingan and Sadog Tasi Sewage Stipulated Orders. Comments should be to violation of section 337. Treatment Plants and associated addressed to the Assistant Attorney wastewater collection and conveyance General, Environment and Natural Persons filing written submissions systems, public water systems, and Resources Division, and either e-mailed must file the original document and 12 power plants located in the to [email protected] or true copies thereof on or before the Commonwealth of the Northen Mariana mailed to P.O. Box 7611, U.S. deadlines stated above with the Office Islands (‘‘CNMI’’). Department of Justice, Washington, DC of the Secretary. Any person desiring to The Complaint, which was filed 20044–7611, and should refer to United submit a document to the Commission concurrently with the lodging of the States v. Commonwealth Utilities in confidence must request confidential Stipulated Orders, alleges that CUC Corporation and the Commonwealth of treatment unless the information has violated the Clean Water Act (‘‘CWA’’), the Northern Mariana Islands, D.J. Ref. already been granted such treatment 33 U.S.C. 1251–1387, as amended by the 90–5–1–1–08471. during the proceedings. All such Oil Pollution Act, 33 U.S.C. 2701–2762; requests should be directed to the and the Safe Drinking Water Act The Stipulated Orders may be Secretary of the Commission and must (‘‘SDWA’’), 42 U.S.C. 300f–300j–26. In examined at U.S. EPA Region IX at 75 include a full statement of the reasons the Complaint, the United States seeks Hawthorne Street, San Francisco, why the Commission should grant such injunctive relief and civil penalties California 94105. During the public treatment. See 19 CFR 210.6. Documents relating to CUC’s wastewater, drinking comment period, the Stipulated Orders for which confidential treatment by the water, and power operations. The may also be examined on the following Commission is sought will be treated Complaint joins CNMI as a statutory Department of Justice Web site, defendant under Section 309(e) of the accordingly. All nonconfidential written http://www.usdoj.gov/enrd/ CWA, 33 U.S.C. 1319(e). CNMI is also submissions will be available for public Consent_Decrees.html. A copy of the a signatory to the Stipulated Orders. Stipulated Orders may also be obtained inspection at the Office of the Secretary. Stipulated Order One is intended to by mail from the Consent Decree The Commission has also determined ensure that CUC’s wastewater and Library, P.O. Box 7611, U.S. Department to extend the target date for completion drinking water systems achieve of Justice, Washington, DC 20044–7611 of the above-referenced investigation by compliance with the CWA and SDWA. or by faxing or e-mailing a request to thirty (30) days, to March 6, 2009. The major components of Stipulated Order One are: (1) The reformation of Tonia Fleetwood The authority for the Commission’s ([email protected]), fax No. determination is contained in section CUC’s management, finances, and operations; (2) the development of a (202) 514–0097, phone confirmation 337 of the Tariff Act of 1930, as wastewater and drinking water Master number (202) 514–1547. In requesting a amended (19 U.S.C. 1337), and in Plan; and (3) the construction of copy from the Consent Decree Library, section 210.51(a) of the Commission’s wastewater infrastructure. CUC is also please enclose a check in the amount of Rules of Practice and Procedure (19 CFR required to take steps to comply with $31.00 for Stipulated Order Number 210.51(a)). National Pollution Discharge One and $21.25 for Stipulated Order Issued: December 19, 2008. Elimination System permits and Number Two (25 cents per page By order of the Commission. compliance orders, comply with reproduction cost) payable to the U.S. Marilyn R. Abbott, drinking water standards, and to Treasury or, if by e-mail or fax, forward eliminate spills from the wastewater a check in that amount to the Consent Secretary to the Commission. system. Decree Library at the stated address. [FR Doc. E8–31104 Filed 12–30–08; 8:45 am] Stipulated Order Two is intended to BILLING CODE 7020–02–P ensure that CUC’s power plant facilities Henry Friedman, achieve compliance with the CWA. Assistant Section Chief, Environmental These requirements include requiring Enforcement Section, Environment and CUC to eliminate oil spills, implement Natural Resources Division. appropriate spill prevention measures, [FR Doc. E8–31064 Filed 12–30–08; 8:45 am] implement effective inspection BILLING CODE 4410–15–P procedures for its oil storage facilities,
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DEPARTMENT OF JUSTICE A Detonators. Acetylides of heavy metals. Dimethylol dimethyl methane Bureau of Alcohol, Tobacco, Firearms Aluminum containing polymeric dinitrate composition. and Explosives propellant. Dinitroethyleneurea. [Docket No. ATF 28N] Aluminum ophorite explosive. Dinitroglycerine [glycerol dinitrate]. Amatex. Dinitrophenol. Commerce in Explosives; List of Amatol. Dinitrophenolates. Explosive Materials (2008R–17T) Ammonal. Dinitrophenyl hydrazine. Ammonium nitrate explosive Dinitroresorcinol. AGENCY: Bureau of Alcohol, Tobacco, mixtures (cap sensitive). Dinitrotoluene-sodium nitrate Firearms and Explosives (ATF), *Ammonium nitrate explosive explosive mixtures. Department of Justice. mixtures (non-cap sensitive). DIPAM [dipicramide; ACTION: Notice of List of Explosive Ammonium perchlorate having diaminohexanitrobiphenyl]. Materials. particle size less than 15 microns. Dipicryl sulfone. Ammonium perchlorate composite Dipicrylamine. SUMMARY: Pursuant to 18 U.S.C. 841(d) propellant. Display fireworks. and 27 CFR 555.23, the Department Ammonium perchlorate explosive DNPA [2,2–dinitropropyl acrylate]. must publish and revise at least mixtures. DNPD [dinitropentano nitrile]. annually in the Federal Register a list Ammonium picrate [picrate of Dynamite. of explosives determined to be within ammonia, Explosive D]. E the coverage of 18 U.S.C. 841 et seq. The Ammonium salt lattice with list covers not only explosives, but also isomorphously substituted inorganic EDDN [ethylene diamine dinitrate]. blasting agents and detonators, all of salts. EDNA [ethylenedinitramine]. which are defined as explosive *ANFO [ammonium nitrate-fuel oil]. Ednatol. materials in 18 U.S.C. 841(c). This Aromatic nitro-compound explosive EDNP [ethyl 4,4–dinitropentanoate]. notice publishes the 2008 List of mixtures. EGDN [ethylene glycol dinitrate]. Explosive Materials. Azide explosives. Erythritol tetranitrate explosives. DATES: The list becomes effective upon Esters of nitro-substituted alcohols. publication of this notice on December B Ethyl-tetryl. 31, 2008. Baranol. Explosive conitrates. Explosive gelatins. FOR FURTHER INFORMATION CONTACT: Baratol. Explosive liquids. Debra S. Satkowiak, Chief; Explosives BEAF [1, 2–bis (2, 2–difluoro–2– Explosive mixtures containing Industry Programs Branch; Arson and nitroacetoxyethane)]. oxygen-releasing inorganic salts and Explosives Programs Division; Bureau of Black powder. hydrocarbons. Alcohol, Tobacco, Firearms and Black powder based explosive Explosive mixtures containing Explosives; United States Department of mixtures. oxygen-releasing inorganic salts and Justice; 99 New York Avenue, NE., *Blasting agents, nitro-carbo-nitrates, nitro bodies. Washington, DC 20226 (202–648–7100). including non-cap sensitive slurry and water gel explosives. Explosive mixtures containing SUPPLEMENTARY INFORMATION: The list is Blasting caps. oxygen-releasing inorganic salts and intended to include any and all Blasting gelatin. water insoluble fuels. mixtures containing any of the materials Blasting powder. Explosive mixtures containing on the list. Materials constituting BTNEC [bis (trinitroethyl) carbonate]. oxygen-releasing inorganic salts and blasting agents are marked by an BTNEN [bis (trinitroethyl) nitramine]. water soluble fuels. asterisk. While the list is BTTN [1,2,4 butanetriol trinitrate]. Explosive mixtures containing comprehensive, it is not all-inclusive. Bulk salutes. sensitized nitromethane. The fact that an explosive material is Butyl tetryl. Explosive mixtures containing not on the list does not mean that it is tetranitromethane (nitroform). not within the coverage of the law if it C Explosive nitro compounds of otherwise meets the statutory Calcium nitrate explosive mixture. aromatic hydrocarbons. definitions in 18 U.S.C. 841. Explosive Cellulose hexanitrate explosive Explosive organic nitrate mixtures. materials are listed alphabetically by mixture. Explosive powders. their common names followed, where Chlorate explosive mixtures. F applicable, by chemical names and Composition A and variations. synonyms in brackets. Composition B and variations. Flash powder. The Department has not added any Composition C and variations. Fulminate of mercury. new terms to the list of explosives or Copper acetylide. Fulminate of silver. removed or revised any listing since its Cyanuric triazide. Fulminating gold. last publication. Cyclonite [RDX]. Fulminating mercury. This list supersedes the List of Cyclotetramethylenetetranitramine Fulminating platinum. Explosive Materials dated December 7, [HMX]. Fulminating silver. 2007 (Docket No. ATF 25N, 72 FR Cyclotol. G 69228). Cyclotrimethylenetrinitramine [RDX]. Gelatinized nitrocellulose. Notice of List of Explosive Materials D Gem-dinitro aliphatic explosive Pursuant to 18 U.S.C. 841(d) and 27 DATB [diaminotrinitrobenzene]. mixtures. CFR 555.23, I hereby designate the DDNP [diazodinitrophenol]. Guanyl nitrosamino guanyl tetrazene. following as explosive materials covered DEGDN [diethyleneglycol dinitrate]. Guanyl nitrosamino guanylidene under 18 U.S.C. 841(c): Detonating cord. hydrazine.
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Guncotton. Nitric acid and carboxylic fuel S explosive. H Safety fuse. Nitric acid explosive mixtures. Salts of organic amino sulfonic acid Heavy metal azides. Nitro aromatic explosive mixtures. explosive mixture. Hexanite. Nitro compounds of furane explosive Salutes (bulk). Hexanitrodiphenylamine. mixtures. Silver acetylide. Nitrocellulose explosive. Hexanitrostilbene. Silver azide. Nitroderivative of urea explosive Hexogen [RDX]. Silver fulminate. mixture. Hexogene or octogene and a nitrated Silver oxalate explosive mixtures. Nitrogelatin explosive. N-methylaniline. Silver styphnate. Nitrogen trichloride. Hexolites. Silver tartrate explosive mixtures. HMTD Nitrogen tri-iodide. Nitroglycerine [NG, RNG, nitro, Silver tetrazene. [hexamethylenetriperoxidediamine]. Slurried explosive mixtures of water, HMX [cyclo-1,3,5,7-tetramethylene glyceryl trinitrate, trinitroglycerine]. Nitroglycide. inorganic oxidizing salt, gelling agent, 2,4,6,8-tetranitramine; Octogen]. fuel, and sensitizer (cap sensitive). Hydrazinium nitrate/hydrazine/ Nitroglycol [ethylene glycol dinitrate, EGDN]. Smokeless powder. aluminum explosive system. Sodatol. Hydrazoic acid. Nitroguanidine explosives. Nitronium perchlorate propellant Sodium amatol. I mixtures. Sodium azide explosive mixture. Sodium dinitro-ortho-cresolate. Igniter cord. Nitroparaffins Explosive Grade and ammonium nitrate mixtures. Sodium nitrate explosive mixtures. Igniters. Sodium nitrate-potassium nitrate Initiating tube systems. Nitrostarch. Nitro-substituted carboxylic acids. explosive mixture. K Nitrourea. Sodium picramate. Special fireworks. KDNBF [potassium dinitrobenzo- O Squibs. furoxane]. Octogen [HMX]. Styphnic acid explosives. L Octol [75 percent HMX, 25 percent T TNT]. Lead azide. Tacot [tetranitro-2,3,5,6-dibenzo- Lead mannite. Organic amine nitrates. Organic nitramines. 1,3a,4,6a tetrazapentalene]. Lead mononitroresorcinate. TATB [triaminotrinitrobenzene]. Lead picrate. P TATP [triacetonetriperoxide]. Lead salts, explosive. PBX [plastic bonded explosives]. TEGDN [triethylene glycol dinitrate]. Lead styphnate [styphnate of lead, Tetranitrocarbazole. lead trinitroresorcinate]. Pellet powder. Penthrinite composition. Tetrazene [tetracene, tetrazine, 1(5- Liquid nitrated polyol and Pentolite. tetrazolyl)-4-guanyl tetrazene hydrate]. trimethylolethane. Perchlorate explosive mixtures. Tetrazole explosives. Liquid oxygen explosives. Peroxide based explosive mixtures. Tetryl [2,4,6 tetranitro-N- M PETN [nitropentaerythrite, methylaniline]. pentaerythrite tetranitrate, Tetrytol. Magnesium ophorite explosives. pentaerythritol tetranitrate]. Thickened inorganic oxidizer salt Mannitol hexanitrate. Picramic acid and its salts. slurried explosive mixture. MDNP [methyl 4,4- Picramide. TMETN [trimethylolethane trinitrate]. dinitropentanoate]. Picrate explosives. TNEF [trinitroethyl formal]. MEAN [monoethanolamine nitrate]. Picrate of potassium explosive TNEOC [trinitroethylorthocarbonate]. Mercuric fulminate. mixtures. TNEOF [trinitroethylorthoformate]. Mercury oxalate. Picratol. TNT [trinitrotoluene, trotyl, trilite, Mercury tartrate. Picric acid (manufactured as an triton]. Metriol trinitrate. explosive). Torpex. Minol-2 [40% TNT, 40% ammonium Picryl chloride. Tridite. nitrate, 20% aluminum]. Picryl fluoride. Trimethylol ethyl methane trinitrate MMAN [monomethylamine nitrate]; PLX [95% nitromethane, 5% composition. methylamine nitrate. ethylenediamine]. Trimethylolthane trinitrate- Mononitrotoluene-nitroglycerin Polynitro aliphatic compounds. nitrocellulose. mixture. Polyolpolynitrate-nitrocellulose Trimonite. Monopropellants. explosive gels. Trinitroanisole. N Potassium chlorate and lead Trinitrobenzene. sulfocyanate explosive. Trinitrobenzoic acid. NIBTN [nitroisobutametriol trinitrate]. Potassium nitrate explosive mixtures. Trinitrocresol. Nitrate explosive mixtures. Potassium nitroaminotetrazole. Trinitro-meta-cresol. Nitrate sensitized with gelled Pyrotechnic compositions. Trinitronaphthalene. nitroparaffin. PYX [2,6-bis(picrylamino)] 3,5- Trinitrophenetol. Nitrated carbohydrate explosive. dinitropyridine. Trinitrophloroglucinol. Nitrated glucoside explosive. Trinitroresorcinol. R Nitrated polyhydric alcohol Tritonal. explosives. RDX [cyclonite, hexogen, T4, cyclo- Nitric acid and a nitro aromatic 1,3,5,-trimethylene-2,4,6,-trinitramine; U compound explosive. hexahydro-1,3,5-trinitro-S-triazine]. Urea nitrate.
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W Act on September 29, 2008 (73 FR Register pursuant to section 6(b) of the 56611). Act on October 21, 2008 (73 FR 62542). Water-bearing explosives having salts of oxidizing acids and nitrogen bases, Patricia A. Brink, Patricia A. Brink, sulfates, or sulfamates (cap sensitive). Deputy Director of Operations, Antitrust Deputy Director of Operations, Antitrust Division. Water-in-oil emulsion explosive Division. compositions. [FR Doc. E8–31037 Filed 12–30–08; 8:45 am] [FR Doc. E8–31041 Filed 12–30–08; 8:45 am] BILLING CODE 4410–11–M BILLING CODE 4410–11–M X
Xanthamonas hydrophilic colloid DEPARTMENT OF JUSTICE explosive mixture. DEPARTMENT OF JUSTICE Antitrust Division Approved: December 22, 2008. Antitrust Division Michael Sullivan, Notice Pursuant to the National Acting Director. Notice Pursuant to the National Cooperative Research and Production [FR Doc. E8–31179 Filed 12–30–08; 8:45 am] Cooperative Research and Production Act of 1993—Open Devicenet Vendor BILLING CODE 4410–FY–P Act of 1993—Network Centric Association, Inc. Operations Industry Consortium, Inc. Notice is hereby given that, on DEPARTMENT OF JUSTICE Notice is hereby given that, on December 3, 2008, pursuant to section November 26, 2008, pursuant to section 6(a) of the National Cooperative Antitrust Division 6(a) of the National Cooperative Research and Production Act of 1993, Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), Open Notice Pursuant to the National DeviceNet Vendor Association, Inc. Cooperative Research and Production 15 U.S.C. 4301 et seq. (‘‘the Act’’) Network Centric Operations Industry (‘‘ODVA’’) has filed written notifications Act of 1993—Cooperative Research simultaneously with the Attorney Group on the Development and Consortium, Inc. has filed written notifications simultaneously with the General and the Federal Trade Evaluation of a Gas Chromatograph Commission disclosing changes in its Testing Protocol Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the membership. The notifications were Notice is hereby given that, on Act’s provisions limiting the recovery of filed for the purpose of extending the November 26, 2008, pursuant to section antitrust plaintiffs to actual damages Act’s provisions limiting the recovery of 6(a) of the National Cooperative under specified circumstances. Research and Production Act of 1993, antitrust plaintiffs to actual damages Specifically, Racine Federated Inc., 15 U.S.C. 4301 et seq. (‘‘the Act’’) under specified circumstances. Racine, WI; Mon Seiki Co., Ltd. (U.S. Southwest Research Institute— Specifically, Solera Networks, Lindon, subsidiary Digital Technology Cooperative Research Group on UT has been added as a party to this Laboratory, Corporation), West Development and Evaluation of a Gas venture. Also, Advanced Virtual Engine Sacramento, CA; and TR-Electronic Chromatograph Testing Protocol Test Cell, Inc., Springfield, OH; GmbH, Trossingen, GERMANY have (‘‘GCTP’’) has filed written notifications Chandler/May, Inc., Huntsville, AL; been added as parties to this venture. simultaneously with the Attorney PrismTech Corporation, Burlington, Also, Contemporary Controls Systems, General and the Federal Trade MA; Intelligent Automation, Inc., Inc., Downers Grove, IL; and Bird Commission disclosing changes in its Rockville, MD; and Hewlett-Packard Electronic Corporation, Solon, OH have nature and objective. The notifications Company, Palo Alto, CA have withdrawn as parties to this venture. were filed for the purpose of extending withdrawn as parties to this venture. No other changes have been made in the Act’s provisions limiting the either the membership or planned recovery of antitrust plaintiffs to actual No other changes have been made in either the membership or planned activity of the group research project. damages under specified circumstances. Membership in this group research activity of the group research project. Specifically, the period of performance project remains open, and ODVA Membership in this group research has been extended to December 15, intends to file additional written 2008. project remains open, and Network notifications disclosing all changes in No other changes have been made in Centric Operations Industry membership. either the membership or planned Consortium, Inc. intends to file On June 21, 1995, ODVA filed its activity of the group research project. additional written notifications original notification pursuant to section Membership in this group research disclosing all changes in membership. 6(a) of the Act. The Department of project remains open, and GCTP intends On November 19, 2004, Network Justice published a notice in the Federal to file additional written notifications Centric Operations Industry Register pursuant to section 6(b) of the disclosing all changes in membership. Consortium, Inc. filed its original Act on February 15, 1996 (61 FY 6039). On March 6, 2008, GCTP filed its notification pursuant to section 6(a) of The last notification was filed with original notification pursuant to section the Act. The Department of Justice the Department on September 5, 2008. 6(a) of the Act. The Department of published a notice in the Federal A notice was published in the Federal Justice published a notice in the Federal Register pursuant to section 6(b) of the Register pursuant to section 6(b) of the Register pursuant to section 6(b) of the Act on February 2, 2005 (70 FR 5486). Act on October 21, 2008 (73 FR 62543). Act on April 7, 2008 (73 FR 18813). The last notification was filed with Patricia A. Brink, The last notification was filed with the Department on September 5, 2008. Deputy Director of Operations, Antitrust the Department on August 26, 2008. A A notice was published in the Federal Division. notice was published in the Federal [FR Doc. E8–31043 Filed 12–30–08; 8:45 am] Register pursuant to section 6(b) of the BILLING CODE 4410–11–M
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DEPARTMENT OF JUSTICE Attorney General and the Federal Trade Control, Federal Register Representative Commission disclosing changes in its (ODL), 8701 Morrissette Drive, Antitrust Division membership. The notifications were Springfield, Virginia 22152; and must be filed for the purpose of extending the filed no later than March 2, 2009. Notice Pursuant to the National Act’s provisions limiting the recovery of Dated: December 22, 2008. Cooperative Research and Production antitrust plaintiffs to actual damages Act of 1993—Open Systemc Initiative Joseph T. Rannazzisi, under specified circumstances. Deputy Assistant Administrator, Office of Notice is hereby given that, on Specifically, Veolia Water North Diversion Control, Drug Enforcement November 21, 2008, pursuant to Section America Operating Services, Inc., Administration. 6(a) of the National Cooperative Chicago, IL has been added as a party [FR Doc. E8–31084 Filed 12–30–08; 8:45 am] Research and Production Act of 1993, to this venture. BILLING CODE 4410–09–P 15 U.S.C. 4301 et seq. (‘‘the Act’’) Open No other changes have been made in SystemC Initiative (‘‘OSCI’’) has filed either the membership or planned written notifications simultaneously activity of the group research project. DEPARTMENT OF JUSTICE with the Attorney General and the Membership in this group research Federal Trade Commission disclosing project remains open, and PERF intends Drug Enforcement Administration changes in its membership. The to file additional written notifications notifications were filed for the purpose disclosing all changes in membership. Importer of Controlled Substances; of extending the Act’s provisions On February 10, 1986, PERF filed its Notice of Application limiting the recovery of antitrust original notification pursuant to Section Pursuant to 21 U.S.C. 958(i), the plaintiffs to actual damages under 6(a) of the Act. The Department of Attorney General shall, prior to issuing specified circumstances. Specifically, Justice published a notice in the Federal a registration under this section to a Silistix, Manchester, UNITED Register pursuant to Section 6(b) of the bulk manufacturer of a controlled KINGDOM has been added as a party to Act on March 14, 1986 (51 FR 8903). substance in schedule I or II, and prior this venture. Also, BlueSpec Inc., The last notification was filed with to issuing a registration under 21 U.S.C. Waltham, MA has withdrawn as a party the Department on July 9, 2008. A 952(a)(2) authorizing the importation of to this venture. notice was published in the Federal such a substance, provide No other changes have been made in Register pursuant to Section 6(b) of the manufacturers holding registrations for either the membership or planned Act on July 31, 2008 (73 FR 44773). the bulk manufacture of the substance activity of the group research project. Patricia A. Brink, an opportunity for a hearing. Membership in this group research Deputy Director of Operations, Antitrust Therefore, in accordance with Title 21 project remains open, and OSCI intends Division. Code of Federal Regulations 1301.34(a), to file additional written notifications [FR Doc. E8–31038 Filed 12–30–08; 8:45 am] this is notice that on October 14, 2008, disclosing all changes in membership. Johnson Matthey Inc., Pharmaceutical BILLING CODE 4410–11–M On October 9, 2001, OSCI filed its Materials, 2003 Nolte Drive, West original notification pursuant to Section Deptford, New Jersey 08066–1742, has 6(a) of the Act. The Department of DEPARTMENT OF JUSTICE made application by letter to the Drug Justice published a notice in the Federal Enforcement Administration (DEA) to Register pursuant to Section 6(b) of the Drug Enforcement Administration be registered as an importer of the basic Act on January 3, 2002 (67 FR 350). classes of controlled substances listed in The last notification was filed with Manufacturer of Controlled schedule II: the Department on March 25, 2008. A Substances; Notice of Application notice was published in the Federal Drug Schedule Register pursuant to Section 6(b) of the Pursuant to § 1301.33(a) of Title 21 of Act on May 9, 2008 (73 FR 26415). the Code of Federal Regulations (CFR), Thebaine (9333) ...... II this is notice that on October 29, 2008, Noroxymorphone (9668) ...... II Patricia A. Brink, Norac Inc., 405 S. Motor Avenue, P.O. Deputy Director of Operations, Antitrust Box 577, Azusa, California 91702–3232, The company plans to import Division. made application by renewal to the analytical reference standards for [FR Doc. E8–31040 Filed 12–30–08; 8:45 am] Drug Enforcement Administration distribution to its customers for research BILLING CODE 4410–11–M (DEA) to be registered as a bulk purposes. manufacturer of Tetrahydrocannabinols Any bulk manufacturer who is (7370), a basic class of controlled presently, or is applying to be, DEPARTMENT OF JUSTICE substance listed in schedule I. registered with DEA to manufacture The company plans to manufacture such basic class of controlled substance Antitrust Division the listed controlled substance in bulk may file comments or objections to the Notice Pursuant to the National for formulation into the pharmaceutical issuance of the proposed registration ® Cooperative Research and Production controlled substance Marinol for sale and may, at the same time, file a written Act of 1993—Petroleum Environmental to its customers. request for a hearing on such Research Forum Any other such applicant, and any application pursuant to 21 CFR 1301.43, person who is presently registered with and in such form as prescribed by 21 Notice is hereby given that, on DEA to manufacture such substances, CFR 1316.47. November 26, 2008, pursuant to Section may file comments or objections to the Any such comments or objections 6(a) of the National Cooperative issuance of the proposed registration being sent via regular mail should be Research and Production Act of 1993, pursuant to 21 CFR 1301.33(a). addressed, in quintuplicate, to the Drug 15 U.S.C. 4301 et seq. (‘‘the Act’’), the Any such written comments or Enforcement Administration, Office of Petroleum Environmental Research objections should be addressed, in Diversion Control, Federal Register Forum (‘‘PERF’’) has filed written quintuplicate, to the Drug Enforcement Representative (ODL), 8701 Morrissette notifications simultaneously with the Administration, Office of Diversion Drive, Springfield, Virginia 22152; and
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must be filed no later than January 30, bulk controlled substances for validate production and QC systems; for 2009. distribution to its customers. a reference standard; and for producing This procedure is to be conducted Any bulk manufacturer who is material for future investigational new simultaneously with, and independent presently, or is applying to be, drug (IND) submission. of, the procedures described in 21 CFR registered with DEA to manufacture No comments or objections have been § 1301.34(b), (c), (d), (e), and (f). As such basic classes of controlled received. DEA has considered the noted in a previous notice published in substances may file comments or factors in 21 U.S.C. 823(a) and 952(a) the Federal Register on September 23, objections to the issuance of the and determined that the registration of 1975, (40 FR 43745–46), all applicants proposed registration and may, at the GE Healthcare to import the basic class for registration to import the basic class same time, file a written request for a of controlled substance is consistent of any controlled substance in schedule hearing on such application pursuant to with the public interest, and with I or II are, and will continue to be, 21 CFR 1301.43 and in such form as United States obligations under required to demonstrate to the Deputy prescribed by 21 CFR 1316.47. international treaties, conventions, or Assistant Administrator, Office of Any such comments or objections protocols in effect on May 1, 1971, at Diversion Control, Drug Enforcement should be addressed, in quintuplicate, this time. DEA has investigated GE Administration, that the requirements to the Drug Enforcement Healthcare to ensure that the company’s for such registration pursuant to 21 Administration, Office of Diversion registration is consistent with the public U.S.C. 958(a); 21 U.S.C. 823(a); and 21 Control, Federal Register Representative interest. The investigation has included CFR 1301.34(b), (c), (d), (e), and (f) are (ODL), 8701 Morrissette Drive, inspection and testing of the company’s satisfied. Springfield, Virginia 22152; and must be physical security systems, verification filed no later than January 30, 2009. of the company’s compliance with state Dated: December 22, 2008. This procedure is to be conducted and local laws, and a review of the Joseph T. Rannazzisi, simultaneously with, and independent company’s background and history. Deputy Assistant Administrator, Office of of, the procedures described in 21 CFR Therefore, pursuant to 21 U.S.C. 952(a) Diversion Control, Drug Enforcement 1301.34(b), (c), (d), (e), and (f). As noted and 958(a), and in accordance with 21 Administration. in a previous notice published in the CFR 1301.34, the above named company [FR Doc. E8–31079 Filed 12–30–08; 8:45 am] Federal Register on September 23, 1975, is granted registration as an importer of BILLING CODE 4410–09–P (40 FR 43745), all applicants for the basic class of controlled substance registration to import a basic class of listed. any controlled substance in schedule I DEPARTMENT OF JUSTICE Dated: December 22, 2008. or II are, and will continue to be, Joseph T. Rannazzisi, Drug Enforcement Administration required to demonstrate to the Deputy Deputy Assistant Administrator, Office of Assistant Administrator, Office of Diversion Control, Drug Enforcement Importer of Controlled Substances; Diversion Control, Drug Enforcement Administration. Notice of Application Administration, that the requirements [FR Doc. E8–31081 Filed 12–30–08; 8:45 am] for such registration pursuant to 21 BILLING CODE 4410–09–P Pursuant to 21 U.S.C. 958(i), the U.S.C. 958(a); 21 U.S.C. 823(a); and 21 Attorney General shall, prior to issuing CFR 1301.34(b), (c), (d), (e), and (f) are a registration under this Section to a satisfied. DEPARTMENT OF LABOR bulk manufacturer of a controlled Dated: December 22, 2008. substance in schedule I or II and prior Office of the Secretary to issuing a registration under 21 U.S.C. Joseph T. Rannazzisi, 952(a)(2) authorizing the importation of Deputy Assistant Administrator, Office of Submission for OMB Review: such a substance, provide Diversion Control, Drug Enforcement Comment Request Administration. manufacturers holding registrations for the bulk manufacture of the substance [FR Doc. E8–31080 Filed 12–30–08; 8:45 am] December 19, 2008. an opportunity for a hearing. BILLING CODE 4410–09–P The Department of Labor (DOL) Therefore, in accordance with Title 21 hereby announces the submission of the following public information collection Code of Federal Regulations (CFR), DEPARTMENT OF JUSTICE 1301.34(a), this is notice that on request (ICR) to the Office of Management and Budget (OMB) for November 4, 2008, Johnson Matthey, Drug Enforcement Administration Inc., Pharmaceutical Materials, 2003 review and approval in accordance with Nolte Drive, West Deptford, New Jersey Importer of Controlled Substances; the Paperwork Reduction Act of 1995 08066–1742, made application by Notice of Registration (Pub. L. 104–13, 44 U.S.C. chapter 35). renewal to the Drug Enforcement A copy of this ICR, with applicable By Notice dated September 22, 2008, Administration (DEA) to be registered as supporting documentation; including and published in the Federal Register an importer of the basic classes of among other things a description of the on September 29, 2008, (73 FR 56611), controlled substances listed in schedule likely respondents, proposed frequency GE Healthcare, 3350 North Ridge II: of response, and estimated total burden Avenue, Arlington Heights, Illinois may be obtained from the RegInfo.gov Drug Schedule 60004–1412, made application by Web site at http://www.reginfo.gov/ renewal to the Drug Enforcement public/do/PRAMain or by contacting Phenylacetone (8501) ...... II Administration (DEA) to be registered as Mary Beth Smith-Toomey on 202–693– Opium, raw (9600) ...... II an importer of Cocaine (9041), a basic 4223 (this is not a toll-free number)/e- Poppy Straw Concentrate (9670) II class of controlled substance listed in mail: [email protected]. schedule II. Interested parties are encouraged to The company plans to import the The company plans to import small send comments to the Office of listed controlled substances as raw quantities of ioflupane, in the form of Information and Regulatory Affairs, materials for use in the manufacture of three separate analogues of Cocaine, to Attn: OMB Desk Officer for the
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Department of Labor—ETA, Office of workforce investment efforts. The data proposed collection of information, Management and Budget, Room 10235, collection methodology includes including the validity of the Washington, DC 20503, Telephone: contacting businesses/associations to methodology and assumptions used; 202–395–7316/Fax: 202–395–6974 gain their cooperation, and collecting • Enhance the quality, utility, and (these are not toll-free numbers), e-mail: information from employees of clarity of the information to be [email protected] within cooperating businesses/associations as collected; and 30 days from the date of this publication well as occupational specialists. For • Minimize the burden of the in the Federal Register. In order to additional information, see related collection of information on those who ensure the appropriate consideration, notice published at Volume 73 FR are to respond, including through the comments should reference the OMB 28509 on May 16, 2008. use of appropriate automated, electronic, mechanical, or other Control Number (see below). Darrin A. King, The OMB is particularly interested in technological collection techniques or comments which: Departmental Clearance Officer. other forms of information technology, • Evaluate whether the proposed [FR Doc. E8–31082 Filed 12–30–08; 8:45 am] e.g., permitting electronic submission of collection of information is necessary BILLING CODE 4510–30–P responses. for the proper performance of the Agency: Office of the Secretary. functions of the agency, including Type of Review: Extension without DEPARTMENT OF LABOR whether the information will have change of an existing OMB Control practical utility; Office of the Secretary Number. • Evaluate the accuracy of the Title of Collection: Information agency’s estimate of the burden of the Submission for OMB Review: Collection Plan for GovBenefits Online. proposed collection of information, Comment Request OMB Control Number: 1290–0003. including the validity of the Affected Public: Individuals or methodology and assumptions used; December 19, 2008. Households. • Enhance the quality, utility, and The Department of Labor (DOL) Total Estimated Number of clarity of the information to be hereby announces the submission of the Respondents: 6,345,715. collected; and following public information collection Total Estimated Annual Burden • Minimize the burden of the request (ICR) to the Office of Hours: 571,114. collection of information on those who Management and Budget (OMB) for Total Estimated Annual Costs Burden: are to respond, including through the review and approval in accordance with $0. use of appropriate automated, the Paperwork Reduction Act of 1995 Description: Visitors to the electronic, mechanical, or other (Pub. L. 104–13, 44 U.S.C. chapter 35). GovBenefits Web site answer a series of technological collection techniques or A copy of this ICR, with applicable questions to the extent necessary for other forms of information technology, supporting documentation; including locating relevant information on Federal e.g., permitting electronic submission of among other things a description of the benefits. Responses are used by the responses. likely respondents, proposed frequency respondent to expedite the Agency: Employment Training of response, and estimated total burden identification and retrieval of sought Administration. may be obtained from the RegInfo.gov after information and resources Type of Review: Extension without Web site at http://www.reginfo.gov/ pertaining to the benefits sponsored by change of a currently approved public/do/PRAMain or by contacting the Federal government. For additional collection. Darrin A. King on 202–693–4129 (this is information, see related notice Title of Collection: O*Net Data not a toll-free number)/e-mail: published at Volume 73 FR 62319 on Collection Program. [email protected]. October 20, 2008. OMB Control Number: 1205–0421. Interested parties are encouraged to Affected Public: Individuals or send comments to the Office of Darrin A. King, Households; State, Local, or Tribal Information and Regulatory Affairs, Departmental Clearance Officer. Governments; Federal Government; and Attn: OMB Desk Officer for the [FR Doc. E8–31083 Filed 12–30–08; 8:45 am] Private Sector—Businesses or other for Department of Labor—Office of the BILLING CODE 4510–30–P profits, Farms, and Not-for-Profit Secretary, Office of Management and institutions. Budget, Room 10235, Washington, DC Total Estimated Number of 20503, Telephone: 202–395–7316/Fax: DEPARTMENT OF LABOR Respondents: 28,594. 202–395–6974 (these are not toll-free Mine Safety and Health Administration Total Estimated Annual Burden numbers), E-mail: Hours: 14,620. _ OIRA [email protected] within Petitions for Modification Total Estimated Annual Costs Burden: 30 days from the date of this publication $0. in the Federal Register. In order to AGENCY: Mine Safety and Health Description: The O*Net Data ensure the appropriate consideration, Administration, Labor. Collection Program yields detailed comments should reference the OMB ACTION: Notice of petitions for characteristics of occupations and skills Control Number (see below). modification of existing mandatory for over 800 occupations by obtaining The OMB is particularly interested in safety standards. information from job incumbents/ comments which: occupational specialists on worker and • Evaluate whether the proposed SUMMARY: Section 101(c) of the Federal job characteristics to populate the collection of information is necessary Mine Safety and Health Act of 1977 and O*Net (Occupational Information for the proper performance of the 30 CFR Part 44 govern the application, Network) database. The O*Net database functions of the agency, including processing, and disposition of petitions information is used for a wide range of whether the information will have for modification. This notice is a purposes related to career counseling practical utility; summary of petitions for modification and development, curriculum design, • Evaluate the accuracy of the filed by the parties listed below to human resources functions and agency’s estimate of the burden of the modify the application of existing
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mandatory safety standards published requirements and procedures for filing Modification Request: The petitioner in Title 30 of the Code of Federal petitions for modifications. requests an alternative method of Regulations. compliance for leaving barrier pillars II. Petitions for Modification around oil and gas wells. The petitioner DATES: All comments on the petitions Docket Number: M–2008–049–C. must be received by the Office of proposes to mine through oil and gas Standards, Regulations, and Variances Petitioner: Knight Hawk Coal, LLC, wells in all mineable coalbeds. The on or before January 30, 2009. 7290 County Line Road, Cutler, Illinois petitioner states that: (1) A safety barrier 62238. of 300 feet in diameter (150 feet between ADDRESSES: You may submit your Mine: Prairie Eagle SOUTH any mined area and a well) will be comments, identified by ‘‘docket Underground Mine, MSHA I.D. No. 11– maintained around all oil and gas wells number’’ on the subject line, by any of 03205 located in Perry County, Illinois. until approval to proceed with mining the following methods: Regulation Affected: 30 CFR 75.503 has been obtained from the District 1. Electronic Mail: Standards- (Permissible electric face equipment; Manager; (2) the minimum safety barrier [email protected]. maintenance) and 30 CFR 18.35(a)(5) approved by the District Manager 2. Facsimile: 1–202–693–9441. (Portable trailing cables and cords). between any mined area and a well will 3. Regular Mail: MSHA, Office of Modification Request: The petitioner be 70 feet in diameter for an abandoned Standards, Regulations, and Variances, requests a modification of the existing well, and 100 feet in diameter for an 1100 Wilson Boulevard, Room 2350, standard to permit trailing cables operational well based on the geological Arlington, Virginia 22209, Attention: supplying power to permissible nature of the strata and the functionality Patricia W. Silvey, Director, Office of equipment to be increased to the of the well as found in the mine area; Standards, Regulations, and Variances. maximum length for use in continuous and (3) consummate to the well being 4. Hand-Delivery or Courier: MSHA, mining sections. The petitioner states located on the surface using high Office of Standards, Regulations, and that: (1) This petition will only apply to resolution Global Positioning System Variances, 1100 Wilson Boulevard, trailing cables supplying three-phase, (GPS), and being tied to the Room 2350, Arlington, Virginia 22209, 995-volt power to continuous mining underground traverse with accuracy no Attention: Patricia W. Silvey, Director, machines and trailing cables supplying less than 1:30,000. Persons may review Office of Standards, Regulations, and three-phase, 480-volt power to roof a complete description of petitioner’s Variances. bolters; (2) the maximum length of the alternative method and procedures at MSHA will consider only comments 995-volt continuous mining machine the MSHA address listed in this notice. postmarked by the U.S. Postal Service or trailing cables will be 950 feet and the The petitioner asserts that the proposed proof of delivery from another delivery maximum length of the 480-volt trailing alternative method will provide a service such as UPS or Federal Express cables for roof bolters will be 900 feet; measure of protection to all miners on or before the deadline for comments. (3) the 995-volt continuous mining greater than that of the existing Individuals who submit comments by machine trailing cables will not be standard. hand-delivery are required to check in smaller than 2/0 and the 480-volt Docket Number: M–2008–051–C. at the receptionist desk on the 21st trailing cables for roof bolters will not floor. Petitioner: River View Coal, LLC, 835 be smaller than #2 American Wire St. Rt. 1179, Waverly, Kentucky 42462. Individuals may inspect copies of the Gauge (AWG); (4) all circuits breakers petitions and comments during normal Mine: River View Mine, MSHA I.D. used to protect 2/0 trailing cables No. 15–03178 located in Union County, business hours at the address listed exceeding 850 feet in length will have above. Kentucky. instantaneous trip units calibrated to Regulation Affected: 30 CFR 75.503 FOR FURTHER INFORMATION CONTACT: trip at 1,500 amperes; (5) the trip (Permissible electric face equipment; Barbara Barron, Office of Standards, settings of the circuit breakers will be maintenance) and 30 CFR 18.35 Regulations, and Variances at 202–693– sealed or locked and will have (Portable trailing cables and cords). 9447 (Voice), [email protected] permanent legible labels; and (6) each Modification Request: The petitioner (E-mail), or 202–693–9441 (Telefax). label will identify the circuit breaker as requests a modification of the existing [These are not toll-free numbers.] being suitable for protecting 2/0 cables standard which requires the operator of SUPPLEMENTARY INFORMATION: and the label will be maintained legible. each coal mine to maintain in Persons may review a complete permissible condition all electric face I. Background description of petitioner’s alternative equipment required by 30 CFR 75.500, Section 101(c) of the Federal Mine method and procedures at the MSHA 75.501, and 75.504 to be permissible Safety and Health Act of 1977 (Mine address listed in this notice. The when taken into or used inby the last Act) allows the mine operator or petitioner asserts that the proposed open crosscut of any such mine. The representative of miners to file a alternative method will at all times petitioner proposes to increase the petition to modify the application of any guarantee no less than the same measure maximum length of trailing cables mandatory safety standard to a coal or of protection to all miners at the Prairie supplying power to permissible other mine if the Secretary determines Eagle SOUTH Underground Mine as equipment used in continuous mining that: (1) An alternative method of would be provided by the mandatory sections by using the following achieving the result of such standard standard. methods: (1) The petition will apply exists which will at all times guarantee Docket Number: M–2008–050–C. only to trailing cables supplying three- no less than the same measure of Petitioner: River View Coal, LLC, 835 phase, 995-volt power to continuous protection afforded the miners of such St., Route 1179, Waverley, Kentucky mining machines and to trailing cables mine by such standard; or (2) that the 42462. supplying three-phase 480-volt power to application of such standard to such Mine: River View, MSHA I.D. No. 15– roof bolters; (2) the maximum length of mine will result in a diminution of 03178, located in Union County, the 995-volt continuous mining safety to the miners in such mine. In Kentucky. machine trailing cables will be 950 feet addition, the regulations at 30 CFR Regulation Affected: 30 CFR 75.1700 and the maximum length of the 480-volt 44.10 and 44.11 establish the (Oil and gas wells). trailing cables for roof bolters will be
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900 feet; (3) the 995-volt continuous Regulation Affected: 30 CFR 75.1700 Persons may review a complete mining machine trailing cables will not (Oil and gas wells). description of petitioner’s alternative be smaller than 2/0 and the 480-volt Modification Request: The petitioner method and procedures at the MSHA trailing cables for roof bolters will not requests a modification of the existing address listed in this notice. The be smaller than #2 American Wire standard that requires the operator to petitioner asserts that the alternative Gauge (AWG); (4) all circuits breakers establish and maintain barriers around method set forth in this petition used to protect 2/0 trailing cables its oil and gas wells that should not be improves the overall safety of the exceeding 850 feet in length will have less than 300 feet in diameter. The miners and fully addresses all concerns an instantaneous trip unit calibrated to petitioner states that: (1) This petition is of the existing standard. trip at 1,500 amperes; (5) the trip setting based on the premise that reducing Docket Number: M–2008–005–M. of the circuit breakers will be sealed or methane in a coal seam prior to mining Petitioner: Lafarge North America, locked and will have permanent legible provides a better and safer environment Inc., 1801 California Street, Suite 4900, labels; and (6) each label will identify for miners; (2) it sets forth procedures Denver, Colorado 80202. the circuit breaker as being suitable for whereby the petitioner and the miners Mine: Davenport Plant Mine, MSHA protecting 2/0 cables and the label will will have all the advantages of coal I.D. No. 13–00125, located in Scott be maintained legible. Persons may degasification procedures and be able to County, Iowa. review a complete description of safely approach and decommission each Regulation Affected: 30 CFR 56.15005 petitioner’s alternative method and pinnate (drill hole) drilled for (Safety belts and lines). procedures at the MSHA address listed degasification when such pinnate lies Modification Request: The petitioner in this notice. The petitioner asserts that ahead of mining in progress; (3) the requests an alternative method of the proposed alternative method will at essence of the procedures is to put the compliance of the existing standard all times guarantee no less than the entire well system under substantial which requires safety belts and lines to same measure of protection to all miners negative pressure in advance of each be worn when persons work where at the River View Mine as would be intersection to increase the flow of gas there is a danger of falling insofar as it provided by the existing standard. from the well, continue the increased applies to the barge unloading area at its Docket Number: M–2008–052–C. level of gas production under vacuum at Davenport Cement Plant. The petitioner Petitioner: Consolidation Coal essentially a constant level, and states that: (1) Because of the unique Company, 1000 CONSOL Energy Drive, continually monitor on the surface; (4) nature of the layout of the barge Canonsburg, Pennsylvania 15317. the procedure maintains the negative unloading area and the operations Mine: Blacksville No. 2 Mine, MSHA pressure on the well system during the conducted there, construction of a I.D. No. 46–01968, located in approach to, and intersection with, the structure necessary to allow for proper Monongalia County, West Virginia. pinnate to provide significant safety fall protection would create serious Regulation Affected: 30 CFR 75.1700 advantages; (5) the negative pressure additional hazards during construction (Oil and gas wells). will provide a further method of and would also create significant Modification Request: The petitioner diluting and carrying gas away from the additional hazards during operations; requests a modification of the existing face at the point of intersection, and (2) the hazards associated with standard that requires the operator to complements and enhances the gas operations conducted with proper establish and maintain barriers around removal effects of ventilation that protection against falls into water would its oil and gas wells. The petitioner sweeps the face; (6) the negative result only in hazards associated with proposes to seal the Pittsburgh Coal pressure can also serve to drain away a prolonged stays in potential cold water; Seam from the surrounding strata at the degree of gas concentrations that might and (3) the measures proposed would affected wells by using technology otherwise be liberated through latent alleviate those hazards, resulting in a developed through a successful well- feeders or bleeders in the seam; (7) the workplace with safeguards additional to plugging program. The petitioner states monitoring will be conducted by trained those already in place while avoiding that since the inception of the well- CDX Gas, LLC observers who will the creation of hazards associated with plugging program, more than 550 specifically look for a significant a fall protection structure. The proposed previously abandoned oil and gas wells increase in oxygen, and maintain open measures are as follows: (a) New wider have been effectively plugged and more telephone communications with the tires will be substituted as bumpers to than 475 gas and/or petroleum wells mine to immediately notify the mine of the dock, creating greater clearance such have been successfully mined through a change in the gas concentrations; (8) that there will be no danger of anyone or around. Persons may review a when readings on surface monitoring hitting the barge on the way down or complete description of petitioner’s equipment show that the well system being crushed or injured by the alternative method and procedures at under vacuum is producing oxygen, this movement of the barge should they fall; the MSHA address listed in this notice. signals the introduction of mine (b) rope or chain ladders as well as The petitioner asserts that the proposed atmosphere entering the pinnate due to ladder attachment points will be alternative method will provide no less the vacuum effect at the point of installed and provided; (c) lifesaving than the same measure of protection to intersection; and (9) as soon as the rings will be provided in the event of a all miners at the Blacksville No. 2 Mine intersection is detected, the mine will man overboard; (d) water rescue as would be provided by the existing be alerted by the surface observers via equipment will be maintained and standard. the open communications line, mining ready for use in the dock area at all will be brought to a halt in the affected times; and (e) each employee working Docket Number: M–2008–053–C. entry and procedures will be initiated to near the water will receive specialized Petitioner: Heidtman Mining, LLC, insert a plug to isolate and hazard awareness training. The P.O. Box 312, 6451 Happy Valley Road, decommission the intersection pinnate. petitioner states that permitting life Hartford, Arkansas 72938. The petitioner further states that the jackets or belts pursuant to 30 CFR Mine: Sebastian County Coal Mine, procedures employed, including CDX 56.15020 in addition to the proposed MSHA I.D. No. 03–01736, located in Gas, LLC’s role are set out in the measures will provide equal or greater Sebastian County, Arkansas. existing approved ventilation plan. protection than requiring the use of a
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fall protection system. Persons may completed. Requesters will be given 30 administrative use by the agency of review a complete description of days to submit comments. origin, the rights of the Government and petitioner’s alternative method and ADDRESSES: You may request a copy of of private persons directly affected by procedures at the MSHA address listed any records schedule identified in this the Government’s activities, and in this notice. The petitioner asserts that notice by contacting the Life Cycle whether or not they have historical or application of the existing standard will Management Division (NWML) using other value. result in a diminution of safety to the one of the following means: Besides identifying the Federal miners and the proposed alternative Mail: NARA (NWML), 8601 Adelphi agencies and any subdivisions method will at all times provide no less Road, College Park, MD 20740–6001. requesting disposition authority, this than the same measure of protection E-mail: [email protected]. public notice lists the organizational afforded the miners of such mine by FAX: 301–837–3698. unit(s) accumulating the records or such standard. Requesters must cite the control indicates agency-wide applicability in number, which appears in parentheses the case of schedules that cover records Dated: December 23, 2008. after the name of the agency which that may be accumulated throughout an Patricia W. Silvey, submitted the schedule, and must agency. This notice provides the control Director, Office of Standards, Regulations, provide a mailing address. Those who number assigned to each schedule, the and Variances. desire appraisal reports should so total number of schedule items, and the [FR Doc. E8–31121 Filed 12–30–08; 8:45 am] indicate in their request. number of temporary items (the records BILLING CODE 4510–43–P FOR FURTHER INFORMATION CONTACT: proposed for destruction). It also Laurence Brewer, Director, Life Cycle includes a brief description of the Management Division (NWML), temporary records. The records National Archives and Records schedule itself contains a full NATIONAL ARCHIVES AND RECORDS Administration, 8601 Adelphi Road, description of the records at the file unit ADMINISTRATION College Park, MD 20740–6001. level as well as their disposition. If NARA staff has prepared an appraisal Records Schedules; Availability and Telephone: 301–837–1539. E-mail: memorandum for the schedule, it too Request for Comments [email protected]. includes information about the records. SUPPLEMENTARY INFORMATION: Each year Further information about the AGENCY: National Archives and Records Federal agencies create billions of Administration (NARA). disposition process is available on records on paper, film, magnetic tape, request. ACTION: Notice of availability of and other media. To control this proposed records schedules; request for accumulation, agency records managers Schedules Pending comments. prepare schedules proposing retention 1. Department of Agriculture, Risk periods for records and submit these Management Agency (N1–258–08–6, 2 SUMMARY: The National Archives and schedules for NARA’s approval, using Records Administration (NARA) items, 2 temporary items). Reinsurance the Standard Form (SF) 115, Request for agreements, final reinsurance publishes notice at least once monthly Records Disposition Authority. These of certain Federal agency requests for agreements, standard reinsurance schedules provide for the timely transfer agreement negotiations records and records disposition authority (records into the National Archives of schedules). Once approved by NARA, other files pertaining to crop insurance historically valuable records and policies sold or reinsured to private records schedules provide mandatory authorize the disposal of all other instructions on what happens to records insurance companies. records after the agency no longer needs 2. Department of Agriculture, Risk when no longer needed for current them to conduct its business. Some Management Agency (N1–258–08–11, 1 Government business. They authorize schedules are comprehensive and cover item, 1 temporary item). Statements of the preservation of records of all the records of an agency or one of its work, invoices, solicitations, proposals, continuing value in the National major subdivisions. Most schedules, task orders, deliverables, and other Archives of the United States and the however, cover records of only one records relating to pilot programs used destruction, after a specified period, of office or program or a few series of to test and evaluate new crop insurance records lacking administrative, legal, records. Many of these update products. research, or other value. Notice is previously approved schedules, and 3. Department of Agriculture, Risk published for records schedules in some include records proposed as Management Agency (N1–258–08–15, 1 which agencies propose to destroy permanent. item, 1 temporary item). Records records not previously authorized for The schedules listed in this notice are relating to agreements that pertain to disposal or reduce the retention period media neutral unless specified providing or obtaining support services. of records already authorized for otherwise. An item in a schedule is 4. Department of Agriculture, Risk disposal. NARA invites public media neutral when the disposition Management Agency (N1–258–08–16, 1 comments on such records schedules, as instructions may be applied to records item, 1 temporary item). Records required by 44 U.S.C. 3303a(a). regardless of the medium in which the relating to delegations of authority. DATES: Requests for copies must be records are created and maintained. 5. Department of Agriculture, Risk received in writing on or before January Items included in schedules submitted Management Agency (N1–258–08–19, 1 30, 2009. Once the appraisal of the to NARA on or after December 17, 2007, item, 1 temporary item). Records records is completed, NARA will send are media neutral unless the item is relating to accounting systems. Records a copy of the schedule. NARA staff limited to a specific medium. (See 36 pertain to such subjects as systems usually prepare appraisal CFR 1228.24(b)(3).) approved by the Government memorandums that contain additional No Federal records are authorized for Accountability Office, management information concerning the records destruction without the approval of the advisory services for financial systems, covered by a proposed schedule. These, Archivist of the United States. This monitoring system development too, may be requested and will be approval is granted only after a processes, and accounting system provided once the appraisal is thorough consideration of their regulations.
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6. Department of Agriculture, Risk 13. Department of Justice, Federal variable and non-periodic reports Management Agency (N1–258–08–20, 1 Bureau of Prisons (N1–129–09–12, 2 submitted by electric, gas, oil, steam- item, 1 temporary item). Internal control items, 2 temporary items). Records of electric, hydropower, transmission, and records pertaining to measures taken to regional psychology services offices other public and private utilities. Paper safeguard assets, ensure the accuracy of including drug abuse, mental health, recordkeeping copies were all accounting data, promote operational and sex offender treatment files. previously approved for disposal. efficiency, and encourage adherence to 14. Department of Justice, Federal 21. Millennium Challenge prescribed managerial policies. Bureau of Prisons (N1–129–09–13, 3 Corporation, Agency-wide (N1–561–08– 7. Department of Agriculture, Risk items, 3 temporary items). Master files 2, 6 items, 6 temporary items). Master Management Agency (N1–258–08–21, 1 of an electronic information system files of electronic information systems item, 1 temporary item). General used to capture, transfer and store X-ray used to track correspondence and correspondence relating to personal images and reports for inmates. monitor the status of agency projects. property management including records 15. Department of Justice, Federal Also included are the agency’s public relating to nonexpendable equipment, Bureau of Prisons (N1–129–09–14, 3 Web site and intranet. acquisitions, maintenance and disposal items, 3 temporary items). Master files Dated: December 23, 2008. of office equipment. of an electronic information system 8. Department of Defense, Defense used to assess and track inmates’ reentry Michael J. Kurtz, Logistics Agency (N1–361–08–3, 13 skills and progress. Assistant Archivist for Records Services— items, 12 temporary items). Records 16. Department of Justice, National Washington, DC. relating to criminal incidents, contract Drug Intelligence Center (N1–523–08–5, [FR Doc. E8–31112 Filed 12–30–08; 8:45 am] fraud and investigations. Included are 1 item, 1 temporary item). Master files BILLING CODE 7515–01–P such records as case files, logs, of an asset repository that contains polygraph examinations, reports, intelligence data related to illegal drug assessments, and related information. manufacturing, trafficking, and related NUCLEAR REGULATORY Proposed for permanent retention are activities. COMMISSION 17. Department of Labor, Bureau of polygraph examinations relating to [Docket No. 50–499] historically significant cases. Labor Statistics (N1–257–09–2, 26 Historically valuable case files are items, 23 temporary items). Records STP Nuclear Operating Company retained permanently by the Defense from the Office of Survey Methods Notice of Consideration of Issuance of Criminal Investigative Service. Research, including researchers working Amendment to Facility Operating 9. Department of Defense, Defense files, study related e-mail, Office of License, Proposed No Significant Logistics Agency (N1–361–08–5, 1 item, Management and Budget study Hazards Consideration Determination, 1 temporary item). Records relating to clearance packages, study and Opportunity for a Hearing labor hours, projects, workload, civilian announcement and recruitment time and attendance, contract materials, advance materials, participant The U.S. Nuclear Regulatory management, and contractor database, study materials, interviewer Commission (the Commission) is performance. notes, recordings of test sessions, eye considering issuance of an amendment 10. Department of Health and Human tracking database, keystroke recordings, to Facility Operating License No. NPF– Services, Food and Drug Administration usability test environment files, 80, issued to STP Nuclear Operating (N1–88–08–2, 11 items, 8 temporary Monthly Labor Review manuscripts, Company (the licensee), for operation of items). Records relating to drug Web publications, and articles the South Texas Project (STP), Unit 2, marketing and pre-marketing published in professional journals and located in Matagorda County, Texas. applications. Included are such records conference proceedings. Proposed for The proposed amendment would as application files lacking in historical permanent retention are final reports, extend the Allowed Outage Time (AOT) value, records relating to the electronic presentations at conferences and for Technical Specification (TS) 3.7.1.7, transport of applications, duplicate professional meetings, and training ‘‘Main Feedwater System.’’ This AOT copies of applications, and associated session materials. extension is requested to facilitate tracking data. Proposed for permanent 18. Department of the Treasury, repairs to the Unit 2 Train D Main retention are historically significant Internal Revenue Service (N1–58–08– Feedwater Isolation Valve (MFIV). drug marketing and pre-marketing 14, 1 item, 1 temporary item). Claims- The Action Statement for TS 3.7.1.7 applications. related letters which are returned to the requires that, with one MFIV inoperable 11. Department of Homeland Security, agency as undeliverable. in MODES 1 and 2 but open, operation National Protection and Programs 19. Federal Election Commission, may continue provided the inoperable Directorate (N1–563–08–27, 1 item, 1 Office of the Inspector General (N1– valve is restored to OPERABLE status temporary item). Master files of an 339–08–1, 14 items, 10 temporary within 4 hours; otherwise, the Unit electronic information system used to items). Files of the agency Inspector must be placed in HOT STANDBY support the identification of potentially General, including such records as files within the next 6 hours. There is no significant changes in the operational relating to non-significant investigations action required for an inoperable MFIV status of the nation’s critical and audits, hotline files, peer review that is closed. infrastructure and key resources. files, policy and procedures files, The Unit 2 Train D MFIV is currently 12. Department of Homeland Security, general correspondence, planning files, operable, but degraded. The degraded Science and Technology Directorate and related reports. Proposed for condition is a nitrogen leak of the tubing (N1–563–08–37, 1 item, 1 temporary permanent retention are significant to the valve accumulator. Temporary item). Master files containing investigative and audit files and semi- repairs have reduced the tube leak such information about sets of data on annual reports. that operator action is maintaining the Internet traffic available from non- 20. Federal Energy Regulatory nitrogen accumulator pressure, assuring agency data hosts for cyber defense Commission, Agency-wide (N1–138– the MFIV operability. The licensee research and user requests to publish 09–1, 28 items, 28 temporary items). states that, although these actions are research based on the datasets. Monthly, quarterly, annual, biennial, sufficient at the present time, it is
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unknown if the leak will degrade to a probability or consequences of an accident Written comments may be submitted point where operator action would not previously evaluated. by mail to the Chief, Rulemaking, be able to assure operability of the Unit 2. Does the proposed change create the Directives and Editing Branch, TWB– 2 Train D MFIV. In that case, Unit 2 possibility of a new or different kind of 05–B01M, Division of Administrative accident from any accident previously Services, Office of Administration, U.S. must be shut down in accordance with evaluated? the Action Statement. Response: Nuclear Regulatory Commission, The licensee has proposed to repair No. The proposed change does not involve Washington, DC 20555–0001, and the Unit 2 Train D MFIV nitrogen any physical alteration of plant equipment should cite the publication date and tubing. The licensee estimates that the and does not change the method by which page number of this Federal Register repair of the tubing leak will render the any safety-related structure, system, or notice. Documents may be examined, MFIV inoperable for approximately 8 component performs its function or is tested. and/or copied for a fee, at the NRC’s hours, which exceeds the 4-hour AOT. Closure of the MFIVs is required to mitigate Public Document Room, located at One Therefore, the licensee requests a one- the consequences of the Main Steam Line White Flint North, Public File Area O1 Break and Main Feedwater Line Break time extension of AOT to 24 hours to F21, 11555 Rockville Pike (first floor), accidents. Rockville, Maryland. permit repair of the MFIV valve without Therefore, the proposed change will not shutting the Unit down. The licensee create the possibility of a new or different The filing of requests for hearing and requests that the amendment be kind of accident from any accident petitions for leave to intervene is approved on an exigent basis to assure previously evaluated. discussed below. that further degradation of the Unit 2 3. Does the proposed change involve a Within 60 days after the date of Train D MFIV will not result in a Unit significant reduction in a margin of safety? publication of this notice, the person(s) shutdown. Response: may file a request for a hearing with Before issuance of the proposed No. The proposed change [ ] does not respect to issuance of the amendment to adversely affect existing plant safety margins license amendment, the Commission the subject facility operating license and or the reliability of the equipment assumed any person(s) whose interest may be will have made findings required by the to operate in the safety analysis. There are no Atomic Energy Act of 1954, as amended affected by this proceeding and who changes being made to safety analysis wishes to participate as a party in the (the Act) and the Commission’s assumptions, safety limits or safety system regulations. settings that would adversely affect plant proceeding must file a written request Pursuant to 10 CFR 50.91(a)(6) for safety [margins] as a result of the proposed via electronic submission through the amendments to be granted under change. NRC E-filing system for a hearing and a exigent circumstances, the NRC staff Therefore, the proposed change does not petition for leave to intervene. Requests must determine that the amendment involve a significant reduction in a margin of for a hearing and a petition for leave to safety. intervene shall be filed in accordance request involves no significant hazards with the Commission’s ‘‘Rules of consideration. Under the Commission’s The NRC staff has reviewed the Practice for Domestic Licensing regulations in 10 CFR 50.92, this means licensee’s analysis and, based on this Proceedings’’ in 10 CFR Part 2. that operation of the facility in review, it appears that the three Interested person(s) should consult a accordance with the proposed standards of 10 CFR 50.92(c) are current copy of 10 CFR 2.309, which is amendment would not (1) involve a satisfied. Therefore, the NRC staff available at the Commission’s PDR, significant increase in the probability or proposes to determine that the located at One White Flint North, Public consequences of an accident previously amendment request involves no File Area O1F21, 11555 Rockville Pike evaluated; or (2) create the possibility of significant hazards consideration. (first floor), Rockville, Maryland. a new or different kind of accident from The Commission is seeking public Publicly available records will be any accident previously evaluated; or comments on this proposed accessible from the Agencywide (3) involve a significant reduction in a determination. Any comments received Documents Access and Management margin of safety. As required by 10 CFR within 14 days after the date of System’s (ADAMS) Public Electronic 50.91(a), the licensee has provided its publication of this notice will be Reading Room on the Internet at the analysis of the issue of no significant considered in making any final NRC Web site, http://www.nrc.gov/ hazards consideration, which is determination. reading-rm/doc-collections/cfr. If a presented below: Normally, the Commission will not request for a hearing or petition for 1. Does the proposed change involve a issue the amendment until the leave to intervene is filed by the above significant increase in the probability or expiration of the 14-day notice period. date, the Commission or a presiding consequences of an accident previously However, should circumstances change officer designated by the Commission or evaluated? during the notice period, such that by the Chief Administrative Judge of the Response: failure to act in a timely way would Atomic Safety and Licensing Board No. The proposed change extends the result, for example, in derating or action completion time for Unit 2 Train D Panel, will rule on the request and/or MFIV from 4 hours to 24 hours. Extending shutdown of the facility, the petition; and the Secretary or the Chief the completion time is not an accident Commission may issue the license Administrative Judge of the Atomic initiator and thus does not change the amendment before the expiration of the Safety and Licensing Board will issue a probability that an accident will occur. 14-day notice period, provided that its notice of a hearing or an appropriate However, it could potentially affect the final determination is that the order. consequences of an accident if an accident amendment involves no significant Each contention must consist of a occurred during the extended unavailability hazards consideration. The final specific statement of the issue of law or of the [ MFIV, which is inoperable]. The determination will consider all public fact to be raised or controverted. In increase in time, that the MFIV is and State comments received. Should addition, the petitioner/requestor shall unavailable, is small and the probability of an event occurring during this time period, the Commission take this action, it will provide a brief explanation of the bases which would require isolation of the main publish in the Federal Register a notice for the contention and a concise feedwater flow paths, is low. of issuance. The Commission expects statement of the alleged facts or expert Therefore, the proposed change does not that the need to take this action will opinion which support the contention involve a significant increase in the occur very infrequently. and on which the petitioner intends to
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rely in proving the contention at the (10) days prior to the filing deadline, the submittals.html or by calling the NRC hearing. The petitioner/requestor must petitioner/requestor must contact the electronic filing Help Desk, which is also provide references to those specific Office of the Secretary by e-mail at available between 8 a.m. and 8 p.m., sources and documents of which the [email protected], or by calling Eastern Time, Monday through Friday. petitioner/requestor is aware and on (301) 415–1677, to request (1) a digital The electronic filing Help Desk can be which the petitioner/requestor intends ID certificate, which allows the contacted by telephone at 1–866–672– to rely to establish those facts or expert participant (or its counsel or 7640 or by e-mail at opinion. The petitioner/requestor must representative) to digitally sign [email protected]. provide sufficient information to show documents and access the E-Submittal Participants who believe that they that a genuine dispute exists with the server for any proceeding in which it is have a good cause for not submitting applicant on a material issue of law or participating; and/or (2) creation of an documents electronically must file a fact. Contentions shall be limited to electronic docket for the proceeding motion, in accordance with 10 CFR matters within the scope of the (even in instances in which the 2.302(g), with their initial paper filing amendment under consideration. The petitioner/requestor (or its counsel or requesting authorization to continue to contention must be one which, if representative) already holds an NRC- submit documents in paper format. proven, would entitle the petitioner/ issued digital ID certificate). Each Such filings must be submitted by: (1) requestor to relief. A petitioner/ petitioner/requestor will need to First class mail addressed to the Office requestor who fails to satisfy these download the Workplace Forms of the Secretary of the Commission, U.S. requirements with respect to at least one ViewerTM to access the Electronic Nuclear Regulatory Commission, contention will not be permitted to Information Exchange (EIE), a Washington, DC 20555–0001, Attention: participate as a party. component of the E-Filing system. The Rulemaking and Adjudications Staff; or Those permitted to intervene become Workplace Forms ViewerTM is free and (2) courier, express mail, or expedited parties to the proceeding, subject to any is available at http://www.nrc.gov/site- delivery service to the Office of the limitations in the order granting leave to help/e-submittals/install-viewer.html. Secretary, Sixteenth Floor, One White intervene, and have the opportunity to Information about applying for a digital Flint North, 11555 Rockville Pike, participate fully in the conduct of the ID certificate is available on NRC’s Rockville, Maryland 20852, Attention: hearing. public Web site at http://www.nrc.gov/ Rulemaking and Adjudications Staff. If a hearing is requested, the site-help/e-submittals/apply- Participants filing a document in this Commission will make a final certificates.html. manner are responsible for serving the determination on the issue of no Once a petitioner/requestor has document on all other participants. significant hazards consideration. The obtained a digital ID certificate, had a Filing is considered complete by first- final determination will serve to decide docket created, and downloaded the EIE class mail as of the time of deposit in when the hearing is held. If the final viewer, it can then submit a request for the mail, or by courier, express mail, or determination is that the amendment hearing or petition for leave to expedited delivery service upon request involves no significant hazards intervene. Submissions should be in depositing the document with the consideration, the Commission may Portable Document Format (PDF) in provider of the service. issue the amendment and make it accordance with NRC guidance Documents submitted in adjudicatory immediately effective, notwithstanding available on the NRC public Web site at proceedings will appear in NRC’s the request for a hearing. Any hearing http://www.nrc.gov/site-help/e- electronic hearing docket which is held would take place after issuance of submittals.html. A filing is considered available to the public at http:// the amendment. If the final complete at the time the filer submits its ehd.nrc.gov/ehd_proceeding/home.asp, determination is that the amendment documents through EIE. To be timely, unless excluded pursuant to an order of request involves a significant hazards an electronic filing must be submitted to the Commission, an Atomic Safety and consideration, any hearing held would the EIE system no later than 11:59 p.m. Licensing Board, or a Presiding Officer. take place before the issuance of any Eastern Time on the due date. Upon Participants are requested not to include amendment. receipt of a transmission, the E-Filing personal privacy information, such as All documents filed in NRC system time-stamps the document and social security numbers, home adjudicatory proceedings, including a sends the submitter an e-mail notice addresses, or home phone numbers in request for hearing, a petition for leave confirming receipt of the document. The their filings. With respect to copyrighted to intervene, any motion or other EIE system also distributes an e-mail works, except for limited excerpts that document filed in the proceeding prior notice that provides access to the serve the purpose of the adjudicatory to the submission of a request for document to the NRC Office of the filings and would constitute a Fair Use hearing or petition to intervene, and General Counsel and any others who application, Participants are requested documents filed by interested have advised the Office of the Secretary not to include copyrighted materials in governmental entities participating that they wish to participate in the their submissions. under 10 CFR 2.315(c), must be filed in proceeding, so that the filer need not Non-timely requests and/or petitions accordance with the NRC E-Filing rule, serve the documents on those and contentions will not be entertained which the NRC promulgated on August participants separately. Therefore, absent a determination by the 28, 2007 (72 FR 49139). The E-Filing applicants and other participants (or Commission, the presiding officer, or process requires participants to submit their counsel or representative) must the Atomic Safety and Licensing Board and serve all adjudicatory documents apply for and receive a digital ID that the petition and/or request should over the internet, or in some cases to certificate before a hearing request/ be granted and/or the contentions mail copies on electronic storage media. petition to intervene is filed so that they should be admitted, based on a Participants may not submit paper can obtain access to the document via balancing of the factors specified in 10 copies of their filings unless they seek the E-Filing system. CFR 2.309(c)(1)(i)–(viii). a waiver in accordance with the A person filing electronically may For further details with respect to this procedures described below. seek assistance through the ‘‘Contact exigent license application, see the To comply with the procedural Us’’ link located on the NRC Web site application for amendment dated requirements of E-Filing, at least ten at http://www.nrc.gov/site-help/e- December 19, 2008, which is available
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for public inspection at the Agencywide Documents Access and convene at 7 p.m. with a repeat of the Commission’s Public Document Room Management System (ADAMS). The overview portions of the meeting and (PDR), located at One White Flint North, ADAMS Public Electronic Reading will continue until 10 p.m., as Public File Area O1 F21, 11555 Room is accessible at http:// necessary. Both meetings will be Rockville Pike (first floor), Rockville, adamswebsearch.nrc.gov/dologin.htm. transcribed and will include: (1) A Maryland. Publicly available records The Accession Numbers for draft presentation of the contents of the draft will be accessible electronically from Supplement 38 to the GEIS are plant-specific supplement to the GEIS, the Agencywide Documents Access and ML083540594 (Volume 1, main report) and (2) the opportunity for interested Management System’s (ADAMS) Public and ML083540614 (Volume 2, government agencies, organizations, and appendices). Persons who do not have Electronic Reading Room on the Internet individuals to provide comments on the access to ADAMS, or who encounter at the NRC Web site http://www.nrc.gov/ draft report. Additionally, the NRC staff problems in accessing the documents reading-rm.html. Persons who do not will host informal discussions one hour have access to ADAMS or who located in ADAMS, should contact the prior to the start of each session at the encounter problems in accessing the NRC(s PDR reference staff by telephone same location. No comments on the documents located in ADAMS should at 1–800–397–4209 or 301–415–4737, or contact the NRC PDR Reference staff by by e-mail at [email protected]. In draft supplement to the GEIS will be telephone at 1–800–397–4209, or 301– addition, the White Plains Public accepted during the informal 415–4737, or by e-mail to Library (White Plains, NY), Hendrick discussions. To be considered, [email protected]. Hudson Free Library (Montrose, NY), comments must be provided either at and the Field Library (Peekskill, NY), the transcribed public meeting or in Dated at Rockville, Maryland, this 23rd day writing. Persons may pre-register to of December 2008. have agreed to make the draft supplement to the GEIS available for present oral comments at the meeting by For the Nuclear Regulatory Commission. public inspection. contacting Mr. Andrew Stuyvenberg, the Mohan C. Thadani, Any interested party may submit NRC Environmental Project Manager at Senior Project Manager, Plant Licensing comments on the draft supplement to 1–800–368–5642, extension 4006, or by Branch LPL IV, Division of Operating Reactor the GEIS for consideration by the NRC Licensing, Office of Nuclear Reactor e-mail at [email protected], no staff. To be considered, comments on later than January 29, 2009. Members of Regulation. the draft supplement to the GEIS and [FR Doc. E8–31163 Filed 12–30–08; 8:45 am] the public may also register to provide the proposed action must be received by oral comments within 15 minutes of the BILLING CODE 7590–01–P March 18, 2009; the NRC staff is able to start of each session. Individual, oral ensure consideration only for comments comments may be limited by the time received on or before this date. NUCLEAR REGULATORY Comments received after the due date available, depending on the number of COMMISSION will be considered only if it is practical persons who register. If special equipment or accommodations are [Docket Nos. 50–247 and 50–286] to do so. Written comments on the draft supplement to the GEIS should be sent needed to attend or present information Indian Point Nuclear Generating Unit to: Chief, Rulemaking, Directives and at the public meeting, the need should Nos. 2 and 3; Notice of Availability of Editing Branch, Division of be brought to Mr. Stuyvenberg’s the Draft Supplement 38 to the Generic Administrative Services, Office of attention no later than January 26, 2009, Environmental Impact Statement for Administration, Mailstop T–6D59, U.S. to provide the NRC staff adequate notice License Renewal of Nuclear Plants and Nuclear Regulatory Commission, to determine whether the request can be Public Meeting for the License Washington, DC 20555–0001. accommodated. Renewal of Indian Point Nuclear Comments may be hand-delivered to FOR FURTHER INFORMATION CONTACT: Mr. Generating Unit Nos. 2 and 3 the NRC at 11545 Rockville Pike, Room T–6D59, Rockville, Maryland 20852, Stuyvenberg, Projects Branch 2, Notice is hereby given that the U.S. between 7:30 a.m. and 4:15 p.m. on Division of License Renewal, Office of Nuclear Regulatory Commission (NRC, Federal workdays. Electronic comments Nuclear Reactor Regulation, U.S. Commission) has published a draft may be submitted to the NRC by e-mail Nuclear Regulatory Commission, Mail plant-specific supplement to the at [email protected]. All Stop O–11F1, Washington, DC 20555– Generic Environmental Impact comments received by the Commission, 0001. Mr. Stuyvenberg may be contacted Statement for License Renewal of including those made by Federal, State, at the aforementioned telephone Nuclear Plants (GEIS), NUREG–1437, local agencies, Native American Tribes, number or e-mail address. regarding the renewal of operating or other interested persons, will be Dated at Rockville, Maryland, this 22nd licenses DPR–26 and DPR–64 for an made available electronically at the day of December, 2008. additional 20 years of operation for the Commission’s PDR in Rockville, Indian Point Nuclear Generating Unit Maryland, and through ADAMS. For the Nuclear Regulatory Commission. Nos. 2 and 3 (IP2 and IP3). IP2 and IP3 The NRC staff will hold a public David J. Wrona, are located in Westchester County in the meeting to present an overview of the Branch Chief, Projects Branch 2, Division of village of Buchanan, New York, draft plant-specific supplement to the License Renewal, Office of Nuclear Reactor approximately 24 miles north of New GEIS and to accept public comments on Regulation. York City. Possible alternatives to the the document. The public meeting will [FR Doc. E8–31161 Filed 12–30–08; 8:45 am] proposed action (license renewal) be held on February 12, 2009, at the BILLING CODE 7590–01–P include no action and reasonable Colonial Terrace, 119 Oregon Road, alternative energy sources. Draft Cortlandt Manor, New York 10567. Supplement 38 to the GEIS is publicly There will be two sessions to available at the NRC Public Document accommodate interested parties. The Room (PDR), located at One White Flint first session will convene at 1:30 p.m. North, 11555 Rockville Pike, Rockville, and will continue until 4:30 p.m., as Maryland 20852, or from the NRC’s necessary. The second session will
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NUCLEAR REGULATORY August 30, 1983 (ADAMS Legacy impacts associated with the proposed COMMISSION Library Accession No. 830909011). action. Therefore, OPPD needs exemption from [Docket No. 50–285] Environmental Impacts of the 10 CFR Part 50, Appendix R, III.G.1.b, Alternatives to the Proposed Action Omaha Public Power District; Fort for the cables in the duct bank and Calhoun Station, Unit No. 1; manhole vaults numbers 5 and 31 that As an alternative to the proposed Environmental Assessment and are routed between the pull boxes and action, the NRC staff considered denial Finding of No Significant Impact the intake structure building. of the proposed action (i.e., the ‘‘no- Environmental Impacts of the Proposed action’’ alternative). Denial of the The U.S. Nuclear Regulatory Action application would result in no change Commission (NRC) is considering in current environmental impacts. The issuance of an exemption from the The NRC has completed its safety environmental impacts of the proposed requirements of Section III.G.1.b of evaluation of the proposed action and action and the alternative action are Appendix R to Title 10 of the Code of concludes that the consequences of similar. Federal Regulations (10 CFR) Part 50, postulated accidents are not increased, Alternative Use of Resources for Facility Operating License No. DPR– because there is no credible fire hazard 40, issued to Omaha Public Power in the area of the cable duct bank or The action does not involve the use of District (OPPD, the licensee), for manhole, which would disable all the any different resources than those operation of the Fort Calhoun Station, raw water pumps and prevent the cold previously considered in the Final Unit No. 1, located in Washington shutdown capability. Furthermore, if all Environmental Statement for the Fort County, Nebraska. Therefore, as raw water pumps are lost, due to any Calhoun Station dated August 1972. required by 10 CFR 51.21, the NRC is condition, the abnormal operating Agencies and Persons Consulted issuing this environmental assessment procedure directs the operator to trip and finding of no significant impact. the reactor and enter emergency In accordance with its stated policy, procedures based on observed plant on November 26, 2008, the NRC staff Environmental Assessment conditions. Therefore, there is no undue consulted with the Nebraska State Identification of the Proposed Action risk, since neither the probability nor official, Julia Schmitt, of the Department the consequences have been increased, of Health and Human Services The proposed action would provide to public health and safety. an exemption from the provisions of 10 Regulation and Licensure, regarding the On the basis of its review and environmental impact of the proposed CFR Part 50, Appendix R, Section evaluation of the information provided III.G.1.b, for the 72-hour requirement to action. The State official had no in the licensee’s exemption request and comments. provide repair procedures and materials response to NRC staff request for for cold shutdown capability for additional information questions, the Finding of No Significant Impact redundant cold shutdown components. NRC staff concludes that OPPD’s request On the basis of the environmental The proposed action is in accordance for exemption from the technical with the licensee’s application dated assessment, the NRC concludes that the requirements of Section III.G.1.b of proposed action will not have a February 4, 2008 (Agencywide Appendix R to 10 CFR Part 50 has Documents Access and Management significant effect on the quality of the provided a thorough description of the human environment. Accordingly, the System (ADAMS) Accession No. proposed change and adequate safety ML080360106), as supplemented by NRC has determined not to prepare an assessment which address the issue. environmental impact statement for the letter dated October 13, 2008 (ADAMS The details of the NRC staff’s safety proposed action. No. ML082980018). evaluation will be provided in the For further details with respect to the The Need for the Proposed Action exemption that will be issued as part of the letter to the licensee approving the proposed action, see the licensee’s letter The proposed action is needed to exemption to the regulation. dated February 4, 2008, as provide notification and clarification of The proposed action will not supplemented by letter dated October the exemption granted by the NRC by significantly increase the probability or 13, 2008. Documents may be examined, letter dated July 3, 1985 (ADAMS consequences of accidents. No changes and/or copied for a fee, at the NRC’s Legacy Library Accession No. are being made in the types of effluents Public Document Room (PDR), located 850724390), in which the NRC granted that may be released offsite. There is no at One White Flint North, Public File an exemption from the technical significant increase in the amount of Area O1 F21, 11555 Rockville Pike (first requirements of Section III.G.2 of any effluent released offsite. There is no floor), Rockville, Maryland. Publicly Appendix R to 10 CFR Part 50, for Fire significant increase in occupational or available records will be accessible Area 31 (intake structure building) and public radiation exposure. Therefore, electronically from the Agencywide for the pull box area of the auxiliary there are no significant radiological Documents Access and Management building. The NRC safety evaluation environmental impacts associated with System (ADAMS) Public Electronic report (SER) dated July 3, 1985, the proposed action. Reading Room on the Internet at the incorrectly referenced Section III.G.2 With regard to potential non- NRC Web site, http://www.nrc.gov/ and subsequently provided exemption radiological impacts, the proposed reading-rm/adams.html. Persons who from 10 CFR Part 50, Section III.G. action does not have a potential to affect do not have access to ADAMS or who Specifically, the original SER and any historic sites. It does not affect non- encounter problems in accessing the exemption should have referenced 10 radiological plant effluents and has no documents located in ADAMS should CFR 50, Appendix R, Section III.G.1.b. other environmental impact. Therefore, contact the NRC PDR Reference staff by In addition, cables in the duct bank and there are no significant non-radiological telephone at 1–800–397–4209 or 301– manhole vaults numbers 5 and 31 that environmental impacts associated with 415–4737, or send an e-mail to are routed between the pull boxes and the proposed action. [email protected]. intake structure were not discussed in Accordingly, the NRC concludes that Dated at Rockville, Maryland, this 23rd day the OPPD exemption request dated there are no significant environmental of December 2008.
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For the Nuclear Regulatory Commission. SUPPLEMENTARY INFORMATION: USTR is Brazil alleges that these laws, Carl F. Lyon, providing notice that consultations have regulations, administrative procedures, Project Manager, Plant Licensing Branch IV, been requested pursuant to the WTO practices, and methodologies are, as Division of Operating Reactor Licensing, Understanding on Rules and Procedures such and as applied in the Department Office of Nuclear Reactor Regulation. Governing the Settlement of Disputes of Commerce determinations and [FR Doc. E8–31162 Filed 12–30–08; 8:45 am] (‘‘DSU’’). If such consultations should actions by Customs and Border BILLING CODE 7590–01–P fail to resolve the matter and a dispute Protection in the orange juice settlement panel is established pursuant administrative review, inconsistent with to the DSU, such panel, which would Articles II, VI:1, and VI:2 of the General hold its meetings in Geneva, Agreement on Tariffs and Trade 1994, OFFICE OF THE UNITED STATES Switzerland, would be expected to issue Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.2, TRADE REPRESENTATIVE a report on its findings and and 18.4 of the Agreement on [Docket No. WTO/DS382/1] recommendations within nine months Implementation of Article VI of the after it is established. General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement); WTO Dispute Settlement Proceeding Major Issues Raised by Brazil Regarding United States—Anti- and Article XVI:4 of the WTO Dumping Administrative Reviews and On November 27, 2008, Brazil Agreement. requested consultations regarding the Other Measures Related to Imports of Public Comment: Requirements for Certain Orange Juice From Brazil antidumping duty administrative review on certain orange juice from Brazil, Submissions AGENCY: Office of the United States referring in particular to the use of Interested persons are invited to Trade Representative. ‘‘zeroing’’ in that review. Brazil submit written comments concerning ACTION: Notice; request for comments. challenges (1) the determination by the the issues raised in this dispute. Persons Department of Commerce in Certain may submit public comments SUMMARY: The Office of the United Orange Juice from Brazil: Final Results electronically to www.regulations.gov States Trade Representative (‘‘USTR’’) is and Partial Rescission of Antidumping docket number USTR–2008–44. If you providing notice that on November 27, Administrative Review (A–351–840), 73 are unable to provide submissions by 2008, Brazil requested consultations FR 46584 (Aug. 11, 2008), covering the www.regulations.gov, please contact with the United States under the period of August 24, 2005, through Sandy McKinzy at (202) 395–9483 to Marrakesh Agreement Establishing the February 28, 2007, and assessment arrange for an alternative method of World Trade Organization (‘‘WTO instructions and cash deposit transmission. Agreement’’) concerning the requirements issued pursuant thereto; To submit comments via antidumping duty administrative review (2) the determinations of the www.regulations.gov, enter docket on certain orange juice from Brazil Department of Commerce in any number USTR–2008–44 on the home (Department of Commerce Case No. A– ongoing or future antidumping duty page and click ‘‘go.’’ The site will 351–840) and various U.S. laws, administrative reviews in that case, the provide a search-results page listing all regulations, administrative procedures, final results thereof, and assessment documents associated with this docket. practices, and methodologies. That instructions and cash deposit Find a reference to this notice by request may be found at www.wto.org requirements issued pursuant thereto; selecting ‘‘Notice’’ under ‘‘Document contained in a document designated as and (3) any actions taken by Customs Type’’ on the left side of the search- WT/DS382/1. USTR invites written and Border Protection to collect results page, and click on the link comments from the public concerning definitive anti-dumping duties at entitled ‘‘Send a Comment or the issues raised in this dispute. assessment rates established in the Submission.’’ (For further information on using the www.regulations.gov Web DATES: Although USTR will accept any administrative reviews in that case, comments received during the course of including the issuance of liquidation site, please consult the resources the dispute settlement proceedings, instructions and notices. Brazil also provided on the Web site by clicking on comments should be submitted on or challenges various U.S. laws, ‘‘How to Use This Site’’ on the left side before January 26 to be assured of timely regulations, administrative procedures, of the home page.) The www.regulations.gov site consideration by USTR. practices, and methodologies: (1) The Tariff Act of 1930, as amended, in provides the option of providing ADDRESSES: Public comments should be particular sections 736, 751, 771(35)(A) comments by filling in a ‘‘General submitted electronically to and (B), and 777A(c) and (d) (19 U.S.C. Comments’’ field, or by attaching a www.regulations.gov, docket number 1673e, 1675, 1677(35)(A) and (B), and document. It is expected that most USTR–2008–44. If you are unable to 1677f(c) and (d)); (2) the Statement of comments will be provided in an provide submissions by Administrative Action accompanying attached document. If a document is www.regulations.gov, please contact the Uruguay Round Agreements Act, attached, it is sufficient to type ‘‘See Sandy McKinzy at (202) 395–9483 to H.R. Doc. No. 103–316 (1994), reprinted attached’’ in the ‘‘General Comments’’ arrange for an alternative method of in 1994 U.S.C.C.A.N. 4040; (3) field. transmission. If (as explained below) the Department of Commerce regulations set A person requesting that information comment contains confidential forth in part 351 of Title 19 of the Code contained in a comment submitted by information, then the comment should of Federal Regulations, in particular that person be treated as confidential be submitted by fax only to Sandy sections 351.212(b) and 351.414(c) and business information must certify that McKinzy at (202) 395—3640. (e); (4) the Import Administration such information is business FOR FURTHER INFORMATION CONTACT: Antidumping Manual (1997 ed.), confidential and would not customarily Leigh Bacon, Associate General including the computer programs be released to the public by the Counsel, Office of the United States referenced therein; and (5) the use of submitter. Confidential business Trade Representative, 600 17th Street, ‘‘zeroing’’ procedures and information must be clearly designated NW., Washington, DC 20508, (202) 395– methodologies in antidumping as such and the submission must be 5859. administrative reviews. marked ‘‘BUSINESS CONFIDENTIAL’’
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at the top and bottom of the cover page OFFICE OF THE UNITED STATES recommendations within nine months and each succeeding page. Any TRADE REPRESENTATIVE after it is established. comment containing business Major Issues Raised by Thailand confidential information must be [Docket No. WTO/DS383] submitted by fax to Sandy McKinzy at On November 26, 2008, Thailand (202) 395–3640. A non-confidential WTO Dispute Settlement Proceeding requested consultations regarding summary of the confidential Regarding United States— antidumping measures on polyethylene information must be submitted to Antidumping Measures on retail carrier bags from Thailand. www.regulations.gov. The non- Polyethylene Retail Carrier Bags From Thailand challenges the use of what it confidential summary will be placed in Thailand describes as ‘‘the practice of ‘zeroing’ the docket and open to public negative anti-dumping margins in AGENCY: Office of the United States inspection. calculating overall weighted-average Information or advice contained in a Trade Representative. margins of dumping’’ in the Department comment submitted, other than business ACTION: Notice; request for comments. of Commerce’s final and amended final confidential information, may be determinations and antidumping duty SUMMARY: The Office of the United determined by USTR to be confidential order with respect to polyethylene retail States Trade Representative (‘‘USTR’’) is 1 in accordance with section 135(g)(2) of carrier bags from Thailand. Thailand providing notice that on November 26, the Trade Act of 1974 (19 U.S.C. states that it considers this action to be 2008, Thailand requested consultations 2155(g)(2)). If the submitter believes that inconsistent with the obligations of the with the United States under the information or advice may qualify as United States under Article VI of the Marrakesh Agreement Establishing the such, the submitter— General Agreement on Tariffs and Trade (1) Must clearly so designate the World Trade Organization (‘‘WTO 1994 (‘‘GATT 1994’’), and, in particular, information or advice; Agreement’’) concerning certain issues under Article 2.4.2 of the Agreement on (2) Must clearly mark the material as relating to the imposition of Implementation of Article VI of the ‘‘SUBMITTED IN CONFIDENCE’’ at the antidumping measures on polyethylene GATT 1994. top and bottom of the cover page and retail carrier bags from Thailand. That request may be found at http:// Public Comment: Requirements for each succeeding page; and Submissions (3) Must provide a non-confidential www.wto.org contained in a document summary of the information or advice. designated as WT/DS383/1. USTR Interested persons are invited to Any comment containing confidential invites written comments from the submit written comments concerning information must be submitted by fax. A public concerning the issues raised in the issues raised in this dispute. Persons non-confidential summary of the this dispute. may submit public comments confidential information must be DATES: Although USTR will accept any electronically to www.regulations.gov submitted to www.regulations.gov. The comments received during the course of docket number USTR–2008–0043. If you non-confidential summary will be the dispute, comments should be are unable to provide submissions by placed in the docket and open to public submitted on or before January 30, 2009 www.regulations.gov, please contact inspection. to be assured of timely consideration by Sandy McKinzy at (202) 395–9483 to USTR will maintain a docket on this USTR. arrange for an alternative method of transmission. dispute settlement proceeding, ADDRESSES: Comments should be accessible to the public. The public file To submit comments via submitted (i) electronically to www.regulations.gov, enter docket will include non-confidential comments www.regulations.gov, docket number received by USTR from the public with number USTR–2008–0043 on the home USTR–2008–0043. If you are unable to page and click ‘‘go’’. The site will respect to the dispute; if a dispute provide submissions by settlement panel is convened or in the provide a search-results page listing all www.regulations.gov, please contact documents associated with this docket. event of an appeal from such a panel, Sandy McKinzy at (202) 395–9483 to the U.S. submissions, any non- Find a reference to this notice by arrange for an alternative method of selecting ‘‘Notice’’ under ‘‘Document confidential submissions, or non- transmission. If (as explained below) the confidential summaries of submissions, Type’’ on the left side of the search- comment contains confidential results page, and click on the link received from other participants in the information, then the comment should entitled ‘‘Send a Comment or dispute; the report of the panel; and, if be submitted by fax only to Sandy Submission.’’ (For further information applicable, the report of the Appellate McKinzy at (202) 395–3640. on using the www.regulations.gov Web Body. FOR FURTHER INFORMATION CONTACT: Comments will be placed in the site, please consult the resources Elissa Alben, Assistant General Counsel, docket and open to public inspection provided on the Web site by clicking on Office of the United States Trade pursuant to 15 CFR 2006.13, except ‘‘How to Use This Site’’ on the left side Representative, 600 17th Street, NW., of the home page.) The confidential business information Washington, DC 20508, (202) 395–3150. www.regulations.gov site provides the exempt from public inspection in option of providing comments by filling accordance with 15 CFR 2006.15 or SUPPLEMENTARY INFORMATION: USTR is in a ‘‘General Comments’’ field, or by information determined by USTR to be providing notice that consultations have attaching a document. It is expected that confidential in accordance with 19 been requested pursuant to the WTO most comments will be provided in an U.S.C. 2155(g)(2). Comments open to Understanding on Rules and Procedures public inspection may be viewed on the Governing the Settlement of Disputes (‘‘DSU’’). If such consultations should 1 See Notice of Final Determination of Sales at www.regulations.gov Web site. Less Than Fair Value: Polyethylene Retail Carrier fail to resolve the matter and a dispute Bags from Thailand, 69 FR 34122 (June 18, 2004), Daniel Brinza, settlement panel is established pursuant Notice of Amended Final Determination of Sales at Assistant United States Trade Representative to the DSU, such panel, which would Less Than Fair Value: Polyethylene Retail Carrier for Monitoring and Enforcement. hold its meetings in Geneva, Bags from Thailand, 69 FR 42419 (July 15, 2004), Antidumping Duty Order: Polyethylene Retail [FR Doc. E8–31171 Filed 12–30–08; 8:45 am] Switzerland, would be expected to issue Carrier Bags from Thailand, 69 FR 48204, 9 August BILLING CODE 3190–W9–P a report on its findings and 2004.
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attached document. If a document is confidential business information www.regulations.gov, docket number attached, it is sufficient to type ‘‘See exempt from public inspection in USTR–2008–0035. If you are unable to attached’’ in the ‘‘General Comments’’ accordance with 15 CFR 2006.15 or provide submissions by field. information determined by USTR to be www.regulations.gov, please contact A person requesting that information confidential in accordance with 19 Sandy McKinzy at (202) 395–9483 to contained in a comment submitted by U.S.C. 2155(g)(2). Comments open to arrange for an alternative method of that person be treated as confidential public inspection may be viewed on the transmission. If (as explained below) the business information must certify that www.regulations.gov Web site by comment contains confidential such information is business entering docket number USTR–2008– information, then the comment should confidential and would not customarily 0043 in the search field on the home be submitted by fax only to Sandy be released to the public by the page. McKinzy at (202) 395–3640. submitter. Confidential business FOR FURTHER INFORMATION CONTACT: information must be clearly designated Daniel Brinza, Assistant United States Trade Representative Arun Venkataraman, Associate General as such and the submission must be Counsel, Office of the United States marked ‘‘BUSINESS CONFIDENTIAL’’ for Monitoring and Enforcement. [FR Doc. E8–31172 Filed 12–30–08; 8:45 am] Trade Representative, 600 17th Street, at the top and bottom of the cover page NW., Washington, DC 20508, (202) 395– BILLING CODE 3190–W9–P and each succeeding page. Any 5694. comment containing business SUPPLEMENTARY INFORMATION: confidential information must be Section submitted to Sandy McKinzy at (202) OFFICE OF THE UNITED STATES 127(b) of the Uruguay Round 395–3640. A non-confidential summary TRADE REPRESENTATIVE Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires that notice and of the confidential information must be [Docket No. WTO/DS379] submitted to www.regulations.gov. The opportunity for comment be provided non-confidential summary will be WTO Dispute Settlement Proceeding after the United States submits or placed in the docket and open to public Regarding United States—Definitive receives a request for the establishment inspection. Anti-Dumping and Countervailing of a WTO dispute settlement panel. Information or advice contained in a Duties on Certain Products From Consistent with this obligation, USTR is comment submitted, other than business China providing notice that the establishment confidential information, may be of a dispute settlement panel has been AGENCY: Office of the United States determined by USTR to be confidential requested pursuant to the WTO Trade Representative. in accordance with section 135(g)(2) of Understanding on Rules and Procedures the Trade Act of 1974 (19 U.S.C. ACTION: Notice; request for comments. Governing the Settlement of Disputes (‘‘DSU’’) in this dispute. If such a panel 2155(g)(2)). If the submitter believes that SUMMARY: The Office of the United information or advice may qualify as is established pursuant to the DSU, such States Trade Representative (‘‘USTR’’) is panel, which would hold its meetings in such, the submitter— providing notice that on December 9, (1) Must clearly so designate the Geneva, Switzerland, would be 2008, the People’s Republic of China expected to issue a report on its findings information or advice; (‘‘China’’) requested the establishment (2) Must clearly mark the material as and recommendations within nine of a dispute settlement panel under the months after it is established. ‘‘SUBMITTED IN CONFIDENCE’’ at the Marrakesh Agreement Establishing the top and bottom of the cover page and World Trade Organization (‘‘WTO Major Issues Raised by China each succeeding page; and Agreement’’) concerning final anti- (3) Must provide a non-confidential In its December 9, 2008 panel request, dumping and countervailing duty summary of the information or advice. China makes a number of allegations Any comment containing confidential determinations and orders by the concerning the Department of information must be submitted by fax. A Department of Commerce on imports of Commerce’s final antidumping and non-confidential summary of the the following products from China: countervailing duty determinations and confidential information must be Circular Welded Carbon Quality Steel orders regarding the following products submitted to www.regulations.gov. The Pipe (Investigations A–570–910 and C– from China: Circular Welded Carbon non-confidential summary will be 570–911); Certain New Pneumatic Off- Quality Steel Pipe (Investigations A– placed in the docket and open to public the-Road Tires (Investigations A–570– 570–910 and C–570–911); Certain New inspection. 912 and C–570–913); Light-Walled Pneumatic Off-the-Road Tires USTR will maintain a docket on this Rectangular Pipe and Tube (Investigations A–570–912 and C–570– dispute settlement proceeding, (Investigations A–570–914 and C–570– 913); Light-Walled Rectangular Pipe and accessible to the public. The public file 915); and Laminated Woven Sacks Tube (Investigations A–570–914 and C– will include non-confidential comments (Investigations A–570–916 and C–570– 570–915); and Laminated Woven Sacks received by USTR from the public with 917). That request may be found at (Investigations A–570–916 and C–570– respect to the dispute; if a dispute www.wto.org contained in a document 917). These final determinations and settlement panel is convened or in the designated as WT/DS379/2. USTR orders are available at the following event of an appeal from such a panel, invites written comments from the Web pages of the Department of the U.S. submissions, any non- public concerning the issues raised in Commerce: http://ia.ita.doc.gov/frn/ confidential submissions, or non- this dispute. 0806frn/index.html#CHINA, http:// confidential summaries of submissions, DATES: Although USTR will accept any ia.ita.doc.gov/frn/0807frn/ received from other participants in the comments received during the course of index.html#CHINA, http:// dispute; the report of the panel; and, if the dispute settlement proceedings, ia.ita.doc.gov/frn/0808frn/ applicable, the report of the Appellate comments should be submitted on or index.html#CHINA, http:// Body. before February 20, 2009 to be assured ia.ita.doc.gov/frn/0809frn/ Comments will be placed in the of timely consideration by USTR. index.html#CHINA. docket and open to public inspection ADDRESSES: Public comments should be With respect to certain of the pursuant to 15 CFR 2006.13, except submitted electronically to aforementioned determinations, China
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alleges that the Department of on using the www.regulations.gov Web settlement panel is convened or in the Commerce acted inconsistently with site, please consult the resources event of an appeal from such a panel, particular provisions of the General provided on the Web site by clicking on the U.S. submissions, any non- Agreement on Tariffs and Trade 1994, ‘‘How to Use This Site’’ on the left side confidential submissions, or non- WTO Agreement on Anti-Dumping of the home page.) confidential summaries of submissions, (‘‘Anti-Dumping Agreement’’), and The www.regulations.gov site received from other participants in the Agreement on Subsidies and provides the option of providing dispute; the report of the panel; and, if Countervailing Measures (‘‘SCM comments by filling in a ‘‘General applicable, the report of the Appellate Agreement’’) when allegedly it (I) Comments’’ field, or by attaching a Body. Comments will be placed in the erroneously concluded that certain document. It is expected that most docket and open to public inspection State-owned enterprises are ‘‘public comments will be provided in an pursuant to 15 CFR 2006.13, except bodies,’’ (ii) failed to determine whether attached document. If a document is confidential business information such enterprises had been ‘‘entrusted or attached, it is sufficient to type ‘‘See exempt from public inspection in directed’’ to provide a ‘‘financial attached’’ in the ‘‘General Comments’’ accordance with 15 CFR 2006.15 or contribution,’’ (iii) erroneously field. information determined by USTR to be concluded that a ‘‘benefit’’ had been A person requesting that information confidential in accordance with 19 conferred, and (iv) failed to demonstrate contained in a comment submitted by U.S.C. 2155(g)(2). Comments open to ‘‘specificity.’’ that person be treated as confidential public inspection may be viewed on the China also alleges that the United business information must certify that www.regulations.gov Web site by States acted inconsistently with such information is business entering docket number USTR–2008– particular provisions of the Anti- confidential and would not customarily 0035 in the search field on the home Dumping Agreement and SCM be released to the public by the page. Agreement in connection with the submitter. Confidential business Department of Commerce’s use of a non- information must be clearly designated Daniel Brinza, market economy (NME) methodology as such and the submission must be Assistant United States Trade Representative for the purpose of determining the marked ‘‘BUSINESS CONFIDENTIAL’’ for Monitoring and Enforcement. existence and amount of alleged at the top and bottom of the cover page [FR Doc. E8–31170 Filed 12–30–08; 8:45 am] dumping under Article VI of the GATT and each succeeding page. Any BILLING CODE 3190–W9–P 1994 and the AD Agreement, comment containing business simultaneously with the determination confidential information must be of subsidization and imposition of submitted by fax to Sandy McKinzy at OFFICE OF PERSONNEL countervailing duties on the same (202) 395–3640. A non-confidential MANAGEMENT subject merchandise. summary of the confidential Finally, China alleges actions information must be submitted to [OMB Control No. 3206–0005] inconsistent with the Anti-Dumping www.regulations.gov. The non- Agreement and the SCM Agreement in confidential summary will be placed in Submission for OMB Review; connection with the Department of the docket and open to public Comment Request for Revised Commerce’s conduct of the underlying inspection. Information Collection; Questionnaire anti-dumping and countervailing duty Information or advice contained in a for Non-Sensitive Positions, Standard investigations, including its failure to comment submitted, other than business Form 85 (SF 85); Questionnaire for inform interested parties of certain confidential information, may be Public Trust Positions, Standard Form issues and the use of adverse inferences determined by USTR to be confidential 85P (SF 85P); Supplemental and facts available. in accordance with section 135(g)(2) of Questionnaire for Selected Positions, Public Comment: Requirements for the Trade Act of 1974 (19 U.S.C. Standard Form 85PS (SF 85PS); Submissions 2155(g)(2)). If the submitter believes that Questionnaire for National Security information or advice may qualify as Positions, Standard Form 86 (Sf 86); Interested persons are invited to such, the submitter— Continuation Sheet for Questionnaires submit written comments concerning (1) Must clearly so designate the SF 85, 85P, and 86, Standard Form 86a the issues raised in this dispute. Persons information or advice; (Sf 86a); and Certification Statement may submit public comments (2) Must clearly mark the material as for SF 86 (SF 86C) electronically to www.regulations.gov, ‘‘SUBMITTED IN CONFIDENCE’’ at the docket number USTR–2008–0035. If you top and bottom of the cover page and AGENCY: Office of Personnel are unable to provide submissions by each succeeding page; and Management. www.regulations.gov, please contact (3) Must provide a non-confidential ACTION: Notice. Sandy McKinzy at (202) 395–9483 to summary of the information or advice. arrange for an alternative method of Any comment containing confidential SUMMARY: In accordance with the transmission. information must be submitted by fax. A Paperwork Reduction Act of 1995 (Pub. To submit comments via non-confidential summary of the L. 104–13), this notice announces that www.regulations.gov, enter docket confidential information must be the Office of Personnel Management number USTR–2008–0035 on the home submitted to www.regulations.gov. The (OPM) submitted to the Office of page and click ‘‘go’’. The site will non-confidential summary will be Management and Budget a request for provide a search-results page listing all placed in the docket and open to public review and clearance of the revised documents associated with this docket. inspection. collection of information, Find a reference to this notice by USTR will maintain a docket on this Questionnaires for National Security, selecting ‘‘Notice’’ under ‘‘Document dispute settlement proceeding, Public Trust, and Non-Sensitive Type’’ on the left side of the search- accessible to the public. The public file Positions (OMB Control No. 3206– results page, and click on the link will include non-confidential comments 0005), which includes the following entitled ‘‘Send a Comment or received by USTR from the public with electronic, on-line collection Submission.’’ (For further information respect to the dispute; if a dispute instruments:
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• Questionnaire for Non-Sensitive Government, to include Federal and questions) will populate a new Positions, Standard Form 85 (SF 85); military contractors. Federal employees investigative request and the respondent • Questionnaire for Public Trust are defined as those individuals who are will be allowed to update their Positions, Standard Form 85P (SF 85P); employed as civilian or military information and certify the data. In this and personnel with the Federal Government. instance, time to complete the form is • Questionnaire for National Security Non-Federal employees include reduced significantly. Positions, Standard Form 86 (SF 86). members of the general public and all The 60-day Federal Register Notice This notice also announces that the individuals employed as Federal and was published June 23, 2008 (Volume Office of Personnel Management (OPM) military contractors or individuals 73, Number 121, pages 35421–35422). submitted to the Office of Management otherwise not directly employed by the The following Federal agencies or and Budget a request to discontinue Federal Government. agency organizations made comments clearance of the Continuation Sheet for It is estimated that 47,700 non-Federal during the public comment period: Questionnaires SF 85, 85P, and 86, individuals will complete the SF 85 Social Security Administration, Joint Standard Form 86A (SF 86A), the annually. Each form takes Security and Suitability Reform Team, Certification Statement for SF 86, approximately 100 minutes to complete. Department of Housing and Urban Standard Form SF 86C (SF 86C); and the The estimated annual public burden is Development, Department of Health and Supplemental Questionnaire for 79,500 hours. Human Services, U.S. Agency for Selected Positions, Standard Form 85PS It is estimated that 98,700 non-Federal International Development, Department (SF 85PS), which were formerly individuals will complete the SF 85P of Homeland Security, Central included in the collection (OMB Control annually. Each form takes Intelligence Agency, Department of No. 3206–0005). approximately 150 minutes to complete. Transportation, Office of the Director of These information collections are The estimated annual burden is 246,750 National Intelligence, Department of completed by respondents for, or hours. State, Department of State Mental incumbents of, Government positions or It is estimated that 21,800 non-Federal Health Services, Federal Bureau of positions for the Government under individuals will complete the SF 86 Investigation, Defense Personnel contract, or by military personnel. The annually. Each form takes Security Research Center, Department of collections are used as the basis for approximately 150 minutes to complete. Energy, and internal commentators from background investigations to establish The estimated annual burden is 54,500 the U.S. Office of Personnel that such persons are: hours. Management (OPM). The vast majority • Suitable for employment or e-QIP (Electronic Questionnaires for of comments were from OPM internal retention in the position; Investigations Processing) is a web- commentators and focused on • Suitable for employment or based system application that currently administrative issues related to the retention in a public trust position; houses electronic versions of the SF 85, formatting of the instructions and • Suitable for employment or SF 85P, and SF 86. This internet data questions on the former paper retention in a national security position; collection tool provides faster collection. Most comments from other and processing time and immediate data agencies focused on changes to the • Eligible for access to classified validation to ensure accuracy of the collection of mental health treatment national security information. respondent’s personal information. The information relative to treatment We are discontinuing request for e-Government initiative mandates that resulting from service in a military clearance of the SF 86A, SF 86C, and SF agencies utilize e-QIP for all combat environment. 85PS, and propose that these collections investigations and reinvestigations. Comments which most substantially be eliminated. The SF 86A is currently A variable in assessing burden hours affected the proposed revisions of the used as a continuation of the form with is the nature of the electronic SF 85P and SF 86 were considered in which its use is associated and not for application. The electronic application light of the intent of Executive Order any unique purpose exclusive from the includes branching questions and 13467 to align using consistent associated form. It is proposed that the instructions which provide for a tailored standards to the extent possible policies SF 86A be eliminated as it is not collection from the respondent based on and procedures relating to suitability, necessary when e-QIP is used. varying factors in the respondent’s contractor employee fitness, eligibility Additionally, GSA has requested that personal history. The burden on the to hold a sensitive position, access to the Standard Forms be available to respondent is reduced when the federally controlled facilities and customers in electronic format only. respondent’s personal history is not information systems, and eligibility for They will no longer be stocking the relevant to a particular question, since access to classified information. As a paper forms. The SF 86C is currently the question branches, or expands for result of reforms to investigative used in lieu of completing a new SF 86 additional details, only for those processes, the SF 85, SF 85P, and SF 86 to allow the individual to indicate that persons who have pertinent information were expanded to collect from the there have been no changes in the data to provide regarding that line of respondent more accurate and relevant provided on the most recently filed SF questioning. As such, the burden on the information that is of investigative and 86 or to allow the individual to easily respondent will vary depending on adjudicative significance earlier in the provide new or changed information. whether the information collection investigative process, thus increasing The electronic format of the proposed relates to the respondent’s personal the length of the collections. As a result SF 86 eliminates the need for a separate history. of public comment, significant and SF 86C. It is proposed that the SF 85PS Additionally, once entered, a substantial changes were made to the SF be eliminated because the questions respondent’s complete and certified 85, SF 85P, and SF 86. Such changes to formerly on the SF 85PS now reside on investigative data remains secured in the SF 85 include revision to questions the SF 85P. the e-QIP system until the next time the 9, 10, 17, 18, 21, and the addition of The SF 85, SF 85P, and SF 86 are respondent is sponsored by an agency to new questions 19, 20, and 22. These completed by both employees of the complete a new investigative form. question numbers reflect renumbering Federal Government and individuals Upon initiation, the respondent’s to accommodate the addition of new not employed with the Federal previously entered data (except ‘yes/no’ areas of questioning. Changes to the SF
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85P include revisions to questions 9, 10, Rule 3a–8 (17 CFR 270.3a–8) of the change),2 the Commission believes that 15, 17b, 18, 20c, 22, 23, 24, 25, 26 and Investment Company Act of 1940 (15 all the companies that rely on rule 3a– the addition of questions 19, 20a, 20b, U.S.C. 80a) (the ‘‘Act’’), serves as a 8 adopted their board resolutions and 21, 27, 28, and 29. Changes to the SF 86 nonexclusive safe harbor from established written investment include revisions to questions 19, 20a, investment company status for certain guidelines in 2003 when the rule was 20b, 20c, 21, 22, 23, 24, and 29. Due to research and development companies adopted. We expect that newly formed the extensive nature of the comments, (‘‘R&D companies’’). R&D companies would adopt the board they have been consolidated in a matrix The rule requires that the board of resolution and investment guidelines and are available upon request. directors of an R&D company seeking to simultaneously with their formation For copies of this proposal, contact rely on the safe harbor adopt an documents in the ordinary course of Mary-Kay Brewer on 703–305–1002, Fax appropriate resolution evidencing that business.3 Therefore, we estimate that 703–603–0576, or e-mail at the company is primarily engaged in a rule 3a–8 will not create additional time [email protected]. Please be non-investment business and record burdens. sure to include a mailing address with that resolution contemporaneously in its An agency may not conduct or your request. minute books or comparable sponsor, and a person is not required to DATES: Comments on this proposal documents.1 An R&D company seeking respond to a collection of information should be received within 30 calendar to rely on the safe harbor must retain unless it displays a currently valid days from the date of this publication. these records only as long as such control number. Please direct general comments ADDRESSES: Send or deliver comments records must be maintained in regarding the above information to the to: Kathy Dillaman, Associate Director, accordance with state law. following persons: (i) Desk Officer for Federal Investigative Services Division, Rule 3a–8 contains an additional the Securities and Exchange U.S. Office of Personnel Management, requirement that is also a collection of Commission, Office of Management and 1900 E Street, NW., Room 5416, information within the meaning of the Budget, Room 10102, New Executive Washington, DC 20415, PRA. The board of directors of a Office Building, Washington, DC 20503 [email protected]; and company that relies on the safe harbor or send an email to: John W. Barkhamer, Desk Officer, Office under rule 3a–8 must adopt a written [email protected] ; and of Information and Regulatory Affairs, policy with respect to the company’s (ii) Charles Boucher Director/CIO, Office of Management and Budget, New capital preservation investments. We Securities and Exchange Commission, Executive Office Building, 725 17th expect that the board of directors will C/O Shirley Martinson, 6432 General Street, NW., Room 10235, Washington, base its decision to adopt the resolution Green Way, Alexandria, VA 22312; or DC 20503. discussed above, in part, on investment guidelines that the company will follow send an e-mail to: FOR INFORMATION REGARDING to ensure its investment portfolio is in [email protected]. Comments must ADMINISTRATIVE COORDINATION CONTACT: compliance with the rule’s be submitted to OMB within 30 days of Mary-Kay Brewer, Program Analyst, requirements. this notice. Operational Policy Group, Federal The collection of information Investigative Services Division, U.S. Dated: December 22, 2008. imposed by rule 3a–8 is voluntary Office of Personnel Management, 703– Florence E. Harmon, because the rule is an exemptive safe 305–1002. Acting Secretary. harbor, and therefore, R&D companies [FR Doc. E8–31085 Filed 12–30–08; 8:45 am] Michael W. Hager, may choose whether or not to rely on it. BILLING CODE 8011–01–P Acting Director. The purposes of the information [FR Doc. E8–31144 Filed 12–30–08; 8:45 am] collection requirements in rule 3a–8 are BILLING CODE 6325–53–P to ensure that: (i) the board of directors SECURITIES AND EXCHANGE of an R&D company is involved in COMMISSION determining whether the company should be considered an investment Submission for OMB Review; SECURITIES AND EXCHANGE company and subject to regulation Comment Request COMMISSION under the Act, and (ii) adequate records are available for Commission review, if Upon written request, copies available Submission for OMB Review; necessary. Rule 3a–8 would not require from: U.S. Securities and Exchange Comment Request the reporting of any information or the Commission, Office of Investor filing of any documents with the Education and Advocacy, Upon written request, copies available Commission. Washington, DC 20549–0213. from: Securities and Exchange Commission staff estimates that there Extension: Rule 12d2–1; OMB Control No. Commission, Office of Investor is no annual recordkeeping burden 3235–0081; SEC File No. 270–98. Education and Advocacy, associated with the rule’s requirements. Washington, DC 20549–0213. Notice is hereby given that pursuant Nevertheless, the Commission requests to the Paperwork Reduction Act of 1995 Extension: Rule 3a–8; SEC File No. 270–516; authorization to maintain an inventory OMB Control No. 3235–0574. of one burden hour for administrative 2 In the event of changed circumstances, the Notice is hereby given that pursuant purposes. Commission believes that the board resolution and to the Paperwork Reduction Act of 1995 Commission staff estimates that investment guidelines will be amended and recorded in the ordinary course of business and (44 U.S.C. 3501 et seq. ), the Securities approximately 500 R&D companies may would not create additional time burdens. and Exchange Commission rely on rule 3a–8. Given that the board 3 In order for these companies to raise sufficient (‘‘Commission’’) has submitted to the resolutions and investment guidelines capital to fund their product development stage, we Office of Management and Budget a will generally need to be adopted only believe they will need to present potential investors once (unless relevant circumstances with investment guidelines. Investors would want request for extension of the previously to be assured that the company’s funds are invested approved collection of information consistent with the goals of capital preservation and discussed below. 1 Rule 3a–8(a)(6) (17 CFR 270.3a–8(6)). liquidity.
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(44 U.S.C. 3501 et seq.), the Securities implement these statutory SECURITIES AND EXCHANGE and Exchange Commission responsibilities. COMMISSION (‘‘Commission’’) has submitted to the There are ten national securities Submission for OMB Review; Office of Management and Budget a exchanges that are subject to Rule 12d2– Comment Request request for extension of the previously 1. The burden of complying with Rule approved collections of information for 12d2–1 is not evenly distributed among the following rule: Rule 12d2–1 (17 CFR Upon written request, copies available the exchanges, however, since there are 240.12d2–1). from: Securities and Exchange many more securities listed on the New Commission, Office of Investor On February 12, 1935, the York Stock Exchange, Inc., the Education and Advocacy, Commission adopted Rule 12d2–1,1 NASDAQ Stock Exchange, and the Washington, DC 20549–0213. under the Securities Exchange Act of American Stock Exchange LLC than on 1934 (15 U.S.C. 78a et seq.) (‘‘Act’’), Extension: Rule 17a–7; SEC File No. 270– the other exchanges.4 which sets forth the conditions and However, for 238; OMB Control No. 3235–0214. purposes of this filing, the Commission procedures under which a security may Notice is hereby given that, pursuant be suspended from trading under staff has assumed that the number of to the Paperwork Reduction Act of 1995 Section 12(d) of the Act.2 Rule 12d2–1 responses is evenly divided among the (44 U.S.C. 3501–3520), the Securities provides the procedures by which a exchanges. There are approximately and Exchange Commission national securities exchange may 1,500 responses under Rule 12d2–1 for (‘‘Commission’’) has submitted to the suspend from trading a security that is the purpose of suspension of trading Office of Management and Budget a listed and registered on the exchange. from the national securities exchanges request for extension of the previously Under Rule 12d2–1, an exchange is each year, the resultant aggregate annual approved collection of information permitted to suspend from trading a reporting hour burden would be, described below. listed security in accordance with its assuming on average one-half reporting Rule 17a–7 (17 CFR 270.17a–7) (the rules, and must promptly notify the hour per response, 750 annual burden ‘‘rule’’) under the Investment Company Commission of any such suspension, hours for all exchanges. The related Act of 1940 (15 U.S.C. 80a–1 et seq. ) along with the effective date and the costs associated with these burden (the ‘‘Act’’) is entitled ‘‘Exemption of reasons for the suspension. hours are $41,625.00. certain purchase or sale transactions Any such suspension may be The collection of information between an investment company and continued until such time as the obligations imposed by Rule 12d2–1 are certain affiliated persons thereof.’’ It Commission may determine that the mandatory. The response will be provides an exemption from section suspension is designed to evade the available to the public and will not be 17(a) of the Act for purchases and sales of securities between registered provisions of Section 12(d) of the Act kept confidential. and Rule 12d2–2 thereunder.3 During investment companies (‘‘funds’’), that the continuance of such suspension An agency may not conduct or are affiliated persons (‘‘first-tier under Rule 12d2–1, the exchange is sponsor, and a person is not required to affiliates’’) or affiliated persons of required to notify the Commission respond to, a collection of information affiliated persons (‘‘second-tier promptly of any change in the reasons unless it displays a currently valid affiliates’’), or between a fund and a for the suspension. Upon the restoration control number. first-or second-tier affiliate other than to trading of any security suspended Comments should be directed to (i) another fund, when the affiliation arises under Rule 12d2–1, the exchange must Desk Officer for the Securities and solely because of a common investment notify the Commission promptly of the Exchange Commission, Office of adviser, director, or officer. Rule 17a–7 effective date of such restoration. Information and Regulatory Affairs, requires funds to keep various records The trading suspension notices serve Office of Management and Budget, in connection with purchase or sale transactions effected in reliance on the a number of purposes. First, they inform Room 10102, New Executive Office rule. The rule requires the fund’s board the Commission that an exchange has Building, Washington, DC 20503 or by of directors to establish procedures suspended from trading a listed security sending an e-mail to: or reintroduced trading in a previously _ reasonably designed to ensure that the Shagufta [email protected]); and rule’s conditions have been satisfied. suspended security. They also provide (ii) Charles Boucher Director/Chief the Commission with information The board is also required to determine, Information Officer, Securities and necessary for it to determine that the at least on a quarterly basis, that all Exchange Commission, c/o Shirley suspension has been accomplished in affiliated transactions effected during Martinson, 6432 General Green Way, accordance with the rules of the the preceding quarter in reliance on the Alexandria, VA 22312 or send an e-mail rule were made in compliance with exchange, and to verify that the _ exchange has not evaded the to: PRA [email protected]. Comments these established procedures. If a fund requirements of Section 12(d) of the Act must be submitted within 30 days of enters into a purchase or sale and Rule 12d2–2 thereunder by this notice. transaction with an affiliated person, the improperly employing a trading Dated: December 22, 2008. rule requires the fund to compile and maintain written records of the suspension. Without Rule 12d2–1, the Florence E. Harmon, Commission would be unable to fully transaction.1 The Commission’s Acting Secretary. examination staff uses these records to [FR Doc. E8–31092 Filed 12–30–08; 8:45 am] 1 See Securities Exchange Act Release No. 98 evaluate for compliance with the rule. (February 12, 1935). BILLING CODE 8011–01–P 2 See Securities Exchange Act Release No. 7011 1 The written records are required to set forth a (February 5, 1963), 28 FR 1506 (February 16, 1963). description of the security purchased or sold, the 3 Rule 12d2–2 prescribes the circumstances under identity of the person on the other side of the which a security may be delisted from an exchange transaction, and the information or materials upon and withdrawn from registration under Section which the board of directors’ determination that the 12(b) of the Act, and provides the procedures for 4 In fact, some exchanges do not file any trading transaction was in compliance with the procedures taking such action. suspension reports in a given year. was made.
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While most funds do not commonly records and for the board to review all SECURITIES AND EXCHANGE engage in transactions covered by rule transactions would be 3 hours annually COMMISSION 17a–7, the Commission staff estimates for each respondent, (2 hours spent by that nearly all funds have adopted compliance attorneys and 1 hour spent Submission for OMB Review; procedures for complying with the by the board of directors) 7 or 3033 total Comment Request rule.2 Of the approximately 3891 8 hours each year. Upon written request, copies available currently active funds, the staff Based on these estimates, the staff from: Securities and Exchange estimates that virtually all have already estimates the combined total annual Commission, Office of Investor adopted procedures for compliance with burden hours associated with rule 17a– Education and Advocacy, rule 17a–7. This is a one-time burden, 9 7 is 3633 hours. The staff also estimates Washington, DC 20549–0213. and the staff therefore does not estimate that there are approximately 1161 an ongoing burden related to the respondents and 8238 total responses.10 Extension: Rule 0–1; SEC File No. 270–472; OMB Control No. 3235–0531. policies and procedures requirement of The estimates of burden hours are the rule for funds.3 The staff estimates made solely for the purposes of the Notice is hereby given that, pursuant that there are approximately 150 new Paperwork Reduction Act, and are not to the Paperwork Reduction Act of 1995 funds that register each year, and that derived from a comprehensive or even (44 U.S.C. 350l et seq.), the Securities each of these funds adopts the relevant a representative survey or study of the and Exchange Commission polices and procedures. The staff costs of Commission rules. The (‘‘Commission’’) has submitted to the estimates that it takes approximately 4 collection of information required by Office of Management and Budget hours to develop and adopt these rule 17a–7 is necessary to obtain the request for extension of the previous policies and procedures, as follows; 3 benefits of the rule. Responses will not approved collection of information hours spent by a compliance attorney, be kept confidential. An agency may not discussed below. and 1 hour collectively spent by the conduct or sponsor, and a person is not The Investment Company Act of 1940 1 board of directors. Therefore, the total required to respond to, a collection of (the ‘‘Act’’) establishes a annual burden related to developing information unless it displays a comprehensive framework for regulating and adopting these policies and currently valid control number. the organization and operation of procedures would be approximately 600 Please direct general comments investment companies (‘‘funds’’). A 4 hours. regarding the above information to the principal objective of the Act is to Of the 3891 existing funds, the staff following persons: (i) Desk Officer for protect fund investors by addressing the assumes that approximately 25%, (or the Securities and Exchange conflicts of interest that exist between 973) enter into transactions affected by Commission, Office of Management and funds and their investment advisers and rule 17a–7 each year (either by the fund Budget, Room 10102, New Executive other affiliated persons. The Act places directly or through one of the fund’s Office Building, Washington, DC 20503 significant responsibility on the fund series), and that the same percentage or e-mail to: board of directors in overseeing the (25%, or 38 funds) of the estimated 150 _ operations of the fund and policing the Shagufta [email protected] ); and 2 funds that newly register each year will (ii) Charles Boucher Director/CIO, relevant conflicts of interest. In one of its first releases, the also enter into these transactions, for a Securities and Exchange Commission, 5 Commission exercised its rulemaking total of 1011 companies that are C/O Shirley Martinson, 6432 General authority pursuant to sections 38(a) and affected by the recordkeeping Green Way, Alexandria, VA 22312; or 40(b) of the Act by adopting rule 0–1 (17 requirements of rule 17a–7. These funds send an e-mail to: CFR 270.0–1).3 Rule 0–1, as must keep records of each of these [email protected]. Comments must subsequently amended on numerous transactions, and the board of directors be submitted to OMB within 30 days of occasions, provides definitions for the must quarterly determine that all this notice. relevant transactions were made in terms used by the Commission in the compliance with the company’s policies Dated: December 22, 2008. rules and regulations it has adopted and procedures. The rule generally Florence E. Harmon, pursuant to the Act. The rule also imposes a minimal burden of collecting Acting Secretary. contains a number of rules of and storing records already generated [FR Doc. E8–31093 Filed 12–30–08; 8:45 am] construction for terms that are defined 6 for other purposes. The staff estimates BILLING CODE 8011–01–P either in the Act itself or elsewhere in that the burden related to making these the Commission’s rules and regulations. 7 The staff estimates that funds that rely on rule Finally, rule 0–1 defines terms that 2 Unless stated otherwise, these estimates are 17a–7 annually enter into an average of 8 rule 17a– serve as conditions to the availability of based on conversations with the examination and 7 transactions each year. The staff estimates that the certain of the Commission’s exemptive inspections staff of the Commission and fund compliance attorneys of the companies spend rules. More specifically, the term representatives. approximately 15 minutes per transaction on this 3 Based on our reviews and conversations with recordkeeping, and the board of directors spends a ‘‘independent legal counsel,’’ as defined fund representatives, we understand that funds total of 1 hour annually in determining that all in rule 0–1, sets out conditions that rarely, if ever, need to make changes to these transactions made that year were done in funds must meet in order to rely on any policies and procedures once adopted, and compliance with the company’s policies and of ten exemptive rules (‘‘exemptive therefore we do not estimate a paperwork burden procedures. 4 for such updates. 8 This estimate is based on the following rules’’) under the Act. 4 This estimate is based on the following calculation: (3 hours × 1011 companies = 3033 calculations: (4 hours × 150 = 600 hours). hours). 1 15 U.S.C. 80a. 5 This estimate is based on the following 9 This estimate is based on the following 2 For example, fund directors must approve calculation: (973 + 38 = 1011). calculations: (600 hours + 3033 hours = 3633 total investment advisory and distribution contracts. See 6 Commission staff believes that rule 17a–7 does hours). 15 U.S.C. 80a–15(a), (b), and (c). not impose any costs associated with record 10 This estimate is based on the following 3 Investment Company Act Release No. 4 (Oct. 29, preservation in addition to the costs that funds calculations: (150 newly registered funds + 1011 1940) (5 FR 4316 (Oct. 31, 1940)). Note that rule 0– already incur to comply with the record funds that engage in rule 17a–7 transactions = 1 was originally adopted as rule N–1. preservation requirements of rule 31a–2 under the 1161); (1011 funds that engage in rule 17a–7 4 The relevant exemptive rules are: rule 10f–3 (17 Act. Rule 31a–2 requires companies to preserve transactions × 8 times per year = 8088); (8088 + 150 CFR 270.10f–3), rule 12b–1 (17 CFR 270.12b–1), certain records for specified periods of time. = 8238 responses). Continued
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The Commission amended rule 0–1 to Any fund that relies on one of the Compliance with the collection of include the definition of the term exemptive rules must comply with the information requirements of the rule is ‘‘independent legal counsel’’ in 2001.5 requirements in the definition of mandatory and is necessary to comply This amendment was designed to ‘‘independent legal counsel’’ under rule with the requirements of the rule in enhance the effectiveness of fund boards 0–1. We assume that approximately general. An agency may not conduct or of directors and to better enable 4128 funds rely on at least one of the sponsor, and a person is not required to investors to assess the independence of exemptive rules annually.7 We further respond to, a collection of information those directors. The Commission also assume that the independent directors unless it displays a currently valid amended the exemptive rules to require of approximately one-third (1376) of control number. that any person who serves as legal those funds would need to make the Please direct general comments counsel to the independent directors of required determination in order for their regarding the above information to the any fund that relies on any of the counsel to meet the definition of following persons: (i) Desk Officer for exemptive rules must be an independent legal counsel.8 We the Securities and Exchange ‘‘independent legal counsel.’’ This estimate that each of these 1376 funds Commission, Office of Management and requirement was added because would be required to spend, on average, Budget, Room 10102, New Executive independent directors can better 0.75 hours annually to comply with the Office Building, Washington, DC 20503 perform the responsibilities assigned to recordkeeping requirement associated or send an e-mail to: _ them under the Act and the rules if they with this determination, for a total Shagufta [email protected] ); and have the assistance of truly independent annual burden of approximately 1032 (ii) Charles BoucherDirector/CIO, legal counsel. hours. Based on this estimate, the total Securities and Exchange Commission, annual cost for all funds’ compliance C/O Shirley Martinson, 6432 General If the board’s counsel has represented with this rule is approximately Green Way, Alexandria, VA 22312; or the fund’s investment adviser, principal $145,168. To calculate this total annual send an e-mail to: underwriter, administrator (collectively, cost, the Commission staff assumed that [email protected]. Comments must ‘‘management organizations’’) or their approximately two-thirds of the total be submitted to OMB within 30 days of ‘‘control persons’’ 6 during the past two annual hour burden (688 hours) would this notice. years, rule 0–1 requires that the board’s be incurred by compliance staff with an independent directors make a Dated: December 22, 2008. average hourly wage rate of $180 per determination about the adequacy of the Florence E. Harmon, hour,9 and one-third of the annual hour counsel’s independence. A majority of Acting Secretary. burden (344 hours) would be incurred the board’s independent directors are [FR Doc. E8–31091 Filed 12–30–08; 8:45 am] by clerical staff with an average hourly required to reasonably determine, in the BILLING CODE 8011–01–P wage rate of $62 per hour.10 exercise of their judgment, that the These burden hour estimates are counsel’s prior or current representation based upon the Commission staff’s of the management organizations or SECURITIES AND EXCHANGE experience and discussions with the their control persons was sufficiently COMMISSION fund industry. The estimates of average limited to conclude that it is unlikely to burden hours are made solely for the [Release No. IC–28572; 812–13615] adversely affect the counsel’s purposes of the Paperwork Reduction professional judgment and legal Citigroup Global Markets Inc., et al.; Act. These estimates are not derived representation. Rule 0–1 also requires Notice of Application and Temporary from a comprehensive or even a that a record for the basis of this Order representative survey or study of the determination is made in the minutes of costs of Commission rules. the directors’ meeting. In addition, the December 23, 2008. independent directors must have AGENCY: Securities and Exchange 7 Based on statistics compiled by Commission Commission (‘‘Commission’’). obtained an undertaking from the staff, we estimate that there are approximately 4586 counsel to provide them with the funds that could rely on one or more of the ACTION: Temporary order and notice of information necessary to make their exemptive rules. Of those funds, we assume that application for a permanent order under determination and to update promptly approximately 90 percent (4128) actually rely on at section 9(c) of the Investment Company least one exemptive rules annually. Act of 1940 (‘‘Act’’). that information when the person begins 8 We assume that the independent directors of the to represent a management organization remaining two-thirds of those funds will choose not SUMMARY OF APPLICATION: or control person, or when he or she to have counsel, or will rely on counsel who has Applicants materially increases his or her not recently represented the fund’s management have received a temporary order organizations or control persons. In both representation. Generally, the exempting them from section 9(a) of the circumstances, it would not be necessary for the Act, with respect to an injunction independent directors must re-evaluate fund’s independent directors to make a their determination no less frequently determination about their counsel’s independence. entered against Citigroup Global than annually. 9 The estimated hourly wages used in this PRA Markets Inc. (‘‘CGMI’’) on December 23, analysis were derived from reports prepared by the 2008 by the United States District Court Securities Industry and Financial Markets for the Southern District of New York rule 15a–4(b)(2) (17 CFR 270.15a–4(b)(2)), rule 17a– Association. See Securities Industry and Financial (the ‘‘Injunction’’), until the 7 (17 CFR 270.17a–7), rule 17a–8 (17 CFR 270.17a– Markets Association, Report on Management and 8), rule 17d–1(d)(7) (17 CFR 270.17d–1(d)(7)), rule Professional Earnings in the Securities Industry— Commission takes final action on an 17e–1(c) (17 CFR 270.17e–1(c)), rule 17g–1 (17 CFR 2007 (2007), modified to account for an 1800-hour application for a permanent order. 270.17g–1), rule 18f–3 (17 CFR 270.18f–3), and rule work year and multiplied by 5.35 to account for Applicants also have applied for a 23c–3 (17 CFR 270.23c–3). bonuses, firm size, employee benefits and overhead; permanent order. 5 See Role of Independent Directors of Investment and Securities Industry and Financial Markets Companies, Investment Company Act Release No. Association, Office Salaries in the Securities APPLICANTS: CGMI, CEFOF GP I Corp. 24816 (Jan. 2, 2001) (66 FR 3735 (Jan. 16, 2001)). Industry—2007 (2007), modified to account for an (‘‘CEFOF’’), CELFOF GP Corp. 6 A ‘‘control person’’ is any person—other than a 1800-hour work year and multiplied by 2.93 to (‘‘CELFOF’’), Citibank, N.A. fund—directly or indirectly controlling, controlled account for bonuses, firm size, employee benefits by, or under common control, with any of the and overhead. (‘‘Citibank’’), Citigroup Alternative fund’s management organizations. See 17 CFR 10 (688 × $180/hour) + (344 × $62/hour) = Investments LLC (‘‘Citigroup 270.01(a)(6)(iv)(B). $145,168). Alternative’’), Citigroup Investment
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Advisory Services Inc. (‘‘Citigroup principal underwriter for one or more open-end investment company, Advisory’’), Citigroup Capital Partners I registered investment companies and registered UIT or registered face-amount GP I Corp. (‘‘CCP I’’) and Citigroup unit investment trusts (‘‘UITs’’, together certificate company. Section 9(a)(3) of Capital Partners I GP II Corp. (‘‘CCP II’’) with registered investment companies, the Act makes the prohibition in section (collectively, ‘‘Applicants’’).1 ‘‘Funds’’). Citigroup Alternative and 9(a)(2) applicable to a company, any FILING DATE: The application was filed Citigroup Advisory are registered as affiliated person of which has been on December 23, 2008. investment advisers under the disqualified under the provisions of HEARING OR NOTIFICATION OF HEARING: Investment Advisers Act of 1940 and section 9(a)(2). Section 2(a)(3) of the Act An order granting the application will serve as investment advisers for one or defines ‘‘affiliated person’’ to include be issued unless the Commission orders more Funds. CEFOF, CELOF, Citibank, any person directly or indirectly CCP I and CCP II (‘‘ESC Advisers’’) serve controlling, controlled by, or under a hearing. Interested persons may as investment advisers to certain common control with, the other person. request a hearing by writing to the employees’ securities companies within Applicants state that CGMI is an Commission’s Secretary and serving the meaning of section 2(a)(13) of the affiliated person of each of the other Applicants with a copy of the request, Act, which provide investment Applicants within the meaning of personally or by mail. Hearing requests opportunities for certain eligible section 2(a)(3) of the Act. Applicants should be received by the Commission employees, officers, directors and state that the entry of the Injunction by 5:30 p.m. on January 15, 2009, and persons on retainer of Citigroup and its results in Applicants being subject to should be accompanied by proof of affiliates (‘‘ESCs’’ and included in the the disqualification provisions of service on Applicants, in the form of an term ‘‘Funds’’).2 section 9(a) of the Act. affidavit, or for lawyers, a certificate of 2. On December 23, 2008, the United 2. Section 9(c) of the Act provides that service. Hearing requests should state States District Court for the Southern the Commission shall grant an the nature of the writer’s interest, the District of New York entered a judgment application for exemption from the reason for the request, and the issues against CGMI (‘‘Judgment’’) in a matter disqualification provisions of section contested. Persons who wish to be brought by the Commission.3 The 9(a) if it is established that these notified of a hearing may request Commission alleged in the complaint provisions, as applied to the Applicants, notification by writing to the (‘‘Complaint’’) that CGMI violated are unduly or disproportionately severe Commission’s Secretary. section 15(c) of the Exchange Act in or that the Applicants’ conduct has been ADDRESSES: Secretary, U.S. Securities connection with the marketing and sale such as not to make it against the public and Exchange Commission, 100 F of auction rate securities (‘‘ARS’’). The interest or the protection of investors to Street, NE, Washington, DC 20549– Complaint alleged that CGMI misled its grant the exemption. Applicants have 1090. Applicants: CGMI and Citigroup customers regarding the fundamental filed an application pursuant to section Advisory, 787 Seventh Avenue, New nature and increasing risks associated 9(c) seeking a temporary and permanent York, NY 10019; CEFOF, CELFOF, CCP with ARS that CGMI underwrote, order exempting them and Covered I and CCP II, 388 Greenwich Street, New marketed and sold. The Complaint Persons from the disqualification York, NY 10013; Citibank, 399 Park further alleged that CGMI provisions of section 9(a) of the Act. Avenue, New York, NY 10043; and misrepresented to its customers that 3. Applicants believe they meet the Citigroup Alternative, 731 Lexington ARS were safe, highly liquid standard for exemption specified in Avenue, 28th Floor, New York, NY investments that were equivalent to section 9(c). Applicants state that the 10022. money market instruments. Without prohibitions of section 9(a) as applied to the Applicants would be unduly and FOR FURTHER INFORMATION CONTACT: John admitting or denying the allegations in disproportionately severe and that the Yoder, Senior Counsel, at (202) 551– the Complaint, except as to jurisdiction, conduct of Applicants has been such as 6878, or Julia Kim Gilmer, Branch Chief, CGMI consented to the entry of the not to make it against the public interest at (202) 551–6821, (Division of Judgment that included, among other or the protection of investors to grant Investment Management, Office of things, the entry of the Injunction and other equitable relief including the exemption from section 9(a). Investment Company Regulation). 4. Applicants state that the alleged SUPPLEMENTARY INFORMATION: The undertakings to take various remedial actions for the benefit of purchasers of conduct giving rise to the Injunction did following is a temporary order and a not involve any of the Applicants acting summary of the application. The certain ARS. Applicants’ Legal Analysis: in the capacity of investment adviser, complete application may be obtained 1. Section 9(a)(2) of the Act, in subadviser or depositor to a Fund, or for a fee at the Commission’s Public relevant part, prohibits a person who principal underwriter for any open-end Reference Room, 100 F Street NE., has been enjoined from engaging in or Fund or UIT. Applicants also state that Washington, DC 20549–1520 (tel. 202– continuing any conduct or practice in none of the current or former directors, 551–5850). connection with the purchase or sale of officers, or employees of the Applicants Applicants’ Representations: a security or in connection with (other than CGMI) had any participation 1. Each of the Applicants is an activities as an underwriter, broker or in the violative conduct alleged in the indirect wholly owned subsidiary of dealer, from acting, among other things, Complaint. Applicants further state that Citigroup Inc., a financial holding as an investment adviser or depositor of the personnel at CGMI who were company whose businesses provide a any registered investment company or a involved in the violations alleged in the broad range of financial services. CGMI principal underwriter for any registered Complaint have had no and will not is registered as a broker-dealer under the have any future involvement in Securities Exchange Act of 1934 2 Greenwich Street Employees Fund, L.P., et al., providing advisory, subadvisory or (‘‘Exchange Act’’) and serves as Investment Company Act Release Nos. 25324 (Dec. depository services to Funds, or 21, 2001) (notice) and 25367 (Jan. 16, 2002) (order). principal underwriting services to open- 1 Applicants request that any relief granted 3 United States Securities and Exchange end Funds or UITs. pursuant to the application also apply to any other Commission v. Citigroup Global Markets Inc., 08– company of which CGMI is or hereafter may CV–10753, Judgment as to Defendant Citigroup 5. Applicants state that the inability of become an affiliated person (together with the Global Markets Inc. (S.D.N.Y.) (entered Dec. 23, the Applicants to continue to serve as Applicants, the ‘‘Covered Persons’’). 2008). investment adviser, depositor or
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principal underwriter to the Funds the Commission’s rights in any manner UBS Willow Management, L.L.C. (‘‘UBS would result in potentially severe with respect to, any Commission Willow’’), UBS Eucalyptus financial hardships for the Funds and investigation of, or administrative Management, L.L.C., UBS Tamarack their shareholders. The Applicants have proceedings involving or against, Management, L.L.C., UBS Juniper distributed, or will distribute as soon as Covered Persons, including without Management, L.L.C., and UBS Enso reasonably practical, written materials, limitation, the consideration by the Management L.L.C. (collectively, including an offer to meet in person to Commission of a permanent exemption ‘‘UBSFA Advisers’’); UBS Global Asset discuss the materials, to the board of from section 9(a) of the Act requested Management (Americas) Inc. (‘‘UBS directors of each Fund, including the pursuant to the application or the Global AM Americas’’); UBS Global directors who are not ‘‘interested revocation or removal of any temporary Asset Management (US) Inc. (‘‘UBS persons,’’ as defined in section 2(a)(19) exemptions granted under the Act in Global AM US’’); and UBS AG and UBS of the Act, of such Fund, and their connection with the application. IB Co-Investment 2001 GP Limited independent legal counsel as defined in Temporary Order: (‘‘ESC GP’’) (together, other than UBS rule 0–1(a)(6) under the Act, if any, The Commission has considered the Securities, ‘‘Fund Servicing Applicants’’ regarding the Judgment, any impact on matter and finds that Applicants have and together with UBS Securities, the the Funds, and the application. The made the necessary showing to justify ‘‘Applicants’’).1 Applicants state they will provide the granting a temporary exemption. Filing Dates: The application was Funds with all information concerning Accordingly, filed on December 16, 2008. Applicants the Judgment and the application that is It is hereby ordered, pursuant to have agreed to file an amendment necessary for the Funds to fulfill their section 9(c) of the Act, that the during the notice period, the substance disclosure and other obligations under Applicants and any other Covered of which is reflected in this notice. the federal securities laws. Persons are granted a temporary Hearing or Notification of Hearing: An 6. Applicants also state that, if they exemption from the provisions of order granting the application will be were barred from serving as investment section 9(a), solely with respect to the issued unless the Commission orders a adviser, depositor or principal Injunction, subject to the condition in hearing. Interested persons may request underwriter to the Funds, the effect on the application, from December 23, a hearing by writing to the their businesses and employees would 2008, until the Commission takes final Commission’s Secretary and serving be severe. Applicants state that they action on their application for a applicants with a copy of the request, have committed substantial resources to permanent order. personally or by mail. Hearing requests establish an expertise in providing should be received by the Commission By the Commission. services covered by section 9(a) of the by 5:30 p.m. on January 15, 2009, and Act to Funds. Applicants further state Florence E. Harmon, should be accompanied by proof of that prohibiting them from providing Acting Secretary. service on applicants, in the form of an advisory and distribution services [FR Doc. E8–31090 Filed 12–30–08; 8:45 am] affidavit or, for lawyers, a certificate of would not only adversely affect their BILLING CODE 8011–01–P service. Hearing requests should state businesses, but would also adversely the nature of the writer’s interest, the affect approximately 50 employees that reason for the request, and the issues are involved in those activities. SECURITIES AND EXCHANGE contested. Persons who wish to be Applicants also state that disqualifying COMMISSION notified of a hearing may request the ESC Advisers from continuing to [Release No. IC—28569; 812–13609] notification by writing to the provide investment advisory services to Commission’s Secretary. ESCs is not in the public interest or in UBS Securities LLC, et al.; Notice of ADDRESSES: Secretary, U.S. Securities furtherance of the protection of Application and Temporary Order and Exchange Commission, 100 F investors. Because the ESCs have been Street, NE., Washington, DC 20549– December 23, 2008. formed for certain eligible officers, 1090; Applicants: UBS Securities, 299 AGENCY: Securities and Exchange directors and persons on retainer of Park Avenue, New York, NY 10171; Commission (‘‘Commission’’). Citigroup and its affiliates, it would not UBSFS, 1200 Harbor Boulevard, be consistent with the purposes of the ACTION: Temporary order and notice of Weehawken, NJ 07086; UBSFA, UBSFA ESC provisions of the Act or the ESC application for a permanent order under Advisers, and UBS Global AM US, 51 Order to require another entity not section 9(c) of the Investment Company West 52nd Street, New York, NY 10019; affiliated with the ESC Advisers to Act of 1940 (‘‘Act’’). UBS Global AM Americas, One North manage the ESCs. In addition, Wacker Drive, Chicago, IL 60606; and participating employees of Citigroup Summary of Application: Applicants have received a temporary order UBS AG and ESC–GP, 677 Washington and its affiliates subscribed for interests Boulevard, Stamford, CT 06901. with the expectation that the ESCs exempting them from section 9(a) of the FOR FURTHER INFORMATION CONTACT: John would be managed by an affiliate of Act, with respect to an injunction entered against UBS Securities LLC Yoder, Senior Counsel, at 202–551–6878 Citigroup. or Julia Kim Gilmer, Branch Chief, at 7. Applicants previously have (‘‘UBS Securities’’) and UBS Financial 202–551–6821 (Division of Investment received exemptions under section 9(c) Services Inc. (‘‘UBSFS,’’ and together Management, Office of Investment as the result of conduct that triggered with UBS Securities, the ‘‘Settling Company Regulation). section 9(a) as described in greater Firms’’) on December 23, 2008 by the detail in the application. United States District Court for the SUPPLEMENTARY INFORMATION: The Applicants’ Condition: Southern District of New York following is a temporary order and Applicants agree that any order (‘‘Injunction’’) until the Commission summary of the application. The granting the requested relief will be takes final action on an application for subject to the following condition: a permanent order. Applicants also have 1 Applicants request that any relief granted pursuant to the application also apply to any other Any temporary exemption granted applied for a permanent order. company of which either of the Settling Firms is or pursuant to the application shall be Applicants: UBS Securities; UBSFS; may become affiliated persons (together with the without prejudice to, and shall not limit UBS Fund Advisor, L.L.C. (‘‘UBSFA’’); Applicants, the ‘‘Covered Persons’’).
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complete application may be obtained admitting or denying any of the the requested exemption from section for a fee at the Commission’s Public allegations in the Complaint, except as 9(a). Reference Room, 100 F Street, NE., to jurisdiction, the Settling Firms 4. Applicants state that the alleged Washington, DC 20549–1520 (tel. 202– consented to the entry of the Injunction conduct giving rise to the Injunction did 551–5850). and other equitable relief, including not involve any of the Applicants acting in the capacity of investment adviser, Applicants’ Representations undertakings to take various remedial actions for the benefit of purchasers of sub-adviser or depositor to any 1. UBS AG is a bank established certain ARS. registered investment company or in the under the laws of Switzerland that capacity of principal underwriter for directly or through its subsidiaries Applicants’ Legal Analysis any open-end Fund or UIT (‘‘Fund provides global wealth management, 1. Section 9(a)(2) of the Act, in Service Activities’’). Applicants note securities and retail and commercial relevant part, prohibits a person who that none of the current or former banking services. Each of the Applicants has been enjoined from engaging in or directors, officers, or employees of the are either directly or indirectly continuing any conduct or practice in Applicants (other than the Settling controlled by UBS AG. UBS Securities connection with the purchase or sale of Firms) had any involvement in the is a full service investment banking firm a security, or in connection with conduct alleged in the Complaint, engaged in securities underwriting, activities as an underwriter, broker or except as noted in footnote 3.3 sales and trading, investment banking, dealer, from acting, among other things, Applicants further state that the financial advisory services and as an investment adviser or depositor of personnel at the Settling Firms who investment research services. UBSFS, any registered investment company or a were involved in the violations alleged UBSFA, UBSFA Advisers and UBS principal underwriter for any registered in the Complaint have had no and will Global AM Americas are registered as open-end investment company, not have any future involvement in investment advisers under the registered unit investment trust, or Fund Service Activities. Investment Advisers Act of 1940 and registered face-amount certificate 5. Applicants state that the inability of currently serve as investment advisers company. Section 9(a)(3) of the Act the Applicants to engage in Fund to registered management investment makes the prohibition in section 9(a)(2) Service Activities would result in companies (‘‘Funds’’). UBSFS and UBS applicable to a company, any affiliated potentially severe financial hardships Global AM U.S. are registered as broker- person of which has been disqualified for the registered investment companies dealers under the Securities Exchange under the provisions of section 9(a)(2). they serve and the registered investment Act of 1934 (‘‘Exchange Act’’) and act as Section 2(a)(3) of the Act defines companies’ shareholders or unitholders. principal underwriter to various open- ‘‘affiliated person’’ to include, among Applicants state that they will distribute end Funds and unit investment trusts others, any person directly or indirectly written materials, including an offer to (‘‘UITs’’). UBSFS also serves as a controlling, controlled by, or under meet in person to discuss the materials, depositor to UITs. UBS AG and ESC GP common control, with the other person. to the boards of directors of the Funds provide investment advisory services to Applicants state that the Settling Firms (the ‘‘Boards’’), including the directors employees’ securities companies are affiliated persons of each of the who are not ‘‘interested persons,’’ as (‘‘ESCs’’), as defined in section 2(a)(13) other Applicants within the meaning of defined in section 2(a)(19) of the Act, of of the Act, which provide investment section 2(a)(3). Applicants state that, as such Funds, and their independent legal opportunities for highly compensated counsel as defined in rule 0–1(a)(6) key employees, officers, directors and a result of the Injunction, they would be under the Act, if any, regarding the current consultants of UBS AG and its subject to the prohibitions of section Injunction, any impact on the Funds, affiliates. 9(a). 2. On December 23, 2008, the United 2. Section 9(c) of the Act provides that and the application. Applicants state States District Court for the Southern the Commission shall grant an that they will provide the Boards with District of New York entered a application for exemption from the all information concerning the judgment, which included the disqualification provisions of section Injunction and the application that is Injunction, against the Settling Firms 9(a) of the Act if it is established that necessary for the Funds to fulfill their (‘‘Judgment’’) in a matter brought by the these provisions, as applied to disclosure and other obligations under Commission.2 The Commission alleged Applicants, are unduly or the federal securities laws. in the complaint (‘‘Complaint’’) that the disproportionately severe or that the 6. Applicants also state that, if they Settling Firms violated section 15(c) of conduct of the Applicants has been such were barred from providing Fund the Exchange Act in connection with as not to make it against the public Service Activities to registered the marketing and sale of auction rate interest or the protection of investors to investment companies and ESCs, the securities (‘‘ARS’’). The Complaint grant the exemption. Applicants have effect on their businesses and alleged that the Settling Firms misled filed an application pursuant to section employees would be severe. Applicants their customers regarding the 9(c) seeking a temporary and permanent state that they have committed fundamental nature and increasing risks order exempting the Applicants and the substantial resources to establish an associated with ARS that the Settling other Covered Persons from the 3 Firms underwrote, marketed and sold. disqualification provisions of section The Complaint alleges that several senior executives of the Settling Firms sold all or some of The Complaint further alleged that the 9(a). their personal auction rate securities holdings after Settling Firms misrepresented to their 3. Applicants believe that they meet becoming aware of undisclosed risk factors customers that ARS were safe, highly the standards for exemption specified in associated with the auction rate securities program, liquid investments that were equivalent including concerns about the Settling Firms’ ability section 9(c). Applicants state that the and willingness to support the auctions. Certain of to cash or money-market funds. Without prohibitions of section 9(a) as applied to these officers or employees may also have been them would be unduly and officers or employees of UBS AG. These officers or 2 Securities and Exchange Commission v. UBS disproportionately severe and that the employees have had no involvement in Applicants’ Securities LLC and UBS Financial Services Inc., conduct of Applicants has been such as Fund Service Activities and are either no longer Judgment as to UBS Securities LLC and UBS employed by the Settling Firms or UBS AG or are Financial Services Inc., 1:08–CV–10754 (S.D.N.Y.) not to make it against the public interest not and will not have any involvement in (entered Dec. 23, 2008). or the protection of investors to grant Applicants’ Fund Service Activities.
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expertise in providing Fund Service and any other Covered Persons are by 5:30 p.m. on January 15, 2009, and Activities. Applicants further state that granted a temporary exemption from the should be accompanied by proof of prohibiting them from providing provisions of section 9(a), solely with service on applicants, in the form of an advisory and distribution services respect to the Injunction, subject to the affidavit or, for lawyers, a certificate of would not only adversely affect their condition in the application, from service. Hearing requests should state businesses, but would also adversely December 23, 2008, until the the nature of the writer’s interest, the affect over 450 employees that are Commission takes final action on their reason for the request, and the issues involved in those activities. Applicants application for a permanent order. contested. Persons who wish to be also state that disqualifying UBS AG By the Commission. notified of a hearing may request notification by writing to the and ESC GP from continuing to provide Florence E. Harmon, investment advisory services to ESCs is Commission’s Secretary. Acting Secretary. not in the public interest or in ADDRESSES: Secretary, U.S. Securities furtherance of the protection of [FR Doc. E8–31087 Filed 12–30–08; 8:45 am] and Exchange Commission, 100 F investors. Because the ESCs have been BILLING CODE 8011–01–P Street, NE., Washington, DC 20549– formed for the benefit of key employees, 1090. Applicants: Noah Hamman, c/o officers, directors and current Morgan, Lewis & Bockius LLP, 1111 SECURITIES AND EXCHANGE consultants of UBS AG and its affiliates, Pennsylvania Avenue, NW., COMMISSION it would not be consistent with the Washington, DC 20004. purposes of the ESC provisions of the [Investment Company Act Release No. FOR FURTHER INFORMATION CONTACT: Act to require another entity not 28568; 812–13488] Courtney S. Thornton, Senior Counsel, affiliated with UBS AG to manage the or Michael W. Mundt, Assistant ESCs. In addition, participants in the AdvisorShares Investments, LLC and Director, at (202) 551–6821 (Division of ESCs have subscribed for interests in the AdvisorShares Trust; Notice of Investment Management, Office of ESCs with the expectation that the ESCs Application Investment Company Regulation). would be managed by an affiliate of December 23, 2008. SUPPLEMENTARY INFORMATION: The UBS AG. AGENCY: Securities and Exchange following is a summary of the 7. Applicants state that UBS Commission (‘‘Commission’’). application. The complete application Securities and certain other Applicants may be obtained for a fee at the ACTION: Notice of an application for an have previously received an order under Commission’s Public Reference Desk, section 9(c) of the Act.4 Applicants also order under section 6(c) of the Investment Company Act of 1940 100 F Street, NE., Washington, DC state that affiliated persons of UBS 20549–1520 (tel. 202–551–5850). Securities previously have received (‘‘Act’’) for an exemption from sections exemptions under section 9(c) as the 2(a)(32), 5(a)(1) and 22(d) of the Act and Applicants’ Representations result of conduct that triggered section rule 22c–1 under the Act, and under 1. The Trust, a statutory trust 9(a), as described in greater detail in the sections 6(c) and 17(b) of the Act for an established under the laws of Delaware, application. exemption from sections 17(a)(1) and is registered with the Commission as an (a)(2) of the Act. open-end management investment Applicants’ Condition Applicants: AdvisorShares company. The Trust is organized as a Applicants agree that any order Investments, LLC (the ‘‘Advisor’’) and series investment company with one granting the requested relief will be AdvisorShares Trust (the ‘‘Trust’’). initial series (the ‘‘Initial Fund’’). The subject to the following condition: Summary of Application: Applicants investment objective of the Initial Fund Any temporary exemption granted request an order that permits: (a) Series will be to provide long term growth of pursuant to the application shall be of certain open-end management capital. The Initial Fund and all future without prejudice to, and shall not limit investment companies to issue shares series of the Trust (‘‘Future Funds,’’ the Commission’s rights in any manner (‘‘Shares’’) redeemable in large collectively with the Initial Fund, with respect to, any Commission aggregations only (‘‘Creation Units’’); (b) ‘‘Funds’’) will attempt to achieve their investigation of, or administrative secondary market transactions in Shares investment objectives by utilizing active proceedings involving or against, to occur at negotiated market prices; and management strategies based on various Covered Persons, including without (c) certain affiliated persons of the series formulas for asset allocation, security limitation, the consideration by the to deposit securities into, and receive selection, and portfolio construction. Commission of a permanent exemption securities from, the series in connection Each Fund will primarily hold shares of from section 9(a) of the Act requested with the purchase and redemption of underlying exchange traded funds pursuant to the application or the Creation Units. (‘‘ETFs’’), as well as shares of certain revocation or removal of any temporary Filing Dates: The application was exchange traded products that are not exemptions granted under the Act in filed on January 31, 2008, and amended registered as investment companies 1 connection with the application. on October 17, 2008. Applicants have under the Act. Applicants will only agreed to file an amendment during the Temporary Order 1 notice period, the substance of which is The Funds may invest in exchange traded The Commission has considered the products that invest primarily in commodities or reflected in this notice. matter and finds that the Applicants currency, but otherwise operate in a manner similar Hearing or Notification of Hearing: An to exchange traded products registered under the have made the necessary showing to order granting the requested relief will Act. In addition, the Funds may also invest in justify granting a temporary exemption. be issued unless the Commission orders equity securities or fixed income securities traded Accordingly, in a U.S. or non-U.S. markets, as well as futures a hearing. Interested persons may It is hereby ordered, pursuant to contracts, options on such futures contracts, swaps, request a hearing by writing to the forward contracts or other derivatives, and shares section 9(c) of the Act, that Applicants Commission’s Secretary and serving of money market mutual funds or other investment companies, all in accordance with their investment 4 UBS Securities L.L.C., et al., Investment applicants with a copy of the request, objectives. The Funds may also invest in equity Company Act Rel. Nos. 26245 (Oct. 31, 2003) personally or by mail. Hearing requests securities or fixed income securities traded in (notice) and 27047 (Apr. 25, 2005) (order). should be received by the Commission international markets or in a combination of equity,
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invest in unaffiliated ETFs that have purchase and redemption of Creation Authorized Participant. A redeeming received certain exemptive relief from Units. Each purchaser of a Creation Unit investor will receive a basket of the Commission to permit such will receive a prospectus (‘‘Prospectus’’) securities designated to be delivered for investments in excess of the limits of that contains complete disclosure about Creation Unit redemptions on the date section 12(d)(1)(A) and (B) of the Act. the Transaction Fee. All orders to that the request for redemption is Any Future Fund (a) will be advised by purchase Creation Units must be placed submitted (‘‘Redemption Securities’’), the Advisor or an entity controlled by or with the Distributor no later than the which in most cases will be the same as under common control with the closing time of the regular trading the Deposit Securities required to Advisor, and (b) will comply with the session on the NYSE (ordinarily 4 p.m. purchase Creation Units on that date, terms and conditions of the order. ET) in order for the purchaser to receive and will either receive from or pay to 2. The Advisor, a Delaware limited the NAV determined on that date. The the Fund a balancing amount in cash. A liability company, or a subsidiary of Distributor will transmit all purchase Fund may make redemptions partly in such company, will serve as the orders to the relevant Fund and will cash in lieu of transferring one or more investment adviser to each Fund. The also maintain a record of Creation Unit Redemption Securities to a redeeming Advisor will be registered as an purchases, send out confirmations of investor if the Fund determines that investment adviser of the Investment such purchases, and furnish a such alternative is warranted, such as if Advisers Act of 1940 (‘‘Advisers Act’’) Prospectus to purchasers of Creation the redeeming investor is unable, by law prior to a Fund beginning operations. Units. or policy, to own a particular Applicants anticipate that Funds also 5. The Trust intends to list the Shares Redemption Security. A redeeming may engage subadvisors of each Fund on a national securities investor also must pay a Transaction (‘‘Subadvisors’’). exchange (‘‘Listing Market’’) such as the Fee to cover custodial costs. 3. Applicants anticipate that shares NYSE. It is expected that one or more 8. The Trust will not be advertised or (‘‘Shares’’) of the Funds will be sold at member firms will be designated to act marketed or otherwise ‘‘held out’’ as a a price of between $25 and $200 per as a specialist and maintain a market for traditional open-end investment Share in Creation Units of 25,000 or the Shares trading on the Listing Market company or a mutual fund. The more Shares. All orders to purchase (‘‘Exchange Specialist’’). The price of designation of the Trust and the Funds Creation Units must be placed with the Shares trading on the Listing Market in all marketing materials will be principal underwriter and distributor of will be based on a current bid/offer limited to the terms ‘‘exchange-traded the Creation Units (‘‘Distributor’’) by or market. No secondary sales will be fund,’’ ‘‘investment company,’’ ‘‘fund’’ through a party that has entered into a made to brokers or dealers at a and ‘‘trust’’ without reference to an participant agreement with the concession by the Distributor or by a ‘‘open-end fund’’ or a ‘‘mutual fund,’’ Distributor (‘‘Authorized Participant’’). Fund. Purchases and sales of Shares in except to compare and contrast the Authorized Participants will include the secondary market, which will not Trust and the Funds with traditional broker-dealers, banks, trust companies, involve a Fund, will be subject to mutual funds. Each Fund’s Prospectus and clearing companies that are customary brokerage commissions and will also prominently disclose that the participants in the Depository Trust charges. Fund is an actively managed exchange Company (‘‘DTC,’’ and such 6. Purchasers of Shares in Creation traded fund. All marketing materials participants, ‘‘DTC Participants’’). Units may hold such Shares or may sell that describe the method of obtaining, Purchases of Creation Units of the them into the secondary market. buying or selling Creation Units, or Funds will be made generally by means Applicants expect that purchasers of Shares traded on the Listing Market, or of an in-kind tender of shares of specific Creation Units will include institutional refer to redeemability, will prominently ETFs (the ‘‘Deposit Securities’’), with investors and arbitrageurs, who will disclose that Shares are not individually any cash portion of the purchase price purchase or redeem Creation Units of a redeemable and that the owners of (the ‘‘Cash Amount’’) to be kept to a Fund in pursuit of arbitrage profit and Shares may acquire or redeem Shares minimum. The Cash Amount is an thereby enhance the liquidity of the from a Fund in Creation Units only. The amount equal to the difference between secondary market and keep the market same approach will be followed in the the NAV of a Creation Unit and the price of shares close to their NAV. statement of additional information market value of the Deposit Securities. Applicants expect that secondary (‘‘SAI’’), shareholder reports and The Trust reserves the right to permit, market purchasers of Shares will investor educational materials issued or under certain circumstances, a include both institutional investors and circulated in connection with the purchaser of Creation Units to substitute retail investors for whom Shares will Shares. The Trust will provide copies of cash in lieu of depositing some or all of provide a useful, retail-priced, its annual and semi-annual shareholder the requisite Deposit Securities. The exchange-traded mechanism for reports to DTC Participants for Trust may in the future determine that investing in a professionally managed, distribution to beneficial owners of Shares of one or more Funds may be diversified selection of ETFs.2 Shares. purchased in Creation Units on a cash- 7. Shares will not be individually 9. The Trust (or the Listing Market) only basis if the Trust and the Advisor redeemable, and owners of Shares may intends to maintain a Web site that will believe such method would acquire those Shares from a Fund, or be publicly available at no charge, substantially minimize the Trust’s tender such Shares for redemption to which will include the Prospectus and transactional costs or enhance its the Fund, in Creation Units only. To other information about the Funds that operational efficiencies. redeem, an investor will have to is updated on a daily basis. On each 4. Each Fund will charge a fee accumulate enough Shares to constitute Business Day, before the (‘‘Transaction Fee’’) in connection with a Creation Unit. Redemption orders commencement of trading in Shares on the sale or redemption of Creation Units must be placed by or through an the Listing Market, each Fund will to protect existing shareholders from the 2 disclose the identities and quantities of dilutive costs associated with the Shares will be registered in book-entry form only. DTC or its nominee will be the registered the securities (‘‘Portfolio Securities’’) owner of all outstanding Shares. DTC or DTC and other assets held in the Fund fixed income and U.S. money market securities Participants will maintain records reflecting and/or non-U.S. money market securities. beneficial owners of Shares. portfolio that will form the basis for the
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Fund’s calculation of NAV at the end of at NAV (less certain transactional a result of unjust or discriminatory the Business Day.3 expenses), the price of Creation Units on manipulation. Finally, applicants the secondary market and the price of contend that the proposed distribution Applicants’ Legal Analysis the individual Shares of a Creation Unit, system will be orderly because arbitrage 1. Applicants request an order under taken together, should not vary activity will ensure that the difference section 6(c) of the Act granting an substantially from the NAV of Creation between the market price of Shares and exemption from sections 2(a)(32), 5(a)(1) Units. their NAV remains narrow. and 22(d) of the Act and rule 22c–1 under the Act, and under sections 6(c) Section 22(d) of the Act and Rule Sections 17(a)(1) and 17(a)(2) of the Act and 17(b) of the Act granting an 22c–1 under the Act 7. Section 17(a)(1) and (2) of the Act exemption from sections 17(a)(1) and 4. Section 22(d) of the Act, among generally prohibit an affiliated person of (a)(2) of the Act. other things, prohibits a dealer from a registered investment company, or an 2. Section 6(c) of the Act provides that selling a redeemable security, which is affiliated person of such a person the Commission may exempt any currently being offered to the public by (‘‘second tier affiliate’’), from selling any person, security or transaction, or any or through a principal underwriter, security to or purchasing any security class of persons, securities or except at a current public offering price from the company. Section 2(a)(3) of the transactions, from any provision of the described in the prospectus. Rule 22c– Act defines ‘‘affiliated person’’ to Act, if and to the extent that such 1 under the Act generally requires that include any person directly or indirectly exemption is necessary or appropriate a dealer selling, redeeming, or owning, controlling, or holding with in the public interest and consistent repurchasing a redeemable security do power to vote 5 percent or more of the with the protection of investors and the so only at a price based on its NAV. outstanding voting securities of the purposes fairly intended by the policy Applicants state that trading in Shares other person and any person directly or and provisions of the Act. Section 17(b) will take place on and away from the indirectly controlling, controlled by, or of the Act authorizes the Commission to Listing Market at all times on the basis under common control with, the other exempt a proposed transaction from of current bid/offer prices, not at a person. Section 2(a)(9) of the Act section 17(a) of the Act if evidence current offering price described in the provides that a control relationship will establishes that the terms of the prospectus, and not at a price based on be presumed where one person owns transaction, including the consideration NAV. Thus, purchases and sales of more than 25 percent of another to be paid or received, are reasonable Shares in the secondary market will not person’s voting securities. The Funds and fair and do not involve comply with section 22(d) of the Act may be deemed to be controlled by the overreaching on the part of any person and rule 22c–1 under the Act. Advisor or an entity controlling, concerned, and the proposed Applicants request an exemption under controlled by or under common control transaction is consistent with the section 6(c) from these provisions. with the Adviser and hence affiliated policies of the registered investment 5. Applicants assert that the concerns persons of each other. In addition, the company and the general provisions of sought to be addressed by section 22(d) Funds may be deemed to be under the Act. of the Act and rule 22c–1 under the Act common control with any other with respect to pricing are equally registered investment company (or Sections 5(a)(1) and 2(a)(32) of the Act satisfied by the proposed method of series thereof) advised by the Advisor or 3. Section 5(a)(1) of the Act defines an pricing Shares. Applicants maintain that an entity controlling, controlled by or ‘‘open-end company’’ as a management while there is little legislative history under common control with the Advisor investment company that is offering for regarding section 22(d), its provisions, (an ‘‘Affiliated Fund’’). Applicants state sale or has outstanding any redeemable as well as those of rule 22c–1, appear to that an investor could own 5 percent or security of which it is the issuer. have been designed to (a) prevent more of a Fund or the Trust, or in excess Section 2(a)(32) of the Act defines a dilution caused by certain riskless- of 25 percent of the outstanding Shares redeemable security as any security, trading schemes by principal of a Fund or the Trust, making that other than short-term paper, under the underwriters and contract dealers, (b) investor an affiliated person of the Fund terms of which the holder, upon its prevent unjust discrimination or or the Trust under section 2(a)(3)(A) or presentation to the issuer, is entitled to preferential treatment among buyers, 2(a)(3)(C) of the Act. For so long as such receive approximately his proportionate and (c) assure an orderly distribution of an investor was deemed to be an share of the issuer’s current net assets, investment company shares by contract affiliated person, section 17(a)(1) could or the cash equivalent. Because Shares dealers by eliminating price competition be read to prohibit that investor from will not be individually redeemable, from non-contract dealers who could depositing the Deposit Securities with a applicants request an order that would offer investors shares at less than the Fund in return for a Creation Unit. permit each Fund, as a series of an published sales price and who could Similarly, section 17(a)(2) could be read open-end management investment pay investors a little more than the to prohibit such an investor from company, to issue Shares that are published redemption price. entering into an in-kind redemption 6. Applicants believe that none of redeemable in Creation Units only. with a Fund. these purposes will be relevant issues 8. Applicants request an exemption Applicants state that Creation Units will for secondary trading by dealers in from section 17(a) under sections 6(c) always be redeemable. Applicants Shares of a Fund. Applicants state that and 17(b), to permit in-kind purchases further state that because Creation Units (a) secondary market trading in Shares and redemptions by persons that are may always be purchased and redeemed will not cause dilution for owners of affiliated persons or second tier 3 Applicants note that under accounting such Shares because such transactions affiliates of the Funds solely by virtue procedures followed by the Fund, trades made on do not directly involve Fund assets, and of one or more of the following: (1) the prior Business Day (‘‘T’’) will be booked and (b) to the extent different prices exist Holding 5 percent or more, or more than reflected in NAV on the current Business Day (‘‘T during a given trading day, or from day 25 percent, of the outstanding Shares of + 1’’). Accordingly, the Fund will be able to disclose at the beginning of the Business Day the to day, such variances occur as a result the Trust or one or more Funds; (2) an portfolio that will form the basis for the NAV of third-party market forces, such as affiliation with a person with an calculation at the end of the Business Day. supply and demand, but do not occur as ownership interest described in (1); or
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(3) holding 5 percent or more, or more on a per Share basis, for each Fund: (a) SECURITIES AND EXCHANGE than 25 percent, of the shares of one or The prior Business Day’s NAV and the COMMISSION more Affiliated Funds. reported closing price, and a calculation 9. Applicants contend that no useful [Investment Company Act Release No. of the premium or discount of the 28571; 812–13440] purpose would be served by prohibiting closing price against such NAV; and (b) the affiliated persons or second tier data in chart format displaying the Grail Advisors, LLC and Grail affiliates of a Fund as described above frequency distribution of discounts and Advisors’ Alpha ETF Trust; Notice of from purchasing or redeeming Creation premiums of the daily closing price Application Units through ‘‘in-kind’’ transactions. against the NAV, within appropriate The purchase and redemption of December 23, 2008. ranges, for each of the four previous Creation Units of each Fund is on the AGENCY: Securities and Exchange calendar quarters (or for the life of the same terms for all investors, whether or Commission (‘‘Commission’’). Fund, if shorter). not such investor is an affiliate. In each ACTION: Notice of an application for an case, Creation Units are sold and 4. The Prospectus and annual report order under section 6(c) of the redeemed by the Trust at their NAV. for each Fund will also include: (a) The Investment Company Act of 1940 The Deposit Securities and Redemption information listed in condition 3(b), (i) (‘‘Act’’) for an exemption from sections Securities will be valued in the same in the case of the Prospectus, for the 2(a)(32), 5(a)(1), 22(d) and 22(e) of the manner as the securities in the Fund most recently completed year (and the Act and rule 22c–1 under the Act, and portfolio. Accordingly, applicants most recently completed quarter or under sections 6(c) and 17(b) of the Act believe the proposed transactions quarters, as applicable) and (ii) in the for an exemption from sections 17(a)(1) described above meet the section 17(b) case of the annual report, for the and (a)(2) of the Act, and under section standards for relief because the terms of immediately preceding five years (or for 12(d)(1)(J) for an exemption from such proposed transactions are the life of the Fund, if shorter), and (b) sections 12(d)(1)(A) and (B) of the Act. reasonable and fair and do not involve the cumulative total return and the overreaching on the part of any person average annual total return based on APPLICANTS: Grail Advisors, LLC concerned, and the proposed NAV and closing price, calculated on a (‘‘Adviser’’) and Grail Advisors’ Alpha transactions will be consistent with the ETF Trust (‘‘Trust’’). per Share basis for one-, five- and ten- policies of each Fund and with the SUMMARY OF APPLICATION: Applicants general purposes of the Act. year periods (or life of the Fund, if shorter). request an order that permits: (a) Series Applicants’ Conditions of certain open-end management 5. As long as the Funds operate in investment companies to issue shares The applicants agree that any order of reliance on the requested order, the (‘‘Shares’’) redeemable in large the Commission granting the requested Shares of the Funds will be listed on a aggregations only (‘‘Creation Units’’); (b) relief will be subject to the following Listing Market. secondary market transactions in Shares conditions: 1. Neither the Trust nor any Fund will 6. On each Business Day, before to occur at negotiated market prices; (c) be advertised or marketed as an open- commencement of trading in Shares on certain series to pay redemption end investment company or mutual a Fund’s Listing Market, the Fund will proceeds, under certain circumstances, fund. Each Fund’s Prospectus will disclose on its Web site the identities more than seven days from the tender of prominently disclose that the Fund is an and weightings of the component Shares for redemption; (d) certain actively managed exchange-traded fund. securities and other assets held by the affiliated persons of the series to deposit Each Prospectus will prominently Fund that will form the basis for the securities into, and receive securities from, the series in connection with the disclose that the Shares are not Fund’s calculation of NAV at the end of purchase and redemption of Creation individually redeemable shares and will the Business Day. disclose that the owners of the Shares Units; and (e) certain registered 7. The Advisor or any Subadvisor, management investment companies and may acquire those Shares from the Fund directly or indirectly, will not cause any and tender those Shares for redemption unit investment trusts outside of the Authorized Participant (or any investor to the Fund in Creation Units only. Any same group of investment companies as on whose behalf an Authorized advertising material that describes the the series to acquire Shares. purchase or sale of Creation Units or Participant may transact with the Fund) FILING DATES: The application was filed refers to redeemability will prominently to acquire any Deposit Security for the on October 17, 2007 and amended on disclose that the Shares are not Fund through a transaction in which the August 1, 2008. Applicants have agreed individually redeemable and that Fund could not engage directly. to file an amendment during the notice owners of the Shares may acquire those 8. The requested order will expire on period, the substance of which is Shares from the Fund and tender those the effective date of any Commission reflected in this notice. Shares for redemption to the Fund in rule under the Act that provides relief HEARING OR NOTIFICATION OF HEARING: An Creation Units only. permitting the operation of actively order granting the requested relief will 2. Each Fund’s Prospectus will clearly managed exchange-traded funds. be issued unless the Commission orders disclose that, for purposes of the Act, a hearing. Interested persons may Shares are issued by a registered For the Commission, by the Division of request a hearing by writing to the investment company and that the Investment Management, under delegated Commission’s Secretary and serving acquisition of Shares by investment authority. applicants with a copy of the request, companies and companies relying on Florence E. Harmon, personally or by mail. Hearing requests sections 3(c)(1) or 3(c)(7) of the Act is Acting Secretary. should be received by the Commission subject to the restrictions of section [FR Doc. E8–31086 Filed 12–30–08; 8:45 am] by 5:30 p.m. on January 15, 2009, and 12(d)(1) of the Act. BILLING CODE 8011–01–P should be accompanied by proof of 3. The Web site for the Funds, which service on applicants, in the form of an will be publicly accessible at no charge, affidavit or, for lawyers, a certificate of will contain the following information, service. Hearing requests should state
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the nature of the writer’s interest, the investment adviser under the of depositing some or all of the requisite reason for the request, and the issues Investment Advisers Act of 1940 Deposit Securities. contested. Persons who wish to be (‘‘Advisers Act’’) and will serve as 5. An investor purchasing a Creation notified of a hearing may request investment adviser to each Fund. The Unit from a Fund will be charged a fee notification by writing to the Adviser expects to enter into a sub- (‘‘Transaction Fee’’) to prevent the Commission’s Secretary. advisory agreement with one or more dilution of the interests of the remaining ADDRESSES: Secretary, U.S. Securities investment advisers each of which will shareholders resulting from costs in and Exchange Commission, 100 F serve as an adviser to a Fund (each, a connection with the purchase of 3 Street, NE., Washington, DC 20549– ‘‘Sub-Adviser’’). Each Sub-Adviser will Creation Units. The maximum 1090. Applicants: William M. Thomas, be registered under the Advisers Act. Transaction Fees relevant to each Fund Grail Advisors, LLC, One Ferry Each Fund will have a distributor will be fully disclosed in the prospectus Building, Suite 255, San Francisco, CA (‘‘Distributor’’) that will be registered as (‘‘Prospectus’’) or statement of 94111. a broker-dealer under the Securities additional information (‘‘SAI’’) of such Exchange Act of 1934 (‘‘Exchange Act’’) Fund. All orders to purchase Creation FOR FURTHER INFORMATION CONTACT: Jaea Units will be placed with the Distributor F. Hahn, Senior Counsel, at (202) 551– and will serve as the principal underwriter for the Fund. by or through an Authorized Participant 6870 or Marilyn Mann, Branch Chief, at and it will be the Distributor’s (202) 551–6821 (Division of Investment 4. Shares of the Funds will be sold at responsibility to transmit such orders to Management, Office of Investment a price of between $20 and $100 per the Trust. The Distributor also will be Company Regulation). Share in Creation Units of 50,000 responsible for delivering the SUPPLEMENTARY INFORMATION: The Shares. All orders to purchase Creation Prospectus to those persons purchasing following is a summary of the Units must be placed with the Creation Units, and for maintaining application. The complete application Distributor by or through a party that records of both the orders placed with may be obtained for a fee at the has entered into an agreement with the it and the confirmations of acceptance Commission’s Public Reference Desk, Trust and the Distributor (‘‘Authorized furnished by it. In addition, the 100 F Street, NE., Washington, DC Participant’’). An Authorized Distributor will maintain a record of the 20549–0102 (tel. 202–551–5850). Participant must be either: (a) A broker- instructions given to the Trust to dealer or other participant in the Applicants’ Representations implement the delivery of Shares. continuous net settlement system of the 6. Purchasers of Shares in Creation 1. The Trust is organized as a National Securities Clearing Corporation Units may hold such Shares or may sell Delaware statutory trust and will be (‘‘NSCC’’), a clearing agency registered such Shares into the secondary market. registered as an open-end management with the Commission, or (b) a Shares will be listed and traded on a investment company under the Act. The participant in the Depository Trust national securities exchange as defined Trust will offer one initial series, Grail Company (‘‘DTC,’’ and such participant, in section 2(a)(26) of the Act U.S. Value Fund (‘‘Initial Fund’’). The ‘‘DTC Participant’’). Shares of each (‘‘Exchange’’). It is expected that one or Initial Fund’s investment objective will Fund generally will be sold in Creation more member firms of a listing be to provide long-term capital growth Units in exchange for an in-kind deposit Exchange will be designated to act as a by investing primarily in U.S. equity by the purchaser of a portfolio of specialist and maintain a market for securities. securities designated by the Adviser (the Shares on the Exchange (the 2. Applicants request that the order ‘‘Deposit Securities’’), together with the ‘‘Specialist’’), or if Nasdaq or a similar apply to the Initial Fund and any deposit of a relatively small specified electronic Exchange is the listing additional series of the Trust and other cash payment (‘‘Balancing Amount’’). Exchange, one or more member firms open-end investment management The Balancing Amount is an amount will act as a market maker (‘‘Market companies or series thereof, that may be equal to the difference between (a) the Maker’’) and maintain a market for 1 4 created in the future (‘‘Future Funds’’). net asset value (‘‘NAV’’) per Creation Shares. Prices of Shares trading on an Any Future Fund will be (a) advised by Unit of the Fund and (b) the total Exchange will be based on the current the Adviser or an entity controlling, aggregate market value per Creation bid/offer market. Shares sold in the controlled by, or under common control Unit of the Deposit Securities.2 secondary market will be subject to with the Adviser, and (b) comply with Applicants state that in some customary brokerage commissions and the terms and conditions of the circumstances it may not be practicable charges. 7. Applicants expect that purchasers application. Future Funds may invest in or convenient for a Fund to operate of Creation Units will include U.S. equity or fixed income securities, exclusively on an ‘‘in-kind’’ basis. The institutional investors and arbitrageurs foreign equity or fixed income securities Trust reserves the right to permit, under (which could include institutional (‘‘Foreign Funds’’), or a combination of certain circumstances, a purchaser of U.S. and foreign equity or fixed income Creation Units to substitute cash in lieu securities. The Initial Fund and Future 3 Where a Fund permits a purchaser to substitute Funds, including the Foreign Funds, cash in lieu of depositing a portion of the requisite 2 In addition to the list of names and amount of Deposit Securities, the purchaser may be assessed together are the ‘‘Funds.’’ Each Fund each security constituting the current Deposit a higher Transaction Fee to cover the cost of will operate as an actively managed Securities, it is intended that, on each day that a purchasing such Deposit Securities, including exchange-traded fund (‘‘ETF’’). Fund is open, including as required by section 22(e) brokerage costs, and part or all of the spread 3. The Adviser, a Delaware limited of the Act (‘‘Business Day’’), the Balancing Amount between the expected bid and the offer side of the effective as of the previous Business Day, per market relating to such Deposit Securities. liability company, is registered as an outstanding Share of each Fund, will be made 4 If Shares are listed on the Nasdaq, no particular available. The Exchange intends to disseminate, Market Maker will be contractually obligated to 1 All entities that currently intend to rely on the every 15 seconds, during regular trading hours, make a market in Shares, although Nasdaq’s listing order are named as applicants. Any other entity that through the facilities of the Consolidated Tape requirements stipulate that at least two Market relies on the order in the future will comply with Association, an approximate amount per Share Makers must be registered as Market Makers in the terms and conditions of the application. A Fund representing the sum of the estimated Balancing Shares to maintain the listing. Registered Market of Funds (as defined below) may rely on the order Amount effective through and including the Makers are required to make a continuous, two- only to invest in Funds and not in any other previous Business Day, plus the current value of the sided market at all times or be subject to regulatory registered investment company. Deposit Securities, on a per Share basis. sanctions.
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investors). The Specialist, or Market redemptions with Redemption Applicants’ Legal Analysis Maker, in providing a fair and orderly Securities, the relevant Funds will 1. Applicants request an order under secondary market for the Shares, also comply with the federal securities laws, section 6(c) of the Act granting an may purchase Creation Units for use in including that the Deposit Securities exemption from sections 2(a)(32), its market-making activities. Applicants and Redemption Securities are sold in 5(a)(1), 22(d) and 22(e) of the Act and expect that secondary market transactions that would be exempt from rule 22c–1 under the Act; and under purchasers of Shares will include both registration under the Securities Act.7 sections 6(c) and 17(b) of the Act institutional investors and retail As a general matter, the Deposit granting an exemption from sections investors.5 Applicants expect that the Securities and Redemption Securities 17(a)(1) and (a)(2) of the Act; and under price at which the Shares trade will be will correspond pro rata to the securities section 12(d)(1)(J) for an exemption disciplined by arbitrage opportunities held by each Fund, although from sections 12(d)(1)(A) and (B) of the created by the ability to continually Redemption Securities received on Act. purchase or redeem Creation Units at redemption may not always be identical 2. Section 6(c) of the Act provides that their NAV, which should ensure that to Deposit Securities deposited in the Commission may exempt any the Shares will not trade at a material connection with the purchase of person, security or transaction, or any discount or premium in relation to their Creation Units for the same day. NAV. 10. Neither the Trust nor any class of persons, securities or 8. Shares will not be individually individual Fund will be marketed or transactions, from any provision of the redeemable, and owners of Shares may otherwise held out as an ‘‘open-end Act, if and to the extent that such acquire those Shares from a Fund, or investment company’’ or a ‘‘mutual exemption is necessary or appropriate tender such Shares for redemption to fund.’’ Instead, each Fund will be in the public interest and consistent the Fund, in Creation Units only. To marketed as an ‘‘actively-managed with the protection of investors and the redeem, an investor will have to exchange-traded fund.’’ All marketing purposes fairly intended by the policy accumulate enough Shares to constitute materials that describe the method of and provisions of the Act. Section 17(b) a Creation Unit. Redemption orders obtaining, buying or selling Shares, or of the Act authorizes the Commission to must be placed by or through an refer to redeemability, will prominently exempt a proposed transaction from Authorized Participant. An investor disclose that Shares are not individually section 17(a) of the Act if evidence redeeming a Creation Unit generally redeemable and that the owners of establishes that the terms of the will receive (a) a portfolio of securities Shares may purchase or redeem Shares transaction, including the consideration designated to be delivered for Creation from a Fund in Creation Units only. The to be paid or received, are reasonable Unit redemptions on the date that the same approach will be followed in the and fair and do not involve request for redemption is submitted SAI, shareholder reports and investor overreaching on the part of any person (‘‘Redemption Securities’’) and (b) a educational materials issued or concerned, and the proposed ‘‘Cash Redemption Payment,’’ circulated in connection with the transaction is consistent with the consisting of an amount calculated in Shares. The Funds will provide copies policies of the registered investment the same manner as the Balancing of their annual and semi-annual company and the general provisions of Amount, although the actual amount of shareholder reports to DTC Participants the Act. Section 12(d)(1)(J) of the Act the Cash Redemption Payment may for distribution to beneficial owners of provides that the Commission may differ from the Balancing Amount if the Shares. exempt any person, security, or Redemption Securities are not identical 11. The Funds’ Web site, which will transaction, or any class or classes of to the Deposit Securities on that day. An be publicly available prior to the public persons, securities or transactions, from investor may receive the cash equivalent offering of Shares, will include the any provision of section 12(d)(1) if the of a Redemption Security in certain Prospectus and other information about exemption is consistent with the public circumstances, such as if the investor is the Funds that is updated on a daily interest and the protection of investors. basis, including the mid-point of the constrained from effecting transactions Sections 5(a)(1) and 2(a)(32) of the Act in the security by regulation or policy.6 bid-ask spread at the time of the A redeeming investor may pay a calculation of NAV (‘‘Bid/Ask Price’’). 3. Section 5(a)(1) of the Act defines an Transaction Fee, calculated in the same On each Business Day, before the ‘‘open-end company’’ as a management manner as a Transaction Fee payable in commencement of trading in Shares on investment company that is offering for connection with purchases of Creation the Exchange, each Fund will disclose sale or has outstanding any redeemable Units. the identities and quantities of the security of which it is the issuer. 9. Applicants state that in accepting securities (‘‘Portfolio Securities’’) and Section 2(a)(32) of the Act defines a Deposit Securities and satisfying other assets held in the Fund portfolio redeemable security as any security, that will form the basis for the Fund’s other than short-term paper, under the 5 Shares will be registered in book-entry form calculation of NAV at the end of the terms of which the holder, upon its only. DTC or its nominee will be the registered Business Day.8 presentation to the issuer, is entitled to owner of all outstanding Shares. DTC or DTC receive approximately a proportionate Participants will maintain records reflecting 7 In accepting Deposit Securities and satisfying share of the issuer’s current net assets, beneficial owners of Shares. redemptions with Redemption Securities that are 6 or the cash equivalent. Because Shares Applicants state that a cash-in-lieu amount will restricted securities eligible for resale pursuant to replace any ‘‘to-be-announced’’ (‘‘TBA’’) transaction rule 144A under the Securities Act, the relevant will not be individually redeemable, that is listed as a Deposit Security or Redemption Funds will comply with the conditions of rule applicants request an order that would Security of any Fund. A TBA transaction is a 144A, including in satisfying redemptions with permit each Fund, as a series of an method of trading mortgage-backed securities where such rule 144A eligible restricted Redemption the buyer and seller agree upon general trade Securities. The Prospectus will also state that an open-end management investment parameters such as agency, settlement date, par Authorized Participant that is not a ‘‘Qualified amount and price. The actual pools delivered Institutional Buyer’’ as defined in rule 144A under the prior Business Day (‘‘T’’) will be booked and generally are determined two days prior to the the Securities Act will not be able to receive, as part reflected in NAV on the current Business Day (‘‘T settlement date. The amount of substituted cash in of a redemption, restricted securities eligible for + 1’’). Accordingly, the Funds will be able to the case of TBA transactions will be equivalent to resale under rule 144A. disclose at the beginning of the Business Day the the value of the TBA transaction listed as a Deposit 8 Applicants note that under accounting portfolio that will form the basis for the NAV Security or Redemption Security. procedures followed by the Funds, trades made on calculation at the end of the Business Day.
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company, to issue Shares that are prices exist during a given trading day, seven calendar days, and the maximum redeemable in Creation Units only. or from day to day, such variances occur number of days needed to deliver the Applicants state that investors may as a result of third-party market forces, proceeds for the relevant Foreign Fund. purchase Shares in Creation Units from such as supply and demand. Therefore, Applicants are not seeking relief from each Fund and redeem Creation Units applicants assert that secondary market section 22(e) with respect to Foreign from each Fund. Applicants further transactions in Shares will not lead to Funds that do not effect creations and state that because the market price of discrimination or preferential treatment redemptions of Creation Units in-kind. Shares will be disciplined by arbitrage among purchasers. Finally, applicants Section 12(d)(1) opportunities, investors should be able contend that the proposed distribution to sell Shares in the secondary market system will be orderly because arbitrage 9. Section 12(d)(1)(A) of the Act at prices that do not vary substantially activity will ensure that the difference prohibits a registered investment from their NAV. between the market price of Shares and company from acquiring shares of an their NAV remains narrow. investment company if the securities Section 22(d) of the Act and Rule 22c– represent more than 3% of the total 1 Under the Act Section 22(e) outstanding voting stock of the acquired 4. Section 22(d) of the Act, among 7. Section 22(e) of the Act generally company, more than 5% of the total other things, prohibits a dealer from prohibits a registered investment assets of the acquiring company, or, selling a redeemable security, which is company from suspending the right of together with the securities of any other currently being offered to the public by redemption or postponing the date of investment companies, more than 10% or through a principal underwriter, payment of redemption proceeds for of the total assets of the acquiring except at a current public offering price more than seven days after the tender of company. Section 12(d)(1)(B) of the Act described in the prospectus. Rule 22c– a security for redemption. Applicants prohibits a registered open-end 1 under the Act generally requires that state that settlement of redemptions for investment company, its principal a dealer selling, redeeming, or the Foreign Funds is contingent not underwriter, or any other broker or repurchasing a redeemable security do only on the settlement cycle of the dealer from selling its shares to another so only at a price based on its NAV. United States market, but also on investment company if the sale will Applicants state that secondary market currently practicable delivery cycles in cause the acquiring company to own trading in Shares will take place at local markets for underlying foreign more than 3% of the acquired negotiated prices, not at a current securities held by the Foreign Funds. company’s voting stock, or if the sale offering price described in the Applicants state that local market will cause more than 10% of the prospectus, and not at a price based on delivery cycles for transferring Shares to acquired company’s voting stock to be NAV. Thus, purchases and sales of redeeming investors, coupled with local owned by investment companies Shares in the secondary market will not market holiday schedules, will, under generally. comply with section 22(d) of the Act certain circumstances, require a delivery 10. Applicants request that the order and rule 22c–1 under the Act. process longer than seven calendar days permit certain investment companies Applicants request an exemption under for Foreign Funds. Applicants request registered under the Act to acquire section 6(c) from these provisions. relief under section 6(c) of the Act from Shares beyond the limitations in section 5. Applicants assert that the concerns section 22(e) to allow the Foreign Funds 12(d)(1)(A) and permit the Funds, any sought to be addressed by section 22(d) to pay redemption proceeds up to 14 principal underwriter for the Funds, of the Act and rule 22c–1 under the Act calendar days after the tender of any and any broker or dealer registered with respect to pricing are equally Creation Units for redemption. Except under the Exchange Act (‘‘Brokers’’), to satisfied by the proposed method of as disclosed in the relevant Foreign sell Shares beyond the limitations in pricing Shares. Applicants maintain that Fund’s Prospectus and/or SAI, section 12(d)(1)(B). Applicants request while there is little legislative history applicants expect that each Foreign that these exemptions apply to: (1) any regarding section 22(d), its provisions, Fund will be able to deliver redemption Fund that is currently or subsequently as well as those of rule 22c–1, appear to proceeds within seven days.9 With part of the same ‘‘group of investment have been designed to (a) prevent respect to future Foreign Funds, companies’’ as the Initial Fund within dilution caused by certain riskless- applicants seek the same relief from the meaning of section 12(d)(1)(G)(ii) of trading schemes by principal section 22(e) only to the extent that the Act as well as any principal underwriters and contract dealers, (b) circumstances similar to those described underwriter for the Funds and any prevent unjust discrimination or in the application exist. Brokers selling Shares of a Fund to a preferential treatment among buyers 8. Applicants state that section 22(e) Fund of Funds (as defined below); and resulting from sales at different prices, was designed to prevent unreasonable (2) each management investment and (c) assure an orderly distribution of and unforeseen delays in the payment of company or unit investment trust investment company shares by redemption proceeds. Applicants assert registered under the Act that is not part eliminating price competition from that the requested relief will not lead to of the same ‘‘group of investment dealers offering shares at less than the the problems that section 22(e) was companies’’ as the Funds within the published sales price and repurchasing designed to prevent. Applicants state meaning of section 12(d)(1)(G)(ii) of the shares at more than the published that the SAI will disclose those local Act and that enters into a FOF redemption price. holidays (over the period of at least one Participation Agreement (as defined 6. Applicants believe that none of year following the date of the SAI), if below) with a Fund (such management these purposes will be thwarted by any, that are expected to prevent the investment companies are referred to permitting Shares to trade in the delivery of redemption proceeds in herein as ‘‘Investing Management secondary market at negotiated prices. Companies,’’ such unit investment Applicants state that (a) secondary 9 Rule 15c6–1 under the Exchange Act requires trusts are referred to herein as market trading in Shares does not that most securities be settled within three business ‘‘Investing Trusts,’’ and Investing days of the trade. Applicants acknowledge that no involve the Funds as parties and cannot relief obtained from the requirements of section Management Companies and Investing result in dilution of an investment in 22(e) will affect any obligations applicants may Trusts are ‘‘Funds of Funds’’). Funds of Shares, and (b) to the extent different have under rule 15c6–1. Funds do not include the Funds. Each
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Investing Trust will have a sponsor common control with the Fund of Applicants note that a Fund will be (‘‘Sponsor’’) and each Investing Funds Sub-Adviser (‘‘Fund of Funds’’ prohibited from acquiring securities of Management Company will have an Sub-Advisory Group’’). any investment company, or of any investment adviser within the meaning 13. Applicants propose other company relying on section 3(c)(1) or of Section 2(a)(20)(A) of the Act (‘‘Fund conditions to limit the potential for 3(c)(7) of the Act, in excess of the limits of Funds Adviser’’) that does not undue influence over the Funds, contained in section 12(d)(1)(A) of the control, is not controlled by or under including that no Fund of Funds or Act. common control with the Adviser. Each Fund of Funds Affiliate (except to the 16. To ensure that a Fund of Funds is Investing Management Company may extent it is acting in its capacity as an aware of the terms and conditions of the also have one or more investment investment adviser to a Fund) will cause requested order, the Fund of Funds advisers within the meaning of Section a Fund to purchase a security in any must enter into an agreement with the 2(a)(20)(B) of the Act (each, a ‘‘Fund of offering of securities during the respective Funds (‘‘FOF Participation Funds Sub-Adviser’’). existence of any underwriting or selling Agreement’’). The FOF Participation 11. Applicants assert that the syndicate of which a principal Agreement will include an proposed transactions will not lead to underwriter is an Underwriting Affiliate acknowledgement from the Fund of any of the abuses that section 12(d)(1) (‘‘Affiliated Underwriting’’). An Funds that it may rely on the order only was designed to prevent. Applicants ‘‘Underwriting Affiliate’’ is a principal to invest in the Funds and not in any submit that the proposed conditions to underwriter in any underwriting or other investment company. The FOF the requested relief address the selling syndicate that is an officer, Participation Agreement will further concerns underlying the limits in director, member of an advisory board, require any Fund of Funds that exceeds section 12(d)(1), which include Fund of Funds Adviser, Fund of Funds the 5% or 10% limitations in section concerns about undue influence, Sub-Adviser, employee or Sponsor of a 12(d)(1)(A)(ii) and (iii) to disclose in its excessive layering of fees and overly Fund of Funds, or a person of which prospectus that it may invest in ETFs complex structures. any such officer, director, member of an and disclose, in ‘‘plain English,’’ in its 12. Applicants believe that neither the advisory board, Fund of Funds Adviser, prospectus the unique characteristics of Fund of Funds nor a Fund of Funds Fund of Funds Sub-Adviser, employee, the Fund of Funds investing in Affiliate would be able to exert undue or Sponsor is an affiliated person investment companies, including but influence over the Funds.10 To limit the (except any person whose relationship not limited to the expense structure and control that a Fund of Funds may have to the Fund is covered by section 10(f) any additional expenses of investing in over a Fund, applicants propose a of the Act is not an Underwriting investment companies. Affiliate). condition prohibiting the Fund of Funds Sections 17(a)(1) and (2) of the Act Adviser or Sponsor; any person 14. Applicants do not believe that the controlling, controlled by, or under proposed arrangement will involve 17. Section 17(a)(1) and (2) of the Act common with the Fund of Funds excessive layering of fees. The board of generally prohibit an affiliated person of Adviser or Sponsor; and any investment directors or trustees of each Investing a registered investment company, or an company or issuer that would be an Management Company, including a affiliated person of such a person (‘‘second tier affiliate’’), from selling any investment company but for sections majority of the disinterested directors or security to or purchasing any security 3(c)(1) or 3(c)(7) of the Act that is trustees, before approving any advisory from the company. Section 2(a)(3) of the advised or sponsored by the Fund of contract under section 15 of the Act, Act defines ‘‘affiliated person’’ to Funds Adviser or advised or sponsored will be required to determine that the include any person directly or indirectly by the Sponsor, or any person advisory fees charged to the Investing owning, controlling, or holding with controlling, controlled by, or under Management Company are based on power to vote 5% or more of the common control with the Fund of services provided that will be in outstanding voting securities of the Funds Adviser or Sponsor (‘‘Fund of addition to, rather than duplicative of, other person and any person directly or Funds’’ Advisory Group’’) from the services provided under the indirectly controlling, controlled by, or controlling (individually or in the advisory contract(s) of any Fund in which the Investing Management under common control with, the other aggregate) a Fund within the meaning of Company may invest. In addition, the person. Section 2(a)(9) of the Act section 2(a)(9) of the Act. The same Fund of Funds Adviser, trustee of an provides that a control relationship will prohibition would apply to any Fund of Investing Trust (‘‘Trustee’’) or Sponsor, be presumed where one person owns Funds Sub-Adviser; any person as applicable, will waive fees otherwise more than 25% of another person’s controlling, controlled by, or under payable to it by the Fund of Funds in voting securities. The Funds may be common control with the Fund of an amount at least equal to any deemed to be controlled by the Adviser Funds Sub-Adviser; and any investment compensation received from a Fund by or an entity controlling, controlled by or company or issuer that would be an the Fund of Funds Adviser, Trustee or under common control with the Adviser investment company but for section Sponsor, or an affiliated person of the and hence affiliated persons of each 3(c)(1) or 3(c)(7) of the Act (or portion Fund of Funds Adviser, Trustee or other. In addition, the Funds may be of such investment company or issuer) Sponsor (other than any advisory fees), deemed to be under common control advised or sponsored by the Fund of in connection with the investment by with any other registered investment Funds Sub-Adviser or any person the Fund of Funds in the Funds. company (or series thereof) advised by controlling, controlled by, or under Applicants also state that any sales the Adviser or an entity controlling, charges and/or service fees charged with controlled by or under common control 10 A ‘‘Fund of Funds Affiliate’’ is a Fund of Funds Adviser, Fund of Funds Sub-Adviser, Sponsor, respect to shares of a Fund of Funds with the Adviser (an ‘‘Affiliated Fund’’). promoter, and principal underwriter of a Fund of will not exceed the limits applicable to Applicants state that because the Funds, and any person controlling, controlled by, a fund of funds set forth in Conduct definition of ‘‘affiliated person’’ or under common control with any of those entities. Rule 2830 of the NASD (‘‘Rule 2830’’). includes any person owning 5% or more A ‘‘Fund Affiliate’’ is the Adviser, any Sub-Adviser, promoter or principal underwriter of a Fund, or any 15. Applicants submit that the of an issuer’s outstanding voting person controlling, controlled by, or under common proposed arrangement will not create an securities, every purchaser of a Creation control with any of these entities. overly complex fund structure. Unit will be affiliated with the Fund so
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long as fewer than twenty Creation Shares will be valued in the same 5. The Web site for the Trust, which Units are in existence, and any manner as the Fund’s Portfolio is and will be publicly accessible at no purchaser that owns more than 25% of Securities and thus the transactions will charge, will contain the following a Fund’s outstanding Shares will be not be detrimental to the Fund of Funds. information, on a per Share basis, for affiliated with a Fund. Applicants also state that the proposed each Fund: (a) The prior Business Day’s 18. Applicants request an exemption transactions will be consistent with the NAV and the Bid/Ask Price, and a from section 17(a) under sections 6(c) policies of each Fund of Funds and calculation of the premium or discount and 17(b), to permit in-kind purchases Fund and with the general purposes of of the Bid/Ask Price against such NAV; and redemptions by persons that are the Act. and (b) data in chart format displaying affiliated persons or second tier the frequency distribution of discounts Applicants’ Conditions affiliates of the Funds solely by virtue and premiums of the daily Bid/Ask of one or more of the following: (1) The applicants agree that any order of Price against the NAV, within Holding 5% or more, or more than 25%, the Commission granting the requested appropriate ranges, for each of the four of the outstanding Shares of the Trust or relief will be subject to the following previous calendar quarters (or for the one or more Funds; (2) an affiliation conditions: life of the Fund, if shorter). with a person with an ownership 6. The Prospectus and annual report A. Actively Managed Exchange-Traded interest described in (1); or (3) holding for each Fund will also include: (a) The Fund Relief 5% or more, or more than 25%, of the information listed in condition A.5(b), shares of one or more Affiliated Funds. 1. The requested order will expire on (i) in the case of the Prospectus, for the Applicants also request an exemption in the effective date of any Commission most recently completed year (and the order to permit each Fund to sell Shares rule under the Act that provides relief most recently completed quarter or to and redeem Shares from, and engage permitting the operation of actively quarters, as applicable) and (ii) in the in the in-kind transactions that would managed exchange-traded funds. case of the annual report, for the accompany such sales and redemptions 2. Each Fund’s Prospectus will clearly immediately preceding five years (or for with, any Fund of Funds of which it is disclose that, for purposes of the Act, the life of the Fund, if shorter), and (b) an affiliated person or second tier Shares are issued by a registered the cumulative total return and the affiliate.11 investment company and that the average annual total return based on 19. Applicants contend that no useful acquisition of Shares by investment NAV and Bid/Ask Price calculated on a purpose would be served by prohibiting companies and companies relying on per Share basis for one-, five- and ten- affiliated persons or second tier sections 3(c)(1) or 3(c)(7) of the Act is year periods (or for the life of the Fund, affiliates of a Fund from purchasing or subject to the restrictions of section if shorter). 7. No Adviser or Sub-Adviser, directly redeeming Creation Units through ‘‘in- 12(d)(1) of the Act, except as permitted or indirectly, will cause any Authorized kind’’ transactions. The deposit by an exemptive order that permits Participant (or any investor on whose procedure for in-kind purchases and the registered investment companies to behalf an Authorized Participant may redemption procedure for in-kind invest in a Fund beyond the limits in transact with the Fund) to acquire any redemptions will be the same for all section 12(d)(1), subject to certain terms purchases and redemptions. Deposit Deposit Security for the Fund through a and conditions, including that the transaction in which the Fund could not Securities and Redemption Securities registered investment company enter will be valued under the same objective engage directly. into a FOF Participation Agreement 8. On each Business Day, before standards applied to valuing Portfolio with the Fund regarding the terms of the commencement of trading in Shares on Securities. Therefore, applicants state investment. the Fund’s listing Exchange, the Fund that in-kind purchases and redemptions 3. As long as a Fund operates in will disclose on its Web site the will afford no opportunity for the reliance on the requested order, the identities and quantities of the Portfolio affiliated persons and second tier Shares of the Fund will be listed on an Securities and other assets held by the affiliates described above to effect a Exchange. Fund that will form the basis for the transaction detrimental to the other 4. Neither the Trust nor any Fund will Fund’s calculation of NAV at the end of holders of Shares. Applicants also be advertised or marketed as an open- the Business Day. believe that in-kind purchases and end investment company or a mutual redemptions will not result in abusive fund. Each Fund’s Prospectus and B. Section 12(d)(1) Relief self-dealing or overreaching by these advertising materials will prominently 1. The members of the Fund of Funds’ persons of the Fund. disclose that the Fund is an actively Advisory Group will not control 20. Applicants also submit that the managed exchange-traded fund. Each (individually or in the aggregate) a Fund sale of Shares to and redemption of Prospectus will prominently disclose within the meaning of section 2(a)(9) of Shares from a Fund of Funds satisfies that the Shares are not individually the Act. The members of the Fund of the standards for relief under sections redeemable shares and will disclose that Funds’ Sub-Advisory Group will not 17(b) and 6(c) of the Act. Applicants the owners of the Shares may acquire control (individually or in the aggregate) note that the consideration paid for the those Shares from the Fund and tender a Fund within the meaning of section purchase or received for the redemption those Shares for redemption to the Fund 2(a)(9) of the Act. If, as a result of a of Shares directly from a Fund by a in Creation Units only. Any advertising decrease in the outstanding voting Fund of Funds (or any other investor) material that describes the purchase or securities of a Fund, the Fund of Funds’ will be based on the NAV of the Shares. sale of Creation Units or refers to Advisory Group or the Fund of Funds’ In addition, the securities received or redeemability will prominently disclose Sub-Advisory Group, each in the transferred by the Fund in connection that the Shares are not individually aggregate, becomes a holder of more with the purchase or redemption of redeemable and that owners of the than 25 percent of the outstanding Shares may acquire those Shares from voting securities of a Fund, it will vote 11 Although applicants believe that most Fund of Funds will purchase and sell Shares in the the Fund and tender those Shares for its Shares of the Fund in the same secondary market, a Fund of Funds might seek to redemption to the Fund in Creation proportion as the vote of all other transact in Shares directly with a Fund. Units only. holders of the Fund’s Shares. This
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condition does not apply to the Fund of Adviser, or Trustee or Sponsor of the appropriate, the institution of Funds’ Sub-Advisory Group with Investing Trust, other than any advisory procedures designed to assure that respect to a Fund for which the Fund of fees paid to the Fund of Funds Adviser, purchases of securities in Affiliated Funds Sub-Adviser or a person or Trustee or Sponsor of the Investing Underwritings are in the best interest of controlling, controlled by or under Trust, or its affiliated person by the shareholders. common control with the Fund of Fund, in connection with the 8. Each Fund will maintain and Funds Sub-Adviser acts as the investment by the Fund of Funds in the preserve permanently in an easily investment adviser within the meaning Fund. Any Fund of Funds Sub-Adviser accessible place a written copy of the of section 2(a)(20)(A) of the Act. will waive fees otherwise payable to the procedures described in the preceding 2. No Fund of Funds or Fund of Fund of Funds Sub-Adviser, directly or condition, and any modifications to Funds Affiliate will cause any existing indirectly, by the Investing Management such procedures, and will maintain and or potential investment by the Fund of Company in an amount at least equal to preserve for a period of not less than six Funds in a Fund to influence the terms any compensation received from a Fund years from the end of the fiscal year in of any services or transactions between by the Fund of Funds Sub-Adviser, or which any purchase in an Affiliated the Fund of Funds or a Fund of Funds an affiliated person of the Fund of Underwriting occurred, the first two Affiliate and the Fund or a Fund Funds Sub-Adviser, other than any years in an easily accessible place, a Affiliate. advisory fees paid to the Fund of Funds written record of each purchase of 3. The board of directors or trustees of Sub-Adviser or its affiliated person by securities in Affiliated Underwritings an Investing Management Company, the Fund, in connection with the once an investment by a Fund of Funds including a majority of the disinterested investment by the Investing in the securities of the Fund exceeds the directors or trustees, will adopt Management Company in the Fund limit of section 12(d)(1)(A)(i) of the Act, procedures reasonably designed to made at the direction of the Fund of setting forth from whom the securities assure that the Fund of Funds Adviser Funds Sub-Adviser. In the event that the were acquired, the identity of the and any Fund of Funds Sub-Adviser are Fund of Funds Sub-Adviser waives fees, underwriting syndicate’s members, the conducting the investment program of the benefit of the waiver will be passed terms of the purchase, and the the Investing Management Company through to the Investing Management information or materials upon which without taking into account any Company. the Board’s determinations were made. consideration received by the Investing 6. No Fund of Funds or Fund of 9. Before investing in a Fund in Management Company or a Fund of Funds Affiliate (except to the extent it excess of the limit in section Funds Affiliate from a Fund or a Fund is acting in its capacity as an investment 12(d)(1)(A), a Fund of Funds will Affiliate in connection with any services adviser to a Fund) will cause a Fund to execute a FOF Participation Agreement or transactions. purchase a security in an Affiliated with the Fund stating that their 4. Once an investment by a Fund of Underwriting. respective boards of directors or trustees Funds in the securities of a Fund 7. The Board of the Fund, including and their investment Advisers, or exceeds the limit in section a majority of the disinterested Board Trustee and Sponsor, as applicable, l2(d)(1)(A)(i) of the Act, the board of members, will adopt procedures understand the terms and conditions of trustees (‘‘Board’’) of a Fund, including reasonably designed to monitor any the order, and agree to fulfill their a majority of the disinterested Board purchases of securities by the Fund in responsibilities under the order. At the members, will determine that any an Affiliated Underwriting, once an time of its investment in Shares of a consideration paid by the Fund to the investment by a Fund of Funds in the Fund in excess of the limit in section Fund of Funds or a Fund of Funds securities of the Fund exceeds the limit 12(d)(1)(A)(i), a Fund of Funds will Affiliate in connection with any services of section 12(d)(1)(A)(i) of the Act, notify the Fund of the investment. At or transactions: (i) Is fair and reasonable including any purchases made directly such time, the Fund of Funds will also in relation to the nature and quality of from an Underwriting Affiliate. The transmit to the Fund a list of the names the services and benefits received by the Board will review these purchases of each Fund of Funds Affiliate and Fund; (ii) is within the range of periodically, but no less frequently than Underwriting Affiliate. The Fund of consideration that the Fund would be annually, to determine whether the Funds will notify the Fund of any required to pay to another unaffiliated purchases were influenced by the changes to the list as soon as reasonably entity in connection with the same investment by the Fund of Funds in the practicable after a change occurs. The services or transactions; and (iii) does Fund. The Board will consider, among Fund and the Fund of Funds will not involve overreaching on the part of other things: (i) Whether the purchases maintain and preserve a copy of the any person concerned. This condition were consistent with the investment order, the FOF Participation Agreement, does not apply with respect to any objectives and policies of the Fund; (ii) and the list with any updated services or transactions between a Fund how the performance of securities information for the duration of the and its investment adviser(s), or any purchased in an Affiliated Underwriting investment and for a period of not less person controlling, controlled by or compares to the performance of than six years thereafter, the first two under common control with such comparable securities purchased during years in an easily accessible place. investment adviser(s). a comparable period of time in 10. Before approving any advisory 5. The Fund of Funds Adviser, or underwritings other than Affiliated contract under section 15 of the Act, the Trustee or Sponsor, as applicable, will Underwritings or to a benchmark such board of directors or trustees of each waive fees otherwise payable to it by the as a comparable market index; and (iii) Investing Management Company, Fund of Funds in an amount at least whether the amount of securities including a majority of the disinterested equal to any compensation (including purchased by the Fund in Affiliated directors or trustees, will find that the fees received pursuant to any plan Underwritings and the amount advisory fees charged under such adopted by a Fund under rule 12b–l purchased directly from an contract are based on services provided under the Act) received from a Fund by Underwriting Affiliate have changed that will be in addition to, rather than the Fund of Funds Adviser, or Trustee significantly from prior years. The duplicative of, the services provided or Sponsor of the Investing Trust, or an Board will take any appropriate actions under the advisory contract(s) of any affiliated person of the Fund of Funds based on its review, including, if Fund in which the Investing
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Management Company may invest. Lord Abbett Growth and Income 1. Sun Life U.S. is a stock life These findings and their basis will be Portfolio and the Lord Abbett Mid-Cap insurance company ultimately recorded fully in the minute books of Value Portfolio of Lord Abbett Series controlled by Sun Life Financial Inc. the appropriate Investing Management Fund, Inc. (‘‘LA Series’’), and (‘‘Sun Life Financial’’), a Canadian Company. Administrative Class shares of the reporting company under the Securities 11. Any sales charges and/or service PIMCO High Yield Portfolio and the Exchange Act of 1934 (the ‘‘1934 Act’’). fees charged with respect to shares of a PIMCO Low Duration Portfolio of the Sun Life U.S. is the depositor and Fund of Funds will not exceed the PIMCO Variable Insurance Trust with sponsor of Account F, Account G, and limits applicable to a Fund of Funds as Initial Class shares of the following Account I. set forth in Rule 2830. portfolios of Sun Capital Trust, 2. Account F is registered as a unit 12. No Fund will acquire securities of respectively: The SC Lord Abbett investment trust (File No. 811–05846); an investment company or company Growth & Income Fund, the SC its interests are offered through relying on section 3(c)(1) or 3(c)(7) of Goldman Sachs Mid Cap Value Fund, Contracts (the ‘‘Account F Contracts’’) the Act in excess of the limits contained the SC PIMCO High Yield Fund, and the registered under the Securities Act of in section 12(d)(1)(A) of the Act. SC Goldman Sachs Short Duration 1933 (‘‘1933 Act’’) on Form N–4 (File Fund. Section 17(b) Applicants also Nos. 033–41628, 333–37907, 333– For the Commission, by the Division of 05227, 333–30844, 333–31248, 333– Investment Management, under delegated seek an order pursuant to Section 17(b) authority. of the Act to permit certain in-kind 41438, 333–74844, 333–82957, 333– 83362, 333–83364, 333–83516, 333– Florence E. Harmon, transactions in connection with the 115536, and 333–115525). Similarly, Acting Secretary. Substitutions. Filing Date: The application was Account G, registered as a unit [FR Doc. E8–31089 Filed 12–30–08; 8:45 am] originally filed on July 9, 2007, and an investment trust (File No. 811–07837) BILLING CODE 8011–01–P amended and restated application was offers its interests through Contracts (the filed on December 18, 2008. ‘‘Account G Contracts’’) registered Hearing or Notification of Hearing: An under the 1933 Act on Form N–6 (File SECURITIES AND EXCHANGE order granting the application will be Nos. 333–65048, 333–13087, and 333– COMMISSION issued unless the Commission orders a 111688). Account I, registered as a unit [Release No. IC–28570; File No. 812–13402] hearing. Interested persons may request investment trust (File No. 811–09137) a hearing by writing to the Secretary of also offers its interests through Sun Life Assurance Company of the Commission and serving Applicants Contracts (the ‘‘Account I Contracts’’) Canada (U.S.), et al., Notice of with a copy of the request, personally or registered under the 1933 Act on Form Application by mail. Hearing requests must be N–6 (File Nos. 333–68601, 333–100831, received by the Commission by 5:30 333–59662, 333–100829, 333–94359, December 23, 2008. p.m. on January 21, 2009, and should be 333–143353, 333–143354, and 333– AGENCY: Securities and Exchange accompanied by proof of service on 144628). Commission (the ‘‘Commission’’). Applicants in the form of an affidavit or, 3. Sun Life N.Y., a wholly owned ACTION: Notice of application for an for lawyers, a certificate of service. subsidiary of Sun Life U.S., is a stock order of approval pursuant to Section Hearing requests should state the nature life insurance company and is the 26(c) of the Investment Company Act of of the requester’s interest, the reason for depositor and sponsor of Account C, 1940, as amended (the ‘‘Act’’), and an the request, and the issues contested. Account D, and Account J. order of exemption pursuant to Section Persons who wish to be notified of a 4. Account C, a registered unit 17(b) of the Act from Section 17(a) of hearing may request notification by investment trust (File No. 811–04440), the Act. writing to the Secretary of the also offers its interests through certain Commission. Contracts (the ‘‘Account C Contracts’’) Applicants: Sun Life Assurance registered under the 1933 Act on Form Company of Canada (U.S.) (‘‘Sun Life ADDRESSES: The Commission: Secretary, N–4 (File Nos. 333–05037, 333–67864, U.S.’’), Sun Life Insurance and Annuity Securities and Exchange Commission, 333–119151, 333–119154, 333–100474, Company of New York (‘‘Sun Life 100 F Street, NE., Washington, DC 333–107983, 333–99907, and 333– N.Y.’’) (together with Sun Life U.S., the 20549–1090; Applicants: c/o Maura A. 100475). Similarly, Account D, ‘‘Companies’’), Sun Life of Canada Murphy, Esq., Sun Life Assurance registered as a unit investment trust (U.S.) Variable Account F (‘‘Account Company of Canada (U.S.), One Sun (File No. 811–04633) offers its interests F’’), Sun Life of Canada (U.S.) Variable Life Executive Park, Wellesley Hills, through Contracts (the ‘‘Account D Account G (‘‘Account G’’), Sun Life of Massachusetts 02481. Contracts’’) registered under the 2933 Canada (U.S.) Variable Account I FOR FURTHER INFORMATION CONTACT: Act on Form N–6 (File Nos. 333– (‘‘Account I’’), Sun Life (N.Y.) Variable Rebecca A. Marquigny, Senior Counsel, 105437, 333–105438, and 333–105441). Account C (‘‘Account C’’), Sun Life or Joyce M. Pickholz, Branch Chief, Account J, registered as a unit (N.Y.) Variable Account D (‘‘Account Office of Insurance Products, Division of investment trust (File No. 811–21937) D’’), and Sun Life (N.Y.) Variable Investment Management, at (202) 551– also offers its interests through Account J (‘‘Account J’’) (collectively, 6795. Contracts (the ‘‘Account J Contracts’’) the ‘‘Applicants’’). Applicants, together SUPPLEMENTARY INFORMATION: The registered under the 1933 Act on Form with Sun Capital Advisers Trust (‘‘Sun following is a summary of the N–6 (File Nos. 333–136433 and 333– Capital Trust’’) are ‘‘Section 17(b) application. The complete application is 136435). Applicants.’’ available for a fee from the Public 5. All of the Contracts involved in the Summary of Application: Applicants Reference Branch of the Commission, Substitutions (a) reserve the right to seek an order approving the proposed 100 F Street, NE., Washington, DC substitute shares of one portfolio for substitutions (the ‘‘Substitutions’’) 20549 (202–551–8090). shares of another; (b) permit transfers of under certain variable life insurance Applicants’ and Section 17 contract value among the subaccounts policies and variable annuity contracts Applicants’ Representations and pursuant to the limitations of the (‘‘Contracts’’) of Class VC shares of the Conditions: particular Contract, (c) impose or
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reserve the right to impose a transfer to subadvisory agreements (the the investment objectives and policies charge (except Accounts G and J); and ‘‘Manager of Managers Order’’).1 of the New Portfolios are sufficiently (d) are subject to market timing policies 11. Applicants represent that the similar to those of the corresponding and procedures that may operate to relief granted in the Manager of Old Portfolios that Contract owners will limit transfers. Managers Order extends to New have reasonable continuity in 6. Applicants represent that all of the Portfolios permitting Sun Capital to investment expectations. The following portfolios involved in the Substitutions enter into and materially amend summarizes the more complete are currently available to new and investment subadvisory agreements comparison of New and Old Portfolios existing Contract owners (and will without obtaining shareholder approval. provided in the Application. continue to be available until the time Applicants also indicate that the 14. Growth & Income Portfolio the substitutions occur) for the prospectus for the New Portfolios will Substitution allocation of purchase payments and disclose and explain the existence, Applicants state that both Old Growth transfer of contract value. substance and effect of the Manager of & Income and New Growth & Income 7. Lord Abbett Growth and Income Managers Order. share the identical investment objective Portfolio (‘‘Old Growth & Income’’) and 12. Applicants propose to substitute to ‘‘seek long-term growth of capital and Lord Abbett Mid-Cap Value Portfolio Initial Class shares of (a) New Growth & income without excessive fluctuations (‘‘Old Mid-Cap Value’’) (each, Income for Class VC shares of Old in market value.’’ Applicants state that individually, an ‘‘Old Portfolio’’ and Growth & Income; (b) New Mid Cap the principal investment strategies of collectively, ‘‘Old LA Portfolios’’) are Value for Class VC shares of Old Mid the two portfolios are virtually identical portfolios of LA Series, a registered, Cap Value; (c) New High Yield for noting that both invest at least 80% of diversified, open-end management Administrative Class shares of Old High net assets in equity securities of large investment company (File No. 811– Yield; and (d) New Short Duration for companies defined as those having 05876). Class VC shares of Old LA Administrative Class shares of Old Low capitalization within the range of the Portfolios are registered under the 1933 Duration. Applicants state that the companies in the Russell 1000 Index at Act on Form N–1A (File No. 33–31072). proposed Substitutions are not intended the time of purchase. Both portfolios The investment adviser to Old LA to effect an overall reorganization or primarily purchase equity securities of Portfolios is Lord Abbett & Co., LLC merger of any of the underlying large, seasoned, U.S. and multinational (‘‘Lord Abbett’’). investment options offered in the companies that are believed to be 8. PIMCO High Yield Portfolio (‘‘Old Contracts. Applicants assert their belief undervalued, and both attempt to invest High Yield’’) and PIMCO Low Duration that: in securities selling at reasonable prices Portfolio (‘‘Old Low Duration’’) (each, (a) Reducing the number of in relation to their potential value. individually, an ‘‘Old Portfolio’’ and nonproprietary funds will provide the Applicants also represent that both collectively, ‘‘Old PIMCO Portfolios’’) Companies with more control over fund portfolios share substantially similar are portfolios of PIMCO Variable changes that affect the Contracts; risk profiles. Insurance Trust, a registered, (b) The New Portfolios better promote Charges for Class VC of Old Growth diversified, open-end management their goals of increasing administrative & Income include Management Fees of investment company (File No. 811– efficiency of, and control over, their 0.47% and Other Expenses of 0.41%.2 08399). Administrative Class shares of Contracts as the New Portfolios are part Total Operating Expenses for Initial Old PIMCO Portfolios are registered of their proprietary fund family; Class shares of New Growth & Income under the 1933 Act on Form N–1A (File (c) This streamlining will allow the are 0.88% which represents 0.01% in No. 333–37115). The investment adviser Companies to enhance their Other Expenses and a 0.87% unified to Old PIMCO Portfolios is Pacific communication efforts to Contract management fee (subject to a 0.87% Investment Management Company LLC owners and sales representatives contractual limitation on Total (‘‘PIMCO’’). regarding the available portfolios, and Operating Expenses). Neither portfolio 9. The following ‘‘New Portfolios’’ may provide for more enhanced and charges a 12b–1 Fee. Old Growth & (each, individually, a ‘‘New Portfolio’’) timely reporting from the Companies to Income’s total gross and net operating are portfolios of Sun Capital Trust, a Contract owners with respect to changes expenses are both 0.88%. Respectively, registered, diversified, open-end in the underlying funds. New Growth & Income’s total gross and management investment company (File 13. Applicants represent that because net operating expenses are 0.88% and No. 811–08879): SC Lord Abbett Growth the New Portfolios operate pursuant to 0.87% (reflecting the contractual & Income Fund (‘‘New Growth & the Manager of Managers Order (and expense limitation agreement). Income’’), SC Goldman Sachs Mid Cap assuming that the Applicants first 15. Mid Cap Value Portfolio Value Fund (‘‘New Mid Cap Value’’), SC obtain shareholder approval of a change Substitution PIMCO High Yield Fund (‘‘New High in a New Portfolio’s subadviser or of a Applicants state that both Old Mid Yield’’), and SC Goldman Sachs Short New Portfolio’s continued ability to rely Cap Value and New Mid Cap Value Duration Fund (‘‘New Short Duration’’). on the Manager of Manager’s Order), the share a similar investment objective Initial Class shares of New Portfolios are Substitutions would provide protection because Old Mid Cap Value ‘‘seeks registered under the 1933 Act on Form to Contract owners by giving Sun capital appreciation through N–1A (File No. 333–59093) and are not Capital the agility and flexibility to investments, primarily in equity subject to a distribution fee. change the subadviser of the New securities, which are believed to be 10. Sun Capital Advisers LLC (‘‘Sun Portfolios should such a change become undervalued in the marketplace’’ and Capital’’), an indirect, wholly owned warranted or advisable. In support of New Mid Cap Value ‘‘seeks long-term subsidiary of Sun Life Financial, is the Substitutions, Applicants assert that return of capital.’’ Applicants state that investment adviser to all the Sun Capital Trust portfolios. Through an 1 Sun Capital Advisers Trust and Sun Capital 2 For the descriptions of charges involved in the order from the Commission pursuant to Advisers, Inc., 1940 Act Rel. No. 24401 (April 24, Substitution, all percentages for the Management 2000) (Order), File No. 812–11790; see also Sun Fees, 12b–1 Fees, Other Expenses, Fee Reductions, Section 6(c) of the Act, Sun Capital is Capital Advisers Trust and Sun Capital Advisers, Total Gross and Net Annual Operating Expenses, exempt from Section 15(a) of the Act Inc., 1940 Act Rel. No. 23793 (Apr. 20, 1999) and Separate Account Fees represent a percentage and Rule 18f-2 thereunder with respect (Order), File No. 812–11464. of average annual assets.
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the principal investment strategies of Fees of 0.15%, and Other Expenses of cash. Applicants represent that in either the two portfolios are similar noting that 0.35%. Charges for Initial Class shares event, the proceeds of such redemptions both employ a value approach to of New High Yield include a 0.74% will then be used to purchase shares of investing and normally invest at least unified management fee and 0.01% in the New Portfolios, with each 80% of net assets, plus the amount of Other Expenses. New High Yield does subaccount of the applicable Separate any borrowings for investment not charge a service fee, and neither Account investing the proceeds of its purposes, in securities of mid-sized portfolio charges a 12b–1 Fee. The total redemption from the Old Portfolios in companies. Applicants represent that gross and net operating expenses for the applicable New Portfolio. both Old Mid Cap Value and New Mid both Old High Yield and New High 19. Applicants further state that Cap Value have substantially similar Yield are 0.75%. In addition, New High redemption requests and purchase risk characteristics which are presented Yield’s fees are also subject to a 0.75% orders will be placed simultaneously so in greater detail in the Application. contractual expense limitation on total that contract values will remain fully Charges for Class VC of Old Mid Cap operating expenses for at least 24 invested at all times. Applicants Value include Management Fees of months following the date of the represent that all redemptions of shares 0.74% and Other Expenses of 0.38%. Substitutions. of the Old Portfolios and purchases of Total Operating Expenses for Initial 17. Low/Short Duration Portfolio shares of the New Portfolios will be Class shares of New Mid Cap Value are Substitutions effected in accordance with Section 1.06% which represents 0.01% in Other Applicants represent that Old Low 22(c) of the Act and Rule 22c–1 Expenses and a 1.05% unified Duration and New Short Duration share thereunder. Applicants state that the management fee (subject to a 1.07% a similar investment objective in that Substitutions will take place at relative contractual limitation on Total Old Low Duration ‘‘seeks maximum net asset value as of the Effective Date Operating Expenses). Neither portfolio total return, consistent with with no change in the amount of any charges a 12b–1 Fee. Old Mid Cap preservation of capital and prudent Contract owner’s contract value or death Value’s total gross and net operating investment management,’’ while New benefit or in the dollar value of his or expenses are both 1.12% while New Short Duration ‘‘primarily seeks a high her investments in any of the Mid Cap Value’s total gross and net level of current income, with capital subaccounts. Applicants represent that operating expenses are both 1.06%. appreciation as a secondary goal.’’ Contract values attributable to 16. High Yield Portfolio Substitutions Applicants also represent that the investments in the Old Portfolios will be Applicants represent that Old High principal investment strategies of the transferred to the New Portfolios Yield and New High Yield share a two portfolios are similar. Both invest without charge and without counting virtually identical investment objective primarily in fixed income securities at toward the number of transfers that may because New High Yield seeks levels of total assets equal to at least be permitted without charge. ‘‘maximum total return, consistent with 65% for Old Low Duration and 80% for 20. Applicants further represent that capital preservation’’ and Old High New Short Duration. In addition, all expenses incurred in connection Yield seeks the same ‘‘and prudent Applicants represent that both Old Low with the Substitutions, including legal, investment management.’’ Applicants Duration and New Short Duration have accounting, transactional, and other fees represent that under normal similar risk characteristics discussed at and expenses, including brokerage circumstances both invest at least 80% length in the Application. commissions, will be paid by Sun Life of assets in a diversified portfolio of Charges for Administrative Class U.S. or Sun Life N.Y. Applicants also high yield junk bonds rated at least Caa shares of Old Low Duration include state that, as a result of the by Moody’s or equivalently rated by Management Fees of 0.25%, Service Substitutions, Contract owners will not S&P or Fitch, or, if unrated, determined Fees of 0.15%, and Other Expenses of incur any additional fees or charges, nor by the adviser or subadviser to be of 0.25%. Charges for Initial Class shares will their rights or insurance benefits or comparable quality. Applicants state of New Short Duration include a 0.64% the Companies’ obligations under the that neither portfolio may invest more unified management fee and 0.01% in Contracts be altered. Applicants assert than 5% of total assets in securities of Other Expenses. New Short Duration that the Substitutions: (a) Will not equal or lower rating. Applicants does not charge a service fee, and impose any tax liability on Contract represent that both portfolios employ an neither portfolio charges a 12b–1 Fee. owners; and (b) will not cause the average portfolio duration within a two- The total gross and net operating Contract fees and charges currently to-six year time frame and may invest expenses for both Old Low Duration and being paid by existing Contract owners up to the same percentages of total New Short Duration are 0.65%. In to be greater after the Substitutions than assets in issuers located in countries addition, New Short Duration’s fees are before the Substitutions. Applicants with developing economies. Applicants also subject to a 0.65% contractual represent that neither Sun Life U.S. nor assert that the limits for investment in expense limitation on total operating Sun Life N.Y. will exercise any right foreign currency denominated securities expenses for at least 24 months either may have under the Contracts to and U.S. dollar-denominated securities following the date of the Substitutions. impose restrictions on transfers under of foreign issuers are the same for both 18. Applicants assert that as of the the Contracts for the period from the portfolios. Applicants also identify effective date of the Substitutions date the Application was filed with the other similar strategies including that (‘‘Effective Date’’ or ‘‘Substitution Commission through at least thirty days both portfolios may invest all of their Date’’), each Separate Account will following the Effective Date. assets in derivative instruments. In redeem shares of the applicable Old 21. The Companies represent that addition, Applicants represent that both Portfolio in-kind. Applicants state that if during the twenty-four months Old High Yield and New High Yield Sun Capital declines to accept particular following the Effective Date, the total have substantially similar risk portfolio securities of any of the Old net operating expenses of each New characteristics discussed at length in the Portfolios for purchase in-kind of shares Portfolio (taking into account any Application. of the New Portfolios, the applicable expense waiver or reimbursement) will Charges for Administrative Class Old Portfolio will liquidate portfolio not exceed the net expense level of the shares of Old High Yield include securities as necessary, and shares of the corresponding Old Portfolio for the Management Fees of 0.25%, Service New Portfolio will be purchased with fiscal year ended December 31, 2007.
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Applicants also state that for at least that, within five days following the concerned; the proposed transaction is twenty-four months following the date Substitutions, Contract owners affected consistent with the policy of each of the Substitutions, Sun Capital has by the Substitutions will be notified in registered investment company contractually agreed to waive its writing that the Substitutions were concerned, as recited in its registration management fee and, if necessary, to carried out and that this notice will statement and records filed under the limit other ordinary operating expenses restate the information set forth in the Act; and the proposed transaction is so that total operating expenses, as a Pre-Substitution Notice. consistent with the general purposes of percentage of average net assets, do not the Act. Applicants’ Legal Analysis exceed 0.87%, 1.07%, 0.75%, or 0.65%, 5. The Section 17(b) Applicants state as applicable. In addition, Applicants 1. Section 26(c) of the Act makes it that the terms under which the in-kind represent that for twenty-four months unlawful for any depositor or trustee of redemptions and purchases will be following the date of the Substitutions, a registered unit investment trust effected are reasonable and fair and do the Companies will not increase asset- holding the security of a single issuer to not involve overreaching on the part of based fees or charges for Contracts substitute another security for such any person principally because the outstanding on the Effective Date. security unless the Commission Substitutions will conform with all but 22. Applicants represent that a approves the substitution. The one of the conditions enumerated in prospectus for the New Portfolio Commission shall approve such a Rule 17a–7. Applicants assert that the containing disclosure describing the substitution if the evidence establishes use of in-kind transactions will not existence, substance and effect of the that it is consistent with the protection cause Contract owner interests to be Manager of Managers Order will be of investors and the purposes fairly diluted. In support, Applicants provided to each Contract owner prior intended by the policy and provisions of represent that: (a) The proposed to or at the time of the Substitutions. the Act. transactions will take place at relative Notwithstanding the Manager of 2. Applicants submit that the net asset value as of the Effective Date Managers Order, the Applicants agree Substitutions meet the standards set in conformity with the requirements of not to change any New Portfolio’s forth in Section 26(c) and assert that Section 22(c) of the 1940 Act and Rule subadviser, add a new subadviser, or replacement of the Old Portfolios with 22c–1 thereunder with no change in the otherwise rely on the Manager of the New Portfolio is consistent with the amount of any Contract owner’s contract Managers Order without first obtaining protection of Contract owners and the value or death benefit or in the dollar shareholder approval, following the purposes fairly intended by the policy value of his or her investment in any of Effective Date of the Substitutions, of and provisions of the Act. Applicants the Separate Accounts; (b) Contract either: (1) The subadviser change; or (2) have reserved the right to make such a owners will not suffer any adverse tax the New Portfolio’s continued ability to substitution under the Contracts and consequences as a result of the rely on the Manager of Managers Order. represent that this reserved right is Substitutions; and (c) fees and charges 23. Applicants state that Contract disclosed in the prospectus for the under the Contracts will not increase owners were or will be notified of the Contracts. because of the Substitutions. proposed Substitutions by means of a 3. Section 17(a)(1) of the Act, in 6. Further, though the Section 17(b) prospectus or prospectus supplement relevant part, prohibits any affiliated Applicants may not rely on Rule 17a– for each of the Contracts stating that the person of a registered investment 7 because they cannot meet all of its Applicants filed the Application and company, or any affiliated person of conditions, the Section 17(b) Applicants seek approval for the Substitutions such person, acting as principal, from agree to carry out the proposed in-kind (‘‘Pre-Substitution Notice’’). The Pre- knowingly selling any security or other purchases in conformity with all of the Substitution Notice sets forth the property to that company. Section conditions of Rule 17a–7 and the anticipated Effective Date and explains 17(a)(2) of the Act generally prohibits procedures adopted thereunder, except that contract values attributable to the persons described above, acting as that the consideration paid for the investments in the Old Portfolios will be principal, from knowingly purchasing securities being purchased or sold may transferred to the New Portfolios on the any security or other property from the not be entirely cash. However, Effective Date without charge (including registered company. Pursuant to Section Applicants assert that the circumstances sales charges or surrender charges) and 17(a)(1) of the Act, the Section 17(b) surrounding the Substitutions will offer without counting toward the number of Applicants may be considered affiliates the same degree of protection to the transfers that may be permitted without of one or more of the portfolios involved New Portfolios from overreaching that charge. Applicants indicate that the Pre- in the Substitutions. Because the Rule 17a–7 provides to it generally in Substitution Notice states that, from the Substitutions may be effected, in whole connection with its purchase and sale of date the initial application was filed or in part, by means of in-kind securities under that Rule in the with the Commission through the date redemptions and subsequent purchases ordinary course of its business. thirty days after the Substitutions, of shares and by means of in-kind 7. Applicants assert that the Board of Contract owners may make one transfer transactions, the Substitutions may be Sun Capital Trust has adopted of contract value from each subaccount deemed to involve one or more procedures, as required by paragraph investing in the Old Portfolios (before purchases or sales of securities or (e)(1) of Rule 17a–7, pursuant to which the Substitutions) or a New Portfolio property between affiliates. its portfolios may purchase and sell (after the Substitutions) to one or more 4. Section 17(b) of the Act provides securities to and from their affiliates. other subaccount(s) without a transfer that the Commission may, upon Applicants also note that the Companies charge and without that transfer application, grant an order exempting (or any of their affiliates) cannot effect counting against their contractual any transaction from the prohibitions of the proposed Substitutions at a price transfer limitations. Section 17(a) if the evidence establishes disadvantageous to the New Portfolio. 24. Applicants represent that all that: the terms of the proposed Although the Substitutions may not be Contract owners will have received a transaction, including the consideration entirely for cash, Applicants represent copy of the most recent prospectus for to be paid or received, are reasonable that each will be effected based upon (1) the New Portfolios prior to the and fair and do not involve the independent market price of the Substitutions. Applicants also agree overreaching on the part of any person portfolio securities valued as specified
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in paragraph (b) of Rule 17a–7, and (2) SECURITIES AND EXCHANGE and 2 make technical modifications to the net asset value per share of each COMMISSION the original rule proposal, the portfolio involved valued according to Commission is not publishing them for [Release No. 34–59154; File No. SR–BSE– comment. The Commission received no the procedures disclosed in its 2008–48] registration statement and as required comment letters regarding the proposed by Rule 22c–1 under the Act. The Self-Regulatory Organizations; Boston rule change. This order approves the Section 17(b) Applicants state that if Stock Exchange, Incorporated; Order proposed rule change, as modified by Sun Capital declines to accept particular Approving a Proposed Rule Change, Amendment Nos. 1 and 2. On December 23, 2008, the Exchange portfolio securities of either of the Old as Modified by Amendment Nos. 1 and requested that the Commission grant BX Portfolios for purchase in-kind of shares 2, To Establish New Rules for Equities LLC a permanent exemption of a New Portfolio, the applicable Old Membership, Member Conduct, and the Listing and Trading of Cash Equity from the requirement under Section Portfolio will liquidate portfolio 11A(b) of the Act, and Rule 609 securities as necessary and shares of the Securities; Order Granting an Exemption for the Boston Stock thereunder, that a securities information New Portfolios will be purchased with processor (‘‘SIP’’) acting as an exclusive cash. Consistent with Rule 17a–7(d), Exchange, Incorporated From Section 11A(b) of the Securities Exchange Act processor register with the Applicants also agree that no brokerage 6 of 1934 Commission. This order grants the commissions, fees, or other requested exemption. remuneration will be paid in connection December 23, 2008. II. Background with the in-kind transactions. I. Introduction On August 7, 2008, the Commission Conclusions On November 3, 2008, the Boston approved, along with related proposals, a BSE proposed rule change relating to 1. Applicants submit that for the Stock Exchange (‘‘BSE’’ or ‘‘Exchange’’), governing documents and certain rules reasons and upon the facts set forth in filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant of the Exchange to accommodate the their application, the requested order acquisition of the Exchange by The pursuant to Section 26(c) of the Act is to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and NASDAQ OMX Group, Inc. (‘‘NASDAQ consistent with the protection of Rule 19b–4 thereunder,2 a proposed rule OMX’’), the parent corporation of investors and the purposes fairly change to: (i) Adopt new rules Nasdaq.7 Among other things, the BSE intended by the policy of the Contracts governing membership, the regulatory Approval Order: (i) Amended and and provisions of the Act and should, obligations of members, listing, and restated BSE’s Certificate to reflect the therefore, be granted. equity trading (‘‘Equity Rules’’); (ii) Exchange’s status as a wholly owned 2. Section 17 Applicants represent amend its certificate of incorporation subsidiary of NASDAQ OMX; (ii) that the proposed in-kind transactions (‘‘Certificate’’) and by-laws (‘‘By-laws’’) established new By-laws that are similar are consistent with the general purposes to reflect the proposed change in the to the by-laws of Nasdaq; (iii) amended of the Act, do not present any of the name of the Exchange to NASDAQ OMX the Operating Agreement of BSX Group conditions or abuses the Act was BX, Inc; (iii) amend and restate the LLC, the entity that operated the designed to prevent, and that an Operating Agreement of BSX Group LLC Exchange’s cash equities trading exemption should be granted, to the (‘‘Operating Agreement’’), which will business prior to the Exchange’s 8 extent necessary, from the provisions of operate the Exchange’s cash equities acquisition by NASDAQ OMX; (iv) Section 17(a). trading business, and which will be prohibited an Exchange member or its renamed NASDAQ OMX BX Equities associated persons from beneficially For the Commission, by the Division of LLC (‘‘BX Equities LLC’’); and (iv) to owning more than 20% of the Investment Management, pursuant to adopt a Delegation Agreement outstanding voting securities of delegated authority. (‘‘Delegation Agreement’’) between the NASDAQ OMX; and (v) limited the Florence E. Harmon, Exchange and BX Equities LLC circumstances under which the Acting Secretary. (formerly, BSX Group LLC). The Exchange may be affiliated with a [FR Doc. E8–31088 Filed 12–30–08; 8:45 am] proposed rule change was published for member, and approved the affiliation BILLING CODE 8011–01–P comment in the Federal Register on November 19, 2008.3 On November 12, regulatory purposes; and (2) the proposal to accept orders routed by Nasdaq Execution Services, LLC 2008, the Exchange filed Amendment (‘‘NES’’) to the Exchange on a one-year pilot basis 4 No. 1 to the proposed rule change. On is made by the Exchange, rather than by The December 23, 2008, the Exchange filed NASDAQ Stock Market, LLC (‘‘Nasdaq’’). Amendment No. 2 to the proposed rule 6 See letter from John Zecca, Chief Regulatory change.5 Because Amendment Nos. 1 Officer, Exchange, to Dr. Erik Sirri, Director, Division of Trading and Markets, Commission, dated December 23, 2008 (‘‘SIP Exemption Request 1 15 U.S.C. 78s(b)(1). Letter’’). See also 15 U.S.C. 78k–1(b). Rule 609 2 17 CFR 240.19b–4. under the Act, 17 CFR 242.609, requires that the 3 See Securities Exchange Act Release No. 58927 registration of a securities information processor be (November 10, 2008), 73 FR 69685 (‘‘Notice’’). on Form SIP, 17 CFR 249.1001. 4 Amendment No. 1 states that the Board of 7 See Securities Exchange Act Release No. 58324, Directors of the Exchange and the Board of 73 FR 46936 (August 12, 2008) (SR–BSE–2008–02; Directors of BSX Group LLC have completed all SR–BSE–2008–23; SR–BSE–2008–25; SR–BSECC– action required to be taken in connection with the 2008–01) (‘‘BSE Approval Order’’). proposed rule change. 8 BSX Group LLC was formed in 2004 as a joint 5 Amendment No. 2 clarifies that: (1) Confidential venture between BSE and several investors to information pertaining to the self-regulatory operate an electronic trading facility, the Boston function of the Exchange or any market Equities Exchange (‘‘BeX’’), for the trading of cash responsibility delegated by the Exchange to BX equity securities. BeX ceased its operations in Equities LLC that comes into the possession of BX September 2007. See Securities Exchange Act Equities LLC shall not be used for any non- Release No. 57757 (May 1, 2008), 73 FR 26159.
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between the Exchange and certain rule proposal is consistent with the trading of cash equity securities.16 In broker-dealer subsidiaries of NASDAQ requirements of the Act and the rules particular, the entry into the OMX that would become members of and regulations thereunder applicable to marketplace of a new trading facility the Exchange. a national securities exchange.10 would provide market participants with On August 29, 2008, the Exchange Specifically, the Commission finds that an additional venue for executing orders was acquired by NASDAQ OMX. At the the proposed rule change is consistent in cash equity securities, which could time of this acquisition, the Exchange with Section 6(b)(1) of the Act,11 which enhance innovation and increase was not operating a venue for trading requires, among other things, that a competition between and among the cash equities. The Exchange is now national securities exchange be so equities exchanges, resulting in better proposing to adopt a new rulebook with organized and have the capacity to carry prices and executions for investors. rules governing membership, the out the purposes of the Act, and to The discussion below does not review regulatory obligations of members, comply and enforce compliance by its every detail of the proposed rule listing, and equity trading. The members and persons associated with change, but rather focuses on the most proposed new Equity Rules are based to its members, with the provisions of the significant rules and policy issues a substantial extent on the rules of Act, the rules and regulations considered in review of the proposals. Nasdaq. As is the case with Nasdaq, thereunder, and Section 6(b)(2) of the A. Corporate Structure administration and enforcement of Act,12 which requires that a national many of the rules will be supported by securities exchange have rules that In the BSE Approval Order, the the Financial Industry Regulatory provide that any registered broker or Commission approved a change in Authority, Inc. (‘‘FINRA’’) through a dealer or natural person associated with control of BSX Group LLC, the entity regulatory services agreement a registered broker or dealer may that operated BeX as a facility of BSE (‘‘Regulatory Contract’’). Other rules, become a member, and any person may prior to the Exchange’s acquisition by such as listing rules, will be become associated with a member NASDAQ OMX. The Exchange now administered by personnel who will be thereof. Further, the Commission finds proposes to change the name of BSX dually employed by the Exchange and that the rule proposal is consistent with Group LLC to BX Equities LLC and Nasdaq, or solely by the Exchange. Section 6(b)(5) of the Act,13 which amend the Operating Agreement. The The Exchange’s existing rules are requires, among other things, that the amended Operating Agreement would divided between the rules currently rules of a national securities exchange establish that BX Equities LLC will denominated as the ‘‘Rules of the Board be designed to prevent fraudulent and operate the NASDAQ OMX BX Equities of Governors’’ and the ‘‘Rules of the manipulative acts and practices; to Market (‘‘BX Equities Market’’) as a cash Boston Options Exchange Group LLC’’ promote just and equitable principles of equities trading facility, as that term is (‘‘BOX Rules’’). Certain of the Rules of trade; to foster cooperation and defined in Section 3(a)(2) of the Act,17 the Board of Governors that are cross- coordination with persons engaged in of the Exchange. In addition, the referenced in the BOX Rules regulating, clearing, settling, and Exchange and BX Equities LLC will (‘‘Grandfathered Rules’’) will continue processing information with respect to, enter into a Delegation Agreement, to apply to trading on the Exchange’s and facilitating transactions in pursuant to which the Exchange will Boston Options Exchange facility securities; to remove impediments to delegate to BX Equities LLC certain (‘‘BOX’’). The Grandfathered Rules and and perfect the mechanism of a free and limited responsibilities and obligations the BOX Rules collectively constitute open market and a national market with respect to the operation of the BX the ‘‘Options Rules.’’ The Options system; and, in general, to protect Equities Market as a facility of the Rules, together with the new Equity investors and the public interest. Exchange.18 Rules will constitute the ‘‘Rules of the Section 6(b)(5) also requires that the 1. Ownership and Management of BX Exchange.’’ Unless an Exchange member rules of an exchange not be designed to Equities LLC is also an ‘‘Options Participant,’’ permit unfair discrimination among however, it will be subject only to the customers, issuers, brokers, or dealers. The Operating Agreement will reflect Equity Rules.9 In addition, the Commission finds that that BX Equities LLC is a closely held subsidiary of the Exchange, whose only III. Discussion and Commission the proposed rule change is consistent 14 owners and members are the Exchange Findings with Section 6(b)(6) and Section 6(b)(7) of the Act,15 which require, in and the Exchange’s parent corporation, After careful review of the rule part, that the rules of an exchange NASDAQ OMX.19 Although NASDAQ proposal, the Commission finds that the provide a fair procedure for disciplining OMX will maintain a 46.79% ownership members and persons associated with interest in BX Equities LLC and the 9 At present, a broker-dealer that is authorized for members. Exchange will maintain a 53.21% trading on BOX (an ‘‘Options Participant’’) is not ownership interest, the Operating required to become a member of the Exchange, but Overall, the Commission believes that is nevertheless subject to the Options Rules as if it approving the Exchange’s proposed rule Agreement provides that management of were a member. Under the revised Rules of the change could confer important benefits BX Equities LLC will be vested solely in Exchange, this principle will continue to apply. on the public and market participants. Exchange.20 The Exchange will be Thus, the Equity Rules will apply to members, Approval of the proposal would which will be authorized to engage in equity 16 The Exchange previously operated an trading on the Exchange, and the Options Rules will establish the Equity Rules for the electronic trading facility, BeX, for the trading of apply to Options Participants, which will be operation of an electronic facility for the cash equity securities. BeX ceased its operations in authorized to engage in options trading. If a member September 2007. See supra note 8. opts to become an Options Participant (or vice 10 In approving this proposed rule change, the 17 15 U.S.C. 78(c)(2). versa), it will be subject to both sets of rules. Commission has considered the proposed rule’s Members must comply with the application 18 The form of the Delegation Agreement is impact on efficiency, competition and capital available at the Commission’s Web site http:// requirements of the Option Rules in order to formation. 15 U.S.C. 78c(f). become Options Participants, and conversely, www.sec.gov. 11 15 U.S.C. 78f(b)(1). Options Participants must comply with the 19 See Section 1.1, Operating Agreement. 12 membership application procedures of the Equity 15 U.S.C. 78f(b)(2). 20 In the Notice, the Exchange represented that Rules in order to become members and engage in 13 15 U.S.C. 78f(b)(5). NASDAQ OMX would remain a member of BX equity trading. See Equity Rules 1013 and 1014; 14 15 U.S.C. 78f(b)(6). Equities LLC to avoid certain adverse tax Chapter II of the BOX Rules. 15 15 U.S.C. 78f(b)(7). Continued
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designated as the sole manager of BX such amendment is required to be filed, available to any persons.28 The rule Equities LLC and will have the power to or filed with and approved by, the proposal will allow such information to do any and all acts necessary, Commission before such amendment be made available to officers, employees convenient or incidental to or for the may be effective, then the amendment and agents of BX Equities LLC who have furtherance of the purposes described in will not be effective until filed with, or a reasonable need to know the contents the Operating Agreement.21 As a result, filed with and approved by, the thereof. However, such confidential the Exchange will have control over Commission.25 information shall be required to be substantially all of the activities of BX The Operating Agreement no longer retained in confidence by BX Equities Equities LLC.22 will require the Exchange to provide the LLC and its officers, employees and The Commission believes that the Commission with written notice ten agents and shall not be used for any proposal to have the managerial powers days prior to the closing date of any non-regulatory purposes.29 The vested solely in the Exchange is acquisition that results in a BX Equities Commission believes that the revised designed to preserve the Exchange’s LLC member’s percentage ownership confidentiality provisions would not regulatory authority over BX Equities interest in BX Equities LLC, alone or impair the Exchange’s self-regulatory LLC, and any facility for the trading of with any affiliate, meeting or exceeding obligations with respect to BX Equities cash equity securities that BX Equities the 5%, 10%, or 15% thresholds. Nor LLC and finds that this provision is LLC operates, and is consistent with the will it provide that any transfer of BX consistent with the Act. Act because these provisions will grant Equities LLC interests that result in the 2. Status of the BX Equities Market as the Exchange the ability to direct BX acquisition and holding by any person, Equities LLC to perform any required, a Facility of BX and Delegation of alone or together with an affiliate, of an Authority to BX Equities LLC necessary, or appropriate act. In interest that meets or crosses the 20% particular, the Commission believes that threshold or any successive 5% As a facility of the Exchange, the BX the ownership and management threshold (i.e., 25%, 30%, etc.) triggers Equities Market will be subject to the provisions of the Operating Agreement the requirement to file an amendment Commission’s oversight and are consistent with Section 6(b)(1) of the with the Commission under Section examination. Consequently, the Act,23 which requires, among other 19(b) of the Act.26 Further, the Commission will have the same things, that a national securities Operating Agreement no longer will authority to oversee the premises, exchange be so organized and have the require that any person that acquires a personnel, and records of BX Equities capacity to carry out the purposes of the controlling interest (i.e., an interest of LLC as it currently has with respect to Act, and to comply and enforce 25% or greater) in a BX Equities LLC the Exchange. In addition, the Exchange compliance by its members and persons member that holds 20% or more of BX will be fully responsible for all activity associated with its members, with the Equities LLC interests to become a party that takes place through the BX Equities provisions of the Act, the rules and to the Operating Agreement. Market, and BX Equities Market regulations thereunder, and the rules of participants will be subject to the the exchange. Although proposed changes to provisions in the Operating Agreement Exchange’s rules applicable to the BX a. Transfers on transfer eliminate some of the Equities Market and to Exchange The Commission notes that the protections previously contained in the oversight. amended Operating Agreement contains Operating Agreement, the Commission As described in detail in the Notice, restrictions on the transfer of interests in finds that because any transfer of BX the Delegation Agreement provides that BX Equities LLC that are designed to Equities LLC interests must be filed the Exchange will delegate to BX prevent any person from exercising with and approved by the Equities LLC performance of certain undue control over the operation of the Commission,27 the elimination of the limited responsibilities and obligations Exchange and to ensure that the current notice and ownership of the Exchange with respect to the Exchange and the Commission are able restrictions in the Operating Agreement operation of the BX Equities Market as to carry out their regulatory obligations would not adversely affect the ability of a cash equities trading facility.30 The under the Act. Specifically, the the Exchange to carry out its self- Exchange, however, expressly retains amended Operating Agreement regulatory responsibilities or the ability ultimate responsibility for the prohibits any person from transferring of the Commission to fulfill its fulfillment of its statutory and self- or assigning its interest in BX Equities responsibilities under the Act. The regulatory obligations under the Act. LLC, unless such transfer is filed with Commission finds that the proposed Accordingly, as described more fully and approved by the Commission.24 In revisions to the Operating Agreement below, the Exchange will retain ultimate addition, the Operating Agreement discussed above are consistent with the responsibility for such delegated currently contains a provision that Act. responsibilities and functions, and any requires any amendment to be actions taken pursuant to delegated b. Confidentiality Provisions submitted to the Exchange’s Board of authority will remain subject to review, Directors (‘‘Board’’) for review, and, if The Operating Agreement provides approval or rejections by the Exchange’s that all confidential information Board in accordance with procedures consequences that would be associated with pertaining to the self-regulatory function established by the Board. The contributing its ownership interest to the Exchange. of the Exchange or the business of the Delegation Agreement will be a part of See Notice, supra note 3, 73 FR at 69691. 21 See Section 4.1, Operating Agreement. Exchange related to the trading of U.S. the Exchange’s rules. 22 NASDAQ OMX approval would be required equities (including disciplinary matters, for: (i) Converting loans made by a Member to BX trading data, trading practices and audit 28 See Article 16, Operating Agreement. The Equities LLC into an increase in such Member’s information) in the books and records of Exchange also proposes that the provision would Capital Contribution; (ii) an election to dissolve BX BX Equities LLC may not be made not be interpreted to limit or impede the ability of Equities LLC; and (iii) any amendment to the any officers, directors, employees or agents of BX Operating Agreement. See Sections 7.4, 11.1 and 18, Equities LLC to disclose confidential information to respectively, Operating Agreement. 25 See Section 18.1, Operating Agreement. the Commission or the Exchange. 23 15 U.S.C. 78f(b)(1). 26 15 U.S.C. 78f(b). 29 See id. 24 See Section 8.1, Operating Agreement. 27 See id. 30 See Notice, supra note 3, 73 FR at 69691.
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Pursuant to the Delegation B. Proposed Equity Rules Exchange.45 In addition, because the Agreement, the Exchange expressly will The proposed new Equity Rules are Equity Rules are modeled on Nasdaq retain the authority to: (1) Delegate based to a substantial extent on the rules and FINRA rules, approved Nasdaq and authority to BX Equities LLC to take of Nasdaq.39 In the Notice, the Exchange FINRA members and their associated actions on behalf of the Exchange; and highlighted the differences between the persons may apply for membership and (2) direct BX Equities LLC to take action proposed new Equity Rules and Nasdaq registration in a category of registration necessary to effectuate the purposes and rules. recognized by the Exchange through an functions of the Exchange, consistent expedited process by submitting a Short with the independence of the 1. Membership, Registration and Form Membership Application and Exchange’s regulatory functions, Qualifications Agreement.46 exchange rules, policies and procedures, The Exchange proposes that the The Commission finds that the and the federal securities laws.31 BX criteria for membership in the Exchange membership rules contained in the Equities LLC will have delegated be substantially the same as the criteria Equity Rules are consistent with Section authority to, among other things, 6 of the Act,47 specifically Section currently applicable to firms applying 48 operate the BX Equities Market, and for membership in Nasdaq. As indicated 6(b)(2) of the Act, which requires that establish and assess access fees, in the Notice, the Equity Rules 1000 a national securities exchange have transaction fees, market data fees and series governs membership, registration rules that provide that any registered broker or dealer or natural person other fees for the products and services and qualification and is substantively 32 associated with a registered broker or offered by BX Equities LLC. In identical to the corresponding rules for dealer may become a member and any addition, BX Equities LLC will have the Nasdaq, with a few exceptions to person may become associated with a authority to act as a SIP for quotations account for the BX Equities Market’s member thereof. The Commission notes and transaction information related to structure.40 that pursuant to Section 6(c) of the securities traded on the BX Equities Like Nasdaq rules, the Equity Rules Act,49 an exchange must deny Market and any trading facilities will require a broker-dealer to be a 33 membership to non-registered broker- operated by BX Equities LLC. member at all times of at least one other dealers and registered broker-dealers BX Equities LLC will also have self-regulatory organization (‘‘SRO’’) that do not satisfy certain standards, authority to develop, adopt, and before applying for membership in the such as financial responsibility or administer rules governing participation Exchange.41 The Equity Rules provide operational capacity. In addition, the in the BX Equities Market,34 but the that a registered broker-dealer that was Commission notes that the membership, Exchange represents that it will have a member organization in good standing registration and qualifications, and ultimate responsibility for the of the Exchange on the date access requirements are substantially operations, rules and regulations immediately prior to the acquisition of similar to rules of Nasdaq previously developed by BX Equities LLC, as well the Exchange by NASDAQ OMX is approved by the Commission.50 The as their enforcement.35 Further, the eligible for continued membership if it Commission further notes that, as a Exchange represents that actions taken continues to satisfy the membership registered exchange, the Exchange must by BX Equities LLC pursuant to its requirements of the Equity Rule 1000 continue to determine independently if delegated authority will remain subject 42 Series. Continuing members are an applicant satisfies the standards set to review, approval or rejection by the required to sign a revised membership 36 forth in the Act, regardless of whether Exchange’s Board. In addition, BX agreement and maintain registrations of an applicant is a member of another Equities LLC will be responsible for their associated persons, as required SRO. referring to the Exchange any under the Equity Rules.43 Associated complaints of a regulatory nature persons already registered with the 2. Participation and Access involving potential rule violations by Exchange likewise will be eligible for The rules governing access to and member organizations or employees,37 continued registration if they satisfy the participation on the BX Equities Market and the Exchange will retain overall requirements under the Equity Rules.44 responsibility for ensuring that the Unlike members in the Exchange prior 45 See Equity Rules 1022 and 1032. statutory and self-regulatory functions to the Exchange’s acquisition by 46 See Equity Rule 1013(a)(5)(C). The Exchange of the Exchange are fulfilled.38 NASDAQ OMX, members under the represents that the requirements for maintaining membership in the Exchange, including compliance The Commission finds that it is Equity Rules do not possess an with Exchange and Commission rules and consistent with the Act for the Exchange ownership interest in the Exchange. submission to examinations, are the same for all to delegate the operation of the BX Several registration requirements and members, regardless of the means by which they Equities Market to BX Equities LLC, categories set forth in Nasdaq rules are became members. Moreover, both waive-in members and continuing members are subject to while retaining ultimate responsibility not carried over to the BX Equities review by FINRA to determine if any information for statutory and self-regulatory Market. Equity Rules 1022 and 1032 available to FINRA about the member would obligations and ensuring that BX provide only for principal registration present concerns regarding the member’s standing Equities Market business is conducted and representative registration under FINRA rules. If any such information were presented by FINRA, the Exchange would evaluate in a manner consistent with the categories, as these are the only types of it in determining appropriate steps to take with requirements of the Act. pre-existing BSE membership categories regard to the member. See e-mail from John Yetter, that will be relevant to the future Vice President and Deputy General Counsel, NASDAQ OMX, to Heidi Pilpel, Attorney-Advisor, 31 operation and market structure of the See Notice, supra note 3, 73 FR at 69694 and Division of Trading and Markets, Commission, on Delegation Agreement, Section I. December 23, 2008. 32 See Notice, supra note 3, 73 FR at 69694 and 39 See Notice, supra note 3, 73 FR at 69686. The 47 15 U.S.C. 78f(b). Delegation Agreement, Section II.A. Equity Rules also have the same rule numbers as 48 15 U.S.C. 78f(b)(2). 33 See Delegation Agreement, Section II.A.3. the corresponding Nasdaq rules. 49 15 U.S.C. 78f(c). 34 See Delegation Agreement, Section II.A.7. 40 See Notice, supra note 3, 73 FR at 69686. 50 See Securities Exchange Act Release No. 53128 35 41 See Notice, supra note 3, 73 FR at 69694. See Equity Rules 1002 and 1014(a)(3). (January 13, 2006), 71 FR 3550 (January 23, 2006) 36 See id. 42 See Equity Rule 1002(f). (order approving Nasdaq’s application to register as 37 See Delegation Agreement, Section II.A.8. 43 Id. a national securities exchange) (‘‘Nasdaq 38 See Delegation Agreement, Section I.1. 44 Id. Registration Approval Order’’).
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also are substantively identical to the • The BX Equities Market will not two-sided quotations without the corresponding rules of Nasdaq.51 BX operate an opening cross, a closing assistance of the functionality. In Equities Market participants may cross, or a halt cross. It will begin to addition, the Exchange will not allow include Equities Market Makers, process all eligible quotes/orders at 8 market participants to maintain quotes Equities ECNs and Order Entry Firms.52 a.m., adding in time priority all eligible or orders on the book overnight; rather, The Exchange also will provide orders in accordance with each order’s all quotes and orders will be cancelled authorized access for Sponsored defined characteristics. All trades at the end of the trading day and must Participants.53 However, only Equities executed prior to 9:30 a.m. will be be re-entered, if market participants so Market Makers, or participants acting in automatically appended with the ‘‘.T’’ desire, the following day.67 a market making capacity, will be modifier. The official opening price for The Commission finds that the permitted to submit quotes.54 In a security listed on the Exchange will be Exchange’s execution priority rules and addition, like Nasdaq market makers, the price of the first trade executed at or trading rules are consistent with Section Equities Market Makers will be after 9:30 a.m. and the official closing 6(b)(5) of the Act, which requires, obligated to submit firm, continuous, price will be the price of the last trade among other things, that the rules of a two-sided quotations, with a minimum executed at or prior to 4 p.m.58 national securities exchange be quotation increment of $0.01.55 • Quoting market participants may designed to prevent fraudulent and The Commission notes that the access instruct the Exchange to open their manipulative acts and practices; to and participation requirements in the quotes at 9:25 a.m. at a price of $0.01 promote just and equitable principles of Equity Rules are substantially similar to (bid) and $999,999 (offer) and a size of trade; to foster cooperation and Nasdaq’s access and participation one round lot in order to provide a two- coordination with persons engaged in requirements, and, accordingly, finds sided quotation. In all other cases, the regulating, clearing, settling, and that they are consistent with the Act. In quote of a participant will be at the processing information with respect to, particular, the BX Equities Market price and size entered by the and facilitating transactions in system (‘‘System’’) is designed to match participant.59 securities; to remove impediments to buying and selling interest of all • If trading of a security is halted and perfect the mechanism of a free and Exchange participants. In addition, the under Equity Rule 4120, the security open market and a national market Commission believes that the access and will be released for trading at a time system; and, in general, to protect participation rules should help to announced to market participants by the investors and the public interest.68 ensure that Equities Market Makers Exchange.60 Section 6(b)(5) also requires that the perform their obligations in a manner • The Exchange’s quotation and trade rules of an exchange not be designed to that promotes just and equitable reporting information is disseminated permit unfair discrimination among principles of trade. under the Consolidated Quotation Plan customers, issuers, brokers, or dealers. (‘‘CQ Plan’’) and Consolidated Tape The Exchange market model for the 3. BX Trading System and Regulation Association Plan (‘‘CTA Plan’’), rather trading of cash equity securities is NMS Compliance than the Nasdaq UTP Plan.61 similar to Nasdaq’s equity market model • a. BX Trading System Nasdaq rules relating to passive and does not raise novel issues. market making under Rule 103 of The Exchange’s System for trading 62 b. Regulation NMS cash equity securities will operate using Regulation M under the Act are not technology and rules similar to Nasdaq. included because that rule does not The Exchange has designed its rules apply to any other exchange, even if it relating to orders, modifiers, and order Accordingly, the BX Equities Market 63 will feature an electronic central limit adopts a similar market structure. execution to comply with requirements • Equity Rule 4620 provides that an order book, with executions occurring of Regulation NMS. Unlike Nasdaq, the Exchange market maker that terminates in price/time priority (but with Exchange will not route orders in equity its registration in a security listed on the displayed orders receiving priority over securities to other market centers. The Exchange may not re-register as a non-displayed orders).56 While the BX Equity Rules are consistent with market maker in that security for a 69 Equities Market and Nasdaq will operate Regulation NMS by requiring that all period of twenty business days, with a similarly in most aspects, there will be orders be processed in a manner that one-day exclusion period for all other certain differences between the two avoids trading through protected securities.64 markets. In particular: quotations and avoids locked and • The Exchange will not support 70 • The BX Equities Market will crossed markets. Specifically, Equity discretionary orders, orders with a operate from 8 a.m. to 7 p.m. Eastern Rule 4755 provides that in addition to Time (rather than from 7 a.m. to 8 p.m.). ‘‘market hours’’ time-in-force such other designations as may be Like Nasdaq, regular market hours will designation (with the exception of chosen by a market participant,71 all be from 9:30 a.m. to 4 p.m. (or 4:15 p.m. ‘‘market hours day’’ orders), or orders orders that are not entered with a time with a ‘‘system hours good till in force of ‘‘System Hours Immediate or for any exchange-traded funds that may 65 be so designated by the Exchange).57 cancelled’’ time-in-force designation. Cancel’’ 72 must be designated as an • The Exchange will not support an automatic quotation refresh 67 51 See, e.g., Equity Rules 4610 et seq. See id. 66 52 See Equity Rule 4611. functionality. Thus, market makers 68 15 U.S.C. 78f(b)(5). 53 See Securities Exchange Act Release Nos. will be required to maintain continuous 69 17 CFR 242.611. 55061 (January 8, 2007), 72 FR 2052 (January 17, 70 See Equity Rule 4755(b). 2007) (notice of filing and immediate effectiveness 58 See Notice, supra note 3, 73 FR at 69688. 71 As is the case with Nasdaq, different order of File No. SR–Nasdaq–2006–061) (adopting Nasdaq 59 See Equity Rule 5752. designations can be combined. Thus, for example, Rule 4611(d)); and 55550 (March 28, 2007), 72 FR 60 See Equity Rule 4120. a Price to Comply Order could be entered with 12 16389 (April 4, 2007) (notice of filing and reserve size or as a non-displayed order. 61 See Notice, supra note 3, 73 FR at 69688. immediate effectiveness of File No. SR–Nasdaq– 72 A ‘‘System Hours Immediate or Cancel’’ order 62 17 CFR 242.103. 2007–010) (revising Nasdaq Rule 4211(d)). is an immediate or cancel order that may be entered 54 63 See Equity Rule 4612. See id. between 8 a.m. and 7 p.m. Eastern Time, the hours 55 See Equity Rule 4613. 64 See Equity Rule 4620. of operation of the BX Equities Market. If a System 56 See Notice, supra note 3, 73 FR at 69688. 65 See Notice, supra note 3, 73 FR at 69688. Hours Immediate or Cancel order (or a portion 57 See Equity Rule 4617. 66 See id. thereof) is not marketable, the order (or unexecuted
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Intermarket Sweep Order, a Pegged entry, a Price to Comply Post Order will person exercises discretion (collectively, Order, a Price to Comply Order, or a lock or cross the protected quote of an ‘‘covered accounts’’), unless an Price to Comply Post Order.73 external market or will cause a violation exception applies. Rule 11a2–2(T) under As described in the Notice, a System of Rule 611 of Regulation NMS, the the Act,83 known as the ‘‘effect versus Hours Immediate or Cancel Order is order will be re-priced and displayed to execute’’ rule, provides exchange compliant with Regulation NMS one minimum price increment (i.e., members with an exemption from the because by its terms it would not $0.01 or $0.0001) below the current low Section 11(a)(1) prohibition. Rule 11a2– execute or post at a price that would offer (for bids) or to one penny above 2(T) permits an exchange member, result in a trade-through of a protected the current best bid (for offers).81 subject to certain conditions, to effect quotation or lock or cross another The Commission believes that by transactions for covered accounts by market.74 A Pegged Order similarly is requiring all orders to be entered with arranging for an unaffiliated member to compliant with Regulation NMS one of the designations described above, execute the transactions on the because it continually re-prices to avoid all Exchange orders should either be exchange. To comply with Rule 11a2– locking or crossing.75 priced or cancelled in a manner 2(T)’s conditions, a member: (i) Must The Equity Rules also permit BX consistent with the avoidance of trade- transmit the order from off the exchange Equities Market participants to submit throughs and locked and crossed floor; (ii) may not participate in the Intermarket Sweep Orders to comply markets. The Commission also notes execution of the transaction once it has with Regulation NMS, which will allow that, because the Exchange will not been transmitted to the member orders so designated to be automatically route orders to other market centers, the performing the execution; 84 (iii) may matched and executed within the Exchange’s Regulation NMS policies not be affiliated with the executing 76 System. As described in the Notice, and procedures under Rule 611(a) will member; and (iv) with respect to an when a market participant enters an rely on information provided by Nasdaq account over which the member has Intermarket Sweep Order it is for purposes of determining whether investment discretion, neither the representing that it is also another trading center is experiencing a member nor its associated person may simultaneously routing one or more failure, material delay, or malfunction of retain any compensation in connection additional limit orders (also marked as its systems or equipment within the with effecting the transaction except as Intermarket Sweep Orders), as meaning of Rule 611(b)(1). provided in the Rule. necessary, to execute against the full The Commission finds that the rules In a letter to the Commission,85 the displayed size of any protected bid or relating to orders, modifiers, and order Exchange requested that the offer (as defined in Rule 600(b) of execution that are designed to comply Commission concur with its conclusion Regulation NMS) in the case of a limit with Regulation NMS are consistent that Exchange members that enter order to sell or buy with a price that is with Section 6(b)(5) of the Act, which orders into the System satisfy the superior to the limit price of the order requires among other things, that the requirements of Rule 11a2–2(T). For the identified as an Intermarket Sweep 77 rules of a national securities exchange reasons set forth below, the Commission Order. be designed to prevent fraudulent and believes that Exchange members Both a Price to Comply and a Price manipulative acts and practices; to entering orders into the System would Comply Post Order are designed to promote just and equitable principles of satisfy the conditions of the Rule. comply with the Regulation NMS.78 trade; to foster cooperation and The Rule’s first condition is that Specifically, if at the time of entry, a coordination with persons engaged in orders for covered accounts be Price to Comply Order will lock or cross regulating, clearing, settling, and transmitted from off the exchange floor. the quotation of an external market, the processing information with respect to, The System receives orders order will be priced to the current low and facilitating transactions in electronically through remote terminals offer (for bids) or to the current best bid securities; to remove impediments to or computer-to-computer interfaces. In (for offers) but displayed at a price one and perfect the mechanism of a free and the context of other automated trading minimum price increment lower than open market and a national market systems, the Commission has found that the offer (for bids) or higher than the bid system; and, in general, to protect the off-floor transmission requirement is (for offers).79 Thus, an incoming order investors and the public interest. met if a covered account order is priced to execute against the displayed transmitted from a remote location price will receive the superior 4. Section 11 of the Act directly to an exchange’s floor by undisplayed price.80 If, at the time of Section 11(a)(1) of the Act 82 prohibits electronic means.86 Since the System a member of a national securities portion thereof) is canceled and returned to the 83 entering participant. See Equity Rule 4751(h)(1). exchange from effecting transactions on 17 CFR 240.11a2–2(T). 84 73 See Equity Rule 4755(a)(2). that exchange for its own account, the The member may, however, participate in clearing and settling the transaction. 74 See Notice, supra note 3, 73 FR at 69688; account of an associated person, or an 85 Equity Rule 4751(h)(1). See letter from John Zecca, Chief Regulatory account over which it or its associated Officer, Exchange, to Florence Harmon, Acting 75 See Equity Rule 4751(f). Secretary, Commission, dated December 23, 2008 76 See Equity Rules 4751(f)(6) and 4757. reside on the System book at $10.00. If a seller then (‘‘BSE 11(a) Request Letter’’). 77 The Exchange represented that members will enters an order at $9.99, it will execute at $10.00, 86 See, e.g., Nasdaq Registration Approval Order, be responsible for ensuring that their use of up to the full 10,000 shares of the order. The supra note 50 Securities Exchange Act Release Nos. Intermarket Sweep Orders complies with displayed and undisplayed prices of a Price to 49068 (January 13, 2004), 69 FR 2775 (January 20, Regulation NMS, and the Exchange’s T+1 Comply Order may be adjusted once or multiple 2004) (order approving the Boston Options surveillance program will monitor members’ use of times depending upon the method of order entry Exchange as an options trading facility of the Intermarket Sweep Orders. See Notice, supra note and changes to the prevailing national best bid/best Boston Stock Exchange); 44983 (October 25, 2001), 3, 73 FR at 69688. offer. 66 FR 55225 (November 1, 2001) (order approving 78 See Notice, supra note 3, 73 FR at 69688– 81 See Equity Rule 4751(f)(8). For example, if the Archipelago Exchange as electronic trading facility 69689. national best bid and best offer is $9.97 × $10.00, of the Pacific Exchange (‘‘PCX’’)); 29237 (May 24, 79 See Rule 4751(f)(7). and a participant enters a Price to Comply Post 1991), 56 FR 24853 (May 31, 1991) (regarding 80 For example, if the national best bid and best Order to buy at $10.01, the order will be repriced NYSE’s Off-Hours Trading Facility); 15533 (January offer is $9.97 × $10.00, and a participant enters a and displayed at $9.99. If a seller enters an order 29, 1979), 44 FR 6084 (January 31, 1979) (regarding Price to Comply Order to buy 10,000 shares at at $9.99, it will execute at that price. the American Stock Exchange (‘‘Amex’’) Post $10.01, the order will display at $9.99, but will 82 15 U.S.C. 78k(a)(1). Continued
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receives orders electronically through represented that the design of the from acquiring or maintaining an remote terminals or computer-to- System ensures that no member has any ownership interest in a member without computer interfaces, the Commission special or unique trading advantage in prior Commission approval. believes that the System satisfies the off- the handling of its orders after NES is a broker-dealer that is a floor transmission requirement. transmitting its orders to the member of the Exchange, and currently Second, the rule requires that the Exchange.89 Based on the Exchange’s provides to Nasdaq members optional member not participate in the execution representation, the Commission believes routing services to other market centers. of its order. The Exchange represented that the System satisfies this NES is owned by NASDAQ OMX, that at no time following the submission requirement. which also owns three registered of an order is a member able to acquire Fourth, in the case of a transaction securities exchanges—Nasdaq, the control or influence over the result or effected for an account with respect to Exchange, and Phlx.94 Thus, NES is an timing of an order’s execution.87 which the initiating member or an affiliate of each of these exchanges. According to the Exchange, the associated person thereof exercises Absent Commission approval, Equity execution of a member’s order is investment discretion, neither the Rule 2140(a) would prohibit NES from determined solely by what orders, bids, initiating member nor any associated being a member of the Exchange. or offers are present in the System at the person thereof may retain any In connection with NASDAQ OMX’s time the member submits the order and compensation in connection with acquisition of the Exchange, the on the priority of those orders, bids and effecting the transaction, unless the Commission approved the current offers. Accordingly, the Commission person authorized to transact business affiliation between the Exchange and believes that an Exchange member does for the account has expressly provided NES for the limited purpose of not participate in the execution of an otherwise by written contract referring permitting NES to provide routing order submitted into the System. to Section 11(a) of the Act and Rule services for Nasdaq for orders that first Third, Rule 11a2–2(T) requires that 11a2–2(T).90 The Exchange represented attempt to access liquidity on Nasdaq’s the order be executed by an exchange that Exchange members trading for system before routing to the Exchange, member who is unaffiliated with the covered accounts over which they subject to certain other limitations and member initiating the order. The exercise investment discretion must conditions.95 At the time of NASDAQ Commission has stated that the comply with this condition in order to OMX’s acquisition of the Exchange, the requirement is satisfied when rely on the rule’s exemption.91 Exchange was not trading equity automated exchange facilities, such as securities.96 Now, in connection with the System, are used, as long as the C. Exception to Limitation on Affiliation the Exchange’s resumption of equity design of these systems ensures that Between BX and its Members trading pursuant to the instant proposed members do not possess any special or Although the Exchange will not route rule change, the Exchange proposes to unique trading advantages in handling orders to other market centers, it modify the conditions for the affiliation their orders after transmitting them to proposes to receive orders routed to it between NES and the Exchange, 88 the Exchange. The Exchange has by other market centers, including previously approved by the orders routed from Nasdaq.92 BSE Rule Commission, to permit the Exchange to Execution Reporting System, the Amex Switching receive orders routed by NES in its System, the Intermarket Trading System, the Chapter XXXIX, Section 2 prohibits BSE Multiple Dealer Trading Facility of the Cincinnati members from being affiliated with capacity as a facility of Nasdaq Stock Exchange, the PCX Communications and BSE.93 Proposed Equity Rule 2140(a) is (including ‘‘Directed Orders’’),97 on a Execution System, and the Philadelphia Stock identical to BSE Rule Chapter XXXIX, one-year pilot basis.98 Exchange (‘‘Phlx’’) Automated Communications and Execution System (‘‘1979 Release’’)); and 14563 Section 2, and prohibits the Exchange or NES operates as a facility of Nasdaq (March 14, 1978), 43 FR 11542 (March 17, 1978) any entity with which it is affiliated, that provides outbound routing from (regarding the NYSE’s Designated Order Nasdaq to other market centers, subject Turnaround System (‘‘1978 Release’’)). 89 See BSE 11(a) Request Letter, supra note 85. to certain conditions.99 NES’s operation 87 See BSE 11(a) Request Letter, supra note 85. 90 17 CFR 240.11a2–2(T)(a)(2)(iv). In addition, as a facility providing outbound routing The member may only cancel or modify the order, Rule 11a2–2(T)(d) requires a member or associated services for Nasdaq is subject to the or modify the instructions for executing the order, person authorized by written contract to retain but only from off the Exchange floor. The compensation, in connection with effecting conditions that: (1) NES is operated and Commission has stated that the non-participation transactions for covered accounts over which such regulated as a facility of Nasdaq; (2) NES requirement is satisfied under such circumstances member or associated person thereof exercises so long as such modifications or cancellations are only provides outbound routing services investment discretion, to furnish at least annually also transmitted from off the floor. See Securities unless otherwise approved by the to the person authorized to transact business for the Exchange Act Release No. 14563 (March 14, 1978), account a statement setting forth the total amount 43 FR 11542 (March 17, 1978) (stating that the 94 of compensation retained by the member in See BSE Approval Order, supra note 7, 73 FR ‘‘non-participation requirement does not prevent connection with effecting transactions for the at 46943. See also Securities Exchange Act Release initiating members from canceling or modifying account during the period covered by the statement. No. 58179 (July 17, 2008), 73 FR 42874 (July 23, orders (or the instructions pursuant to which the See 17 CFR 240.11a2–2(T)(d). See also 1978 2008) (order approving NASDAQ OMX’s initiating member wishes orders to be executed) Release, supra note 86 (stating ‘‘[t]he contractual acquisition of Phlx.) after the orders have been transmitted to the and disclosure requirements are designed to assure 95 BSE Rule Chapter XXXIX, Section 2 was executing member, provided that any such adopted in the BSE Approval Order (see supra note instructions are also transmitted from off the that accounts electing to permit transaction-related 7, 73 FR at 46944), and is proposed to be replaced floor’’). compensation do so only after deciding that such arrangements are suitable to their interests’’). by Equity Rule 2140(a). 88 In considering the operation of automated 91 96 See BSE Approval Order, supra note 7, 73 FR execution systems operated by an exchange, the See BSE 11(a) Request Letter, supra note 85. 92 at 49644, n.117. Commission noted that while there is no See Notice, supra note 3, 73 FR at 69689. 97 independent executing exchange member, the 93 See BSE Approval Order, supra note 7, 73 FR Nasdaq Rule 4751(f)(9) defines Directed Orders execution of an order is automatic once it has been at 46943–49644. The Exchange proposed, and the as immediate-or-cancel orders that are directed to transmitted into the systems. Because the design of Commission approved, that the affiliation also be an exchange other than Nasdaq without checking these systems ensures that members do not possess subject to the following conditions and limitations: the Nasdaq book. Pursuant to Nasdaq Rule any special or unique trading advantages in (1) NES is operated as a facility of Nasdaq; (2) for 4751(f)(9), Nasdaq currently may not route Directed handling their orders after transmitting them to the purposes of Commission Rule 17d–1 under the Act, Orders to a facility of an exchange that is an affiliate exchange, the Commission has stated that 17 CFR 240.17d–1, the designated examining of Nasdaq. executions obtained through these systems satisfy authority of NES is a self-regulatory organization 98 See Notice, supra note 3, 73 FR at 69689. the independent execution requirement of Rule unaffiliated with Nasdaq; and (3) use of NES to 99 See Nasdaq Rules 4751 and 4758. See also 11a2–2(T). See 1979 Release, supra note 86. route orders to other market centers is optional. Id. Notice, supra note 3, 73 FR at 69689.
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Commission; (3) the designated retains ultimate responsibility for continues to be concerned about examining authority of NES is a self- enforcing its rules with respect to NES. potential unfair competition and regulatory organization unaffiliated with • Second, FINRA will monitor NES conflicts of interest between an Nasdaq; and (4) the use of NES for for compliance with the Exchange’s exchange’s self-regulatory obligations outbound routing is available only to trading rules, and will collect and and its commercial interest when the Nasdaq members and the use of NES maintain certain related information.105 exchange is affiliated with one of its remains optional. Currently, NES may • Third, the Exchange states that members, for the reasons discussed not route Directed Orders to a facility of FINRA has agreed with the Exchange below, the Commission believes that it an exchange that is an affiliate of that it will provide a report to the is consistent with the Act to permit NES Nasdaq.100 Nasdaq has proposed, and Exchange’s chief regulatory officer to provide inbound routing to the the Commission approved today, a rule (‘‘CRO’’), on a quarterly basis, that: (i) Exchange on a pilot basis, subject to the change to permit NES to route all forms Quantifies all alerts (of which FINRA is conditions described above. of orders, including Directed Orders, to aware) that identify NES as a participant The Exchange has proposed five the BX Equities Market.101 that has potentially violated conditions applicable to NES’s routing The operation of NES as a facility of Commission or Exchange rules, and (ii) activities, which are enumerated above. Nasdaq providing outbound routing lists all investigations that identify NES The Commission believes that these services from that exchange will be as a participant that has potentially conditions mitigate its concerns about subject to Nasdaq oversight, as well as violated Commission or Exchange potential conflicts of interest and unfair Commission oversight. Nasdaq will be rules.106 competitive advantage. In particular, the responsible for ensuring that NES’s • Fourth, the Exchange proposes Rule Commission believes that FINRA’s outbound routing function is operated 2140(c), which will require NASDAQ oversight of NES,110 combined with consistent with Section 6 of the Act and OMX, as the holding company owning FINRA’s monitoring of NES’s Nasdaq rules. In addition, Nasdaq must both the Exchange and NES, to establish compliance with the equity trading file with the Commission rule changes and maintain procedures and internal rules and quarterly reporting to the and fees relating to NES’s outbound controls reasonably designed to ensure Exchange’s CRO, will help to protect the routing function. that NES does not develop or implement independence of the Exchange’s Recognizing that the Commission has changes to its system, based on non- regulatory responsibilities with respect previously expressed concern regarding public information obtained regarding to NES. The Commission also believes the potential for conflicts of interest in planned changes to the Exchange’s that the proposed addition of Equity instances where a member firm is systems as a result of its affiliation with Rule 2140(c) is designed to ensure that affiliated with an exchange of which it the Exchange, until such information is NES cannot use any information is a member, the Exchange previously available generally to similarly situated advantage it may have because of its proposed, and the Commission Exchange members, in connection with affiliation with the Exchange. approved, limitations and conditions on the provision of inbound order routing Furthermore, the Commission believes NES’s affiliation with the Exchange 102 to the Exchange.107 that the Exchange’s proposal to allow Also recognizing that the Commission • Fifth, the Exchange proposes that NES to route orders inbound to the has expressed concern regarding the routing of orders from NES to the Exchange from Nasdaq, on a pilot basis, potential for conflicts of interest in Exchange, in NES’s capacity as a facility will provide the Exchange and the instances where a member firm is of Nasdaq, be authorized for a pilot Commission an opportunity to assess affiliated with an exchange to which it period of twelve months.108 the impact of any conflicts of interest of is routing orders, the Exchange now In the past, the Commission has allowing an affiliated member of the proposes to revise the conditions to expressed concern that the affiliation of Exchange to route orders inbound to the NES’s affiliation with the Exchange to an exchange with one of its members Exchange and whether such affiliation permit the Exchange to accept inbound raises potential conflicts of interest, and provides an unfair competitive orders that NES routes in its capacity as the potential for unfair competitive advantage. a facility of Nasdaq, subject to the advantage.109 Although the Commission D. Securities Traded on the Exchange following limitations and conditions: The Equity Rule 4000 series includes • First, the Exchange states that the 105 Pursuant to the Regulatory Contract, both the rules governing listing and trading Exchange and FINRA will enter into a FINRA and the Exchange will collect and maintain all alerts, complaints, investigations and of cash equity securities on the Regulatory Contract, as well as an enforcement actions in which NES (in its capacity Exchange. The Exchange proposes to agreement pursuant to Rule 17d–2 as a facility of Nasdaq routing orders to the adopt initial and continued listing under the Act (‘‘17d–2 Agreement’’).103 Exchange) is identified as a participant that has standards for primary and secondary Pursuant to the Regulatory Contract and potentially violated applicable Commission or Exchange rules. The Exchange and FINRA will classes of common stock, preferred the 17d–2 Agreement, FINRA will be retain these records in an easily accessible manner stock, convertible debt, rights and allocated regulatory responsibilities to in order to facilitate any potential review conducted warrants, shares or certificates of review NES’s compliance with certain by the Commission’s Office of Compliance beneficial interest of trusts, foreign Exchange rules.104 Pursuant to the Inspections and Examinations. See Notice, supra note 3, 73 FR at 69689. securities, American Depositary Regulatory Contract, however, BX 106 See id. 107 See Equity Rule 2140(c). See also Notice, restricting affiliations between Nasdaq and its 100 Id. See also supra note 7. supra note 3, 73 FR at 69689–69690. members); 53382 (February 27, 2006), 71 FR 11251 101 See Securities Exchange Act Release No. 108 See Amendment No. 2, supra note 5. In (March 6, 2006) (SR–NYSE–2005–77) (order 59154 (December 23, 2008) (SR–Nasdaq–2008–091). Amendment No. 2, the Exchange clarified that its approving the combination of the New York Stock 102 See BSE Approval Order, supra note 7, 73 FR proposal, as opposed to Nasdaq’s corresponding Exchange, Inc. and Archipelago Holdings, Inc.); and at 49644. proposal, be approved on a twelve-month pilot 58673 (September 29, 2008), 73 FR 57707 (October 103 17 CFR 240.17d–2. basis. See also Notice, supra note 3, 73 FR at 69689, 8, 2008) (SR–Amex–2008–62) (order approving the 104 The Exchange also states that NES is subject n.15 and accompanying text. combination of NYSE Euronext and the American to independent oversight by FINRA, its Designated 109 See, e.g., Securities Exchange Act Release Nos. Stock Exchange LLC). Examining Authority, for compliance with financial 54170 (July 18, 2006), 71 FR 42149 (July 25, 2006) 110 This oversight will be accomplished through responsibility requirements. See Notice, supra note (SR–NASDAQ–2006–006) (order approving the 17d–2 Agreement between FINRA and the 3, 73 FR at 69689. Nasdaq’s proposal to adopt Nasdaq Rule 2140, Exchange and the Regulatory Contract.
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Receipts (‘‘ADRs’’), and limited continued listing standards are members.118 The Exchange’s CRO has partnership interests that are identical consistent with the Act, including general supervision of the regulatory to Nasdaq’s listing standards for the Section 6(b)(5), in that they are designed operations of the Exchange, including Nasdaq Capital Market, Nasdaq’s most to protect investors and the public overseeing surveillance, examination, permissive listing standards.111 The interest and to promote just and and enforcement functions, and will standards for initial and continued equitable principles of trade.115 administer the Regulatory Contract listing of these securities are set forth in between the Exchange and FINRA.119 the proposed Equity Rule 4300 E. Regulation of the Exchange and Its The Regulatory Contract between the Series.112 Members Exchange and FINRA governs the In addition, the Exchange proposes to Exchange and its facilities and therefore adopt, in Equity Rules 4420 and 4450, As a facility of the Exchange, the BX will automatically govern the BX initial and continued listing standards Equities Market will be subject to the Equities Market and Exchange members for Selected Equity-linked Debt Exchange’s SRO functions and the trading on it.120 Notwithstanding the Securities (‘‘SEEDS’’), units, index Exchange will have regulatory Regulatory Contract, the Exchange warrants, portfolio depository receipts, responsibility for the activities of the BX retains ultimate legal responsibility for index fund shares, trust issued receipts, Equities Market. The Exchange the regulation of its members and its linked securities, managed fund shares, represents that it has the ability to market. The Exchange’s By-Laws and and ‘‘other securities’’ that would be discharge all regulatory functions rules provide that it has disciplinary substantively identical to those of the related to the facility that it has jurisdiction over its members so that it Nasdaq Global Market.113 The listing undertaken to perform by virtue of can enforce its members’ compliance standards for SEEDS and ‘‘other operating the BX Equities Market as a with its rules and the federal securities securities’’ would differ slightly from facility of the Exchange.116 In addition, laws.121 The Exchange’s rules also the comparable Nasdaq standards, in the amended Operating Agreement permit it to sanction members for that they require issuers of securities contains provisions relating to the violations of its rules and violations of listed thereunder to be eligible for governance of the BX Equities LLC that the federal securities laws by, among listing on the Nasdaq or the New York will ensure that the Exchange has other things, expelling or suspending Stock Exchange (‘‘NYSE’’) or to be authority over BX Equities LLC to fulfill members, limiting members’ activities, affiliates of companies that are so the Exchange’s responsibility for all functions, or operations, fining or eligible, rather than being required to be censuring members, or suspending or regulatory functions related to the BX actually so listed. This difference barring a person from being associated Equities Market. The Exchange recognizes the fact that an issuer seeking with a member.122 The Exchange’s rules to list a SEED or ‘‘other security’’ on the represented that its proposed corporate also provide for the imposition of fines Exchange would not necessarily also and self-regulatory structure, along with for minor rule violations in lieu of have a security listed on Nasdaq or the the proposed structure of BX Equities commencing disciplinary NYSE, but it would nevertheless be LLC as a controlled subsidiary of the proceedings.123 required to demonstrate ability to meet Exchange, are sufficient to ensure that The Exchange’s Regulation such other listing standards before BX Equities LLC and the BX Equities Department will carry out many of the listing the SEED or ‘‘other security.’’ Market will be operated and regulated Exchange’s regulatory functions, The proposed equity rules do not in a manner that is consistent with the including administering its membership include the provisions of Nasdaq Rules Act.117 and disciplinary rules, and is 4426 and 4427, which establish In connection with the proposed rule functionally separate from the standards for Nasdaq’s Global Select change, the Exchange noted that its Exchange’s business lines. The Market tier.114 The Commission finds Regulatory Oversight Committee and its Exchange represents that the Regulation the Exchange’s proposed initial and CRO will assume responsibility for Department includes MarketWatch, regulating quoting and trading on the which will perform real-time intraday 111 surveillance over the Exchange’s listed Nasdaq has three progressively higher listing BX Equities Market and conduct by its tiers—the Nasdaq Capital Market, the Nasdaq companies and participants in the BX Global Market, and the Nasdaq Global Select Equities Market. More specifically, 115 Market. Securities listed on the Nasdaq Capital 15 U.S.C. 78f(b)(5). The Commission notes that MarketWatch will oversee the complete Market are ‘‘covered securities’’ for purposes of the Exchange’s initial and continued listing Section 18 of the Securities Act of 1933, 15 U.S.C. standards for primary and secondary classes of and timely disclosure of issuers’ 77r (‘‘Securities Act’’), and are therefore exempt common stock, preferred stock, convertible debt, material information to determine if a from state law registration requirements. See rights and warrants, shares or certificates of trading halt is necessary to maintain an Securities Act Release No. 8791 (April 18, 2007), 72 beneficial interest of trusts, foreign securities, ADRs FR 20410 (April 24, 2008) (File No. S7–18–06). In and limited partnership interests are identical to the 118 the Notice, the Exchange stated that it anticipates existing standards for the Nasdaq Capital Market, Each broker-dealer that participates in trading petitioning the Commission to amend Rule 146 which the Commission previously approved. on the BX Equities Market must be a member of the under the Securities Act to recognize securities Likewise, the Exchange’s initial and continued Exchange. See Notice, supra note 3, 73 FR at 69693. listed on the Exchange as covered securities. See listing standards for units, index warrants, portfolio 119 Pursuant to the Regulatory Contract, FINRA Notice, supra note 3, 73 FR at 69688. depository receipts, index fund shares, trust issued will perform certain regulatory functions on behalf 112 See Equity Rules 4310 and 4320. receipts, linked securities, managed fund shares of the Exchange. In addition to performing certain 113 See Equity Rules 4420 and 4450. The and other securities are identical to those approved membership functions for the Exchange, FINRA Exchange’s proposed listing standards for units for the Nasdaq Global Market, which the will perform certain disciplinary and enforcement combine elements of the standards of the Nasdaq Commission also previously approved. See Nasdaq functions for the Exchange. Generally, FINRA will Capital Market and the Nasdaq Global Market, in Registration Approval Order, supra note 50. investigate members, issue complaints, and conduct that they require the equity component of a unit to 116 See Notice, supra note 3, 73 FR at 69691, and hearings pursuant to the Exchange’s rules. Appeals satisfy standards equivalent to Nasdaq Capital BSE Approval Order, supra note 7, 73 FR at 46944 of disciplinary hearings, however, will be handled Market standards but allow the inclusion of a debt for a description of the protections, limitations, and by the Nasdaq Review Council. See Notice, supra component that is not itself eligible for listing but requirements the Commission previously approved note 3, 73 FR at 69690. that meets the requirements of Equity Rule in connection with the governing structure of 120 See id. at 69692. 4420(h)(1)(B). NASDAQ OMX and of the Exchange, which are 121 See, e.g., Exchange By-Laws, Article IX, 114 The Equity Rule 4600 series is being reserved designed to protect the self-regulatory function of Section 2. for the Exchange’s listing fees, which will be the Exchange and preserve its independence. 122 See, e.g., Equity Rule 8310. included in a separate filing. 117 See Notice, supra note 3, 73 FR at 69691. 123 See, e.g., Equity Rule 9216(b).
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orderly market for the release of FINRA also are parties to an agreement The Exchange, unless relieved by the material news. In addition, pursuant to Section 17(d) of the Act and Commission of its responsibility,131 MarketWatch, through its automated Rule 17d–2 thereunder. A regulatory shall bear the responsibility for self- detection system, will monitor the matter involving an Exchange member regulatory conduct and primary liability trading activity of each security and will that is also a FINRA member, and that for self-regulatory failures, not the SRO generate a price and volume alert to aid is governed by both the Regulatory retained to perform regulatory functions in the assessment of unusual market Contract and the 17d–2 Agreement will on the Exchange’s behalf.132 In activity. MarketWatch will also be administered by FINRA pursuant to performing these functions, however, coordinate and execute the release of the 17d–2 Agreement. FINRA may nonetheless bear liability initial public offerings; administer The Commission notes that the for causing or aiding and abetting the market participants’ excused Exchange will continue to bear ultimate failure of the Exchange to perform its withdrawal requests; and handle the 133 regulatory responsibility for functions regulatory functions. Accordingly, clearly erroneous trade adjudication performed on its behalf under the although FINRA will not act on its own process. If MarketWatch observes any behalf under its SRO responsibilities in Regulatory Contract. Further, the activity that may involve a violation of carrying out these regulatory services for Exchange retains ultimate legal Commission or Exchange rules, the Exchange relating to the operation of responsibility for the regulation of its MarketWatch will immediately refer the the BX Equities Market, FINRA also may members and its market (including its activity to FINRA’s Market Regulation have secondary liability if, for example, facility, the BX Equities Market). Department for further investigation and the Commission finds that the potential disciplinary action. The Equity The Commission believes that it is contracted functions are being Rules governing unusual market consistent with the Act and the public performed so inadequately as to cause a conditions, extraordinary market interest to allow the Exchange to violation of the federal securities laws volatility, and audit trail are modeled on contract with FINRA to perform by the Exchange.134 the rules of Nasdaq.124 With regard to membership, disciplinary, and trading halts, if trading of a security is enforcement functions.129 Membership, 2. 17d–2 Agreement halted under Equity Rule 4120, the discipline, and enforcement are Rule 17d–2 allows SROs to file with security will be released for trading at fundamental elements to a regulatory the Commission plans under which the a time announced to market participants program, and constitute core self- SROs allocate among themselves the by the Exchange. Because the Exchange regulatory functions. It is essential to responsibility to receive regulatory will not have a halt cross, provisions of the public interest and the protection of reports from, and examine and enforce Nasdaq 4120 relating to a ‘‘display investors that these functions are carried compliance with, specified provisions only’’ period prior to the execution of out in an exemplary manner. With of the Act and rules thereunder and the halt cross are not included. respect to certain regulatory functions SRO rules by firms that are members of The Commission finds that the contracted to FINRA by the Exchange, more than one SRO (‘‘common Exchange’s proposed rules relating to including membership, disciplinary and members’’). An SRO that is a party to an the regulation of the BX Equities Market enforcement functions, the Commission effective 17d–2 plan is relieved of and its members are consistent with the previously noted its belief that FINRA regulatory responsibility as to any requirements of the Act, and in has the expertise and experience to common member for whom particular with Section 6(b)(1) of the perform such functions on behalf of an responsibility is allocated under the Act, which requires an exchange to be exchange, and that the contracting of plan to another SRO.135 The so organized and have the capacity to be such functions to FINRA is consistent Commission notes that the Exchange able to carry out the purposes of the Act with the Act and the public interest.130 has entered into a 17d–2 Agreement and to comply, and to enforce The Commission continues to believe with FINRA, covering common compliance by its members and persons that this is true with respect to the members of the Exchange and FINRA, associated with its members, with the inclusion in the Regulatory Contract of and that the Exchange has filed this Act and the rules and regulations regulation of the Exchange and the agreement with the Commission.136 The thereunder, and the rules of the conduct of its members. Exchange,125 and with Sections 6(b)(6) 131 See Section 17(d)(1) of the Act and Rule 17d– and 6(b)(7) of the Act,126 which require ‘‘[The] Rules that refer to the Exchange’s 2 thereunder. 15 U.S.C. 78q(d)(1); and 17 CFR an Exchange to provide fair procedures Regulation Department, Regulation Department 240.17d–2. The Commission notes that it is not for the disciplining of members and staff, Exchange staff, and Exchange departments approving the Regulatory Contract. persons associated with members. should be understood as also referring to FINRA 132 See NOM Approval Order, supra note 129; staff and FINRA departments acting on behalf of the Nasdaq Registration Approval Order, supra note 50, 1. Regulatory Contract Exchange pursuant to the FINRA Regulatory at notes 112 and 113 and accompanying text; Amex Contract. See Equity Rule 0130. Approval Order, supra note 129; and ISE The Exchange represents that the 129 See, e.g., Securities Exchange Act Release No. Registration Approval Order, supra note 129, at Regulatory Contract between the 40760 (December 8, 1998), 63 FR 70844 (December Section III(D)(2). Exchange and FINRA governs the 22, 1998). See also Securities Exchange Act Release 133 Id. Exchange and its facilities.127 Therefore, Nos. 57478 (March 12, 2008) 73 FR 14521, (March 134 Id. 18, 2008) (order approving rules governing the 135 Rule 17d–2 provides that any two or more because the BX Equities Market will be trading of options on the NASDAQ Options Market) SROs may file with the Commission a plan for a facility of the Exchange, the (‘‘NOM Approval Order’’); 50122 (July 29, 2004), 69 allocating among such SROs the responsibility to Regulatory Contract will govern the BX FR 47962 (August 6, 2004) (order approving File receive regulatory reports from persons who are Equities Market.128 The Exchange and No. SR–Amex–2004–32) (‘‘Amex Approval Order’’); members or participants of more than one of such 42455 (February 24, 2000), 65 FR 11388 (March 2, SROs to examine such persons for compliance, or 2000) (File No. 10–127) (approving ISE’s to enforce compliance by such persons, with 124 See, e.g., Equity Rules 4121, 4631, 6955. registration as a national securities exchange) (‘‘ISE specified provisions of the Act, the rules and 125 15 U.S.C. 78f(b)(1). Exchange Registration Order’’) at III(D)(2); Nasdaq regulations thereunder, and the rules of such SROs, 126 15 U.S.C. 78f(b)(6) and (b)(7). Registration Approval Order, supra note 50. or to carry out other specified regulatory functions 127 See Notice, supra note 3, 73 FR at 69692. 130 See Nasdaq Registration Approval Order, with respect to such persons. 17 CFR 240.17d–2. 128 The Commission notes that the Equity Rules supra note 50, at notes 10 and 11 and 136 See Securities Exchange Act Release No. provide that: accompanying text. 59101 (December 15, 2008) (File No. 4–575.)
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proposed 17d–2 agreement allocates to Rule 19d–1(c)(2).’’ The Commission a violation requires a formal FINRA regulatory responsibility, with notes that the Exchange proposes to add disciplinary action under the respect to common members, as follows: to its MRVP the list of rules set forth in Exchange’s Equity Rule 9200 Series. • FINRA will process and act upon Equity Rule IM–9216, which rules are IV. Exemption From the Requirement the same as those listed in Nasdaq’s IM– all applications submitted on behalf of To Register as a SIP allied persons, partners, officers, 9216.140 registered personnel and any other The Commission finds that the As described above, BX Equities LLC person required to be approved by the Exchange’s MRVP is consistent with will be delegated the authority to act as rules of both the Exchange and FINRA Sections 6(b)(1), 6(b)(5) and 6(b)(6) of a SIP for quotations and transaction or associated with common members the Act, which require, in part, that an information related to securities traded thereof. Upon request, FINRA will exchange have the capacity to enforce on the BX Equities Market and any advise the Exchange of any changes of compliance with, and provide trading facilities operated by BX allied members, partners, officers, appropriate discipline for, violations of Equities LLC. In the SIP Exemption 144 registered personnel and other persons the rules of the Commission and of the Request Letter, the Exchange, on required to be approved by the rules of exchange.141 In addition, because Equity behalf of BX Equities LLC, requested both the Exchange and FINRA. Rule 9216(b) will offer procedural rights that the Commission grant BX Equities • FINRA will investigate common to a person sanctioned for a violation LLC a permanent exemption from the members of the Exchange and FINRA listed in Equity Rule IM–9216, the requirement under Section 11A(b) of the for violations compliance with federal Commission believes that the Act and Rule 609 thereunder that a securities laws, rules and regulations, Exchange’s rules provide a fair securities information processor acting and rules of the Exchange that have procedure for the disciplining of as an exclusive processor register with 145 been certified by BX as identical or members and associated persons, the Commission. For the reasons substantially similar to a FINRA rule. consistent with Section 6(b)(7) of the discussed below, the Commission grants • FINRA will enforce compliance by Act.142 the requested exemption, subject to the common members with federal The Commission also finds that the conditions specified in this Order. securities laws, rules and regulations, proposal to include the rules listed in A. Overview Equity Rule IM–9216 in the MRVP is and rules of the Exchange that have BX Equities LLC is jointly owned by been certified by the Exchange as consistent with the public interest, the protection of investors, or otherwise in the Exchange and its parent corporation, identical or substantially similar to NASDAQ OMX. BX Equities LLC has FINRA rules. furtherance of the purposes of the Act, as required by Rule 19d–1(c)(2) under been established for the purpose of 3. Minor Rule Violation Plan the Act,143 because it should strengthen operating an Exchange facility for the the Exchange’s ability to carry out its trading of cash equity securities. The Commission approved the Pursuant to the proposed rule change Exchange’s Minor Rule Violation Plan oversight and enforcement 137 responsibilities as an SRO in cases approved in this Order, the Operating (‘‘MRVP’’) in 1989. The MRVP Agreement has been amended to specifies those uncontested minor rule where full disciplinary proceedings are unsuitable in view of the minor nature provide that management of BX Equities violations with sanctions not exceeding LLC is vested solely in the Exchange. In $2,500 that would not be subject to the of the particular violation. In approving the proposed change to addition, the Exchange will delegate the provisions of Rule 19d–1(c)(1) under the performance of certain of its market 138 the Exchange’s MRVP, the Commission Act requiring that an SRO promptly functions to BX Equities LLC with file notice with the Commission of any in no way minimizes the importance of compliance with Exchange rules and all respect to the quoting and trading of final disciplinary action taken with cash equity securities, including the respect to any person or organization.139 other rules subject to the imposition of fines under the MRVP. The Commission authority to act as a securities The Exchange’s MRVP includes the information processor for quoting and policies and procedures included in believes that the violation of any SRO rules, as well as Commission rules, is a trading information related to cash Equity Rule 9216(b), ‘‘Procedure for equity securities traded on the BX Violations under Plan Pursuant to SEC serious matter. However, the Exchange’s MRVP provides a reasonable means of Equities Market and any trading Rule 19d–1(c)(2),’’ and the rule facilities operated by BX Equities LLC. violations included in Equity Rule IM– addressing rule violations that do not rise to the level of requiring formal Because BX Equities LLC will be 9216, ‘‘Violations Appropriate for engaging, on an exclusive basis on Disposition Under Plan Pursuant to SEC disciplinary proceedings, while providing greater flexibility in handling behalf of the Exchange, in collecting, processing, or preparing for distribution 137 certain violations. The Commission See Securities Exchange Act Release No. or publication information with respect 26737 (April 17, 1989), 1989 WL 550708 (File No. expects that the Exchange will conduct SR–BSE–88–2) (‘‘MRVP Order’’). surveillance with due diligence and to transactions or quotations on, or 138 17 CFR 240.19d–1(c)(1). make a determination based on its effected or made by means of, a facility 139 The Commission adopted amendments to findings, on a case-by-case basis, of the Exchange, it will be an exclusive paragraph (c) of Rule 19d–1 to allow SROs to whether a fine of more or less than the processor required to register pursuant submit for Commission approval plans for the to Section 11A(b) of the Act. abbreviated reporting of minor disciplinary recommended amount is appropriate for infractions. See Securities Exchange Act Release a violation under the MRVP or whether Nevertheless, as further described in the No. 21013 (June 1, 1984), 49 FR 23829 (June 8, SIP Exemption Request Letter, the 1984). Any disciplinary action taken by an SRO 140 See Equity Rule IM–9216. The Exchange Exchange and BX Equities LLC believe against any person for violation of a rule of the SRO that the purposes of Section 11A(b) of which has been designated as a minor rule violation represented that these rules are in addition to pursuant to such a plan filed with the Commission existing provisions of the MRVP that remain in will not be considered ‘‘final’’ for purposes of effect with respect to the Exchange’s Boston 144 See SIP Exemption Request Letter, supra note Section 19(d)(1) of the Act, 78 U.S.C. 78s(d), if the Options Exchange facility. See Notice, supra note 6. sanction imposed consists of a fine not exceeding 3, 73 FR at 69690. 145 15 U.S.C. 78k–1(b). Rule 609 under the Act, $2,500 and the sanctioned person has not sought an 141 15 U.S.C. 78f(b)(1), 78f(b)(5) and 78f(b)(6). 17 CFR 242.609, requires that the registration of a adjudication, including a hearing, or otherwise 142 15 U.S.C. 78f(b)(7). securities information processor be on Form SIP, 17 exhausted his administrative remedies. 143 17 CFR 240.19d–1(c)(2). CFR 249.1001.
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the Act are not served by requiring BX 11A(b)(1), (b)(3) and (b)(5) and Sections which BX Equities LLC will be subject Equities LLC to register as an exclusive 17(a) and (b) of the Act, insofar as they pursuant to registration under Section processor under Section 11A(b) of the provide a framework for the 11A(b)(1) of the Act and the rules and Act, because Section 11A(b) subjects a surveillance and regulation of registered regulations thereunder. Accordingly, the registered securities information securities information processors. The Commission believes that registration of processor to a regulatory regime to Commission stated that any application BX Equities LLC as an exclusive which the BX Equities Market will be for an exemption from registration processor under Section 11A(b)(1) of the subject in all material respects as a should show not only how such Act with respect to those functions that facility of a registered national securities exemption would be consistent with the it will carry out as a facility of the exchange. statutory purposes discussed in the Exchange would not further the B. Discussion release, but also should demonstrate purposes of the Act. why, by virtue of the applicant’s 1. Denial of Access to Services Provided Sections 11A(b)(1) and (2) of the Act organization, operation or other by a Securities Information Processor or and Rule 609 thereunder (formerly Rule characteristics, the applicant should be a National Securities Exchange 11Ab2–1) provide that a securities exempted from registration, the 146 information processor that is acting requirements of Section 11A(b) and the Section 11A(b)(5)(A) of the Act (1) 147 as an exclusive processor register Commission’s authority under Sections requires a registered securities with the Commission by filing an 17(a) and 17(b) of the Act.150 information processor to promptly file application for registration on Form SIP. The Commission believes that BX notice with the Commission if the Section 11A(b)(1) of the Act and Rule Equities LLC will be acting as an processor prohibits or limits any person 609(c) thereunder allow the exclusive processor as defined in in respect of access to services offered, Commission, by rule or order, to Section 3(a)(22)(B) of the Act because it directly or indirectly, by the processor, conditionally or unconditionally will engage on an exclusive basis on and (2) provides that any such exempt any securities information behalf of the Exchange, in collecting, prohibition or limitation will be subject processor from any provision of Section processing, or preparing for distribution to Commission review, on its own 11A(b) of the Act or the rules or or publication information with respect motion or upon application by any regulations thereunder, if the to transactions or quotations on, or person aggrieved.154 If the prohibition Commission finds that such exemption effected or made by means of, a facility or limitation is reviewed, the is consistent with the public interest, of the Exchange. Further, BX Equities Commission shall dismiss the the protection of investors, and the LLC, in carrying out market functions of proceeding if it finds (after notice and purposes of Section 11A(b).148 the Exchange, will operate (and will be opportunity for a hearing) that such In its release adopting Rule 609, the prohibition or limitation is consistent Commission provides a framework for regulated) as a facility of the Exchange, with the provisions of the Act and the the consideration of exemption requests which is a national securities exchange rules and regulations thereunder and pursuant to Section 11A(b)(1) of the registered under Section 6 of the Act that such person has not been Act.149 Specifically, the Commission and the rules and regulations 151 discriminated against unfairly. If the indicates that the need for registration of thereunder. In the SIP Exemption Commission does not make such a an exclusive processor should be Request Letter, the Exchange represents finding, or if it finds that such considered in respect of Sections that BX Equities LLC will not perform any exclusive processor functions other prohibition or limitation imposes any burden on competition not necessary or 146 Section 3(a)(22) of the Act, 15 U.S.C. than in its capacity as a facility for the 78c(a)(22)(A), defines the term securities Exchange.152 appropriate in furtherance of the information processor to mean any person engaged As discussed below, with respect to purposes of the Act, the Commission in the business of (i) collecting, processing, or its operation as a facility of a registered shall set aside the prohibition or preparing for distribution or publication, or assisting, participating in, or coordinating the national securities exchange, BX limitation and require the securities distribution or publication of, information with Equities LLC already will be subject to information processor to permit such respect to transactions in or quotations for any regulation and Commission oversight person access to services offered by the security (other than an exempted security) or (ii) processor.155 distributing or publishing (whether by means of a under the Act as a facility of a registered ticker tape, a communications network, a terminal exchange.153 Oversight and regulation of BX Equities LLC, however, will be display device, or otherwise) on a current and registered exchanges encompass and subject to similar Commission continuing basis, information with respect to such exceed the oversight and regulation to regulation and oversight pursuant to transactions or quotations. Sections 6(b)(7), 6(d), 19(d), and 19(f) of 147 Under Section 3(a)(22)(B) of the Act, 15 U.S.C. 150 78c(a)(22)(B), an exclusive processor is defined as Id. at 45423. the Act with respect to its activities as any securities information processor or self- 151 Section 3(a)(2) of the Act, 15 U.S.C. 78c(a)(2), a facility of the Exchange.156 Section regulatory organization which, directly or defines the term facility, with respect to an 19(d)(1) requires, in part, that an exchange, to include its premises, tangible or indirectly, engages on an exclusive basis on behalf exchange promptly file notice with the of any national securities exchange or registered intangible property whether on the premises or not, securities association, or any national securities any right to use such premises or property or any Commission if the exchange prohibits or exchange or registered securities association which service thereof for the purpose of effecting or limits any person in respect to access to engages on an exclusive basis on its own behalf, in reporting a transaction on an exchange (including, services offered by such exchange or collecting, processing, or preparing for distribution among other things, any system of communication 157 or publication any information with respect to (i) to or from the exchange, by ticker or otherwise, member thereof. Any such action for transactions or quotations on or effected or made by maintained by or with the consent of the exchange), which the exchange must file notice is means of any facility of such exchange or (ii) and any right of the exchange to the use of any subject to Commission review.158 quotations distributed or published by means of any property or service. electronic system operated or controlled by such 152 SIP Exemption Request Letter, supra note 6. 154 See 15 U.S.C. 78k–1(b)(5)(A). association. 153 The definition of an exchange under the Act 155 148 See 15 U.S.C. 78k–1(b)(1) and 17 CFR includes ‘‘the market facilities maintained by such See Section 11A(b)(5)(B) under the Act, 15 242.609(c). exchange.’’ See Section 3(a)(1) of the Act, 15 U.S.C. U.S.C. 78k–1(b)(5)(B). 156 149 See Securities Exchange Act Release No. 78c(a)(1). The functions and operation of a national 15 U.S.C. 78f(b)(7) and (d) and 78s(d) and (f). 11673 (September 23, 1975), 40 FR 45422 (October securities exchange encompass the collection, 157 15 U.S.C. 78s(d)(1). 2, 1975) (adopting Commission Rule 11Ab2–1, processing, and dissemination of information 158 15 U.S.C. 78s(d)(2). See also Section 19(f) of which has been redesignated as Rule 609). related to securities trading. the Act, 15 U.S.C. 78s(f).
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Section 19(f) of the Act,159 among exchange.163 The Commission therefore interest, the protection of investors, and other things, allows the Commission to has the authority to place limitations on the purposes of Section 11A(b) of the set aside an SRO’s prohibition or the activities of BX Equities LLC as a Act, including maintenance of fair and limitation with respect to access to facility of a registered national securities orderly markets in securities and the services offered by the SRO if the exchange. removal of impediments to, and Commission finds that the prohibition perfection of the mechanism of, a 3. Access to Books and Records of a or limitation imposes any burden on national market system.166 This Securities Information Processor or a competition not necessary or exemption is limited only to the National Securities Exchange appropriate in furtherance of the exclusive processor activities that BX purposes of the Act. Section 17(a)(1) of the Act requires Equities LLC performs as a facility of the Section 6(b)(7) of the Act provides that national securities exchanges and Exchange. that the rules of an exchange, among registered securities information other things, must provide a fair processors make and keep for prescribed V. Conclusion procedure for the prohibition or periods such records, furnish such It is therefore ordered, pursuant to limitation by the exchange of any copies thereof, and make and Section 19(b)(2) of the Act,167 that the person with respect to access to services disseminate such reports as the proposed rule change (SR–BSE–2008– offered by the exchange or a member Commission, by rule, prescribes as 48), as modified by Amendment Nos. 1 thereof.160 necessary or appropriate in the public 161 and 2, be, and hereby is, approved, Section 6(d) of the Act requires, interest, for the protection of investors, except for inbound routing of orders among other things, that a national or otherwise in furtherance of the from NES to the BX Equities Market, securities exchange that initiates a 164 purposes of the Act. Section 17(b) of which is approved on a pilot basis proceeding to determine whether to the Act requires that such records be through December 23, 2009. prohibit or limit a person’s access to subject at any time, or from time to time, Although the Commission’s approval services offered by the exchange notify to such reasonable periodic, special, or of the rule proposal, as amended, is the person of the specific grounds for other examinations by representatives of final and the proposed rules are the prohibition or limitation and the Commission and the appropriate therefore effective,168 it is further provide an opportunity to be heard. In regulatory agency for such persons.165 ordered that the operation of the BX addition, Section 6(d) provides that an The record retention and production Equities Market is conditioned on the exchange’s determination to prohibit or requirements set out in Sections 17(a) satisfaction of the requirements below: limit a person’s access to the exchange’s and (b) of the Act therefore will be services must be supported by a applicable to BX Equities LLC with A. Examination by the Commission. statement setting forth the specific respect to its activities as a facility of The Exchange must have, and represent grounds on which the prohibition or BX. Thus, requiring BX Equities LLC to in a letter to the staff in the limitation is based. register as an exclusive processor with Commission’s Office of Compliance The Commission therefore believes respect to its activities as a facility of a Inspections and Examinations that it that regulation of the Exchange as a registered exchange would serve no has, adequate surveillance procedures national securities exchange provides additional regulatory purpose in this and programs in place to effectively for equivalent regulation and instance. regulate the BX Equities Market. Commission oversight of actions that BX B. 17d–2 Agreement. An agreement C. Conclusion Equities LLC may take in its capacity as pursuant to Rule 17d–2 between FINRA a facility to deny access to services as On the basis of the foregoing, the and the Exchange that allocates to would be the case were it to register as Commission finds that, with respect to FINRA regulatory responsibility for an exclusive processor under Section its activities as a facility of the those matters specified above 169 must 11A(b) of the Act. Exchange, granting an exemption to BX be approved by the Commission, or the 2. Limitation on Activities of a Equities LLC from the requirement to Exchange must demonstrate that it Securities Information Processor or a register as a securities information independently has the ability to fulfill National Securities Exchange processor pursuant to Section 11A(b) of all of its regulatory obligations. the Act is consistent with the public Section 11A(b)(6) of the Act grants the C. Delegation Agreement. The Commission authority to censure or Exchange and BX Equities LLC must 163 15 U.S.C. 78s(h)(1). See also Sections 19(h)(2), place limitations on the activities, (h)(3), and (h)(4) of the Act, 15 U.S.C. 78s(h)(2), enter into the Delegation Agreement as 170 functions, or operations of any (h)(3), and (h)(4). described above. registered securities information 164 15 U.S.C. 78q(a). The Commission has It is further ordered, pursuant to processor or suspend for a period not promulgated rules pursuant to Section 17(a) of the Section 11A(b) of the Act,171 that BX exceeding twelve months or revoke the Act that apply to national securities exchanges, but not registered securities information processors. Equities LLC shall be exempt from 162 registration of any such processor. See, e.g., Rule 17a–1 under the Act, 17 CFR registering as a securities information Likewise, Section 19(h)(1) of the Act 240.17a–1 (requiring in part a national securities exchange to preserve, for a period of not less than grants the Commission authority to 166 The Commission may grant this exemption five years, the first two in an easily accessible place, suspend for a period not exceeding pursuant to delegated authority. 17 CFR 200.30– at least one copy of all documents that are made 3(49). twelve months or revoke the registration or received by it in the course of its business as 167 of an exchange, or to censure or impose such and in the conduct of its self-regulatory 15 U.S.C. 78s(b)(2). limitations upon the activities, activity, and to furnish copies of such records to 168 As noted above, inbound routing of orders from NES to the BX Equities Market, which is part functions, and operations of an any representative of the Commission upon request). Form SIP, the application for registration of the Rule Proposal, is approved on a pilot basis of a securities information processor, does require through December 23, 2009. 159 15 U.S.C. 78s(f). that a securities information processor provide the 169 See supra notes 104 through 110 and 160 15 U.S.C. 78f(b)(7). Section 6(d)(2), 15 U.S.C. Commission with certain information relating to its accompanying text, notes 135 to 136 and 78f(d)(2), provides procedural requirements for any business organization, financial information, accompanying text. such proceeding by an exchange. operational capability, and access to services. 17 170 See supra notes 30 to 38 and accompanying 161 15 U.S.C. 78f(d). CFR 249.1001. text. 162 15 U.S.C. 78k–1(b)(6). 165 15 U.S.C. 78q(b). 171 15 U.S.C. 78k–1(b).
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processor, subject to the conditions To ensure that DTC is able to debit caps per family exceed $2.3 specified in this order. complete its settlement obligations each billion.7 An Affiliated Family whose net For the Commission, by the Division of day in the event of a Participant’s debit cap exceeds $2.3 billion would be Trading and Markets, pursuant to delegated inability to settle with DTC, DTC required to contribute a portion of the authority.172 currently maintains liquidity resources remaining $700 million calculated by Florence E. Harmon, of $2.5 billion composed of a $600 dividing the amount by which the Acting Secretary. million all-cash Participants Fund and a Affiliated Family’s net debit cap [FR Doc. E8–31094 Filed 12–30–08; 8:45 am] committed line of credit in the amount exceeds $2.3 billion by the sum of the of $1.9 billion with a consortium of amounts by which each Affiliated BILLING CODE 8011–01–P banks. DTC’s committed line of credit Family’s net debit cap exceeds $2.3 was recently increased from $1.4 billion.8 Once an Affiliated Family’s SECURITIES AND EXCHANGE billion. Given that financial firms have additional Participant’s Fund COMMISSION become increasingly interdependent, requirement has been established, DTC DTC recognizes that there is a will allocate this sum among the [Release No. 34–59148; File No. SR–DTC– possibility of ‘‘contagion’’ among Participants comprising the Affiliated 2008–12] several related Participants. Financial Family in proportion to each 9 Self-Regulatory Organizations; The problems at one Participant may impact Participant’s adjusted net debit cap. Depository Trust Company; Order the stability of another related This algorithm will be systematically Approving Proposed Rule Change As Participant, potentially causing both to used to calculate the allocations for the Amended To Increase Liquidity fail simultaneously. Because of concerns Participants of each Affiliated Family, Resources about this potential, DTC and its unless each of the Participants that regulators have agreed that DTC should comprise an Affiliated Family provides December 23, 2008. increase its available liquidity resources DTC with written instructions to so that DTC would be able to withstand allocate the aggregate net debit cap I. Introduction the failure of a financial family of differently. While the Participants of an On August 26, 2008, The Depository affiliated DTC Participants.5 To do so, Affiliated Family may give instructions Trust Company (‘‘DTC’’) filed with the DTC will (i) increase by $700 million to reapportion their net debit caps Securities and Exchange Commission the total cash deposits to DTC’s all-cash among themselves, they cannot (‘‘Commission’’) and on September 9, Participants Fund so that the aggregate reallocate to any one Participant a debit 2008, and on September 30, 2008, amount of the required cash deposits to cap that is greater than the DTC system amended proposed rule change SR– DTC’s Participant Fund plus the calculated net debit cap for that DTC–2008–12 pursuant to Section required preferred stock investments of Participant. 19(b)(1) of the Securities Exchange Act Participants will be increased to $1.3 III. Discussion of 1934 (‘‘Act’’).1 Notice of the proposal billion from $600 million and (ii) limit was published in the Federal Register the aggregate maximum net debit cap 6 Section 19(b) of the Act directs the on October 21, 2008.2 The Commission for any Affiliated Family to $3 billion. Commission to approve a proposed rule received no comment letters. For the The following variables are currently change of a self-regulatory organization reasons discussed below, the used in the determination of each if it finds that such proposed rule Commission is approving the proposed Participant’s required Participant’s change is consistent with the rule change, as amended. Fund deposit: requirements of the Act and the rules (1) The six largest intraday net debit and regulations thereunder applicable to II. Description peaks for a Participant over a rolling 60- such organization. Section 17A(b)(3)(F) The proposed rule change seeks to business day period. of the Act requires that the rules of a increase the liquidity resources of DTC (2) Minimum Fund Deposit: $10,000. clearing agency be designed to assure to ensure it has sufficient liquidity to (3) Fund Size: $600 Million. the safeguarding of securities and funds cover the failure of a financial family of DTC will continue to employ these in DTC’s custody or control or for which affiliated DTC Participants (‘‘Affiliated variables to calculate the first $600 it is responsible.10 The Commission Family’’).3 An Affiliated Family means million of the required $1.3 billion believes that DTC’s rule change is a Participant that controls another Fund. The remaining $700 million will consistent with this Section because it Participant or other Participants and be allocated proportionately among the should help assure the safeguarding of each Participant that is under the Affiliated Families whose aggregate net securities and funds in DTC’s custody or control of the controlling Participant. For purposes of this definition, 5 The Commission is the primary federal regulator 7 This amount is based on DTC’s practice of ‘‘control’’ means the direct or indirect of DTC as a clearing agency. DTC is also a limited maintaining a liquidity cushion of $200 million purpose trust company established under New York between its largest net debit cap and its liquidity ownership of more than 50% of the Banking Law and a state member bank of the resources (i.e., DTC’s current liquidity of $2.5 voting securities or other voting Federal Reserve System. As such, the The Federal billion minus the $200 liquidity cushion it interests of an entity.4 Reserve Bank of New York (FRBNY) and the New maintains). York State Department of Banking also have 8 DTC will adjust the net debit caps of the regulatory authority over DTC. Participants that comprise an Affiliated Family so 172 17 CFR 200.30–3(a)(12). 6 In order to ensure that timely settlement can be that the aggregate affiliated net debit cap does not 1 15 U.S.C. 78s(b)(1). completed in the event of a failure to settle by the exceed $3 billion. Currently 18 Affiliate Families 2 Securities Exchange Act Release No. 58757A Participant with the largest settlement obligation, consisting of 57 DTC Participants will be subject to (October 14, 2008), 73 FR 62578. DTC by sets debit limits (called net debit caps) for these Affiliated Family provisions. Thirteen 3 DTC currently has 332 Participants, most of each Participant. A Participant’s net debit is limited Affiliated Families will be required to reduce their which are broker-dealers or banks with one throughout the processing day to a net debit cap overall Net debit caps. Participant account. Large integrated organizations, that is the lesser of four amounts: (1) An amount 9 The proposed DTC Affiliated Family Algorithm however, typically have several ‘‘legal entities’’ based on the average of the three largest net debits can be viewed on the Commission’s Web site at with each being DTC Participants (e.g., a bank that the Participant incurred over a rolling 70 http://www.sec.gov/rules/sro/dtc/2008/34- custodian entity and a separate securities firm business day period, (2) an amount, if any, 58757.pdf and at DTC’s Web site at http:// entity). determined by the Participant’s settling bank, (3) an www.dtcc.com/downloads/legal/rule_filings/2008/ 4 Under this definition, DTC currently has 47 amount, if any, determined by DTC, or (4) $1.8 dtc/2008-12.pdf. Affiliated Families. billion. 10 15 U.S.C. 78q–1(b)(3)(F).
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control or for which it is responsible by I. Self-Regulatory Organization’s became effective on November 11, increasing DTC’s liquidity resources to Statement of the Terms of Substance of 2008.5 Revised NASD IM–2110–2 enable it to complete settlement in the the Proposed Rule Change prescribes detailed minimum levels of event of a failure of a financial family FINRA is proposing to amend NASD price improvement that a member must of affiliated Participants. Interpretive Material (IM) 2110–2 provide in order to trade ahead of an unexecuted customer limit order IV. Conclusion (Trading Ahead of Customer Limit Order) to provide that, for the purpose without triggering the protections On the basis of the foregoing, the of determining the minimum price provided by the rule. In other words, the Commission finds that the proposed improvement obligation where there is price-improvement standards in IM– rule change, as amended, is consistent no published current inside spread, 2110–2 set forth the minimum amount by which a member must trade, in with the requirements of the Act and in members may calculate a current inside addition to the price of the customer particular Section 17A of the Act and spread by contacting and obtaining buy limit order (or less than the price of the rules and regulations thereunder. In priced quotations from at least two a customer sell order), to avoid approving the proposed rule change, the unaffiliated dealers. triggering the protections provided by Commission considered the proposal’s The text of the proposed rule change is attached as Exhibit 5.3 IM–2110–2. impact on efficiency, competition, and The minimum price improvement capital formation. II. Self-Regulatory Organization’s tiers are as follows: It is therefore ordered, pursuant to Statement of the Purpose of, and (1) For customer limit orders priced Section 19(b)(2) of the Act, that the Statutory Basis for, the Proposed Rule greater than or equal to $1.00, the proposed rule change (File No. SR– Change minimum amount of price improvement DTC–2008–12), as amended, be and In its filing with the Commission, required is $0.01 for NMS stocks and hereby is approved. FINRA included statements concerning the lesser of $0.01 or one-half (1⁄2) of the the purpose of and basis for the current inside spread for OTC equity For the Commission by the Division of proposed rule change and discussed any securities; Trading and Markets, pursuant to delegated comments it received on the proposed (2) For customer limit orders priced authority.11 rule change. The text of these statements greater than or equal to $.01 and less Florence E. Harmon, may be examined at the places specified than $1.00, the minimum amount of Acting Secretary. in Item IV below. FINRA has prepared price improvement required is the lesser [FR Doc. E8–31048 Filed 12–30–08; 8:45 am] summaries, set forth in sections A, B, of $0.01 or one-half (1⁄2) of the current BILLING CODE 8011–01–P and C below, of the most significant inside spread; aspects of such statements. (3) For customer limit orders priced less than $.01 but greater than or equal A. Self-Regulatory Organization’s SECURITIES AND EXCHANGE to $0.001, the minimum amount of price Statement of the Purpose of, and improvement required is the lesser of COMMISSION Statutory Basis for, the Proposed Rule $0.001 or one-half (1⁄2) of the current Change [Release No. 34–59138; File No. SR–FINRA– inside spread; (4) For customer limit orders priced 2008–064] 1. Purpose less than $.001 but greater than or equal NASD IM–2110–2 (commonly to $0.0001, the minimum amount of Self-Regulatory Organizations; referred to as the ‘‘Manning Rule’’) Financial Industry Regulatory price improvement required is the lesser generally prohibits a member from 1 Authority, Inc.; Notice of Proposed trading for its own account at prices that of $0.0001 or one-half ( ⁄2) of the current Rule Change To Amend NASD would satisfy a customer’s limit order inside spread; (5) For customer limit orders priced Interpretive Material (IM) 2110–2 unless the member immediately less than $.0001 but greater than or (Trading Ahead of Customer Limit thereafter executes the customer limit equal to $0.00001, the minimum Order) order at the price at which it traded for amount of price improvement required its own account or at a better price. The is the lesser of $0.00001 or one-half (1⁄2) December 22, 2008. legal underpinnings for IM–2110–2 are a firm’s basic fiduciary obligations of the current inside spread; Pursuant to Section 19(b)(1) of the (6) For customer limit orders priced under agency law and the requirement Securities Exchange Act of 1934 less than $.00001, the minimum amount 1 2 that it must, in the conduct of its (‘‘Act’’) and Rule 19b–4 thereunder, of price improvement required is the business, ‘‘observe high standards of notice is hereby given that on December lesser of $0.000001 or one-half (1⁄2) of commercial honor and just and 17, 2008, Financial Industry Regulatory the current inside spread; and Authority, Inc. (‘‘FINRA’’) (f/k/a equitable principles of trade.’’ (7) For customer limit orders priced On September 12, 2008, the SEC National Association of Securities outside the best inside market, the approved amendments to the minimum Dealers, Inc. (‘‘NASD’’)) filed with the minimum amount of price improvement Securities and Exchange Commission price-improvement standards in IM– 2110–2 to provide tiered standards that required must either meet the (‘‘SEC’’ or ‘‘Commission’’) the proposed vary according to the price of the requirements set forth above or the rule change as described in Items I, II, customer limit order.4 The amendments member must trade at a price at or and III below, which Items have been inside the best inside market for the prepared by FINRA. The Commission is 3 The Commission notes that Exhibit 5 is attached security. publishing this notice to solicit to the rule filing filed with the Commission but not Therefore, if a firm is holding a comments on the proposed rule change to this release. The text of the proposed rule change customer limit order to buy priced at from interested persons. is available at FINRA, on its Web site (http:// $.75 and the applicable minimum price www.finra.org), and at the Commission’s Public improvement standard is $.01, the firm Reference Room. 11 17 CFR 200.30–3(a)(12). 4 See Securities Exchange Act Release No. 58532 would be permitted to buy at $.76 or 1 15 U.S.C. 78s(b)(1). (September 12, 2008), 73 FR 54649 (September 22, 2 17 CFR 240.19b–4. 2008) (order approving SR–NASD–2007–041). 5 See Regulatory Notice 08–49 (September 2008).
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higher without triggering the would not implicate other rules or arguments concerning the foregoing, requirements of IM–2110–2. requirements (e.g., Three Quote Rule). including whether the proposed rule The proposed rule change is being The proposed rule change would change is consistent with the Act. filed to provide members with an address the unintended effective Comments may be submitted by any of alternative method of calculating the prohibition on selling while certain the following methods: customer limit orders are pending by minimum price improvement in cases Electronic Comments where a member receives a limit order providing members with an alternative priced to sell an OTC equity security means of determining the inside spread • Use the Commission’s Internet below $1.00 and there is no quoted for use as the basis for calculating its comment form (http://www.sec.gov/ market. The minimum price- minimum price-improvement rules/sro.shtml); or obligation. improvement standards are either a • Send an e-mail to rule- fixed amount or one-half (1⁄2) of the 2. Statutory Basis [email protected]. Please include File current inside spread. However, where Number SR–FINRA–2008–064 on the there is no current inside spread, the FINRA believes that the proposed rule change is consistent with the provisions subject line. minimum price-improvement standard of Section 15A(b)(6) of the Act,6 which defaults to the fixed amount which, in Paper Comments requires, among other things, that certain circumstances, can equal the FINRA rules must be designed to • Send paper comments in triplicate price of the customer limit order. For prevent fraudulent and manipulative to Secretary, Securities and Exchange example, where a member receives a acts and practices, to promote just and Commission, 100 F Street, NE., customer limit order priced at $.01 and equitable principles of trade, and, in Washington, DC 20549–1090. there is no current published inside general, to protect investors and the All submissions should refer to File spread, the minimum price- public interest. FINRA believes that the Number SR–FINRA–2008–064. This file improvement standard would still be proposed rule change will address an number should be included on the equal to $.01, which would require the unintended consequence of the subject line if e-mail is used. To help the member to sell at 0 ($.01 minus $.01) to minimum price-improvement standards Commission process and review your avoid triggering the customer limit set forth in IM–2110–2 while continuing comments more efficiently, please use order. Thus, under the current rule, the to promote investor protection and only one method. The Commission will member is effectively prohibited from improving the treatment of customer post all comments on the Commission’s selling while the customer limit order is limit orders. Internet Web site (http://www.sec.gov/ pending. FINRA believes that this result rules/sro.shtml). Copies of the is overly restrictive. B. Self-Regulatory Organization’s submission, all subsequent Thus FINRA is proposing to amend Statement on Burden on Competition amendments, all written statements IM–2110–2 to provide that, for the FINRA does not believe that the with respect to the proposed rule purpose of determining the minimum proposed rule change will result in any change that are filed with the price improvement obligation where burden on competition that is not Commission, and all written there is no published current inside necessary or appropriate in furtherance communications relating to the spread, member firms may calculate a of the purposes of the Act. proposed rule change between the current inside spread by contacting and Commission and any person, other than obtaining priced quotations from at least C. Self-Regulatory Organization’s those that may be withheld from the two unaffiliated dealers. FINRA believes Statement on Comments on the Proposed Rule Change Received From public in accordance with the that obtaining priced quotations from a Members, Participants or Others provisions of 5 U.S.C. 552, will be minimum of two unaffiliated dealers available for inspection and copying in provides an adequate proxy for an Written comments were neither the Commission’s Public Reference inside spread typically displayed for an solicited nor received. Room, 100 F Street, NE., Washington, OTC equity security, but members are III. Date of Effectiveness of the DC 20549, on official business days free to contact more than two Proposed Rule Change and Timing for between the hours of 10 a.m. and 3 p.m. unaffiliated dealers. Once the member Commission Action Copies of the filing also will be available has obtained bid and ask prices from at for inspection and copying at the least two unaffiliated dealers, the Within 35 days of the date of principal office of FINRA. All comments highest bid and lowest offer obtained publication of this notice in the Federal received will be posted without change; must be used as the basis for calculating Register or within such longer period (i) the Commission does not edit personal the current inside spread for purposes of as the Commission may designate up to identifying information from determining the member’s minimum 90 days of such date if it finds such submissions. You should submit only price improvement obligation. longer period to be appropriate and publishes its reasons for so finding or information that you wish to make Additionally, where there is a one- (ii) as to which the self-regulatory available publicly. All submissions sided quote, the proposed rule change organization consents, the Commission should refer to File Number SR–FINRA– would permit a member to determine will: 2008–064 and should be submitted on the current inside spread by using the (A) by order approve such proposed or before January 21, 2009. best price obtained from at least two rule change, or For the Commission, by the Division of unaffiliated dealers on the other side of (B) institute proceedings to determine the quote. Members must document (1) Trading and Markets, pursuant to delegated whether the proposed rule change authority.7 the name of each dealer contacted and should be disapproved. (2) the quotations received that were Florence E. Harmon, used as the basis for determining the IV. Solicitation of Comments Acting Secretary. current inside spread. The proposed Interested persons are invited to [FR Doc. E8–31051 Filed 12–30–08; 8:45 am] rule change would apply solely to submit written data, views, and BILLING CODE 8011–01–P minimum price-improvement calculations under IM–2110–2 and 6 15 U.S.C. 78o–3(b)(6). 7 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s is not necessary or appropriate in COMMISSION Statement of the Purpose of, and furtherance of the purposes of the Act. Statutory Basis for, the Proposed Rule C. Self-Regulatory Organization’s Change [Release No. 34–59136; File No. SR–ISE– Statement on Comments on the 2008–95] 1. Purpose Proposed Rule Change Received From Members, Participants or Others Self-Regulatory Organizations; The Exchange proposes to extend the International Securities Exchange, close of trading for equity securities The Exchange has not solicited, and LLC; Notice of Filing and Immediate from 5 p.m. ET to 8 p.m. ET. Currently, does not intend to solicit, comments on Effectiveness of Proposed Rule the Exchange has a Post-Market Session, this proposed rule change. The Change To Extend the Close of which begins at the conclusion of the Exchange has not received any Trading on the ISE Stock Exchange Regular-Market Session and closes at 5 unsolicited written comments from p.m. ET. The Exchange is now members or other interested parties. December 22, 2008. proposing to amend Rule 2102 to III. Date of Effectiveness of the Pursuant to Section 19(b)(1) of the conclude the Post-Market Session at 8 Proposed Rule Change and Timing for Securities Exchange Act of 1934 (the p.m. ET. Commission Action ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Trading during expanded hours notice is hereby given that on December involves potential risks, including the Because the foregoing proposed rule 17, 2008, the International Securities possibility of lower liquidity, higher change does not: Exchange, LLC (the ‘‘Exchange’’ or the volatility, changing prices, unlinked (i) Significantly affect the protection ‘‘ISE’’) filed with the Securities and markets with the possibility of trade- of investors or the public interest; Exchange Commission (‘‘Commission’’) throughs, and wider spreads. Moreover, (ii) Impose any significant burden on the proposed rule change as described trades executed during these sessions competition; and in Items I and II below, which items may receive executions at inferior prices (iii) Become operative for 30 days have been prepared by the Exchange. when compared to the high/low of the from the date on which it was filed, or The Exchange has filed the proposal day. The Supplementary Material to such shorter time as the Commission pursuant to Section 19(b)(3)(A) of the Rule 2102 presently requires Equity may designate if consistent with the Act 3 and Rule 19b–4(f)(6) thereunder,4 EAMs that submit orders during the protection of investors and the public which renders the proposal effective Post-Market Session on behalf of non- interest, it has become effective upon filing with the Commission. The members to disclose the risks of pursuant to Section 19(b)(3)(A) of the Commission is publishing this notice to participating in such session to their Act 7 and Rule 19b–4(f)(6) thereunder.8 solicit comments on the proposed rule customers. This customer disclosure ISE has asked the Commission to change from interested persons. requirement, along with all other equity waive the 30-day operative delay. The I. Self-Regulatory Organization’s rules and trading surveillance that Commission believes that such waiver is Statement of the Terms of Substance of currently apply during the Post-Market consistent with the protection of the Proposed Rule Change Session will continue to apply to the investors and the public interest extended time-period of 5 p.m. ET to 8 because such waiver should benefit The Exchange submits this rule filing p.m. ET. investors by allowing ISE, without undue delay, to expand its hours of to extend the close of trading for equity 2. Statutory Basis securities from 5 p.m. Eastern Time trading, which should add competition (‘‘ET’’) to 8 p.m. ET. The text of the The Exchange believes the proposed in the trading of equity securities and proposed rule change is available on the rule change is consistent with the Act new derivative securities products. In Exchange’s Web site http:// and the rules and regulations under the addition, proposed ISE Rule 2102 is www.ise.com, at the principal office of Act applicable to a national securities closely modeled after similar rules of the Exchange, and at the Commission’s exchange and, in particular, the other national securities exchanges 9 Public Reference Room. requirements of Section 6(b) of the Act.5 and does not raise any novel or Specifically, the Exchange believes the significant issues. Therefore, the II. Self-Regulatory Organization’s proposed rule change is consistent with Commission designates the proposed Statement of the Purpose of, and Section 6(b)(5) of the Act’s 6 rule change as operative upon filing.10 Statutory Basis for, the Proposed Rule requirements that the rules of a national At any time within 60 days of the Change securities exchange be designed to filing of the proposed rule change the In its filing with the Commission, the promote just and equitable principles of Commission may summarily abrogate Exchange included statements trade, to prevent fraudulent and such rule change if it appears to the concerning the purpose of, and basis for, manipulative acts and, in general, to Commission that such action is the proposed rule change and discussed protect investors and the public interest. necessary or appropriate in the public any comments it received on the In particular, the proposed rule change interest, for the protection of investors, proposed rule change. The text of these will allow the Exchange to provide a statements may be examined at the competitive marketplace for Equity 7 15 U.S.C. 78s(b)(3)(A). places specified in Item IV below. The EAMs to trade securities until 8 p.m. 8 17 CFR 240.19b–4(f)(6). The Commission notes ET. that ISE has satisfied the five-day pre-filing notice self-regulatory organization has requirement. prepared summaries, set forth in B. Self-Regulatory Organization’s 9 See NYSE Arca Equities Rule 7.34 (NYSE Arca’s Sections A, B and C below, of the most Statement on Burden on Competition extended hours for the trading of equities last until significant aspects of such statements. 8 p.m. ET) and Nasdaq Rule 4120(b)(4) (Nasdaq’s The proposed rule change does not post-market session for equities lasts until 8 p.m. ET). 1 impose any burden on competition that 15 U.S.C. 78s(b)(1). 10 For purposes only of waiving the operative date 2 17 CFR 240.19b–4. of this proposal, the Commission has considered 3 15 U.S.C. 78s(b)(3)(A). 5 15 U.S.C. 78f(b). the rule’s impact on efficiency, competition, and 4 17 CFR 240.19b–4(f)(6). 6 15 U.S.C. 78f(b)(5). capital formation. See 15 U.S.C. 78c(f).
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or otherwise in furtherance of the For the Commission, by the Division of Nasdaq Rules purposes of the Act. Trading and Markets, pursuant to delegated authority.11 Equity Rules IV. Solicitation of Comments Florence E. Harmon, 4751. Definitions Acting Secretary. Interested persons are invited to (a)–(e) No change. submit written data, views, and [FR Doc. E8–31050 Filed 12–30–08; 8:45 am] arguments concerning the foregoing, BILLING CODE 8011–01–P (f) The term ‘‘Order Type’’ shall mean including whether the proposed rule the unique processing prescribed for change is consistent with the Act. designated orders that are eligible for SECURITIES AND EXCHANGE entry into the System, and shall include: Comments may be submitted by any of COMMISSION the following methods: (1)–(8) No change. (9) ‘‘Directed Orders’’ are orders that Electronic Comments [Release No. 34–59153; File No. SR– Nasdaq–2008–098] are directed to an exchange other than • Use the Commission’s Internet Nasdaq as directed by the entering party comment form http://www.sec.gov/ Self-Regulatory Organizations; The without checking the Nasdaq book. If rules/sro.shtml; or NASDAQ Stock Market LLC; Notice of unexecuted, the order (or unexecuted Filing and Order Granting Accelerated • Send an e-mail to rule- portion thereof) shall be returned to the Approval of Proposed Rule Change [email protected]. Please include File entering party. This option may only be Regarding Routing to an Affiliated No. SR–ISE–2008–95 on the subject used for orders with time-in-force Exchange line. parameters of IOC. Directed Orders may be designated as inter-market sweep December 23, 2008. Paper Comments orders by the entering party to execute Pursuant to Section 19(b)(1) of the against the full displayed size of any • Securities Exchange Act of 1934 Send paper comments in triplicate protected bid or offer (as defined in Rule (‘‘Act’’),1 and Rule 19b–4 thereunder,2 to Secretary, Securities and Exchange 600(b) of Regulation NMS under the notice is hereby given that on December Commission, 100 F Street, NE., Act). A broker-dealer that designates an Washington, DC 20549–1090. 15, 2008, The NASDAQ Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed order as an intermarket sweep order has All submissions should refer to File with the Securities and Exchange the responsibility of complying with Number SR–ISE–2008–95. This file Commission (‘‘Commission’’) the Rules 610 and 611 of Regulation NMS. number should be included on the proposed rule change as described in Directed Orders may not be directed subject line if e-mail is used. To help the Items I and II below, which Items have to a facility of an exchange that is an Commission process and review your been prepared substantially by Nasdaq. affiliate of Nasdaq except for Directed comments more efficiently, please use The Commission is publishing this Orders directed to the NASDAQ OMX only one method. The Commission will notice and order to solicit comments on BX Equities Market. post all comments on the Commissions the proposed rule change from (g)–(i) No change. Internet Web site (http://www.sec.gov/ interested persons, and is approving the rules/sro.shtml). Copies of the proposal on an accelerated basis. 4758. Order Routing submission, all subsequent I. Self-Regulatory Organization’s (a) No change. amendments, all written statements Statement of the Terms of Substance of (b) Routing Broker with respect to the proposed rule the Proposed Rule Change change that are filed with the (1)–(7) No change. Commission, and all written Nasdaq is proposing a rule change to amend: (i) Nasdaq Rule 4751 to modify (8) Nasdaq Execution Services LLC communications relating to the shall establish and maintain procedures proposed rule change between the the restriction on routing of Directed Orders to a facility of an exchange that and internal controls reasonably Commission and any person, other than is an affiliate of Nasdaq and (ii) Nasdaq designed to adequately restrict the flow those that may be withheld from the Rule 4758 to provide for the of confidential and proprietary public in accordance with the establishment of procedures designed to information between the NASDAQ provisions of 5 U.S.C. 552, will be manage the flow of confidential Stock Market LLC and its facilities available for inspection and copying in information between Nasdaq and its (including Nasdaq Execution Services the Commission’s Public Reference facilities (including its routing facility LLC as its routing facility) and any other Room on official business days between Nasdaq Execution Services, LLC) and entity. the hours of 10 a.m. and 3 p.m. Copies other entities. * * * * * of such filing also will be available for The text of the proposed rule change inspection and copying at the principal is available from Nasdaq’s Web site at II. Self-Regulatory Organization’s office of the ISE. All comments received http://nasdaq.cchwallstreet.com, at Statement of the Purpose of, and will be posted without change; the Nasdaq’s principal office, and at the Statutory Basis for, the Proposed Rule Commission does not edit personal Commission’s Public Reference Room. Change identifying information from Proposed new language is in italics.3 In its filing with the Commission, submissions. You should submit only * * * * * Nasdaq included statements concerning information that you wish to make the purpose of, and basis for, the available publicly. All submissions 11 17 CFR 200.30–3(a)(12). proposed rule change. The text of these should refer to File Number SR–ISE– 1 15 U.S.C. 78s(b)(1). statements may be examined at the 2 2008–95 and should be submitted by 17 CFR 240.19b–4. places specified in Item III below, and January 21, 2009. 3 Changes are marked to the rule text that appears in the electronic manual of Nasdaq found at is set forth in Sections A, B, and C http://nasdaq.cchwallstreet.com. below.
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A. Self-Regulatory Organization’s Rules 4751 and 4758 establish the proposes to modify the restriction in Statement of the Purpose of, and conditions under which Nasdaq is Nasdaq Rule 4751(f)(9) that prohibits Statutory Basis for, the Proposed Rule permitted to own and operate NES in its the routing of Directed Orders to a Change capacity as a facility of Nasdaq that facility of an exchange that is an affiliate routes orders from Nasdaq to other of Nasdaq. Under the proposed rule 1. Purpose market centers. The conditions include change, inbound routing of Directed a. Affiliation and Order Routing requirements that: (1) NES is operated Orders to the NASDAQ OMX BX The NASDAQ OMX Group, Inc. as a facility of Nasdaq; (2) NES will not Equities Market would be permitted. (‘‘NASDAQ OMX’’), a Delaware engage in any business other than: (i) As On September 29, 2008, the corporation, owns three U.S. registered an outbound router for Nasdaq and (ii) Commission approved rule changes to securities exchanges—Nasdaq, any other activities it may engage in as permit the NYSE, NYSE Arca and NYSE NASDAQ OMX PHLX, Inc. (‘‘PHLX’’) approved by the Commission; (3) for Alternext US to accept inbound orders and The Boston Stock Exchange, purposes of Commission Rule 17d–1 that their affiliate Arca Securities routes Incorporated, to be renamed NASDAQ under the Act,9 the designated in its capacity as a facility of NYSE or OMX BX, Inc. (‘‘BX’’).4 In addition, examining authority of NES is a self- NYSE Arca, subject to certain NASDAQ OMX currently indirectly regulatory organization unaffiliated with limitations and conditions intended to owns Nasdaq Execution Services, LLC Nasdaq; (4) use of NES to route orders address the Commission’s concerns (‘‘NES’’), a registered broker-dealer and to other market centers is optional; 10 regarding affiliation.13 In the orders a member of BX. Thus, NES is an and (5) Nasdaq will not route orders to approving these rule changes, the affiliate of each of Nasdaq, PHLX and an affiliated exchange, such as BX, Commission noted its concerns about BX. unless they check the Nasdaq book prior potential informational advantages and Although BX does not currently have to routing. conflicts of interest between an any equity trading operations, BX has The Commission has approved NES’s exchange’s self-regulatory obligations proposed a new rulebook for BX to affiliation with BX subject to the and its commercial interest when the support the resumption of these conditions that: (1) NES remains a exchange is affiliated with one of its operations.5 Although BX will not route facility of Nasdaq; (2) use of NES’s members, but determined that the to other market centers, BX will receive routing function by Nasdaq members proposed limitations and conditions orders routed to it by other market continues to be optional and (3) NES were sufficient to mitigate its centers, including Nasdaq.6 does not provide routing of Directed concerns.14 NES is the approved outbound Orders to BX or any trading facilities Nasdaq proposes to amend Nasdaq routing facility of Nasdaq for cash thereof, unless such orders first attempt Rule 4758 to provide that NES will equities, providing outbound routing to access any liquidity on the Nasdaq establish and maintain procedures and from Nasdaq to other market centers. book.11 internal controls reasonably designed to NES does not provide inbound routing Nasdaq proposes that, upon the adequately restrict the flow of to Nasdaq. The acquisition of NES by resumption of cash equity trading by confidential and proprietary NASDAQ OMX was approved by the BX, NES, in its operation as a facility of information between Nasdaq and its 7 Nasdaq, be permitted to route all orders, facilities (including NES) and any other Commission in 2004 and 2005 and the 15 rules under which NES currently routes including Directed Orders, to BX’s entity. In addition, in the BX Rulebook orders from Nasdaq to other market equity market without checking the Proposal, BX is proposing a rule change centers were approved initially by the Nasdaq book prior to routing. Directed and certain undertakings intended to Commission in 2006 and have been Orders are orders that route directly to manage the flow of confidential and amended on several occasions.8 Nasdaq other exchanges on an immediate-or- cancel basis without first checking the proprietary information between NES 12 and BX and to minimize potential 4 See Securities Exchange Act Release No. 58927 Nasdaq book for liquidity. In order to 16 (November 10, 2008), 73 FR 69685 (November 19, modify the conditions regarding the conflicts of interest. 2008) (SR–BSE–2008–48). This filing also proposes operation of NES and allow NES to 2. Statutory Basis a new rule book for cash equities trading (‘‘BX route Directed Orders to BX, Nasdaq Rulebook Proposal’’) on a facility of BX, to be Nasdaq believes that the proposed named the NASDAQ OMX BX Equities Market. rule change is consistent with the 5 2007–065); 55335 (February 23, 2007), 72 FR 9369 Id. provisions of Section 6 of the Act,17 in 6 PHLX does not currently trade cash equities, (March 1, 2007) (SR–NASDAQ–2007–005); 54613 and therefore this filing does not apply to it. Nasdaq (October 17, 2006), 71 FR 62325 (October 24, 2006) is not at this time proposing to modify limits on (SR–NASDAQ 2006–043); 54271 (August 3, 2006), 13 See Securities Exchange Act Release Nos. routing options to affiliated exchanges. 71 FR 45876 (August 10, 2006) (SR–NASDAQ– 58681 (September 29, 2008), 73 FR 58285 (October 7 See Securities Exchange Act Release Nos. 50311 2006–027); and 54155 (July 14, 2006), 71 FR 41291 6, 2008) (SR–NYSEArca–2008–90) (‘‘NYSE Arca (September 3, 2004), 69 FR 54818 (September 10, (July 20, 2006) (SR–NASDAQ–2006–001). Order’’); 58680 (September 29, 2008), 73 FR 58283 2004) (Order Granting Application for a Temporary 9 17 CFR 240.17d–1. (October 6, 2008) (SR–NYSE–2008–76) (‘‘NYSE Conditional Exemption Pursuant To Section 36(a) 10 Because only Nasdaq members may enter Order’’); 58673 (September 29, 2008), 73 FR 57707 of the Exchange Act by the National Association of orders into Nasdaq, it also follows that routing by (October 3, 2008) (SR–Amex–2008–62) (‘‘NYSE Securities Dealers, Inc. Relating to the Acquisition NES is available only to Nasdaq members. Alternext US Order’’). of an ECN by The Nasdaq Stock Market, Inc.) and 11 See Securities Exchange Act Release No. 58324 14 The Commission also set forth these concerns 52902 (December 7, 2005), 70 FR 73810 (December (August 7, 2008), 73 FR 46936 (August 12, 2008) in its order abrogating NYSE Arca Rule 7.31(x). See 13, 2005) (SR–NASD–2005–128) (Order Approving (SR–BSE–2008–23). Securities Exchange Act Release No. 57648 (April a Proposed Rule Change To Establish Rules 12 Rules 4751 and 4755 provide for routing of 11, 2008), 73 FR 20981 (April 17, 2008). Governing the Operation of the INET System). ‘‘directed orders’’ to automated market centers other 15 This sentence was modified at the request of 8 See Securities Exchange Act Release Nos. 58752 than Nasdaq on an ‘‘immediate-or-cancel’’ basis. the Exchange from the text contained in the (October 8, 2008), 73 FR 61181 (October 15, 2008) Such directed orders may be designated as proposed rule change. Telephone conversation (SR–NASDAQ–2008–079); 58135 (July 10, 2008), 73 intermarket sweep orders (‘‘ISOs’’), which may be between John Yetter, Vice President and Deputy FR 40898 (July 16, 2008) (SR–NASDAQ–2008–061); executed by the receiving venue based on the General Counsel, NASDAQ OMX, and Nancy 58069 (June 30, 2008), 73 FR 39360 (July 9, 2008) representation of the market participant that it has Burke-Sanow, Assistant Director, Division of (SR–NASDAQ–2008–054); 56708 (October 26, routed to all superior protected quotations, or not Trading and Markets, Commission on December 22, 2007), 72 FR 61925 (November 1, 2007) (SR– so designated, in which case the orders will execute 2008. NASDAQ–2007–078); 56867 (November 29, 2007), only if their execution would not result in a trade- 16 See BX Rulebook Proposal, supra note 4. 72 FR 69263 (December 7, 2007) (SR–NASDAQ– through. 17 15 U.S.C. 78f.
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general, and with Section 6(b)(5) of the comments more efficiently, please use Incorporated) by NASDAQ OMX.21 In Act,18 in particular, in that the proposal only one method. The Commission will conjunction with that transaction, the is designed to prevent fraudulent and post all comments on the Commission’s Exchange amended its rules to prohibit manipulative acts and practices, to Internet Web site (http://www.sec.gov/ the routing of Directed Orders 22 to any promote just and equitable principles of rules/sro.shtml ). Copies of the facility of an exchange that is an affiliate trade, to foster cooperation and submission, all subsequent of Nasdaq.23 This limitation coordination with persons engaged in amendments, all written statements corresponds to one of the conditions regulating, clearing, settling, processing with respect to the proposed rule proposed by BX at the time it was information with respect to, and change that are filed with the acquired by NASDAQ OMX to permit facilitating transactions in securities, to Commission, and all written its affiliation with NES.24 NES, a broker- remove impediments to and perfect the communications relating to the dealer that will become a member of BX, mechanism of a free and open market proposed rule change between the currently provides to Nasdaq members and a national market system, and, in Commission and any person, other than optional routing services to other market general, to protect investors and the those that may be withheld from the centers. NES is owned by NASDAQ public interest. The proposed rule public in accordance with the OMX, which also owns three registered change would permit inbound routing provisions of 5 U.S.C. 552, will be securities exchanges—Nasdaq, BX, and of Directed Orders and other orders to available for inspection and copying in the PHLX.25 Thus, NES is an affiliate of BX from its affiliate NES while the Commission’s Public Reference each of these exchanges. minimizing the potential for conflicts of Room on official business days between BX previously proposed as a interest and informational advantages the hours of 10 a.m. and 3 p.m. Copies condition to its affiliation with NES, involved where a member firm is of such filing also will be available for that NES would only route orders to affiliated with an exchange to which it inspection and copying at the principal BSE that first attempt to access liquidity is routing orders. office of the Exchange. All comments received will be posted without change; on Nasdaq. In connection with the B. Self-Regulatory Organization’s the Commission does not edit personal resumption of equities trading on BX, Statement on Burden on Competition identifying information from BX is now proposing to accept orders Nasdaq does not believe that the submissions. You should submit only routed to it by NES in its capacity as a proposed rule change will impose any information that you wish to make facility of Nasdaq, including orders that burden on competition that is not available publicly. All submissions do not first attempt to access liquidity necessary or appropriate in furtherance should refer to File Number SR– on Nasdaq.26 In the instant filing, the of the purposes of the Act. Nasdaq–2008–098 and should be Exchange proposes to amend Nasdaq submitted on or before January 21, 2009. Rule 4751 to allow the routing of C. Self-Regulatory Organization’s Directed Orders 27 from Nasdaq to the Statement on Comments on the IV. Commission’s Findings and Order NASDAQ OMX BX Equities Market. The Proposed Rule Change Received From Granting Accelerated Approval of a Exchange is also proposing to amend Members, Participants or Others Proposed Rule Change Nasdaq Rule 4758 to add a requirement Written comments were neither The Commission finds that the that NES establish and maintain solicited nor received. proposed rule change is consistent with procedures and internal controls the requirements of the Act and the reasonably designed to adequately III. Solicitation of Comments rules and regulations thereunder restrict the flow of confidential and Interested persons are invited to applicable to a national securities proprietary information between Nasdaq submit written data, views, and exchange.19 In particular, the proposed and its facilities, including NES, and arguments concerning the foregoing, rule change is consistent with Section any other entity. 6(b)(5) of the Act,20 which requires, including whether the proposed rule In the past, the Commission has among other things, that the rules of a change is consistent with the Act. expressed concern that the affiliation of national securities exchange be Comments may be submitted by any of an exchange with one of its members designed to prevent fraudulent and the following methods: raises potential conflicts of interest, and manipulative acts and practices; to the potential for unfair competitive Electronic Comments promote just and equitable principles of • Use the Commission’s Internet trade; to foster cooperation and comment form (http://www.sec.gov/ coordination with persons engaged in 21 See supra note 11. 22 rules/sro.shtml ); or regulating, clearing, settling, processing Nasdaq Rule 4751(f)(9) defines Directed Orders • as immediate-or-cancel orders that are directed to Send an e-mail to rule- information with respect to, and an exchange other than Nasdaq without checking [email protected]. Please include File facilitating transactions in securities; to the Nasdaq book. No. SR–Nasdaq–2008–098 on the remove impediments to and perfect the 23 See Nasdaq Rule 4751(f)(9). See also Securities subject line. mechanism of a free and open market Exchange Act Release No. 58135, supra note 8. 24 and a national market system; and, in See Securities Exchange Act Release No. 58324, Paper Comments supra note 11, at notes 117–123 and accompanying general, to protect investors and the • text. See also Securities Exchange Act Release No. Send paper comments in triplicate public interest; and are not designed to 58135, supra note 8. to Secretary, Securities and Exchange permit unfair discrimination between 25 See Securities Exchange Act Release Nos. Commission, 100 F Street, NE., customers, issuers, brokers, or dealers. Release No. 58324, supra note 11; and 58179 (July Washington, DC 20549–1090. On August 7, 2008, the Commission 17, 2008), 73 FR 42874 (July 23, 2008) (order approving NASDAQ OMX’s acquisition of the All submissions should refer to File approved the acquisition of BX PHLX.) Number SR–Nasdaq–2008–098. This file (formerly The Boston Stock Exchange, 26 See Securities Exchange Act Release No. 59154 number should be included on the (December 23, 2008) (SR–BSE–2008–48) (order subject line if e-mail is used. To help the 19 In approving this proposed rule change, the approving the BX Rulebook Filing) (‘‘BX Rulebook Commission has considered the proposed rule’s Approval Order’’). Commission process and review your impact on efficiency, competition, and capital 27 Pursuant to Nasdaq Rule 4751(f)(9), Nasdaq formation. See 15 U.S.C. 78c(f). currently may not route Directed Orders to a facility 18 15 U.S.C. 78f(b)(5). 20 15 U.S.C. 78f(b)(5). of an exchange that is an affiliate of Nasdaq.
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advantage.28 Although the Commission In light of the protections discussed SECURITIES AND EXCHANGE continues to be concerned about above and contained in Nasdaq Rule COMMISSION potential unfair competition and 4758, the Commission believes that it is [Release No. 34–59140; File No. SR–NYSE– conflicts of interest between an consistent with the Act to permit 2008–130] exchange’s self-regulatory obligations Nasdaq to expand the availability of the and its commercial interests when the outbound routing services provided by Self-Regulatory Organizations; Notice exchange is affiliated with one of its its affiliate, NES. of Filing and Immediate Effectiveness members, the Commission believes that of Proposed Rule Change by New York it is consistent with the Act to permit Nasdaq has asked the Commission to accelerate approval of the proposed rule Stock Exchange LLC To Establish a NES to expand the outbound routing Trading License Fee for 2009 and change concurrent with approval of the services it provides to Nasdaq, subject to Amend Certain Other Floor Fees certain conditions. BX Rulebook Proposal which Nasdaq Rule 4758 imposes certain establishes protections against possible December 22, 2008. conditions on NES as the Exchange’s conflicts of interest as a result of routing Pursuant to Section 19(b)(1) 1 of the outbound order router. For example, by NES to BX.33 The Commission finds Securities Exchange Act of 1934 (the NES must: (1) Be a member of a self- good cause for approving the proposed ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 regulatory organization unaffiliated with rule change before the thirtieth day after notice is hereby given that, on December Nasdaq that is its designated examining the date of publication of notice of filing 18, 2008, New York Stock Exchange authority; (2) be regulated as a facility thereof in the Federal Register. The LLC (the ‘‘NYSE’’ or the ‘‘Exchange’’) of the Exchange; 29 and (3) not engage in Commission notes that Nasdaq’s filed with the Securities and Exchange any business other than its outbound proposal to expand the use of NES as its Commission (the ‘‘Commission’’) the router function unless otherwise outbound order routing facility is proposed rule change as described in approved by the Commission. Also, the consistent with prior Commission Items I, II, and III below, which Items books, records, premises, officers, action.34 Accordingly, the Commission have been prepared by the self- agents, directors and employees of NES, finds good cause, consistent with regulatory organization. The as a facility of Nasdaq are deemed to be Section 19(b)(2) of the Act,35 to approve Commission is publishing this notice to those of the Exchange for purposes of solicit comments on the proposed rule the proposed rule change on an and subject to oversight pursuant to the change from interested persons. Act.30 In addition, use of NES to route accelerated basis. I. Self-Regulatory Organization’s orders from Nasdaq to away market V. Conclusion centers is optional,31 and a Nasdaq Statement of the Terms of Substance of member is free to route orders to other It is therefore ordered, pursuant to the Proposed Rule Change market centers through alternative Section 19(b)(2) of the Act, that the The Exchange proposes to: (i) Amend means. Pursuant to the proposal, NES proposed rule change (SR–NASDAQ– Exchange Rule 300 (Trading Licenses) to will also establish and maintain 2008–098) is hereby approved on an provide that the fee for trading licenses procedures and internal controls accelerated basis. will be set forth on the Exchange’s Price reasonably designed to restrict the flow List rather than in Rule 300; (ii) amend For the Commission, by the Division of of confidential and proprietary Rule 300 to provide that trading licenses Trading and Markets, pursuant to delegated information between Nasdaq and its purchased following the annual offering authority.36 facilities, including NES, and any other will be sold for a pro rated portion of entity.32 Florence E. Harmon, the annual fee, rather than at a premium Acting Secretary. to the annual price; (iii) establish a 28 See, e.g., Securities Exchange Act Release Nos. [FR Doc. E8–31130 Filed 12–30–08; 8:45 am] trading license fee for 2009 of $40,000; 58324, supra note 11; 58673, (September 29, 2008), (iv) reduce from $5,000 to $1,000 the fee 73 FR 57707 (October 3, 2008) (SR–NYSE–2008–60 BILLING CODE 8011–01–P and SR–Amex–2008–62) (order approving the related to the approval of a pre-qualified business combination between NYSE Euronext and substitute employee; and (v) eliminate NYSE Alternext US LLC); 54170 (July 18, 2006), 71 the $1,000 clerk badge fee. The text of FR 42149 (July 25, 2006) (SR–NASDAQ–2006–006) (order approving Nasdaq’s proposal to adopt the proposed rule change is available on Nasdaq Rule 2140, restricting affiliations between the Exchange’s Web site (http:// Nasdaq and its members); and 53382 (February 27, www.nyse.com), at the Exchange’s 2006, 71 FR 11251) (March 6, 2006) (SR–NYSE– Office of the Secretary, and at the 2005–77) (order approving the combination of the New York Stock Exchange, Inc. and Archipelago Commission’s Public Reference Room. Holdings). II. Self-Regulatory Organization’s 29 The Commission notes that, as a facility of the Nasdaq Options Rule Section 11(e). See also Statement of the Purpose of, and Exchange, NES is subject to Exchange oversight, as Securities Exchange Act Release No. 57478 (March well as Commission oversight. Further, the 12, 2008), 73 FR 14521 (March 18, 2008) (SR– Statutory Basis for, the Proposed Rule Exchange is responsible for filing with the NASDAQ–2007–004 and SR–NASDAQ–2007–080) Change Commission proposed rule changes and fees (order approving a proposed rule change relating to relating to NES’s outbound router function and In its filing with the Commission, the NES’s outbound router function is subject to the establishment and operation of the NASDAQ Exchange included statements exchange non-discrimination requirements. Options Market). concerning the purpose of, and basis for, 30 See Nasdaq Rule 4758(b)(6). In addition, the 33 See SR–Nasdaq–2008–098, Item 7. The books and records of NES, as a facility of the Commission is also approving today the BX the proposed rule change. The text of Exchange, are subject at all times to inspection and Rulebook Proposal. See BX Rulebook Approval these statements may be examined at copying by the Exchange and the Commission. Id. Order, supra note 26. the places specified in Item IV below. 31 Nasdaq Rule 4758(b)(7). 34 See, e.g., Securities Exchange Act Release Nos. The NYSE has prepared summaries, set 32 See proposed Nasdaq Rule 4758(b)(8). The 59009 (November 24, 2008), 73 FR 73363 forth in Sections A, B, and C below, of Commission notes that this proposed requirement (December 2, 2008) (SR–NYSEALTR–2008–07); is consistent with the rules for Nasdaq Options 58681, supra note 13; and 58680 supra note 13. 1 Services LLC, which provides outbound routing 15 U.S.C. 78s(b)(1). services for the Nasdaq Options Market, that were 35 15 U.S.C. 78s(b)(2). 2 15 U.S.C. 78a. previously approved by the Commission. See 36 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4.
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the most significant aspects of such floor. The Exchange proposes to Electronic Comments statements. eliminate this fee with effect from • January 1, 2009. Use the Commission’s Internet A. Self-Regulatory Organization’s comment form (http://www.sec.gov/ Statement of the Purpose of, and 2. Statutory Basis rules/sro.shtml); or Statutory Basis for, the Proposed Rule The Exchange believes that the • Change Send an e-mail to rule- proposed rule change is consistent with [email protected]. Please include File 1. Purpose the objectives of Section 6 6 of the Act Number SR–NYSE–2008–130 on the Exchange Rule 300(b) sets forth the in general and furthers the objectives of subject line. Section 6(b)(4) 7 in particular, in that it fee payable by member organizations Paper Comments buying trading licenses in the annual is designed to provide for the equitable allocation of reasonable dues, fees and offering. The Exchange proposes to • Send paper comments in triplicate other charges among its members and amend Rule 300(b) to provide that the to Secretary, Securities and Exchange trading license fee for each year will not other persons using its facilities. The Exchange believes that the proposal Commission, 100 F Street, NE., be set forth in the rule itself but will Washington, DC 20549–1090. rather be established each year by way does not constitute an inequitable of an amendment to the Exchange’s allocation of dues, fees and other All submissions should refer to File price list submitted to the Commission charges as it provides the DMMs Number SR–NYSE–2008–130. This file as a rule filing under Rule 19b–4.4 This appropriate incentives to act as liquidity number should be included on the is consistent with the Exchange’s providers and supports them in subject line if e-mail is used. To help the general approach to fees applicable to performing their central function in the Commission process and review your member organizations, which are Exchange’s market model. comments more efficiently, please use typically set forth in the Exchange’s B. Self-Regulatory Organization’s only one method. The Commission will price list but not included in the Statement on Burden on Competition post all comments on the Commission’s Exchange rules. Rule 300(d) provides Internet Web site (http://www.sec.gov/ that member organizations buying The Exchange does not believe that rules/sro.shtml). Copies of the the proposed rule change will impose trading licenses after the start of the submission, all subsequent any burden on competition that is not applicable calendar year are charged amendments, all written statements $44,000 (a 10 percent premium over the necessary or appropriate in furtherance of the purposes of the Act. with respect to the proposed rule 2008 trading license fee of $40,000), pro change that are filed with the rated to reflect the amount of time left C. Self-Regulatory Organization’s Commission, and all written in the year. The Exchange proposes to Statement on Comments on the communications relating to the amend Rule 300(d) to provide that Proposed Rule Change Received From proposed rule change between the additional trading licenses purchased Members, Participants, or Others Commission and any person, other than after the annual offering will be sold at those that may be withheld from the the same price as licenses purchased in Written comments were neither public in accordance with the the annual offering, pro rated to reflect solicited nor received. provisions of 5 U.S.C. 552, will be the amount of time remaining in the III. Date of Effectiveness of the year. The Exchange proposes to available for inspection and copying in Proposed Rule Change and Timing for the Commission’s Public Reference maintain the trading license fee at Commission Action $40,000 for calendar 2009. Room, on official business days between The Exchange currently charges a The foregoing rule change is effective the hours of 10 a.m. and 3 p.m. Copies $5,000 fee with respect to the approval upon filing pursuant to Section of the filing also will be available for of a pre-qualified substitute employee.5 19(b)(3)(A) 8 of the Act and Rule 19b– inspection and copying at the principal This fee is billed to the member 4(f)(2) 9 thereunder. office of the self-regulatory organization. organization which is the new employer At any time within 60 days of the All comments received will be posted of (i) any new member or pre-qualified filing of the proposed rule change, the without change; the Commission does substitute not transferring from another Commission may summarily abrogate not edit personal identifying member organization, (ii) any approved such rule change if it appears to the information from submissions. You member who changes employment and Commission that such action is should submit only information that continues as a member with that necessary or appropriate in the public you wish to make available publicly. All member organization, or (iii) any pre- interest, for the protection of investors, submissions should refer to File qualified substitute who changes or otherwise in furtherance of the Number. SR–NYSE–2008–130 and employment and continues as a pre- purposes of the Act. should be submitted on or before qualified substitute with that member IV. Solicitation of Comments January 21, 2009. organization. The Exchange proposes to reduce this fee from $5,000 to $1,000 Interested persons are invited to For the Commission, by the Division of commencing January 1, 2009. submit written data, views, and Trading and Markets, pursuant to delegated 10 The Exchange currently charges arguments concerning the foregoing, authority. member organizations a $1,000 badge including whether the proposed rule Florence E. Harmon, fee for each clerk working on the trading change is consistent with the Act. Acting Secretary. Comments may be submitted by any of [FR Doc. E8–31049 Filed 12–30–08; 8:45 am] 4 17 CFR 240.19b–4. the following methods: BILLING CODE 8011–01–P 5 A pre-qualified substitute employee is an employee of a member organization who has been 6 approved to work on the Exchange trading floor and 15 U.S.C. 78f. can be assigned to work on the trading floor at 7 15 U.S.C. 78f(b)(4). anytime that the member organization has a trading 8 15 U.S.C. 78s(b)(3)(A). license available for use. 9 17 CFR 240.19b–4(f)(2). 10 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE these securities, they must meet the have sufficient public float, investor COMMISSION following criteria. First, if the company base, and trading interest to provide the currently has securities listed on NYSE, depth and liquidity necessary to [Release No. 34–59139; File No. SR–NYSE– the company must be in good standing.5 promote fair and orderly markets. 2008–109] If the company does not have securities Adequate standards are especially Self-Regulatory Organizations; New listed on NYSE, the company must meet important given the expectations of York Stock Exchange LLC; Order the initial common stock listing investors regarding exchange trading Approving Proposed Rule Change To standards set forth in Sections 102.01 to and the imprimatur of listing on a Clarify Amendments to ‘‘Other 102.03 and 103.01 to 103.05 of the particular market. Securities’’ Initial Listing Standards Manual. Second, equity securities must have at least (1) One million securities Under the proposal, companies with December 22, 2008. outstanding; (2) 400 holders; and (3) $4 securities that are not listed on NYSE million in market value and debt and who wish to list securities under I. Introduction securities must have a minimum public Section 703.19 must now meet one of On October 31, 2008, New York Stock market value of $4 million. four financial listing standards under Exchange LLC (‘‘NYSE’’ or ‘‘Exchange’’) The Exchange proposes to change the Section 102.01C of the Manual.9 Under filed with the Securities and Exchange requirement for companies that do not the proposal, companies who are foreign Commission (‘‘Commission’’) pursuant have securities listed on NYSE to meet private issuers must meet one of three to Section 19(b)(1) of the Securities the Exchange’s initial common stock financial listing standards under Section Exchange Act of 1934 (‘‘Act’’) 1 and Rule listing standards as set forth in Sections 103.01B of the Manual.10 The Exchange 19b–4 thereunder,2 a proposed rule 102.01 to 102.03 and 103.01 to 103.05 represented that it has not imposed the change to amend Section 703.19 of the of the Manual. As proposed, such other standards in Sections 102.01 to Exchange’s Listed Company Manual companies must meet one of the 102.03 or Sections 103.01 to 103.05, as (the ‘‘Manual’’), the Exchange’s initial financial standards in Section 102.01C the Exchange has applied these other listing standards for ‘‘Other Securities.’’ and for foreign companies, Section standards to the common stock. The proposed rule change was 103.01B. published in the Federal Register on The Exchange also proposes to The Commission notes that, as November 19, 2008.3 The Commission remove the sub-heading ‘‘Earnings/Net proposed, the numerical listing received no comments on the proposal. Tangible Assets’’ from the second standards under proposed Section This order approves the proposed rule paragraph of Section 703.19. 703.19 would be similar to the change. numerical listing standards for ‘‘other III. Discussion and Commission’s securities’’ on other exchanges.11 The Findings II. Description of the Proposal Commission also notes that the The Exchange proposed to amend The Commission has carefully proposed change would apply only for Section 703.19 of the Manual 4 to state reviewed the proposed rule change and companies whose securities are not that companies whose securities that are finds that it is consistent with the otherwise listed on the Exchange. In not listed on the Exchange and wish to requirements of Section 6 of the Act 6 addition, the Commission notes that list securities under Section 703.19 and the rules and regulations Section 703.19 currently provides must meet one of the Exchange’s thereunder applicable to a national public float and distribution listing 7 financial original listing standards for securities exchange. In particular, the standards. equity listings, but need not meet any of Commission finds that the proposal is the other initial listing requirements set consistent with Section 6(b)(5) of the Furthermore, the Commission forth in Section One of the Manual. Act,8 which requires, among other believes that the proposal to remove the Currently, a company who wishes to things, that the Exchange’s rules be obsolete sub-heading ‘‘Earnings/Net list securities on the NYSE but whose designed to promote just and equitable Tangible Assets’’ from Section 703.19 securities do not fall under the principles of trade, to remove should eliminate any potential traditional listing standards for common impediments to and perfect the confusion. stock, preferred stock, debt securities, mechanism of a free and open market The Commission believes the warrants, or under parts of the Manual, and a national market system, and, in proposed rule change is reasonable and may list such securities under Section general, to protect investors and the should continue to provide for the 703.19 of the Manual. In order to list public interest. listing of securities with sufficient depth The development and enforcement of and liquidity to maintain fair and 1 adequate standards governing the initial 15 U.S.C. 78s(b)(1). orderly markets. Accordingly, the 2 17 CFR 240.19b–4. listing of securities on an exchange is an Commission believes that the changes 3 See Securities Exchange Act Release No. 58928 activity of critical importance to (November 10, 2008), 73 FR 69706 (‘‘Notice’’). financial markets and the investing are consistent with the requirements of 4 Section 703.19 was adopted to provide the public. Listing standards, among other the Act. Exchange with the flexibility to list securities that could not be readily categorized under the things, serve as a means for an exchange 9 Exchange’s traditional listing standards for common to screen issuers and to provide listed Section 102.01C of the Manual lists four and preferred stocks, debt securities and warrants. status only to bona fide companies that different financial standards for companies to Section 703.19 was intended to provide flexibility qualify for listing on the Exchange: (1) Earnings to enable the Exchange to consider the listing of Test; (2) Valuation/Revenue Test; (3) Affiliated 5 new securities on a case-by-case basis, in light of See Section 703.19 of the Manual. If the Company Test; or (4) Assets and Equity Test. the suitability of the issue for auction market company is an affiliate of a NYSE-listed company, 10 Section 103.05B of the Manual lists three trading. Section 703.19 is not intended to the NYSE-listed company must be in good standing. different financial standards for companies who are accommodate the listing of securities that raise 6 15 U.S.C. 78f. foreign private issuers to qualify for listing on the significant new regulatory issues, which would 7 In approving this proposed rule change the Exchange: (1) Earnings Test; (2) Valuation/Revenue require a separate filing with the Commission. See Commission has considered the proposed rule’s Test; or (3) Affiliated Company Test. Securities Exchange Act Release No. 28217 (July 18, impact on efficiency, competition, and capital 11 See e.g., Nasdaq Marketplace Rule 4420(f), 1990) 55 FR 30056 (July 24, 1990) (SR–NYSE–90– formation. See 15 U.S.C. 78c(f). Section 107 of the Amex Company Guide, and 30). 8 15 U.S.C. 78f(b)(5). NYSE Arca Rule 5.2(j)(1).
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III. Conclusion II. Self-Regulatory Organization’s two firms.6 On June 30, 2008, the Statement of the Purpose of, and Exchange filed for another extension of It is therefore ordered, pursuant to Statutory Basis for, the Proposed Rule the grace period to December 31, 2008.7 Section 19(b)(2) of the Act,12 that the Change In that filing, the Exchange noted that proposed rule change (SR–NYSE–2008– those two firms had unique member In its filing with the Commission, the 109) be, and it hereby is, approved. qualification issues and were ineligible self-regulatory organization included to participate in the FINRA Waive-in For the Commission, by the Division of statements concerning the purpose of, application process. As of December 19, Trading and Markets, pursuant to delegated and basis for, the proposed rule change 13 2008, one of those two firms has been authority. and discussed any comments it received approved as a FINRA member. With Florence E. Harmon, on the proposed rule change. The text respect to the other firm, because the of those statements may be examined at Acting Secretary. Exchange is working on a rule filing to the places specified in Item IV below. [FR Doc. E8–31052 Filed 12–30–08; 8:45 am] amend Rule 2 to permit a broker dealer The Exchange has prepared summaries, BILLING CODE 8011–01–P to be an NYSE member organization set forth in Sections A, B, and C below, without a FINRA membership, the of the most significant aspects of such Exchange believes that the grace period statements. SECURITIES AND EXCHANGE should be further extended so that the COMMISSION A. Self-Regulatory Organization’s remaining firm does not have to re- Statement of the Purpose of, and apply for Exchange membership if the [Release No. 34–59143; File No. SR–NYSE– Statutory Basis for, the Proposed Rule proposed change to Rule 2 is approved. 2008–135] Change Accordingly, the NYSE proposes to extend the grace period to March 27, 1. Purpose Self-Regulatory Organizations; Notice 2009 for the firm that was an NYSE of Filing and Immediate Effectiveness The Exchange is proposing to extend member organization as of July 30, 2007, of Proposed Rule Change by New York to March 27, 2009, the grace period for but not a FINRA member. Stock Exchange LLC To Extend to NYSE-only member organizations to 2. Statutory Basis March 27, 2009, the Operative Date of apply for and be approved as a FINRA New York Stock Exchange Rule 2 member, as required by NYSE Rule 2. The basis under the Act for this Requirement That NYSE-Only Member In connection with the consolidation proposed rule change is the requirement Organizations Apply for and Be of NASD and NYSE Regulation member under Section 6(b)(5) 8 that an Exchange Approved as a Member of the Financial firm regulation operations into FINRA, have rules that are designed to promote Industry Regulatory Authority, Inc. which closed on July 30, 2007, the just and equitable principles of trade, to Exchange amended NYSE Rule 2 to remove impediments to and perfect the December 22, 2008. require NYSE member organizations to mechanism of a free and open market 4 Pursuant to Section 19(b)(1) 1 of the also be FINRA members. In connection and a national market system and, in Securities Exchange Act of 1934 (the with those rule changes, the general, to protect investors and the Commission approved a 60-day grace ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 public interest. period within which NYSE-only notice is hereby given that, on December member organizations must apply for B. Self-Regulatory Organization’s 22, 2008, New York Stock Exchange and be approved for FINRA Statement on Burden on Competition LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed membership. In that rule filing, NYSE- The Exchange does not believe that with the Securities and Exchange only member organizations were the proposed rule change will impose Commission (the ‘‘Commission’’) the defined as those member organizations any burden on competition that is not proposed rule change as described in that were not NASD members as of the necessary or appropriate in furtherance Items I, II, and III below, which Items date of the closing of the FINRA of the purposes of the Act. have been prepared by the self- transaction. This grace period began on regulatory organization. The October 12, 2007, the date of C. Self-Regulatory Organization’s Commission is publishing this notice to Commission approval of the Exchange’s Statement on Comments on the solicit comments on the proposed rule rule filing. In furtherance of the Proposed Rule Change Received From change from interested persons. consolidation, FINRA adopted NASD Members, Participants, or Others IM–1013–1 to enable eligible NYSE I. Self-Regulatory Organization’s No written comments were solicited member organizations to become FINRA Statement of the Terms of Substance of or received with respect to the proposed members though an expedited process rule change. the Proposed Rule Change (the ‘‘FINRA Waive-in application 5 III. Date of Effectiveness of the The Exchange proposes to extend to process’’). At the close of the 60-day grace Proposed Rule Change and Timing for March 27, 2009, the operative date of Commission Action New York Stock Exchange (‘‘NYSE’’ or period, all but two of the former NYSE- the ‘‘Exchange’’) Rule 2 requirement only member organizations had applied The foregoing rule change is being that NYSE-only member organizations for and been approved as FINRA filed for immediate effectiveness apply for and be approved as a member members. On December 12, 2007, the pursuant to Section 19(b)(3)(A) 9 of the Exchange filed for an extension of the of the Financial Industry Regulatory grace period to June 30, 2008 for those 6 Authority, Inc. (‘‘FINRA’’). See Securities Exchange Act Release No. 34– 56953 (Dec. 12, 2007), 72 FR 71990 (Dec. 19, 2007) 4 See Securities Exchange Act Release No. 34– (SR–NYSE–2007–115). 12 15 U.S.C. 78s(b)(2). 56654 (Oct. 12, 2007), 72 FR 59129 (Oct. 18, 2007) 7 See Securities Exchange Act Release No. 34– 13 17 CFR 200.30–3(a)(12). (SR–NYSE–2007–67). 58096 (July 3, 2008), 73 FR 39764 (July 10, 2008) 1 15 U.S.C. 78s(b)(1). 5 See Securities Exchange Act Release No. 34– (SR–NYSE–2008–54). 2 15 U.S.C. 78a. 56653 (Oct. 12, 2007), 72 FR 59127 (Oct. 18, 2007) 8 15 U.S.C. 78f(b)(5). 3 17 CFR 240.19b–4. (SR–NASD–2007–56). 9 15 U.S.C. 78s(b)(3)(A).
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Act and Rule 19b–4(f)(3) 10 promulgated should be submitted on or before A. Self-Regulatory Organization’s thereunder. The proposed rule change January 21, 2009. Statement of the Purpose of, and goes solely to the administration of the For the Commission, by the Division of Statutory Basis for, the Proposed Rule self-regulatory organization in that it is Trading and Markets, pursuant to delegated Change not a substantive change to NYSE Rule authority.11 1. Purpose 2 and simply extends a pre-existing grace period. Florence E. Harmon, The Exchange proposes to offer, Acting Secretary. through its wholly-owned subsidiary IV. Solicitation of Comments [FR Doc. E8–31100 Filed 12–30–08; 8:45 am] NYSE Euronext Advanced Trading Interested persons are invited to BILLING CODE 8011–01–P Solutions, Inc., the Risk Management submit written data, views, and Gateway (‘‘RMG’’) service to NYSE arguments concerning the foregoing, members and member organizations. including whether the proposed rule SECURITIES AND EXCHANGE NYSE Transact Tools, Inc., a division of change is consistent with the Act. COMMISSION the NYSE Euronext Advanced Trading Comments may be submitted by any of Solutions Group (‘‘NYXATS’’), owns the following methods: 3 [Release No. 34–59145; File No. SR–NYSE– RMG. Electronic Comments 2008–101] Background • Use the Commission’s Internet Self-Regulatory Organizations; New NYSE Rule 54 provides that only comment form (http://www.sec.gov/ York Stock Exchange LLC; Notice of members are permitted to ‘‘* * * make rules/sro.shtml); or • Send an e-mail to rule- Filing of Proposed Rule Change To or accept bids or offers, consummate [email protected]. Please include File Establish Its New Risk Management transactions, or otherwise transact Number SR–NYSE–2008–135 on the Gateway Service business on the Floor for any security subject line. admitted to dealings on the [Exchange] December 22, 2008. * * *.’’ 4 However, the Exchange Paper Comments Pursuant to section 19(b)(1) of the permits NYSE members and member • Send paper comments in triplicate Securities Exchange Act of 1934 organizations (a ‘‘Sponsoring Member to Secretary, Securities and Exchange (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Organization’’) to sponsor access to Commission, 100 F Street, NE., notice is hereby given that on December Exchange systems by non-member firms Washington, DC 20549–1090. 12, 2008, the New York Stock Exchange or customers (‘‘Sponsored All submissions should refer to File LLC (‘‘NYSE’’ or ‘‘Exchange’’) filed with Participants’’). Number SR–NYSE–2008–135. This file the Securities and Exchange Prior to August 2008, requirements number should be included on the Commission (‘‘Commission’’) the related to sponsored access on the subject line if e-mail is used. To help the proposed rule change as described in Exchange were included in certain Commission process and review your Items I, II, and III below, which Items NYSE rules that govern specific comments more efficiently, please use Exchange products or facilities: NYSE have been prepared by the Exchange. SM 5 SM 6 only one method. The Commission will The Commission is publishing this MatchPoint and NYSE Bonds . post all comments on the Commission’s notice to solicit comments on the However, in August, the Exchange submitted a rule change to the SEC to Internet Web site (http://www.sec.gov/ proposed rule change from interested amend NYSE Rule 123B (Exchange rules/sro.shtml). Copies of the persons. submission, all subsequent Automated Order Routing System) 7 in amendments, all written statements I. Self-Regulatory Organization’s order to create a general sponsored with respect to the proposed rule Statement of the Terms of Substance of access rule that permits a Sponsoring change that are filed with the the Proposed Rule Change Member Organization to sponsor a Commission, and all written Sponsored Participant’s access to communications relating to the The Exchange proposes to establish Exchange systems for the Sponsored proposed rule change between the its new Risk Management Gateway Participant’s entry and execution of Commission and any person, other than (‘‘RMG’’) service. orders on the Exchange. The proposed those that may be withheld from the II. Self-Regulatory Organization’s amendments to NYSE Rule 123B reflect the Exchange’s general policy regarding public in accordance with the Statement of the Purpose of, and sponsored access to the Exchange, provisions of 5 U.S.C. 552, will be Statutory Basis for, the Proposed Rule though they do not govern NYSE available for inspection and copying in Change the Commission’s Public Reference MatchPoint or NYSE Bonds.8 NYSE Room, on official business days between In its filing with the Commission, the hours of 10 a.m. and 3 p.m. Copies NYSE included statements concerning 3 NYXATS will similarly offer the same services to NYSE Alternext via a separate filing SR– of the filing also will be available for the purpose of, and basis for, the NYSEALTR–2008–12. inspection and copying at the principal proposed rule change and discussed any 4 See also NYSE Rule 2. office of the self-regulatory organization. comments it received on the proposed 5 See NYSE Rule 1500. All comments received will be posted rule change. The text of these statements 6 See NYSE Rule 86. without change; the Commission does may be examined at the places specified 7 See Securities Exchange Act Release No. 58429 not edit personal identifying in Item IV below. NYSE has prepared (August 27, 2008), 73 FR 51676 (September 4, 2008) (SR–NYSE–2008–71) (initial filing to create NYSE’s information from submissions. You summaries, set forth in Sections A, B, general sponsored access rule); see also, Securities should submit only information that and C below, of the most significant Exchange Act Release No. 58758 (October 8, 2008), you wish to make available publicly. All aspects of such statements. 73 FR 62352 (October 20, 2008) ( SR–NYSE–2008– submissions should refer to File 100) (filing to conform NYSE’s sponsored access rule to current industry standards). Number. SR–NYSE–2008–135 and 11 17 CFR 200.30–3(a)(12). 8 That is, currently, the provisions of NYSE Rule 1 15 U.S.C. 78s(b)(1). 123B do not apply to NYSE Rules 1500 and 86 as 10 17 CFR 240.19b–4(f)(3). 2 17 CFR 240.19b–4. those rules independently contain provisions
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Arca, Inc. and other market centers RMG maintains a record of all messages principles because it fosters competition similarly permit sponsored access to relating to Sponsored Participants’ by providing another option in the their trading systems. transactions and supplies a copy of such efficient risk management of trading on messages to the applicable Sponsoring the Exchange without the participation RMG Member Organization. of a dealer. Traditionally, the customers of a The Sponsoring Member member or member organization gave Organization, and not RMG, will have B. Self-Regulatory Organization’s orders to the member or member full responsibility for ensuring that Statement on Burden on Competition organization and the member or member Sponsored Participants’ sponsored The Exchange does not believe that organization then submitted those access to the Exchange complies with the proposed rule change will impose orders to the Exchange on behalf of the the Exchange’s sponsored access rules. any burden on competition that is not customer. By means of sponsored The use of RMG by a Member necessary or appropriate in furtherance access, a member or member Organization does not automatically of the purposes of the Act. organization will allow its customers to constitute compliance with Exchange enter orders directly into the trading rules. C. Self-Regulatory Organization’s systems of the Exchange as Sponsored NYXATS will host RMG software on Statement on Comments on the Participants, without the Sponsoring NYXATS’ infrastructure. After passing Proposed Rule Change Received From Member Organization acting as an through RMG software, each order will Members, Participants, or Others intermediary. enter the NYSE Common Customer No written comments were solicited To facilitate the ability of Sponsoring Gateway (CCG) for connectivity to the or received with respect to the proposed Member Organizations to monitor and Exchange’s matching engine. In the rule change. oversee the sponsored access activity of future NYXATS may integrate RMG into III. Date of Effectiveness of the their Sponsored Participants, NYXATS the NYSE CCG for more direct access to Proposed Rule Change and Timing for will offer an order-verification service to the Exchange’s matching engine. Sponsoring Member Organizations. This The Exchange does not require Commission Action service will act as a risk filter by causing Sponsoring Member Organizations to Within 35 days of the date of the orders of Sponsored Participants to use RMG (even when it is integrated publication of this notice in the Federal pass through RMG prior to entering the into NYSE CCG in the future). Register or within such longer period (i) Exchange’s trading systems for Sponsoring Member Organizations are as the Commission may designate up to execution. When a Sponsored free to use a competing risk- 90 days of such date if it finds such Participant’s order passes through RMG, management service or to use none at longer period to be appropriate and RMG software determines whether the all. The Exchange will not provide publishes its reasons for so finding or order complies with order criteria that preferential treatment to Sponsoring (ii) as to which the Exchange consents, the Sponsoring Member Organization Member Organizations using RMG. the Commission will: has established for that Sponsored The Exchange proposes to make RMG (A) By order approve the proposed Participant. The order criteria pertain to available to its members and member rule change, or such matters as the size of the order (per organizations pursuant to contractual (B) Institute proceedings to determine order or daily quantity limits) or the arrangements. The Exchange believes whether the proposed rule change credit limit (per order or daily value) that RMG will offer its members and should be disapproved. member organizations another option in that the Sponsoring Member IV. Solicitation of Comments Organization has established for the the efficient risk management of its Sponsored Participant. Additional risk Sponsored Participant’s access to the Interested persons are invited to filters may also be selected by the NYSE. submit written data, views, and arguments concerning the foregoing, Sponsoring Member Organization 2. Statutory Basis relating to specific symbols or end including whether the proposed rule users. The basis under the Act for this change is consistent with the Act. If the order is consistent with the proposed rule change is the requirement Comments may be submitted by any of parameters set by the Sponsoring under section 6(b)(5) 9 that an Exchange the following methods: have rules that are designed to promote Member Organization, then RMG allows Electronic Comments the order to continue along its path to just and equitable principles of trade, to • the Exchange’s trading systems. If the remove impediments to and perfect the Use the Commission’s Internet order falls outside of those parameters, mechanism of a free and open market comment form (http://www.sec.gov/ and a national market system and, in rules/sro.shtml); or then RMG returns the order to the • Sponsored Participant. RMG will only general, to protect investors and the Send an e-mail to rule- return an order to the Sponsored public interest. The proposed rule [email protected]. Please include File Participant when the order fails to change also is designed to support the No. SR–NYSE–2008–101 on the subject comply with the criteria set by the principles of section 11A(a)(1) 10 in that line. Sponsoring Member Organization. it seeks to assure economically efficient Paper Comments execution of securities transactions, RMG software interacts with orders • only prior to the orders’ entry into the make it practicable for brokers to Send paper comments in triplicate Exchange’s trading system for execute investors’ orders in the best to Secretary, Securities and Exchange execution. RMG does not have order market and provide an opportunity for Commission, Station Place, 100 F Street, execution or trade reporting capabilities investors’ orders to be executed without NE., Washington, DC 20549–1090. (though it will allow a Sponsoring the participation of a dealer. The All submissions should refer to File Member Organization to monitor the Exchange believes that RMG is Number SR–NYSE–2008–101. This file orders of its Sponsored Participants). consistent with all the aforementioned number should be included on the subject line if e-mail is used. To help the related to how a user gains sponsored access to the 9 15 U.S.C. 78f(b)(5). Commission process and review your NYSE MatchPoint and NYSE Bonds systems. 10 15 U.S.C. 78k–1(a)(1). comments more efficiently, please use
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only one method. The Commission will Commission is publishing this notice to Officials; Rule 27A, Allocation of post all comments on the Commission’s solicit comments on the proposed rule Options; Rule 170, Registration and Internet Web site (http://www.sec.gov/ change from interested persons. Functions of Specialists. Under Trading rules/sro.shtml). Copies of the of Options Contracts, the superseded I. Self-Regulatory Organization’s submission, all subsequent Rules are, in Section 1, Rule 900, Statement of the Terms of Substance of amendments, all written statements Applicability, Definitions and with respect to the proposed rule the Proposed Rule Change References; in Section 2, Rule 918, change that are filed with the The Exchange proposes to amend its Trading Rotations, Halts, and Commission, and all written rules governing the trading of listed Suspensions; in Section 3, Rule 933, communications relating to the options on NYSE Amex. With this Automatic Execution of Options Orders; proposed rule change between the filing, the Exchange proposes to a) adopt Rule 934, Limitation on Orders; Rule Commission and any person, other than new rules for the implementation of a 936, Cancellation and Adjustment of those that may be withheld from the new trading platform for options, NYSE Equity Options Transactions; in Section public in accordance with the Amex System (‘‘System’’) and (b) govern 4, Rule 941, Operation of the Linkage; provisions of 5 U.S.C. 552, will be open outcry trading at the Exchange’s Rule 942, Order Protection; Rule 943, available for inspection and copying in new location at 11 Wall Street, New Locked Markets; Rule 944, Limitation the Commission’s Public Reference York, NY. The proposed new rule set on Principal Order Access. Room, on official business days between text is designated Section 900NY, and is Additionally, Section 900NY will the hours of 10 a.m. and 3 p.m. Copies shown in the Exhibit 5. replace, in Section 5—Floor Rules of such filing also will be available for The text of the proposed rule change Applicable to Options, Rule 950, Rules inspection and copying at the principal is available on the Exchange’s Web site of General Applicability; Rule 951, office of the Exchange. All comments at http://www.nyse.com, at the Premium Bids and Offers; Rule 952, received will be posted without change; Exchange’s principal office, and at the Minimum Price Variations; Rule 953, the Commission does not edit personal Commission’s Public Reference Room. Acceptance of Bid or Offer; Rule 954, identifying information from The text of Exhibit 5 is also available on Units of Trading; Rule 955, Floor submissions. You should submit only the Commission’s Web site (http:// Reports of Exchange Options information that you wish to make www.sec.gov/rules/sro.shtml). Transactions; Rule 956, Open Orders on available publicly. All submissions ‘‘Ex Date’’; Rule 957, Accounts, Orders should refer to File Number SR–NYSE– II. Self-Regulatory Organization’s and Records of Registered Traders, 2008–101 and should be submitted on Statement of the Purpose of, and Designated NYSE Alternext Remote or before January 21, 2009. Statutory Basis for, the Proposed Rule Traders, Specialists and Associated Change For the Commission, by the Division of Persons; Rule 958, Options Transactions Trading and Markets, pursuant to delegated In its filing with the Commission, the of Registered Traders; Rule 958A, authority.11 Exchange included statements Application of the Firm Quote Rule, Florence E. Harmon, concerning the purpose of, and basis for, Rule 959, Accommodation Transactions; Acting Secretary. the proposed rule change and discussed in Section 9, Rule 992, Exchange Options Market Data System; in Section [FR Doc. E8–31102 Filed 12–30–08; 8:45 am] any comments it received on the 11—Stock Index Options, Rule 918C, BILLING CODE 8011–01–P proposed rule change. The text of those statements may be examined at the Trading Rotations, Halts and places specified in Item IV below. The Suspensions; and in ANTE Rules, all SECURITIES AND EXCHANGE Exchange has prepared summaries, set Rules (Rule 900–ANTE through Rule COMMISSION forth in Sections A, B, and C below, of 997–ANTE). the most significant parts of such These Rules will be deleted in a [Release No. 34–59142; File No. SR– statements. separate filing. NYSEALTR–2008–14] Various provisions contained in the A. Self-Regulatory Organization’s proposed rules define and describe the Self-Regulatory Organizations; NYSE Statement of the Purpose of, and the use of a Routing Broker. A full Alternext US LLC; Notice of Filing of Statutory Basis for, the Proposed Rule description of the relationship between Proposed Rule Change Amending Change the Exchange and the Routing Broker Rules Governing the Trading of Listed will be submitted in a separate filing. Options on NYSE Amex 1. Purpose NYSE Amex proposes to establish December 22, 2008. The Exchange proposes to introduce a rules for NYSE Amex System, a fully Pursuant to Section 19(b)(1) of the modern electronic trading platform to automated trading system for Securities Exchange Act of 1934 support options trading, and in standardized equity and index options (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 addition, proposes to update and intended to replace the Exchange’s notice is hereby given that on December reorganize open outcry trading at the current options trading platform, ANTE. 19, 2008, NYSE Alternext US LLC time of the migration to the new The System will provide automatic (‘‘NYSE Alternext’’, ‘‘NYSE Amex platform and the move to a new Options order execution capabilities in the Options’’, ‘‘NYSE Amex’’, or the Trading Floor at 11 Wall Street, New options securities listed and traded on ‘‘Exchange’’) filed with the Securities York, NY. The new rule set is proposed NYSE Amex. Market Makers will be and Exchange Commission as Section 900NY. able to stream quotes to the System from (‘‘Commission’’) the proposed rule Rule Section 900NY will replace on the Trading Floor or remotely. The change as described in Items I, II, and certain existing NYSE Alternext Rules. proposed NYSE Amex System is an III below, which Items have been These are, under General Rules, Rule 1, electronic market structure which prepared by the Exchange. The Hours of Business; Rule 2, Visitors; Rule encompasses customer priority while 21, Appointment of the Senior essentially allowing market makers and 11 17 CFR 200.30–3(a)(12). Supervisory Officer, Senior Floor non customers to compete on a ‘‘size 1 15 U.S.C. 78s(b)(1). Officials, Exchange Officials and Floor pro rata’’ basis, and will be available for 2 17 CFR 240.19b–4. Officials; Rule 21, Authority of Floor the entry and execution of quotes and
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orders to ATP Holders. Participation order type. Users will be permitted to (3) Stop Order. A Stop Order is an entitlements are reserved for Specialists, designate orders entered on the System order that becomes a Market Order e-Specialists, and Directed Order Market as ‘‘NOW Orders.’’ NOW Orders are when the market for a particular option Makers. The rules governing Specialists limit orders that are to be executed in contract reaches a specified price. A and size pro rata trade allocation are whole or in part on the System. Any Stop Order to buy becomes a Market substantially based on rules which had portion of such orders not executed on Order when the option contract trades at been approved for the Pacific Exchange the System will be routed to one or or above the stop price on the System and its PCX Plus Platform; 3 additional more ‘‘NOW Recipients’’ for immediate or another Market Center or when the rules regarding e-Specialists are based execution. ‘‘NOW Recipients’’ include NYSE Amex bid is quoted at or above on approved rules of the Chicago Board any Market Center (1) with which NYSE the stop price. A Stop Order to sell Options Exchange; 4 while rules Amex maintains an electronic linkage, becomes a Market Order when the outlining entitlements of Directed Order and (2) that provides instantaneous option contract trades at or below the Market Makers are based on the rules of responses to NOW Orders routed from stop price on the System or another the NASDAQ OMX PHLX, Inc.5 the System. NYSE Amex will designate Market Center or when the NYSE Amex NYSE Alternext proposes to issue those Market Centers that qualify as offer is quoted at or below the stop Amex Trading Permits (‘‘ATPs’’), as NOW Recipients and periodically price. Stop Orders (including Stop Limit defined in proposed Rule 900.2NY(4), publish such information via its Web Orders) shall not have standing in any for effecting approved securities site. Any portion of a NOW Order not order process in the Consolidated Book transaction on the Exchange’s Trading immediately executed by the NOW and shall not be displayed. Facilities. NYSE Alternext Rules 40, Recipient will be cancelled. If a NOW (4) Stop Limit Order. A Stop Limit 350, 353, 353A, 358, 358A, 359, 359A, Order is not marketable when it is Order is an order that becomes a Limit and 359B are being amended to reflect submitted to the System, it will be Order when the market for a particular the change from 86 Trinity Permits to cancelled. option contract reaches a specified Amex Trading Permits. Current 86 Proposed NYSE Amex Rule 900.3NY. price. A Stop Limit Order to buy Trinity Permits will be easily converted In addition to certain existing order becomes a Limit Order when the option to Amex Trading Permits with a simple types (e.g., Limit Orders, Market contract trades at or above the stop price conversion form submitted to the Orders), NYSE Amex is proposing to on the System or another Market Center Exchange. No material change is being add several new order types available or when the NYSE Amex bid is quoted made to these Rules, although some for entry on the System. These include at or above the stop price. A Stop Limit outdated provisions, such as the the following: Order to sell becomes a Limit Order when the option contract trades at or requirement for a medical examination, Proposed NYSE Amex Rule below the stop price on the System or are being removed. The Exchange is also 900.3NY(c). Inside Limit Order. An another Market Center or when the eliminating the concept of ‘‘nominee’’. ‘‘Inside Limit Order’’ is a Limit Order, NYSE Amex offer is quoted at or below Access to the NYSE Amex System and which, if routed away pursuant to Rule business on the Trading Floor is limited the stop price. 964NY, will be routed to the market (5) Stock Contingency Order. An to Amex Trading Permit Holders (‘‘ATP participant with the best displayed Holders’’), as defined in proposed Rule option order the execution of which is price. Any unfilled portion of the order contingent upon the last sale price as 900.2NY(5). ATP Holders are natural will not be routed to the next best price persons, sole proprietorships, specified by the User of the underlying level until all quotes at the current best stock traded at the primary marketplace. partnerships, corporations, limited bid or offer are exhausted. If the order liability companies, or other (6) Tracking Order. A Tracking Order is no longer marketable it will be ranked is an undisplayed limit order that is organizations that have been issued an in the Consolidated Book pursuant to ATP. References in the Rules of NYSE eligible for execution in the Working Rule 964NY. Order Process against orders equal to or Alternext to ‘‘member,’’ ‘‘member Proposed NYSE Amex Rule organization,’’ and ‘‘86 Trinity Permit less than the size of the Tracking Order. 900.3NY(d). Working Order. Working While Tracking Orders are ranked at Holder’’ should be deemed to be Orders consist of several existing order references to ATP Holders. In addition, their limit price, they are only eligible types (i.e., All-or-None Orders, Stop for execution at a price that matches the within Rule Section 900NY, Order) as well as several new order (specifically Rules 920NY–928NY) are NBBO. types (i.e., Reserve Orders, Stock For instance, the NBBO market in a rules which describe Market Makers, Contingency Orders, Tracking Orders). series is 2.05–2.15, with a 2.10 Tracking Specialists, and electronic Specialists, Working orders are maintained in the Order to buy 10 contracts, but the NYSE and their respective rights and Consolidated Book Working Order Amex displayed bid is 2.00. An order is obligations. These are similar to NYSE Process, are not disseminated on the received to sell 6 contracts at 2.05; this Arca rules 6.32–6.40. System and are executed in accordance In connection with the order will be matched against the 2.10 with NYSE Amex Rule 964NY. A buy Tracking Order at a price of 2.05, implementation of the System, NYSE Working Order is any order that has a Amex proposes to adopt definitions matching the NBBO. conditional or undisplayed price and/or Similarly, with the same initial applicable to activity on the System. size designated as a ‘‘Working Order’’ by scenario, a second Tracking Order to The most significant of the proposed NYSE Amex, including, without buy 20 contracts paying 2.05 is placed definitions are as follows: limitation: Proposed NYSE Amex Rule in the Consolidated Book. An order is (1) Reserve Order. A limit order with 900.2NY(44). NOW Recipients. As received to sell 15 contracts at 2.05. a portion of the size displayed (‘‘display described further below, NYSE Amex This order is matched against the size’’) and with a reserve portion of the proposes to add ‘‘NOW Order’’ as a new second Tracking Order, since it outsizes size (‘‘reserve size’’) that is not the first Tracking Order. It will be displayed on the System. 3 See SR–PCX–2003–36, Securities Exchange Act executed at 2.05, the NBBO price. Release No. 47838. (2) All-or-None Order (‘‘AON Order’’). If a Tracking Order is executed but 4 See CBOE Rules 8.87 and 8.92–8.94. A Market or Limit Order that is to be not exhausted, the remaining portion of 5 See PHLX Rule 1080(1). executed in its entirety or not at all. the order shall be cancelled, without
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routing the order to another market operations of Floor Market Makers is A Specialist must provide continuous center or market participant. A Tracking that the ‘‘join quote’’ mechanism two-sided quotations throughout the Order shall not trade-through the NBBO. described in Rule 958–ANTE (Options trading day in its appointed issues for Proposed NYSE Amex Rule Transactions of Registered Options 90% of the time the Exchange is open 900.3NY(o). NOW Order. A ‘‘NOW Traders and Supplemental Registered for trading in each issue. Specialists are Order’’ is a Limit Order that is to be Options Traders and Remote Registered assigned a location on the Floor where executed in whole or in part on the Options Traders) will not be available their issues will trade; e-Specialists are System, and the portion not so executed on the new System, and each Floor Market Makers located off the Floor who will be routed pursuant to Rule 964NY Market Maker will be required to submit also have a 90% quoting obligation. only to one or more NOW Recipients for quotes though their own proprietary Remote Market Makers (‘‘RMMs’’) are immediate execution as soon as the quoting device. Market Makers who must provide order is received by the NOW Recipient. Proposed NYSE Amex Rule 902.1NY. continuous two sided quotations Any portion not immediately executed Proposed NYSE Amex Rule 902.1NY throughout the trading day in their by the NOW Recipient will be will govern access to the System and the appointed issues for 60% of the time the cancelled. If a NOW Order is not expected conduct of ATP Holders and Exchange is open for trading in each marketable when it is submitted to persons employed by or associated with issue. RMMs are located off the Floor of NYSE Arca System, it will be cancelled. an ATP Holder. The Exchange also the Exchange, and generally have no Proposed NYSE Amex Rule proposes in Rule 902.1NY to allow rights with respect to open outcry 900.3NY(p). PNP Order. A ‘‘PNP Order’’ access to the System by Sponsored transactions that take place on their (Post No Preference) is a Limit Order to Participants. ATP Holders, and persons quoted prices. buy or sell that is to be executed in employed by or associated with any Floor Market Makers (‘‘FMMs’’) are Market Makers who also must provide whole or in part on NYSE Amex, and ATP Holder, while using the facilities of the portion not so executed is to be continuous two sided quotations NYSE Amex, may not engage in ranked in the Consolidated Book, throughout the trading day in their conduct: (i) Inconsistent with the without routing any portion of the order appointed issues for 60% of the time the maintenance of a fair and orderly to another market center; provided, Exchange is open for trading in each market; (ii) apt to impair public however, NYSE Amex shall cancel a issue, and, in addition, are appointed to confidence in the operations of NYSE PNP Order that would lock or cross the a Trading Zone on the Floor. Amex; or (iii) inconsistent with the NBBO. Unless specified, or unless the context Proposed NYSE Amex Rule 902NY. ordinary and efficient conduct of requires otherwise, the term Market NYSE Amex is proposing NYSE Amex business. Activities that may violate Maker in the NYSE Amex Rules refers Rule 902NY to govern Access and these provisions include, but are not to Specialists, Floor Market Makers, and Conduct on the Trading Floor at its new limited to: (a) Failure of a Market Maker Remote Market Makers.7 location at 11 Wall Street. Although the to provide quotations in accordance Proposed NYSE Amex Rule 921.1NY. Options Trading Floor will be with Rule 925NY; (b) failure of a Market The Exchange is proposing NYSE Amex physically separated from the New York Maker to bid or offer within the ranges Rule 921.1NY to limit Remote Market Stock Exchange and NYSE Alternext specified by Rule 925NY; (c) failure of Maker access to the System to those equity trading floor, the floors will be an ATP Holder to adequately supervise ATP Holders or officers, partners, managed and overseen by combined a person employed by or associated employees or associated persons of ATP NYSE Euronext employees, and the with such ATP Holder to ensure that Holders that are registered with NYSE standards of dress and conduct for the person’s compliance with NYSE Amex Amex as Market Maker Authorized Options Floor will be the same as the Rules; (d) failure to abide by a Traders (‘‘MMATs’’). MMATs will be standards for the equity floor. Rule determination of NYSE Amex; and (e) required to pass an NYSE Amex 902NY also describes additional refusal to provide information requested conducted examination to demonstrate standards of dress and conduct that will by NYSE Amex. their knowledge of NYSE Amex rules apply to the Options Floor, consistent Proposed NYSE Amex Rule 920NY. prior to being approved by NYSE Amex with standards for the NYSE Arca Proposed NYSE Amex Rule 920NY as an MMAT. NYSE Amex also may Options Trading Floor.6 ATP Holders on defines ‘‘Market Maker’’ on the NYSE require a Remote Market Maker to the Trading Floor will be either Market Amex System. A Market Maker on the provide additional information NYSE Makers (including Specialists) or Floor System will be an ATP Holder Amex considers necessary to establish Brokers. registered with NYSE Amex for the whether a person should be approved as The Exchange currently has four purpose of submitting quotes an MMAT. A person may be approved general classifications of Market Maker: electronically and making transactions conditionally as an MMAT subject to Specialist, Registered Options Trader as a dealer-specialist through the any conditions NYSE Amex’s Chief (‘‘ROT’’), Supplemental Registered System from on the trading floor or Regulatory Officer considers appropriate Options Traders (‘‘SROT’’), and Remote remotely from off the trading floor. A in the interests of maintaining a fair and Registered Options Trader (‘‘RROT’’). Market Maker submitting quotes orderly market. Under the proposed new Rules, these remotely is not eligible to participate in Rule 921.1NY will permit NYSE will remain essentially the same, trades effected in open outcry except to Amex to suspend or withdraw the although ROTs and SROTs will be the extent that such Market Maker’s registration of an MMAT if NYSE Amex combined into one classification as quotation represents the best bid or offer determines that: (i) The person has Floor Market Maker. RROTs will on the Exchange (‘‘BBO’’). Market caused the Market Maker to fail to become Remote Market Makers. Makers will be designated as specialists comply with the Rules of NYSE Amex; There will be no limit to the number on NYSE Amex for all purposes under of Remote Market Makers, and no limit the Act and the Rules and Regulations 7 See e-mail dated December 22, 2008, from to the number of Floor Market Makers. thereunder. A Market Maker on NYSE Andrew B. Stevens, Chief Counsel—U.S. Equities & Derivatives, NYSE Euronext, Inc., to Natasha The only significant change to the Amex will be either a Specialist, a Floor Cowen, Special Counsel, Division of Trading and Market Maker or a Remote Market Markets, Commission (restoring certain 6 See NYSE Arca Rule 6.2. Maker. unintentionally omitted text).
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(ii) the person is not properly In addition, Floor Market Makers NYSE Amex will periodically conduct performing the responsibilities of an must select appointment to a Trading an evaluation of Market Makers to MMAT; (iii) the person has failed to Zone on the Floor. The issues assigned determine whether they have fulfilled meet the conditions described above to a Trading Zone by the Exchange will performance standards relating to, (e.g., failed the Exchange administered not be counted towards the number of among other things, quality of markets, examination); or (iv) NYSE Amex issues per ATP selected by the Floor competition among Market Makers, believes it is in the best interest of fair Market Maker. All transactions by a observance of ethical standards and and orderly markets. If NYSE Amex Market Maker in open outcry effected in administrative factors. In so doing, suspends the registration of a person as issues in their appointed Trading Zone NYSE Amex may consider any relevant an MMAT, the Remote Market Maker will be considered as transactions information including, but not limited must not allow the person to submit within their primary appointment. to, the results of a Market Maker quotes and orders on NYSE Amex Specialists will be appointed to the evaluation, trading data, a Market System. The registration of an MMAT Trading Zone designated for their Maker’s regulatory history and such also will be withdrawn upon the written issues. other factors and data as may be request of the ATP Holder for which the NYSE Amex will continue to consider pertinent in the circumstances. If NYSE MMAT is registered. Such written the following factors when determining Amex finds any failure by a Market request must be submitted on the form whether to approve the appointment of Maker to meet minimum performance prescribed by NYSE Amex. a Market Maker in each security: (i) The standards, NYSE Amex will be Proposed NYSE Amex Rule 922NY. Market Maker’s preference; (ii) the permitted to take the following actions Proposed NYSE Amex Rule 922NY is financial resources available to the after written notice and after based on NYSE Arca Rule 6.34, Market Maker; (iii) the Market Maker’s opportunity for hearing pursuant to prohibits ATP Holders who are experience, expertise and past Section 9A: (i) Restrict appointments to physically on the Floor from trading for performance in making markets, additional option issues in the Market their own personal account or for an including the Market Maker’s Maker’s primary appointment; (ii) account in which they have an interest, performance in other securities; (iv) the suspend, terminate or restrict an unless part of their market making Market Maker’s operational capability; appointment in one or more option obligations. Floor Brokers are thus and (v) the maintenance and issues; or (iii) suspension, termination, prohibited from trading for an account enhancement of competition among or restriction of the Market Maker’s for which they have an interest except Market Makers in each security in registration in general. If a Market to resolve a bona fide error resulting which they are appointed. Maker’s appointment in an option issue Market Makers will be permitted to from their floor brokerage business. or issues has been terminated because it change the option issues that are failed to meet minimum performance Proposed NYSE Amex Rule 923NY. included in their appointment, subject standards, the Market Maker will not be NYSE Amex is proposing changes to the to the approval of NYSE Amex and re-appointed as a Market Maker in that manner in which Market Maker provided that such request is made in a option issue or issues for a period not appointments are made. Similar to form and manner prescribed by NYSE to exceed six months. current NYSE Arca Rule 6.35, Market Amex. In considering whether to Proposed NYSE Amex Rule 925NY. Makers will be required to apply for an approve Market Makers’ request to NYSE Amex is proposing new Rule appointment in one or more options change their appointment, NYSE Amex 925NY to outline Market Maker classes. NYSE Amex may appoint one will consider the five factors set forth obligations (i) generally, (ii) within a Specialist per option class, additional e- directly above. Market Makers will be Market Maker’s appointed classes, and Specialists, and an unlimited number of permitted to withdraw from trading an (iii) outside of a Market Maker’s Market Makers in each class unless option issue that is within their appointed classes on the System. Unlike NYSE Amex determines that the appointment by providing NYSE Amex NYSE Arca Rule 6.37, upon which it is number of Market Makers appointed to with three business days’ written notice based, NYSE Amex will not have an in- a particular option class should be of such withdrawal. Market Makers who person requirement. In-person limited whenever, in NYSE Amex’s fail to give advance written notice of requirements date back to a time when judgment, system capacity limits the withdrawal to NYSE Amex may be the only way for Market Makers to meet number of Market Makers who may subject to formal disciplinary action their obligations was to be present on participate in a particular option class. pursuant to NYSE Alternext Rule the Floor to respond to a call for a NYSE Amex is proposing to delineate Section 9A. market. In a modern marketplace, most the number of classes per ATP that a NYSE Amex will be permitted to of the liquidity on the Exchange is Market Maker may select for its suspend or terminate any appointment available electronically, and only appointment as follows: (i) Market of a Market Maker in one or more option electronically submitted bids and offers Makers with one ATP will have up to issues under Rule 923NY whenever, in are able to be represented in the 100 option issues included in their NYSE Amex’s judgment, the interests of disseminated quote. The intent of the appointment; (ii) Market Makers with a fair and orderly market are best served in-person requirement is actually better two ATPs will have up to 250 option by such action. A Market Maker will be served by the 60% quoting obligation issues included in their appointment; able to seek review of any action taken for Market Makers, and the requirement (iii) Market Makers with three ATPs will by NYSE Amex pursuant to the to conduct 75% of one’s business within have up to 750 option issues included proposed Rule, including the denial of one’s primary appointment. in their appointment; and (iv) Market the appointment for, or the termination Proposed NYSE Amex Rule 925.1NY. Makers with four ATPs will have all or suspension of, a Market Maker’s NYSE Amex is proposing new Rule option issues traded on NYSE Amex appointment in an option issue or issues 925.1NY to outline Market Maker included in their appointment. Market in accordance with Rule Section 9A. quoting obligations on the System. Makers may select from among any Market Makers will continue to be Market Makers will be required to option issues traded on NYSE Amex for required to trade at least 75% of their undertake a meaningful obligation to inclusion in their appointment, subject contract volume per quarter in classes provide continuous two-sided markets to the approval of NYSE Amex. within their appointment. in classes traded on the System.
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Proposed Rule 925.1NY generally is are substantially the same as NYSE Arca time to respond with the prices and consistent with NYSE Arca Rule 6.37B. Rules 6.44, 6.45, and 6.46. sizes at which they would be willing to Under the proposed Rule, Market Proposed NYSE Amex Rule 933NY. participate in the cross. With respect to Makers only will be permitted to enter Proposed NYSE Amex Rule 933NY facilitations, Floor Brokers still will be quotations in the classes included in describes the responsibilities of Floor permitted to participate in up to 40% of their appointment. Brokers, and is substantially the same as the balance of an order to be facilitated Proposed NYSE Amex Rule 925.2NY. NYSE Arca Rule 6.46, with the addition once Customer bids or offers in the NYSE Amex is proposing new Rule of insuring compliance with Section Consolidated Book at or better than the 925.2NY that will allow Market Makers 11(a)(1) of the Act. An ATP Holder must proposed execution price, have been to enter on the System all permitted ensure that each of its transactions satisfied. order types. However, orders do not complies with Section 11(a) of the Act, There is no electronic crossing satisfy or contribute to meeting a Market which generally prohibits an ATP mechanism proposed for NYSE Amex Maker’s quoting obligation; that Holder from effecting a transaction System at this time. obligation is only satisfied by trading for its own account, the account Proposed NYSE Amex Rule 935NY. submission of legal width quotes. of an associated person, or an account Proposed NYSE Amex Rule 935NY Proposed NYSE Amex Rules 927NY– with respect to which it or an associated requires Floor Brokers to expose agency 927.3NY. The Exchange describes in person thereof exercises investment orders for a period of time before proposed Rules 927NY–927.3NY discretion (each, a ‘‘covered account’’) attempting to execute them as Principal, Specialists and their rights, duties, and unless a valid exemption in the statute and is based on NYSE Arca Rule 6.47A. obligations, including the requirements or the rules thereunder applies. Proposed NYSE Amex Rule 935NY. for Information Barriers for ATP Holders In cases where a Floor Broker’s The Exchange describes in proposed affiliated with a Specialist. transaction would occur at the same Rule 935NY Discretionary Transactions, Proposed NYSE Amex Rules price as one or more orders on the and limits a Floor Broker’s use of 927.4NY–927.6NY. The Exchange is also electronic book, the Floor Broker, if it discretion on orders. describing in proposed Rules 927.4NY– can rely on no exception other than the Proposed NYSE Amex Rule 937NY. 927.6NY e-Specialists, who are Remote ‘‘G’’ exception (Section 11(a)(1)(G); Rule Proposed NYSE Amex Rule 937NY Market Makers appointed to fulfill 11a1–1(T)), must, in addition to limits a Floor Broker from acting as both certain obligations required of complying with the other requirements Principal and Agent in the Same Specialists. In addition to the Specialist, of the ‘‘G’’ exemption, yield to all orders Transaction unless it is part of an error it is possible to have multiple in the Consolidated Book at the same resulting from the Floor Broker’s error e-Specialists. price if the Floor Broker has no ability or omission. Proposed NYSE Amex Rule 928NY. to determine that an order in the Proposed NYSE Amex Rule 940NY. NYSE Amex is proposing new Rule Consolidated Book is not the order of a Proposed NYSE Amex Rule 940NY 928NY to provide a mechanism for non-ATP Holder. In addition, in the describes the obligations of Trading limiting Market Maker risk during case where an ATP Holder submits an Officials for fair, orderly, and periods of increased and significant order to the book (or an order is competitive market. trading activity on the System in a submitted on its behalf) and such ATP Proposed NYSE Amex Rule 952NY. Market Maker’s appointment. NYSE Holder is relying on the ‘‘G’’ exemption, NYSE Amex is proposing new NYSE Amex proposes setting the ‘‘n’’ period the order must be entered as IOC. Amex Rule 952NY to govern the for calculation of the number of trades In addition, when relying on the opening process, which traditionally by a Market Maker at one second. exemption set forth in Rule 11a2–2(T) has been referred to as a ‘‘rotation,’’ and Furthermore, NYSE Amex will no under the Act, a Floor Broker may not which will be referred to as an longer generate two-sided quotes on enter into the NYSE Alternext System ‘‘auction’’ on the NYSE Amex System. behalf of a Specialist in the event that any order for a covered account, A ‘‘Trading Auction’’ is a process by there are no Market Makers quoting in including orders sent to it by an which trading is initiated in a specified an issue. Rather, in the event that there affiliated ATP Holder from off the floor, options class. Trading Auctions may be are no Market Makers quoting in the if the order is for such affiliated ATP employed at the opening of NYSE Amex issue, the best bids and offers of those Holder’s own account, the account of an each business day or to re-open trading orders residing in the Consolidated associated person, or an account over after a trading halt. Trading Auctions Book in the issue will be disseminated which it or an associated person will be conducted automatically by the as the BBO. If there are no Market exercises investment discretion. System. Makers quoting in the issue and there Proposed NYSE Amex Rule 934NY. The System will accept Market and are no orders in the Consolidated Book NYSE Amex is proposing Rules 934NY, Limit Orders and quotes for inclusion in in the issue, NYSE Amex System will 934.1NY, 934.2NY, and 934.3NY to the opening auction process (‘‘Auction disseminate a bid of zero and an offer govern crosses effected on the trading Process’’) until the Auction Process is of zero in that issue. floor. Proposed Rule 934NY describes (i) initiated in that option series. Prior to Proposed NYSE Amex Rule 930NY. Customer-to-Customer crosses and (ii) the Auction Process, (‘‘pre-opening’’), Proposed NYSE Amex Rule 930NY Non-facilitation (Regular Way) crosses. non-Market Makers will be able to defines a Floor Broker as an ATP Holder Proposed Rule 934.1NY describes submit orders to the System and Market who is registered with the Exchange for Facilitation Cross Transactions. Makers will be able to submit two-sided the purpose, while on the Floor, to Proposed Rule 934.2NY describes At- quotes and orders to the System. accept and execute options orders Risk Cross Transactions, while Proposed Contingency orders (except for ‘‘opening received from ATP Holders and, in Rule 934.3NY describes Solicitation. In only’’ orders) will not participate in the certain circumstances, orders from all cases, Floor Brokers must request Auction Process. Any eligible open others. bids and offers for the option series orders residing in the Consolidated Proposed NYSE Amex Rules 931NY– involved and make the Trading Crowd Book from the previous trading session 932NY. Proposed NYSE Amex Rules and the Trading Official aware of the will be included in the Auction Process. 931NY–932NY describe the registration request for market. Trading crowd After the primary market for the and authorization of Floor Brokers, and participants will be given a reasonable underlying security disseminates the
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opening trade or the opening quote (or treatment. Additionally, the Exchange is simultaneously, they will be on parity. the first disseminated value for index proposing to not include the If an ATP Holder has previously options), the related option series will Commentaries found in NYSE Arca Rule requested a market to fill an order, and be opened automatically based on the 6.66, as the Exchange finds these the crowd has provided a collective following principles and procedures: inconsistent with the efforts to make the response, then the order will be a. The System will determine a single market transparent. allocated on a size pro rata basis. price at which a particular option series Proposed NYSE Amex Rules 955NY Proposed NYSE Amex Rule 963NY. will be opened. and 956NY. Proposed NYSE Amex Proposed Rule 963NY also provides for b. Orders and quotes in the System Rules 955NY and 956NY describe the a Specialist’s entitlement to 40% of the will be matched up with one another requirements for order format and balance of any order after Customer bids based on price-time priority. Orders at system entry requirements, and the and offers in the Consolidated book or better than the opening price will elements required for keeping a record have been satisfied; provided, however, have priority over Market Maker quotes. of orders, and are based on NYSE Arca that the Specialist has vocally c. Orders in the Consolidated Book Rules 6.67 and 6.68. The Exchange will responded to the Floor Broker’s call for that were not executed during the not maintain and preserve all electronic a market, and has responded with a Auction Process shall become eligible orders on behalf of ATP Holders, but is price that is at least equal to the best bid for the Core Trading Session still bound by its own requirements to or offer. In addition, the Rule describes immediately after the conclusion of the preserve records of orders. Priority on Split Price Transactions, Auction Process. Proposed NYSE Amex Rule 957NY. which are substantially the same as To determine the opening price in a Proposed NYSE Amex Rule 957NY approved in NYSE Arca Rule 6.75(h). series, upon receipt of the first describes the reporting duties of ATP Proposed NYSE Amex Rule 963.1NY. consolidated quote or trade of the Holders. Although based on NYSE Arca Proposed Rule 963.1NY describes the underlying security, the System will Rule 6.69, the Exchange is proposing to proper trading procedures for complex compare the OPRA NBBO market with require open outcry transactions orders, which are based on NYSE Arca an instantaneous BBO market. NYSE between a Floor Broker and a Market Rule 6.75 Commentary .01. and NYSE Amex System will generate an opening Maker to be reported by the Floor Arca Rule 6.91 Commentaries .01 and trade if possible or open a series on the Broker, regardless of who is the seller. .02. quoted market. The System then will The Floor Broker will already have the Proposed NYSE Amex Rule 964NY. send the NYSE Amex BBO quote to order details systematized by virtue of it NYSE Amex will display all non- OPRA. being input into an Electronic Order marketable Limit Orders in the Display The opening price of a series will be Capture device. Order Process of the Consolidated Book. the price, as determined by the System, Proposed NYSE Amex Rule 958NY. Except as otherwise permitted by Rule at which the greatest number of Proposed NYSE Amex Rule 958NY 964NY, all bids and offers at all price contracts will trade at or nearest to the determines that the execution price is levels in the Consolidated Book will be midpoint of the initial NBBO binding despite errors in reporting the displayed on an anonymous basis. The disseminated by OPRA, if any, or the price and is based on NYSE Arca Rule System also will disseminate current midpoint of the best quote bids and 6.70. consolidated quotations/last sale quote offers in the Consolidated Book. Proposed NYSE Amex Rule 959NY. information, and such other market Midpoint pricing will not occur if that Proposed NYSE Amex Rule 959NY information as may be made available price would result in an order or part of describes the meaning of premium bids from time to time pursuant to agreement an order being traded through. Instead and offers, and is based on NYSE Arca between NYSE Amex and other Market the Trading Auction will occur at that Rule 6.71. Centers, consistent with the Plan for limit price, or, if the limit price is Proposed NYSE Amex Rule 960NY. Reporting of Consolidated Options Last superior to the quoted market, within Proposed NYSE Amex Rule 960NY Sale Reports and Quotation Information. the range of 75% of the best quote bid describes the minimum quoting Bids and offers will be ranked and and 125% of the best quote offer. The increments and the minimum trading maintained in the Display Order Process same process will be followed to reopen increments for options, and is based on and/or Working Order Process of the an option class after a trading halt. NYSE Arca Rule 6.72. Consolidated Book according to account Unmatched orders and Market Maker Proposed NYSE Amex Rule 961NY. type and price-time priority. quotes that are marketable against the Proposed NYSE Amex Rule 961NY initial NBBO will ‘‘sweep’’ through the outlines the manner of bidding or a. Within the Display Order Process Consolidated Book and be executed in offering, either electronically through Limit Orders, with no other price/time priority. If the best price is at the NYSE Amex System, or in open conditions, and quotes will be ranked an away Market Center(s), orders will be outcry, and is substantially the same as based on account type and the specified routed away to the relevant Market NYSE Arca Rule 6.73. price and the time of original order or Center(s). Proposed NYSE Amex Rule 963NY. quote entry. The display portion of Proposed NYSE Amex Rule 953NY. Proposed NYSE Amex Rule 963NY Reserve Orders (not the reserve size) Proposed NYSE Amex Rule 953NY describes Priority and Order Allocation will be ranked in the Display Order outlines procedures for halting or Procedures for Open Outcry trading. Process by account type and at the suspending trading in a class of options. These provisions are substantially the specified limit price and the time of Proposed NYSE Amex Rule 954NY. same as used on other floor based order entry. When the display portion of Proposed NYSE Amex Rule 954NY, options exchanges. Generally, bids and the Reserve Order is decremented Order Identification, is based on NYSE offers are afforded priority on a price completely, the display portion of the Arca Rule 6.66; however, the Exchange time basis on response to a call for a Reserve Order will be refreshed for is proposing to exclude the market. The Floor Broker or Market (1) The display amount; or requirements to identify the particular Maker who calls for the market is (2) The entire reserve amount, if the ATP Holder when requesting a quote responsible for determining the remaining reserve amount is smaller and size from the crowd, in order to sequence in which bids or offers are than the display amount, from the avoid the possibility of disparate vocalized. If bids or offers are made reserve portion and shall be submitted
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and ranked at the specified limit price orders in the Display Order Process at in the order of their ranking, but only and the new time that the displayed the NBBO. at a price equal to the NBBO, and only portion of the order was refreshed. (2) If there are any remaining if the incoming marketable bid or offer contracts to be executed after matching is eligible for routing and is less than b. Within the Working Order Process against Customer orders, and the the size of the Tracking Orders. (1) The reserve portion of Reserve incoming marketable bid or offer has If an incoming marketable order has Orders will be ranked based on account been directed to a Directed Order not been executed in its entirety on the type and the specified limit price and Market Maker, the Directed Order System and it has been designated as an the time of original order entry. After Market Maker will receive 40% of the order type that is eligible to be routed the displayed portion of a Reserve Order balance of the order, provided the away, the order will be routed for is refreshed from the reserve portion, Directed Order Market Maker is quoting execution to another Market Center(s). the reserve portion remains ranked at the NBBO for at least that size. The order will be routed, either in its based on the original time of order (3) If the incoming marketable bid or entirety or as component order, to entry, while the displayed portion is offer has not been directed to a Directed another Market Center(s) as a Limit sent to the Display Order Process with Order Market Maker, or if the Directed Order equal to the price and up to the a new time-stamp. Order Market Maker is not quoting at size of the quote published by the (2) All-or-None Orders will be ranked the NBBO, the bid or offer will be Market Center(s). The remaining portion based on account type and the specified matched against the Specialist Pool for of the order, if any, will be ranked and limit price and the time of order entry. 40% of the remaining balance of the bid displayed in the Consolidated Book in (3) Stop and Stop Limit Orders will be or offer, provided the Specialist Pool is accordance with the terms of such order ranked based on account type and the quoting at the NBBO for at least that and such order shall be eligible for specified stop price and the time of size. execution pursuant to Rule 964NY. A order entry. (4) If the bid or offer has not been marketable Reserve Order may be routed (4) Stock Contingency Orders will be executed in its entirety, the remaining serially as component orders, such that ranked based on account type and the part of the order shall be matched each component corresponds to the specified limit price and the time of against non-customer bids and offers on display size of the Reserve Order. order entry. a size pro-rata basis. An order that has been routed away (5) Tracking Orders will be ranked If the original bid or offer is for 5 will remain outside of the System for a based on account type and the specified contracts or less, and has either not been prescribed period of time and may be limit price and the time of order entry. directed to a Directed Order Market executed in whole or in part subject to Consistent with Rule 602 under Maker, or the Directed Order Market the applicable trading rules of the Regulation NMS, the best-ranked Maker is not quoting at the NBBO, the relevant Market Center. While an order displayed bids and the best ranked entire bid or offer will be matched remains outside of the System, it will displayed offers in the Consolidated against the bid or offer of the Specialist have no time standing, relative to other Book and the aggregate displayed size of Pool after being matched against any orders received from Users at the same such bids and offers associated with customer bids or offers in the Display price that may be executed against the such prices shall be collected and made Order Process, provided the Specialist Consolidated Book. available to vendors for dissemination. Pool is quoting at the NBBO. The Requests from Users to cancel their Proposed Rule 964NY also outlines participants in the Specialist Pool will orders while the orders are routed away the applicable requirements for order be allocated orders of five contracts or to another Market Center and remain execution and priority on the System. less on a rotating basis, provided the outside the System will be processed Incoming orders will be matched against participant’s quoted size is equal to or subject to the applicable trading rules of bids and offers in the System based on greater than the size of the allocation. the relevant Market Center. price, account type, and time. For an The Exchange will monitor the sizes of Where an order or portion of an order execution to occur in any order process, all orders received, and, on a quarterly is routed away and is not executed the price must be equal to or better than basis, will evaluate the percentage of either in whole or in part at the other the NBBO, unless the System has routed volume constituted by orders of five Market Center (i.e., all attempts at the orders to away Market Centers at the contracts or less. If 40% or more of the fill are declined or timed-out), the order NBBO. order flow is comprised of orders of five shall be ranked and displayed in the The NYSE Amex System first will contracts or less, the Exchange will Consolidated Book in accordance with attempt to match incoming marketable reduce the eligible size for orders the terms of such order, and such order bids and offers against bids or offers in included in this provision. shall be eligible for execution under the Display Order Process at the display If the bid or offer has not been proposed Rule 964NY, but will not have price of the resident bids or offers for executed in its entirety, the remaining time standing relative to other orders the total amount of option contracts part of the order shall be matched received from Users at the same price available at that price or for the size of against any Working Orders at or better while it was outside the System. the incoming order, whichever is than the NBBO. Proposed NYSE Amex Rule 964.1NY smaller. For the purposes of proposed An incoming marketable bid or offer describes Directed Orders, and is Rule 964NY, the size of an incoming will be matched against orders within substantially the same as NASDAQ Reserve Order will include the the Working Order Process in the order OMX PHLX Rule 1080(l). It would be displayed and reserve size, and the size of their ranking, at the price of the considered a violation of just and of the portion of the Reserve Order displayed portion (for Reserve Orders) equitable principals of trade and a resident in the Display Order Process is or at the limit price (for most other misuse of non public information for a equal to its displayed size. Working Order types), for the total Directed Order Market Maker to become NYSE Amex proposes to allocate amount of option contracts available at aware of an impending Directed Order incoming marketable bids and offers as that price or for the size of the incoming so as to improve the quote to follows: bid or offer, whichever is smaller. momentarily match the NBBO, and then (1) The incoming marketable bid or Incoming marketable bids and offers worsen the price of the quote following offer will be matched against Customer will be matched against Tracking Orders execution of the Directed Order.
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Proposed NYSE Amex Rule 964.2NY. trading crowd, or the execution of the III. Date of Effectiveness of the Proposed NYSE Amex Rule 964.2NY order is no longer considered to be Proposed Rule Change and Timing for describes the participation entitlement imminent. Commission Action of Specialists and e-Specialists, which In addition, the Exchange is Within 35 days of the date of collectively comprise the Specialist proposing to add Part 1C to the publication of this notice in the Federal Pool, as defined in proposed Rule Supplementary Material of NYSE Register or within such longer period (i) 900.3NY(y). Generally, the Specialist Alternext Rule 476A. Part 1C lists as the Commission may designate up to Pool is entitled to 40% of the remaining options rule violations and their 90 days of such date if it finds such balance of an order after any orders on applicable fines that will be in effect longer period to be appropriate and behalf of Customers in the Consolidated upon implementation of the NYSE publishes its reasons for so finding or Book are satisfied. The Specialist’s Amex System and the relocation of the (ii) as to which the self-regulatory participation within the Pool is granted Trading Floor to 11 Wall Street, New organization consents, the Commission extra weighting, with no more than 66 will: 2/3% if there is only one e-Specialist, York, NY. (A) By order approve the proposed and no more than 50% if there are two Current NYSE Alternext Rule 476 rule change, or or more e-Specialists. includes Sanctioning Guidelines in its Proposed NYSE Amex Rule 965NY. Supplementary Material. While the (B) Institute proceedings to determine Proposed NYSE Amex Rule 965NY, principles to be considered in whether the proposed rule change Contract Made on Acceptance of Bid or determining sanctions will continue, the should be disapproved. Offer, is based on NYSE Arca Rule 6.77 guidelines after Supplementary Material IV. Solicitation of Comments and on NYSE Alternext Rule 953— .01(C)(19) that describe specific types of Interested persons are invited to ANTE. violations all pertain to the existing submit written data, views, and Proposed NYSE Amex Rule 970NY. NYSE Alternext Rules, and will not Proposed NYSE Amex Rule 970NY is arguments concerning the foregoing, apply to violations of Rules in Section including whether the proposed rule substantially the same as NYSE Arca 900NY. Rule 6.86. Rule 970NY will state the change is consistent with the Act. minimum quotation size will be one The Exchange believes the proposed Comments may be submitted by any of contract. NYSE Arca Rule 6.86 new rules will reduce regulatory the following methods: confusion, encourage efficient Commentary .03 is proposed to be Electronic Comments transactions on both the electronic designated as NYSE Amex Rule • 970.1NY. market and in open outcry trading, and Use the Commission’s Internet Proposed NYSE Amex Rule 975NY. delineate an unambiguous standard for comment form (http://www.sec.gov/ The Exchange is also proposing new conducting a fair and orderly market. rules/sro.shtml); or • Send an e-mail to rule- NYSE Amex Rule 975NY—Obvious 2. Statutory Basis Errors and Catastrophic Errors. [email protected]. Please include File Proposed Rule 975NY is substantially The Exchange believes that this filing Number SR–NYSEALTR–2008–14 on based on NYSE Arca Rule 6.87. is consistent with Section 6(b) of the the subject line. Proposed NYSE Amex Rules 990NY– Act,8 in general, and furthers the Paper Comments 993NY. Proposed NYSE Amex Rules objectives of Section 6(b)(5) of the Act,9 • 990NY–993NY describe the Operation Send paper comments in triplicate in particular, in that it is designed to to Secretary, Securities and Exchange of the Linkage, Order Protection, Locked prevent fraudulent and manipulative and Crossed Markets, and Limitations Commission, 100 F Street, NE., acts and practices, to promote just and Washington, DC 20549. on Principal Order Access. These Rules equitable principles of trade, to foster are essentially the same as the uniform cooperation and coordination with All submissions should refer to File rules governing Linkage on all options persons engaged in facilitating Number SR–NYSEALTR–2008–14. This exchanges, including existing NYSE transactions in securities, and to remove file number should be included on the Alternext Rules 940–944, and Rule 941 impediments to, and perfect the subject line if e-mail is used. To help the ANTE. mechanisms of a free and open market Commission process and review your Proposed NYSE Amex Rule 995NY. and a national market system. comments more efficiently, please use NYSE Amex proposes new Rule 995NY only one method. The Commission will which describes Prohibited Conduct. B. Self-Regulatory Organization’s post all comments on the Commission’s The first section of the proposed rule Statement on Burden on Competition Internet Web site (http://www.sec.gov/ prohibits conduct that threatens, rules/sro.shtml). Copies of the harasses, intimidates, constitutes a The Exchange does not believe that submission, all subsequent ‘‘refusal to deal’’ or retaliates against the proposed rule change will impose amendments, all written statements another ATP Holder or associated any burden on competition that is not with respect to the proposed rule person of an ATP Holder. The second necessary or appropriate in furtherance change that are filed with the section prohibits de facto market of the purposes of the Act. Commission, and all written making through the use of Customer C. Self-Regulatory Organization’s communications relating to the orders, since Customer orders have Statement on Comments on the proposed rule change between the priority at any price over the bids and Proposed Rule Change Received From Commission and any person, other than offers of non-customers. The third Members, Participants, or Others those that may be withheld from the section prohibits ATP Holders who have public in accordance with the knowledge of the material terms and No written comments were solicited provisions of 5 U.S.C. 552, will be conditions of an order, the execution of or received with respect to the proposed available for inspection and copying in which is imminent, from buying or rule change. the Commission’s Public Reference selling related options, underlying Room, 100 F Street, NE., Washington, securities, or related securities, until the 8 15 U.S.C. 78f(b). DC 20549, on official business days terms of the order are disclosed to the 9 15 U.S.C. 78f(b)(5). between the hours of 10 a.m. and 3 p.m.
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Copies of such filing also will be the proposed rule change and discussed In order to implement the Equities available for inspection and copying at any comments it received on the Relocation, the Exchange adopted NYSE the principal office of the Exchange. All proposed rule change. The text of these Rules 1–1004 as the NYSE Alternext comments received will be posted statements may be examined at the Equities Rules to govern trading on the without change; the Commission does places specified in Item IV below. NYSE NYSE Alternext Trading Systems. Rule not edit personal identifying Alternext has prepared summaries, set 54—NYSE Alternext Equities provides information from submissions. You forth in sections A, B, and C below, of that only members are permitted to should submit only information that the most significant aspects of such ‘‘* * * make or accept bids or offers, you wish to make available publicly. All statements. consummate transactions, or otherwise submissions should refer to File A. Self-Regulatory Organization’s transact business on the Floor for any Number SR–NYSEALTR–2008–14 and Statement of the Purpose of, and security admitted to dealings on the 7 should be submitted on or before Statutory Basis for, the Proposed Rule [Exchange] * * *.’’ January 21, 2009. Change Pursuant to Rule 123B—NYSE For the Commission, by the Division of Alternext Equities, however, the Trading and Markets, pursuant to delegated 1. Purpose Exchange permits NYSE Alternext authority.10 The Exchange proposes to offer, members and member organizations (a Florence E. Harmon, through NYSE Euronext Advanced ‘‘Sponsoring Member Organization’’) to Acting Secretary. Trading Solutions, Inc., the RMG service sponsor access to Exchange systems by [FR Doc. E8–31053 Filed 12–30–08; 8:45 am] to NYSE Alternext members and non-member firms or customers (‘‘Sponsored Participants’’). Rule BILLING CODE 8011–01–P member organizations. NYSE Transact Tools, Inc, a division of the NYSE 123B—NYSE Alternext Equities is a Euronext Advanced Trading Solutions general sponsored access rule that SECURITIES AND EXCHANGE Group (‘‘NYXATS’’), owns RMG. RMG permits a Sponsoring Member COMMISSION is a part of the NYSE Alternext Trading Organization to sponsor a Sponsored Systems (defined below) operated on Participant’s access to Exchange systems [Release No. 34–59144; File No. SR– for the Sponsored Participant’s entry NYSEALTR–2008–12] behalf of the Exchange by New York Stock Exchange LLC (‘‘NYSE’’).3 and execution of orders on the Exchange. Rule 123B—NYSE Alternext Self-Regulatory Organizations; NYSE Background Alternext US LLC; Notice of Filing of Equities reflects the Exchange’s general Proposed Rule Change To Establish Its As described more fully in a related policy regarding sponsored access to the 4 New Risk Management Gateway rule filing, NYSE Euronext acquired Exchange; it does not govern access to Service The Amex Membership Corporation NYSE Alternext Bonds.8 NYSE Arca, (‘‘AMC’’) pursuant to an Agreement and Inc. and other market centers similarly December 22, 2008. Plan of Merger, dated January 17, 2008 permit sponsored access to their trading Pursuant to section 19(b)(1) of the (the ‘‘Merger’’). In connection with the systems. Securities Exchange Act of 1934 Merger, the Exchange’s predecessor, the RMG (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 American Stock Exchange LLC notice is hereby given that on December (‘‘Amex’’), a subsidiary of AMC, became Traditionally, the customers of a 12, 2008, NYSE Alternext US LLC a subsidiary of NYSE Euronext called member or member organization gave (‘‘NYSE Alternext’’ or ‘‘Exchange’’) filed NYSE Alternext US LLC, and continues orders to the member or member with the Securities and Exchange to operate as a national securities organization and the member or member Commission (‘‘Commission’’) the exchange registered under Section 6 of organization then submitted those proposed rule change as described in the Securities Exchange Act of 1934, as orders to the Exchange on behalf of the Items I, II, and III below, which Items amended (the ‘‘Act’’).5 The effective customer. By means of sponsored have been prepared by the Exchange. date of the Merger was October 1, 2008. access, a member or member The Commission is publishing this In connection with the Merger, on organization will allow its customers to notice to solicit comments on the December 1, 2008, the Exchange enter orders directly into the trading proposed rule change from interested relocated all equities trading conducted systems of the Exchange as Sponsored persons. on the Exchange legacy trading systems Participants, without the Sponsoring and facilities located at 86 Trinity Place, Member Organization acting as an I. Self-Regulatory Organization’s New York, New York (the ‘‘86 Trinity intermediary. Statement of the Terms of Substance of Trading Systems’’), to trading systems To facilitate the ability of Sponsoring the Proposed Rule Change and facilities located at 11 Wall Street, Member Organizations to monitor and The Exchange, formerly the American New York, New York (the ‘‘Equities oversee the sponsored access activity of Stock Exchange LLC, is proposing to Relocation’’). The Exchange’s trading their Sponsored Participants, NYXATS establish its new Risk Management systems and facilities at 11 Wall Street will offer an order-verification service to Gateway (‘‘RMG’’) service. (the ‘‘NYSE Alternext Trading Sponsoring Member Organizations. This service will act as a risk filter by causing II. Self-Regulatory Organization’s Systems’’) are operated by the NYSE on 6 the orders of Sponsored Participants to Statement of the Purpose of, and behalf of the Exchange. pass through RMG prior to entering the Statutory Basis for, the Proposed Rule 3 Change NYXATS similarly seeks to offer the same services to the NYSE through a separate filing, SR– (SR–Amex 2008–63) (approving the Equities In its filing with the Commission, NYSE–2008–101. Relocation). NYSE Alternext included statements 4 See Securities Exchange Act Release No. 58673 7 See also Rule 2—NYSE Alternext Equities. concerning the purpose of, and basis for, (September 29, 2008), 73 FR 57707 (October 3, 8 That is, currently, the provisions of Rule 123B— 2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) NYSE Alternext Equities do not apply to Rule 86— (approving the Merger). NYSE Alternext Equities as that rule independently 10 17 CFR 200.30–3(a)(12). 5 15 U.S.C. 78f. contains provisions related to how a user gains 1 15 U.S.C. 78s(b)(1). 6 See Securities Exchange Act Release No. 58705 sponsored access to the NYSE Alternext Bonds 2 17 CFR 240.19b–4. (October 1, 2008), 73 FR 58995 (October 8, 2008) system.
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Exchange’s trading systems for into NYSE CCG in the future). Register or within such longer period (i) execution. When a Sponsored Sponsoring Member Organizations are as the Commission may designate up to Participant’s order passes through RMG, free to use a competing risk- 90 days of such date if it finds such RMG software determines whether the management service or to use none at longer period to be appropriate and order complies with order criteria that all. The Exchange will not provide publishes its reasons for so finding or the Sponsoring Member Organization preferential treatment to Sponsoring (ii) as to which the Exchange consents, has established for that Sponsored Member Organizations using RMG. the Commission will: Participant. The order criteria pertain to The Exchange proposes to make RMG (A) By order approve the proposed such matters as the size of the order (per available to its members and member rule change, or order or daily quantity limits) or the organizations pursuant to contractual (B) Institute proceedings to determine credit limit (per order or daily value) arrangements. The Exchange believes whether the proposed rule change that the Sponsoring Member that RMG will offer its members and should be disapproved. Organization has established for the member organizations another option in IV. Solicitation of Comments Sponsored Participant. Additional risk the efficient risk management of its filters may also be selected by the Sponsored Participant’s access to the Interested persons are invited to Sponsoring Member Organization NYSE Alternext Trading Systems. submit written data, views, and arguments concerning the foregoing, relating to specific symbols or end 2. Statutory Basis users. including whether the proposed rule If the order is consistent with the The basis under the Act for this change is consistent with the Act. parameters set by the Sponsoring proposed rule change is the requirement Comments may be submitted by any of Member Organization, then RMG allows under section 6(b)(5) 10 that an Exchange the following methods: the order to continue along its path to have rules that are designed to promote Electronic Comments the Exchange’s trading systems. If the just and equitable principles of trade, to • remove impediments to and perfect the Use the Commission’s Internet order falls outside of those parameters, comment form (http://www.sec.gov/ then RMG returns the order to the mechanism of a free and open market and a national market system and, in rules/sro.shtml); or Sponsored Participant. RMG will only • Send an e-mail to rule- general, to protect investors and the return an order to the Sponsored [email protected]. Please include File public interest. The proposed rule Participant when the order fails to No. SR–NYSEALTR–2008–12 on the change also is designed to support the comply with the criteria set by the subject line. Sponsoring Member Organization. principles of section 11A(a)(1) 11 in that RMG software interacts with orders it seeks to assure economically efficient Paper Comments only prior to the orders’ entry into the execution of securities transactions, • Send paper comments in triplicate Exchange’s trading system for make it practicable for brokers to to Secretary, Securities and Exchange execution. RMG does not have order execute investors’ orders in the best Commission, Station Place, 100 F Street, execution or trade reporting capabilities market and provide an opportunity for NE., Washington, DC 20549–1090. (though it will allow a Sponsoring investors’ orders to be executed without All submissions should refer to File Member Organization to monitor the the participation of a dealer. The Number SR–NYSEALTR–2008–12. This orders of its Sponsored Participants). Exchange believes that RMG is file number should be included on the RMG maintains a record of all messages consistent with all the aforementioned subject line if e-mail is used. To help the relating to Sponsored Participants’ principles because it fosters competition Commission process and review your transactions and supplies a copy of such by providing another option in the comments more efficiently, please use messages to the applicable Sponsoring efficient risk management of trading on only one method. The Commission will Member Organization. the Exchange without the participation post all comments on the Commission’s The Sponsoring Member of a dealer. Internet Web site (http://www.sec.gov/ Organization, and not RMG, will have B. Self-Regulatory Organization’s rules/sro.shtml). Copies of the full responsibility for ensuring that Statement on Burden on Competition submission, all subsequent Sponsored Participants’ sponsored amendments, all written statements The Exchange does not believe that access to the Exchange complies with with respect to the proposed rule the proposed rule change will impose the Exchange’s sponsored access rules. change that are filed with the any burden on competition that is not The use of RMG by a Member Commission, and all written necessary or appropriate in furtherance Organization does not automatically communications relating to the of the purposes of the Act. constitute compliance with Exchange proposed rule change between the rules. C. Self-Regulatory Organization’s Commission and any person, other than NYXATS will host RMG software on Statement on Comments on the those that may be withheld from the NYXATS’ infrastructure. After passing Proposed Rule Change Received From public in accordance with the through RMG software, each order will Members, Participants, or Others provisions of 5 U.S.C. 552, will be enter the NYSE Common Customer available for inspection and copying in Gateway (CCG) 9 for connectivity to the No written comments were solicited the Commission’s Public Reference Exchange’s matching engine. In the or received with respect to the proposed Room, on official business days between future NYXATS may integrate RMG into rule change. the hours of 10 a.m. and 3 p.m. Copies the NYSE CCG for more direct access to III. Date of Effectiveness of the of such filing also will be available for the Exchange’s matching engine. Proposed Rule Change and Timing for inspection and copying at the principal The Exchange does not require Commission Action office of the Exchange. All comments Sponsoring Member Organizations to received will be posted without change; use RMG (even when it is integrated Within 35 days of the date of publication of this notice in the Federal the Commission does not edit personal 9 The NYSE CCG is a part of the NYSE Alternext identifying information from Trading Systems, operated on behalf of the 10 15 U.S.C. 78f(b)(5). submissions. You should submit only Exchange by NYSE. 11 15 U.S.C. 78k–1(a)(1). information that you wish to make
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available publicly. All submissions II. Self-Regulatory Organization’s negative payment at maturity be should refer to File Number SR– Statement of the Purpose of, and accelerated by a multiple that exceeds NYSEALTR–2008–12 and should be Statutory Basis for, the Proposed Rule twice the performance of an underlying submitted on or before January 21, 2009. Change Reference Asset. For the Commission, by the Division of In its filing with the Commission, the The Exchange proposes to amend Trading and Markets, pursuant to delegated self-regulatory organization included Rule 5.2(j)(6)(A)(d) to allow the authority.12 statements concerning the purpose of, Exchange to consider for listing and Florence E. Harmon, and basis for, the proposed rule change trading Index-Linked Securities that provide that in no event will a loss or Acting Secretary. and discussed any comments it received on the proposed rule change. The text negative payment at maturity be [FR Doc. E8–31101 Filed 12–30–08; 8:45 am] accelerated by a multiple that exceeds BILLING CODE 8011–01–P of those statements may be examined at the places specified in Item IV below. three times the performance of an The Exchange has prepared summaries, underlying Reference Asset. The Exchange proposes these changes set forth in sections A, B, and C below, SECURITIES AND EXCHANGE in order to allow the Exchange to COMMISSION of the most significant parts of such statements. initially consider for listing and trading Index-Linked Securities that employ [Release No. 34–59146; File No. SR– A. Self-Regulatory Organization’s investment strategies similar or NYSEArca–2008–136] Statement of the Purpose of, and analogous to certain Exchange-Traded Statutory Basis for, the Proposed Rule Funds which list and trade on the Self-Regulatory Organizations; Notice Change Exchange pursuant to NYSE Arca of Filing of Proposed Rule Change by Equities Rule 5.2(j)(3).5 Currently, NYSE Arca, Inc. Amending NYSE Arca 1. Purpose Exchange-Traded Funds are able to seek Equities Rule 5.2(j)(6), the Exchange’s The Exchange is proposing to amend daily investment results, before fees and Initial Listing Standards for Equity NYSE Arca Equities Rule 5.2(j)(6), the expenses, that correspond to three times Index-Linked Securities, Commodity- Exchange’s initial listing standards for the inverse or opposite of the daily Linked Securities, Currency-Linked Equity Index-Linked Securities, performance (¥300%) of the underlying Securities, Fixed Income Index-Linked Commodity-Linked Securities, indexes. Securities, Futures-Linked Securities Currency-Linked Securities, Fixed and Multifactor Index-Linked Securities Income Index-Linked Securities, Limitation on Leverage Futures-Linked Securities and December 22, 2008. In connection with Index-Linked Multifactor Index-Linked Securities Securities that seek to provide Pursuant to section 19(b)(1) 1 of the (‘‘Index-Linked Securities’’), to provide investment results, before fees and Securities Exchange Act of 1934 (the for greater flexibility in the listing expenses, in an amount that exceeds ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 criteria for such securities, as set forth ¥300% of the percentage performance notice is hereby given that on December below. of the underlying benchmark index, the 10, 2008, NYSE Arca, Inc. (‘‘NYSE Currently, Rule 5.2(j)(6)(A)(d) Exchange’s proposal would continue to Arca’’ or ‘‘Exchange’’) filed with the provides that the payment at maturity of require specific Commission approval Securities and Exchange Commission a cash amount for Index-Linked pursuant to section 19(b)(2) of the Act.6 (‘‘Commission’’) the proposed rule Securities may or may not provide for In particular, NYSE Arca Equities Rule change as described in Items I, II, and a multiple of the direct or inverse 5.2(j)(6) would expressly prohibit Index- III below, which Items have been performance of an underlying Reference Linked Securities that seek to provide prepared by the Exchange. The Asset,4 and in no event will a loss or investment results, before fees and Commission is publishing this notice to expenses, in an amount that exceeds solicit comments on the proposed rule 4 As defined in Rule 5.2(j)(6), ‘‘Reference Assets’’ ¥300% of the percentage performance change from interested persons. include ‘‘Equity Reference Assets,’’ which consist of an underlying index or indexes of equity securities; of the underlying benchmark index, I. Self-Regulatory Organization’s ‘‘Commodity Reference Assets,’’ which consist of a from being approved by the Exchange Statement of the Terms of Substance of basket or index of one or more physical for listing and trading pursuant to Rule commodities or commodity futures, options or the Proposed Rule Change 19b–4(e) under the Act.7 other commodity derivatives or Commodity-Based ¥ Trust Shares (as defined in Rule 8.201); ‘‘Currency The Exchange believes that a 300% The Exchange proposes to amend Reference Assets,’’ which include a basket or index limitation will permit Index-Linked NYSE Arca Equities Rule 5.2(j)(6), the of one or more currencies, or options or currency Securities to provide investors with an Exchange’s initial listing standards for futures or other currency derivatives or Currency incremental additional degree of Trust Shares (as defined in Rule 8.202); ‘‘Fixed Equity Index-Linked Securities, Income Reference Asset’’ which consist of one or leverage similar to instruments available Commodity-Linked Securities, more indexes or portfolios of notes, bonds, to professional investors to manage risk. Currency-Linked Securities, Fixed debentures or evidence of indebtedness that In addition, recommendations to Income Index-Linked Securities, include, but are not limited to, U.S. Department of investors of transactions in Index- Treasury securities, government-sponsored entity Futures-Linked Securities and securities, municipal securities, trust preferred Linked Securities are subject to the Multifactor Index-Linked Securities. securities, supranational debt and debt of a foreign customer suitability requirements of The text of the proposed rule change is country or a subdivision thereof; ‘‘Futures NYSE Arca Equities Rule 9.2, as available on the Exchange’s Web site at Reference Asset’’ which consists of an index of (a) discussed below. futures on Treasury Securities, GSE Securities, http://www.nyse.com, at the Exchange’s supranational debt and debt of a foreign country or principal office and at the Commission’s a subdivision thereof, or options or other 5 See Securities Exchange Act Release No. 58825 Public Reference Room. derivatives on any of the foregoing; or (b) interest (October 21, 2008), 73 FR 63756 (October 27, 2008) rate futures or options or derivatives; and (SR–NYSEArca–2008–89). Order approving inverse ¥ ‘‘Multifactor Reference Asset’’ which consists of fund shares that cannot exceed 300% of the 12 17 CFR 200.30–3(a)(12). any combination of two or more Equity Reference inverse or opposite of the daily performance of an 1 15 U.S.C. 78s(b)(1). Assets, Commodity Reference Assets, Currency underlying index. 2 15 U.S.C. 78a. Reference Assets, Fixed Income Reference Assets or 6 15 U.S.C. 78s(b)(2). 3 17 CFR 240.19b–4. Futures Reference Assets. 7 17 CFR 240.19b–4(e).
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The Exchange notes that NYSE Arca Securities enhances the investment All submissions should refer to File Equities Rule 9.2(a) provides that an opportunities for our users by providing Number SR–NYSEArca–2008–136. This ETP Holder, before recommending a them with an additional degree of file number should be included on the transaction in Index-Linked Securities, leverage, while also limiting potential subject line if e-mail is used. To help the must have reasonable grounds to believe losses or negative payments to Commission process and review your that the recommendation is suitable for ¥300%.10 comments more efficiently, please use their customer based on any facts only one method. The Commission will B. Self-Regulatory Organization’s disclosed by the customer as to its other post all comments on the Commission’s Statement on Burden on Competition security holdings and as to its financial Internet Web site (http://www.sec.gov/ situation and needs. Further, the rule The Exchange does not believe that rules/sro.shtml). Copies of the provides, with a limited exception, that the proposed rule change will impose submission, all subsequent prior to the execution of a transaction any burden on competition that is not amendments, all written statements recommended to a non-institutional necessary or appropriate in furtherance with respect to the proposed rule customer, the ETP Holder shall make of the purposes of the Act. change that are filed with the reasonable efforts to obtain information C. Self-Regulatory Organization’s Commission, and all written concerning the customer’s financial Statement on Comments on the communications relating to the status, tax status, investment objectives, Proposed Rule Change Received From proposed rule change between the and any other information that such Members, Participants or Others Commission and any person, other than ETP Holder believes would be useful to those that may be withheld from the make a recommendation. Prior to the No written comments were solicited public in accordance with the commencement of trading, the Exchange or received with respect to the proposed provisions of 5 U.S.C. 552, will be will inform its ETP Holders in an rule change. available for inspection and copying in Information Bulletin of this suitability III. Date of Effectiveness of the the Commission’s Public Reference requirement. Specifically, ETP Holders Proposed Rule Change and Timing for Room, 100 F Street, NE., Washington, will be reminded in the Information Commission Action DC 20549, on official business days Bulletin that, in recommending between the hours of 10 a.m. and 3 p.m. transactions in these securities, they Within 35 days of the date of Copies of the filing also will be available must have a reasonable basis to believe publication of this notice in the Federal for inspection and copying at the that the customer can evaluate the Register or within such longer period (i) principal office of the Exchange. All special characteristics, and is able to as the Commission may designate up to comments received will be posted bear the financial risks, of such 90 days of such date if it finds such without change; the Commission does investment. longer period to be appropriate and not edit personal identifying The Exchange believes that these publishes its reasons for so finding or information from submissions. You changes will allow the Exchange greater (ii) as to which the Exchange consents, should submit only information that flexibility in the listing of Index-Linked the Commission will: you wish to make available publicly. All (A) By order approve the proposed Securities, which will allow the submissions should refer to File rule change, or Exchange to offer investors more Number SR–NYSEArca–2008–136 and (B) Institute proceedings to determine investment options and to remain should be submitted on or before whether the proposed rule change competitive in the marketplace. The January 21, 2009. Exchange believes that investors will should be disapproved. continue to be protected because the For the Commission, by the Division of IV. Solicitation of Comments Trading and Markets, pursuant to delegated payment at maturity cannot be based on 11 a multiple that exceeds three times the Interested persons are invited to authority. inverse performance of an underlying submit written data, views, and Florence E. Harmon, Reference Asset. arguments concerning the foregoing, Acting Secretary. including whether the proposed rule [FR Doc. E8–31098 Filed 12–30–08; 8:45 am] 2. Statutory Basis change is consistent with the Act. BILLING CODE 8011–01–P The Exchange believes that the Comments may be submitted by any of proposed rule change is consistent with the following methods: section 6(b) 8 of the Act, in general, and Electronic Comments SOCIAL SECURITY ADMINISTRATION furthers the objectives of section 6(b)(5),9 in particular, in that it is • Use the Commission’s Internet [Docket No. SSA–2008–0064] comment form (http://www.sec.gov/ designed to prevent fraudulent and Agreement on Social Security Between manipulative acts and practices, to rules/sro.shtml); or • Send an e-mail to rule- the United States and the Czech promote just and equitable principles of Republic; Entry Into Force trade, to foster cooperation and [email protected]. Please include File coordination with persons engaged in Number SR–NYSEArca 2008–136 on the AGENCY: Social Security Administration. facilitating transactions in securities, subject line. ACTION: Notice. and to remove impediments to and Paper Comments perfect the mechanisms of a free and SUMMARY: On January 1, 2009, an • open market and a national market Send paper comments in triplicate agreement coordinating the United system, and, in general, to protect to Secretary, Securities and Exchange States (U.S.) and the Czech Republic investors and the public interest. Commission, 100 F Street, NE., social security programs will enter into Specifically, the Exchange believes that Washington, DC 20549–1090. force. The agreement with the Czech the proposed change to the standards for Republic, which was signed on listing and trading Index-Linked 10 See e-mail from Andrew Stevens, Chief September 7, 2007, is similar to U.S. Counsel—U.S. Equities & Derivatives, NYSE Arca, Inc., to Mitra Mehr, Special Counsel, Division of social security agreements already in 8 15 U.S.C. 78f(b). Trading and Markets, Commission, dated December 9 15 U.S.C. 78f(b)(5). 22, 2008. 11 17 CFR 200.30–3(a)(12).
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force with 22 other countries. This Office of the General Counsel, Social ACTION: Notice. agreement is authorized by section 233 Security Administration, 6401 Security of the Social Security Act. 42 U.S.C. Boulevard, Baltimore, MD 21235–6401. SUMMARY: In accordance with Sections 3 433. Phone: (410) 965–0495, e-mail and 6 of the Clean Diamond Trade Act The U.S.-Czech agreement eliminates [email protected]. of 2003 (Pub. L. 108–19) and Section 2 dual social security coverage—a of Executive Order 13312 of July 29, SUPPLEMENTARY INFORMATION: Section situation that exists when a worker from 2003, the Department of State is 406 of Public Law No. 106–170, the identifying all the Participants eligible one country works in the other country Ticket to Work and Work Incentives and is covered under the social security for trade in rough diamonds under the Improvement Act of 1999, established Act, and their respective Importing and systems of both countries for the same an assessment for the services required work. Without such agreements in force, Exporting Authorities, and revising the to determine and certify payments to previously published list of September when dual coverage occurs, the worker attorneys from the benefits due or the worker’s employer or both may be 8, 2008 (73 FR 52073) to add Mexico claimants under Title II of the Act. This and delete Cote d‘Ivoire. required to pay social security provision is codified in section 206 of FOR FURTHER INFORMATION CONTACT: contributions to the two countries the Act (42 U.S.C. 406). That legislation Sue simultaneously. Under the U.S.-Czech set the assessment for the calendar year Saarnio, Special Advisor for Conflict agreement, a worker who is sent by an 2000 at 6.3 percent of the amount that Diamonds, Bureau of Economic and employer in one country to work in the would be required to be certified for Business Affairs, Department of State other country for 5 years or less remains direct payment to the attorney under (202) 647–4108. covered only by the sending country. sections 206(a)(4) or (b)(1) of the Act SUPPLEMENTARY INFORMATION: Section 4 The agreement includes additional before the application of the assessment. of the Clean Diamond Trade Act (the rules that eliminate dual U.S. and Czech For subsequent years, the legislation ‘‘Act’’) requires the President to prohibit coverage in other work situations. The requires us to determine the percentage the importation into, or the exportation agreement also helps eliminate rate necessary to achieve full recovery of from, the United States of any rough situations where workers suffer a loss of the costs of determining and certifying diamond, from whatever source, that benefit rights because they have divided fees to attorneys, but not in excess of 6.3 has not been controlled through the their careers between the two countries. percent. Beginning in 2005, sections 302 Kimberley Process Certification Scheme Under the agreement, workers may and 303 of Public Law No. 108–203, the (KPCS). Under Section 3(2) of the Act, qualify for partial U.S. benefits or partial Social Security Protection Act of 2004 ‘‘controlled through the Kimberley Czech benefits based on combined (SSPA), extended the direct payment of Process Certification Scheme’’ means an (totalized) work credits from both fees to attorneys in cases under Title importation from the territory of a countries. XVI of the Act and to eligible non- Participant or exportation to the If you want copies of the agreement or attorney representatives in cases under territory of a Participant of rough want more information about its Title II or Title XVI of the Act. Fees diamonds that is either (i) carried out in provisions you may write to the Social directly paid under these provisions are accordance with the KPCS, as set forth Security Administration, Office of subject to the same assessment. In in regulations promulgated by the International Programs, Post Office Box addition, sections 301 and 302 of the President, or (ii) controlled under a 17741, Baltimore, MD 21235–7741 or SSPA imposed a dollar cap (i.e., system determined by the President to visit the Social Security Web site at currently $83.00) on the amount of the meet substantially the standards, http://www.socialsecurity.gov/ assessment so that the assessment may practices, and procedures of the KPCS. international. not exceed the lesser of that dollar cap The referenced regulations are Dated: December 23, 2008. or the amount determined using the contained at 31 CFR Part 592 (‘‘Rough Michael J. Astrue, assessment percentage rate. Diamonds Control Regulations’’) (69 FR Commissioner of Social Security. Based on the best available data, we 56936, Sept. 23, 2004). Section 6(b) of [FR Doc. E8–31136 Filed 12–30–08; 8:45 am] have determined that the current rate of the Act requires the President to publish BILLING CODE 4191–02–P 6.3 percent will continue for 2009. We in the Federal Register a list of all will continue to review our costs for Participants, and all Importing and these services on a yearly basis. Exporting Authorities of Participants, and to update the list as necessary. SOCIAL SECURITY ADMINISTRATION Dated: December 19, 2008. Section 2 of Executive Order 13312 [Docket No. SSA–2008–0067] Mary Glenn-Croft, delegates this function to the Secretary Deputy Commissioner for Budget, Finance Rate for Assessment on Direct of State. Section 3(7) of the Act defines and Management. ‘‘Participant’’ as a state, customs Payment Fees to Representatives in [FR Doc. E8–31129 Filed 12–30–08; 8:45 am] 2009 territory, or regional economic BILLING CODE 4191–02–P integration organization identified by AGENCY: Social Security Administration the Secretary of State. Section 3(3) of the (SSA). Act defines ‘‘Exporting Authority’’ as ACTION: Notice. DEPARTMENT OF STATE one or more entities designated by a Participant from whose territory a SUMMARY: We are announcing that the [Public Notice 6471] shipment of rough diamonds is being assessment percentage rate under List of December 31, 2008 of exported as having the authority to sections 206(d) and 1631(d)(2)(C) of the Participating Countries and Entities validate a Kimberley Process Certificate. Social Security Act (the Act), 42 U.S.C. (Hereinafter Known as ‘‘Participants’’) Section 3(4) of the Act defines 406 (d), and 1383(d)(2)(C) is 6.3 percent Under the Clean Diamond Trade Act of ‘‘Importing Authority’’ as one or more for 2009. 2003 (Pub. L. 108–19) and Section 2 of entities designated by a Participant into FOR FURTHER INFORMATION CONTACT: Executive Order 13312 of July 29, 2003 whose territory a shipment of rough Gwen Jones Kelley, Acting Associate diamonds is imported as having the General Counsel for Program Law, AGENCY: Department of State. authority to enforce the laws and
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regulations of the Participant regarding Liberia—Ministry of Lands, Mines convenience and necessity to engage in imports, including the verification of and Energy. foreign scheduled air transportation of the Kimberley Process Certificate Malaysia—Ministry of International persons, property and mail. accompanying the shipment. Trade and Industry. DATES: Persons wishing to file Mauritius—Ministry of Commerce. List of Participants objections should do so no later than Namibia—Ministry of Mines and January 2, 2009. Pursuant to Section 3 of the Act, Energy. ADDRESSES: Objections and answers to Section 2 of Executive Order 13312, and Mexico—Ministry of the Economy. objections should be filed in Docket Delegation of Authority No. 294 (July 6, New Zealand—Ministry of Foreign DOT–OST–2007–0007 and addressed to 2006), I hereby identify the following Affairs and Trade. U.S. Department of Transportation, entities as of November 6, 2008, as Norway—The Norwegian Goldsmiths’ Docket Operations, (M–30, Room W12– Participants under section 6(b) of the Association. 140), 1200 New Jersey Avenue, SE., Act. Included in this List are the Russia—Gokhran, Ministry of West Building Ground Floor, Importing and Exporting Authorities for Finance. Washington, DC 20590, and should be Participants, as required by Section 6(b) Sierra Leone—Government Gold and served upon the parties listed in of the Act. This list revises the Diamond Office. Attachment A to the order. previously published list of September Singapore—Singapore Customs. FOR FURTHER INFORMATION CONTACT: 8, 2008, to add Mexico to the list of South Africa—South African Damon D. Walker, Air Carrier Fitness participants in the Kimberley Process Diamond Board. Division (X–56, Room W86–465), U.S. Certification Scheme. This list also Sri Lanka—National Gem and Department of Transportation, 1200 deletes Cote d’Ivoire, as shipments of Jewellery Authority. New Jersey Avenue, SE., Washington, rough diamonds from Cote d’Ivoire are Switzerland—State Secretariat for DC 20590, (202) 366–7785. not being controlled through the Economic Affairs. Kimberley Process. Chinese Taipei—Bureau of Foreign Michael W. Reynolds, Angola—Ministry of Geology and Trade. Acting Assistant Secretary for Aviation and Mines. Tanzania—Commissioner for International Affairs. Armenia—Ministry of Trade and Minerals. [FR Doc. E8–31113 Filed 12–30–08; 8:45 am] Economic Development. Thailand—Ministry of Commerce. BILLING CODE 4910–9X–P Australia—Exporting Authority— Togo—Ministry of Mines and Department of Industry, Tourism and Geology. Resources; Importing Authority— Turkey—Istanbul Gold Exchange. DEPARTMENT OF TRANSPORTATION Australian Customs Service. Ukraine—State Gemological Centre of Bangladesh—Ministry of Commerce. Ukraine. Office of the Secretary Belarus—Department of Finance. United Arab Emirates—Dubai Metals Botswana—Ministry of Minerals, and Commodities Center. Notice of Applications for Certificates Energy and Water Resources. United States of America—Importing of Public Convenience and Necessity Brazil—Ministry of Mines and Energy. Authority—United States Bureau of and Foreign Air Carrier Permits Filed Canada—Natural Resources Canada. Customs and Border Protection; Under Subpart B (Formerly Subpart Q) Central African Republic—Ministry of Exporting Authority—Bureau of the During the Week Ending November 14, Energy and Mining. Census. 2008 China—General Administration of Vietnam—Ministry of Trade. Quality Supervision, Inspection and The following Applications for Zimbabwe—Ministry of Mines and Certificates of Public Convenience and Quarantine. Mining Development. Democratic Republic of the Congo— Necessity and Foreign Air Carrier This notice shall be published in the Ministry of Mines. Republic of Congo— Permits were filed under Subpart B Federal Register. Ministry of Mines. (formerly Subpart Q) of the Department Croatia—Ministry of Economy. John D. Negroponte, of Transportation’s Procedural Regulations (See 14 CFR 301.201 et European Community—DG/External Deputy Secretary of State, Department of Relations/A.2. State. seq.). The due date for Answers, Conforming Applications, or Motions to Ghana—Precious Minerals and [FR Doc. E8–31151 Filed 12–30–08; 8:45 am] Modify Scope are set forth below for Marketing Company Ltd. BILLING CODE 4710–07–P Guinea—Ministry of Mines and each application. Following the Answer Geology. period DOT may process the application by expedited procedures. Such Guyana—Geology and Mines DEPARTMENT OF TRANSPORTATION Commission. procedures may consist of the adoption of a show-cause order, a tentative order, India—The Gem and Jewelry Export Applications of Baltia Airlines, Inc. for or in appropriate cases a final order Promotion Council. Certificate Authority Indonesia—Directorate General of without further proceedings. Foreign Trade of the Ministry of Trade. AGENCY: Department of Transportation. Docket Number: DOT–OST–2008– Israel—The Diamond Controller. ACTION: Notice of Order to Show Cause 0340. Japan—Ministry of Economy, Trade (Order 2008–12–12) Docket DOT–OST– Date Filed: November 10, 2008. and Industry. 2007–0007. Due Date for Answers, Conforming Republic of Korea—Ministry of Applications, or Motion to Modify Commerce, Industry and Energy. SUMMARY: The Department of Scope: December 1, 2008. Laos—Ministry of Finance. Transportation is directing all interested Description: Application of Solid aiR Lebanon—Ministry of Economy and persons to show cause why it should B.V. (‘‘Solid aiR’’) requesting a foreign Trade. not issue an order finding Baltia air carrier permit to the full extent Lesotho—Commissioner of Mines and Airlines, Inc., fit, willing, and able, and authority by the Air Transport Geology. awarding it a certificate of public Agreement Between the United States
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and the European Community and the DEPARTMENT OF TRANSPORTATION Docket Number: DOT–OST–2008– Member States of the European 0344. Community to enable it to engage in: (i) Office of the Secretary Date Filed: November 10, 2008. Foreign charter air transportation of Parties: Members of the International persons and property from any point or Aviation Proceedings, Agreements Air Transport Association. points behind any Member State of the Filed the Week Ending November 14, Subject: TC31 North & Central Pacific, European Union via any point or points 2008 TC3—Central America, South America, in any Member State and via The following Agreements were filed Resolutions and Specified Fares Tables, intermediate points to any point or with the Department of Transportation (Memo 0462). points in the United States and beyond; under the Sections 412 and 414 of the Minutes: TC31/TC123 Passenger (ii) foreign charter air transportation of Federal Aviation Act, as amended (49 Tariff Coordinating Conference, TC31 persons and property between any point U.S.C. 1382 and 1384) and procedures North and Central Pacific Minutes, or points in the United States and any governing proceedings to enforce these PTC123 Minutes, (Memo 0466). point or points in any member of the provisions. Answers may be filed within Intended effective date: 1 April 2009. European Common Aviation Area; (iii) 21 days after the filing of the Docket Number: DOT–OST–2008– other charters pursuant to the prior application. 0345. approval requirements; and (iv) Docket Number: DOT–OST–2008– Date Filed: November 10, 2008. transportation authorized by an 0341. Parties: Members of the International additional route rights made available to Date Filed: November 10, 2008. Air Transport Association. European Community carrier in the Parties: Members of the International Subject: TC31 North & Central Pacific, future. Solid aiR further requests Air Transport Association. Between Korea (Rep. of), Malaysia) and exemption authority to the extent Subject: TC31 North & Central Pacific, USA, Resolutions and Specified Fares necessary to enable it to provide the Areawide Resolutions, (Memo 0459). Tables, (Memo 0463). services described above pending Minutes: TC31/TC123 Passenger Minutes: TC31/TC123 Passenger issuance of a foreign air carrier permit Tariff Coordinating Conference, TC31 Tariff Coordinating Conference, TC31 and such additional or other relief. North and Central Pacific Minutes, North and Central Pacific Minutes, PTC123 Minutes, (Memo 0466). Docket Number: DOT–OST–1997– PTC123 Minutes, (Memo 0466). Technical Correction: TC31 North & 2046. Intended effective date: 1 April 2009. Central Pacific, Between Korea (Rep. of), Date Filed: November 13, 2008. Docket Number: DOT–OST–2008– 0342. Malaysia) and USA, (Memo 0468). Due Date for Answers, Conforming Date Filed: November 10, 2008. Intended effective date: 1 April 2009. Applications, or Motion to Modify Parties: Members of the International Docket Number: DOT–OST–2008– Scope: December 4, 2008. Air Transport Association. 0346. Description: Application of United Subject: TC31 North & Central Pacific, Date Filed: November 10, 2008. Air Lines, Inc. (United) requesting TC3 (except Japan)—North America, Parties: Members of the International renewal of its experimental certificate of Caribbean (except between Korea (Rep. Air Transport Association. public convenience and necessity for of), Malaysia and USA), Areawide Subject: TC123 North Atlantic, Route 632, Segment 1 (Sao Paulo, Rio de Resolutions, (Memo 0459). (except between USA and Korea, Rep. Janeiro, Brasilia and Belem, Brazil; Minutes: TC31/TC123 Passenger of, Malaysia), Resolutions and Specified Barranqulla, Columbia; and Buenos Tariff Coordinating Conference, TC31 Fares Tables, (Memo 0424). Aires, Argentina) and Segment 6 (Rio de North and Central Pacific Minutes, Minutes: TC31/TC123 Passenger Janeiro, Brazil). PTC123 Minutes, (Memo 0466). Tariff Coordinating Conference, TC31 Technical Correction 1: TC31 North & North and Central Pacific Minutes, PTC Docket Number: DOT–OST–1997– Central Pacific, TC3 (except Japan)— 123 Minutes, (Memo 0433). 2911. North America, Caribbean (except Intended effective date: 1 April 2009. Date Filed: November 13, 2008. between Korea (Rep. of), Malaysia and Docket Number: DOT–OST–2008– Due Date for Answers, Conforming USA), Areawide Resolutions, (Memo 0347. Applications, or Motion to Modify 0467). Technical Correction 2: TC31 Date Filed: November 10, 2008. Scope: December 4, 2008. North & Central Pacific, TC3 (except Parties: Members of the International Description: Application of United Japan)—North America, Caribbean Air Transport Association. Air Lines, Inc. (United) requesting a (except between Korea (Rep. of), Subject: TC123 Mid Atlantic, renewal of the certificate of public Malaysia and USA), Areawide Resolutions and Specified Fares Tables, convenience and necessity for Route Resolutions, (Memo 0469). Intended (Memo 0425). 747, which authorizes United to engage effective date: 1 April 2009. Minutes: TC31/TC123 Passenger in scheduled foreign air transportation Docket Number: DOT–OST–2008– Tariff Coordinating Conference, TC31 of persons, property and mail between 0343. North and Central Pacific Minutes, any points in the United States, via Date Filed: November 10, 2008. PTC123 Minutes, (Memo 0433). intermediate points in third countries, Parties: Members of the International Intended effective date: 1 April 2009. and the conterminal points Air Transport Association. Docket Number: DOT–OST–2008– Johannesburg and Cape Town, South Subject: TC31 North & Central Pacific, 0348. Africa, and beyond South Africa to Japan—North America, Caribbean, Date Filed: November 10, 2008. Harare, Zimbabwe. Resolutions and Specified Fares Tables, Parties: Members of the International (Memo 0461). Air Transport Association. Renee V. Wright, Minutes: TC31/TC123 Passenger Subject: TC123 South Atlantic, Program Manager, Docket Operations, Tariff Coordinating Conference, TC31 Resolutions and Specified Fares Tab, Federal Register Liaison. North and Central Pacific Minutes, (Memo 0426). [FR Doc. E8–31194 Filed 12–30–08; 8:45 am] PTC123 Minutes, (Memo 0466). Minutes: TC31/TC123 Passenger BILLING CODE 4910–9X–P Intended effective date: 1 April 2009. Tariff Coordinating Conference, TC31
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North and Central Pacific Minutes, Nathan R. Fenno, President, 1 Railroad at the docket facility’s Web site at PTC123 Minutes, (Memo 0433). Avenue, Cooperstown, New York 13326. http://www.regulations.gov. Intended effective date: 1 April 2009. The New York, Susquehanna and Anyone is able to search the Docket Number: DOT–OST–2008– Western Railway Corporation (NYSW) electronic form of any written 0350. seeks approval of the proposed communications and comments Date Filed: November 12, 2008. discontinuance of the Manual Block received into any of our dockets by the Parties: Members of the International Territory and establishment of Yard name of the individual submitting the Air Transport Association. Limit Territory for the SBNY Main comment (or signing the comment, if Subject: TC123, Areawide track, milepost (MP) 270.20 (W.E. submitted on behalf of an association, Resolutions, (Memo 0427). Armory Square Station) to MP 274.45 business, labor union, etc.). You may Minutes: TC31/TC123 Passenger (End of Track at Carousel Mall); the review DOT’s complete Privacy Act Tariff Coordinating Conference, TC31 SBNY Connector track, MP 272.90 (Salt Statement in the Federal Register North and Central Pacific Minutes, Land Spur Switch) to MP 273.24 published on April 11, 2000 (Volume PTC123 Minutes, (Memo 0433). (NYSW/CSXT Property Line); and 65, Number 70; Pages 19477–78). Intended effective date: 1 April 2009. SBNY Runaround, MP 271.20 (#15 Docket Number: DOT–OST–2008– Turnout) to MP 273.24 (NYSW/CSXT Issued in Washington, DC, on December 0351. Property Line), near Syracuse, New 23, 2008. Date Filed: November 12, 2008. York. Grady C. Cothen, Jr., Parties: Members of the International The reason given for the proposed Deputy Associate Administrator for Safety Air Transport Association. changes is that the passenger train Standards and Program Development. Subject: TC123. service in the area has been terminated, [FR Doc. E8–31181 Filed 12–30–08; 8:45 am] Between Korea (Rep. of), Malaysia and the freight operations for both the BILLING CODE 4910–06–P and USA Resolutions, (Memo 0428). NYSW and CSXT will be improved Minutes: TC31/TC123 Passenger under the authority of the NYSW Tariff Coordinating Conference, TC31 dispatcher located in Cooperstown, New DEPARTMENT OF TRANSPORTATION North and Central Pacific Minutes, York. PTC123 Minutes, (Memo 0433). Interested parties are invited to Federal Railroad Administration Intended effective date: 1 April 2009. participate in these proceedings by Petition for Waiver of Compliance Docket Number: DOT–OST–2008– submitting written views, data, or 0352. comments. FRA does not anticipate In accordance with Part 211 of Title Date Filed: November 12, 2008. scheduling a public hearing in 49 Code of Federal Regulations (CFR), Parties: Members of the International connection with these proceedings since notice is hereby given that the Federal Air Transport Association. the facts do not appear to warrant a Subject: Technical Correction: TC3 Railroad Administration (FRA) received hearing. If any interested party desires a request for a waiver of compliance Japan, Korea-South East Asia, Except an opportunity for oral comment, they between Korea (Rep. of) and Guam, with certain requirements of its safety should notify FRA, in writing, before standards. The individual petition is Northern Mariana Islands, Expedited the end of the comment period and Resolution 002na, (Memo 1248). described below, including the party specify the basis for their request. seeking relief, the regulatory provisions Intended effective date: 15 December All communications concerning these 2008. involved, the nature of the relief being proceedings should identify the requested, and the petitioner’s Renee V. Wright, appropriate docket number (e.g., Waiver arguments in favor of relief. Program Manager, Docket Operations, Petition Docket Number FRA–2008– Federal Register Liaison. 0144) and may be submitted by any of City of Suffolk, Virginia [FR Doc. E8–31159 Filed 12–30–08; 8:45 am] the following methods: [Waiver Petition Docket Number FRA–2008– • BILLING CODE 4910–9X–P Web site: http:// 0087] www.regulations.gov. Follow the online The City of Suffolk, Virginia (City), instructions for submitting comments. • seeks a permanent waiver of compliance DEPARTMENT OF TRANSPORTATION Fax: 202–493–2251. • Mail: Docket Operations Facility, from certain provisions of the Use of Locomotive Horns at Highway-Rail Federal Railroad Administration U.S. Department of Transportation, 1200 New Jersey Avenue, SE., W12–140, Grade Crossings, 49 CFR part 222. The Notice of Application for Approval of Washington, DC 20590. City intends to establish a Pre-Rule Discontinuance or Modification of a • Hand Delivery: 1200 New Jersey Quiet Zone that it had previously Railroad Signal System or Relief from Avenue, SE., Room W12–140, continued under the provisions of 49 the Requirements of Title 49 Code of Washington, DC 20590, between 9 a.m. CFR part 222.41(c)(1). The City is Federal Regulations Part 236 and 5 p.m., Monday through Friday, seeking a waiver to extend: (1) The except Federal holidays. mailing date for a Notice of Intent as Pursuant to Title 49 Code of Federal Communications received within 45 provided in 49 CFR Part Regulations (CFR) Part 235 and 49 days of the date of this notice will be 222.41(c)(2)(i)(A) that states that the U.S.C. 20502(a), the following railroad considered by FRA before final action is Notice of Intent must be mailed by has petitioned the Federal Railroad taken. Comments received after that February 24, 2008; and (2) the filing Administration (FRA) seeking approval date will be considered as far as date for a Detailed Plan as provided in for the discontinuance or modification practicable. All written communications 49 CFR part 222.41(c)(2)(i)(B) that states of the signal system or relief from the concerning these proceedings are that the Detailed Plan must be filed with requirements of 49 CFR part 236, as available for examination during regular FRA by June 24, 2008. detailed below. business hours (9 a.m.–5 p.m.) at the The City states that its failure to meet [Docket Number FRA–2008–0144] above facility. All documents in the the required deadlines was a direct Applicant: New York, Susquehanna public docket are also available for result of its inexperience with the FRA’s and Western Railway Corporation, Mr. inspection and copying on the Internet policies and procedures. The City has
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dedicated staff to ensure that this received into any of our dockets by the construction and ship operations. These oversight will not occur again. name of the individual submitting the records are required to be retained to The City states that it is attempting to comment (or signing the comment, if permit proper financial review of determine required modifications and submitted on behalf of an association, pertinent records at the conclusion of a make the necessary modifications to the business, labor union, etc.). You may contract when the contractor was crossing in question to continue the review DOT’s complete Privacy Act receiving government financial existing locomotive horn sounding Statement in the Federal Register assistance. restrictions. The City anticipates a cost published on April 11, 2000 (Volume Dates: Comments should be submitted of $300,000 to $500,000, to make the 65, Number 70; Pages 19477–78). on or before March 2, 2009. necessary upgrades in order to be in Issued in Washington, DC, on December Annual Estimated Burden Hours: 50 compliance with FRA regulations. 23, 2008. hours. The City states that it is currently Grady C. Cothen, Jr., ADDRESSES: Send comments to the negotiating with the Norfolk Southern Office of Information and Regulatory Railway Company (NS) to garner its Deputy Associate Administrator for Safety Standards and Program Development. Affairs, Office of Management and support for the waiver. The City also Budget, 725 17th Street, NW., states that NS will notify FRA if it has [FR Doc. E8–31180 Filed 12–30–08; 8:45 am] BILLING CODE 4910–06–P Washington, DC 20503, Attention: an objection. The City decided to file Maritime Administration Desk Officer. the petition alone in order to expedite Comments are invited on: Whether the process, and that a joint submission DEPARTMENT OF TRANSPORTATION the proposed collection of information by the City and railroad is not likely to is necessary for the proper performance significantly contribute to public safety. Maritime Administration of the functions of the agency, including Interested parties are invited to whether the information will have participate in these proceedings by Reports, Forms and Recordkeeping practical utility; the accuracy of the submitting written views, data, or Requirements; Agency Information agency’s estimate of the burden of the comments. FRA does not anticipate Collection Activity Under OMB Review proposed information collection; ways scheduling a public hearing in AGENCY: Maritime Administration, DOT. to enhance the quality, utility and connection with these proceedings since clarity of the information to be ACTION: Notice and request for the facts do not appear to warrant a collected; and ways to minimize the comments. hearing. If any interested party desires burden of the collection of information an opportunity for oral comment, they SUMMARY: In compliance with the on respondents, including the use of should notify FRA, in writing, before Paperwork Reduction Act of 1995, this automated collection techniques or the end of the comment period and notice announces that the Information other forms of information technology. specify the basis for their request. A comment to OMB is best assured of All communications concerning these Collection abstracted below has been forwarded to the Office of Management having its full effect, if OMB receives it proceedings should identify the within 30 days of publication. appropriate docket number (e.g., Waiver and Budget (OMB) for review and Petition Docket Number FRA–2008– approval. The nature of the information Dated: December 19, 2008. 0087) and may be submitted by any of collection is described as well as its Leonard Sutter, the following methods: expected burden. The Federal Register Secretary, Maritime Administration. Notice with a 60-day comment period • Web site: http:// [FR Doc. E8–31061 Filed 12–30–08; 8:45 am] soliciting comments on the following www.regulations.gov. Follow the online BILLING CODE 4910–81–P instructions for submitting comments. collection of information was published • Fax: 202–493–2251. on September 23, 2008. No comments • Mail: Docket Operations Facility, were received. DEPARTMENT OF TRANSPORTATION U.S. Department of Transportation, 1200 DATES: Comments must be submitted on New Jersey Avenue, SE., W12–140, or before January 30, 2009. Surface Transportation Board Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: [STB Docket No. AB–55 (Sub-No. 692X)] • Hand Delivery: 1200 New Jersey Ruth Develbis, Maritime Avenue, SE., Room W12–140, Administration, 1200 New Jersey CSX Transportation, Inc.— Washington, DC 20590, between 9 a.m. Avenue, SE., Washington, DC 20590. Abandonment Exemption—in Niagara and 5 p.m., Monday through Friday, Telephone: (202) 366–2314; or e-Mail: County, NY except Federal Holidays. [email protected]. Copies of this Communications received within 30 collection also can be obtained from that CSX Transportation, Inc. (CSXT) has days of the date of this notice will be office. filed a notice of exemption under 49 considered by FRA before final action is SUPPLEMENTARY INFORMATION: Maritime CFR 1152 Subpart F—Exempt taken. Comments received after that Administration. Abandonments to abandon a 1.06-mile date will be considered as far as Title: Records Retention Schedule. line of railroad, known as the Wurlitzer practicable. All written communications OMB Control No.: 2133–0501. Industrial Track, on CSXT’s Northern concerning these proceedings are Type of Request: Extension of Region, Albany Division, Niagara available for examination during regular currently approved collection. Subdivision, extending from milepost business hours (9 a.m.–5 p.m.) at the Affective Public: United States QDJ 0.94 to the end of track at milepost above facility. All documents in the shipping companies receiving QDJ 2.0, in North Tonawanda, Niagara public docket are also available for government financial aid. County, NY. The line traverses United inspection and copying on the Internet Forms: None. States Postal Service Zip Code 14120. at the docket facility’s Web site at Abstract: Section 801 of the Merchant CSXT has certified that: (1) No local http://www.regulations.gov. Marine Act, 1936, as amended (46 traffic has moved over the line for at Anyone is able to search the U.S.C. 53101, note), requires retention least 2 years; (2) any overhead traffic on electronic form of any written of records pertaining to financial the line can be rerouted over other lines; communications and comments assistance programs for ship (3) no formal complaint filed by a user
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of rail service on the line (or by a state Surface Transportation Board, consolidating certain directly and or local government entity acting on Washington, DC 20423–0001) or by indirectly controlled subsidiaries into a behalf of such user) regarding cessation calling SEA, at (202) 245–0305. single Delaware limited partnership, of service over the line either is pending [Assistance for the hearing impaired is Durham School Services, L.P. (DSSLP), with the Board or with any U.S. District available through the Federal a motor passenger carrier. NEC states Court or has been decided in favor of Information Relay Service (FIRS) at 1– that it will retain its ultimate ownership complainant within the 2-year period; 800–877–8339.] Comments on and control of DSSLP because it is the and (4) the requirements of 49 CFR environmental and historic preservation sole member of Durham Holding II, 1105.7 (environmental report), 49 CFR matters must be filed within 15 days L.L.C. and Durham Holding I, L.L.C., 1105.8 (historic report), 49 CFR 1105.11 after the EA becomes available to the respectively, the general partner and (transmittal letter), 49 CFR 1105.12 public. limited partner of DSSLP, both (newspaper publication), and 49 CFR Environmental, historic preservation, noncarriers. The directly and indirectly 1152.50(d)(1) (notice to governmental public use, or trail use/rail banking controlled subsidiaries will provide agencies) have been met. conditions will be imposed, where exempt school bus services pursuant to As a condition to this exemption, any appropriate, in a subsequent decision. 49 U.S.C. 13506(a)(1) and limited employee adversely affected by the Pursuant to the provisions of 49 CFR charter passenger carrier services to the abandonment shall be protected under 1152.29(e)(2), CSXT shall file a notice of public. Oregon Short Line R. Co.— consummation with the Board to signify According to NEC, restructuring will Abandonment— Goshen, 360 I.C.C. 91 that it has exercised the authority involve two stages: (1) Polli Leasing, (1979). To address whether this granted and fully abandoned the line. If Inc. will be merged into Reliance Motor condition adequately protects affected consummation has not been effected by Coach Company, Inc., and Murphy Bus employees, a petition for partial CSXT’s filing of a notice of Service, Inc. will be merged into revocation under 49 U.S.C. 10502(d) consummation by December 31, 2009, Murphy Transportation, Inc.; and (2) must be filed. and there are no legal or regulatory Jones School Bus Service, Inc., Reliance Provided no formal expression of barriers to consummation, the authority Motor Coach Company, Inc., Double A. intent to file an offer of financial to abandon will automatically expire. Transportation, Inc., and Murphy assistance (OFA) has been received, this Board decisions and notices are Transportation, Inc. will be merged into exemption will be effective on January available on our Web site at http:// DSSLP. NEC states that, after the 31, 2009, unless stayed pending www.stb.dot.gov. restructuring, DSSLP will continue to exist while the other directly and reconsideration. Petitions to stay that do Decided: December 22, 2008. not involve environmental issues,1 indirectly controlled subsidiaries will By the Board, David M. Konschnik, cease to exist. formal expressions of intent to file an Director, Office of Proceedings. 2 The transaction is scheduled to be OFA under 49 CFR 1152.27(c)(2), and Jeffrey Herzig, trail use/rail banking requests under 49 consummated on or about December 31, Clearance Clerk. CFR 1152.29 must be filed by January 2008, or at least 7 days after the filing 12, 2009. Petitions to reopen or requests [FR Doc. E8–30921 Filed 12–30–08; 8:45 am] date of this notice. for public use conditions under 49 CFR BILLING CODE 4915–01–P This is a transaction within a 1152.28 must be filed by January 21, corporate family of the type specifically 2009, with the Surface Transportation exempted from prior review and DEPARTMENT OF TRANSPORTATION Board, 395 E Street, SW., Washington, approval under 49 CFR 1182.9. NEC states that the transaction will not result DC 20423–0001. Surface Transportation Board A copy of any petition filed with the in adverse changes in service levels, Board should be sent to CSXT’s [STB Docket No. MC F–21031] significant operational changes, or a representative: Kathryn R. Barney, 500 change in the competitive balance with Water Street, J–150, Jacksonville, FL National Express Corporation—Intra- carriers outside the corporate family. 32202. Corporate Family Transaction Applicant further states that (1) it will If the verified notice contains false or Exemption accomplish the reorganization through an Agreement and Plan of Merger misleading information, the exemption National Express Corporation (NEC), a is void ab initio. entered into by and between the affected noncarrier, has filed a verified notice of entities, and (2) there will be no CSXT has filed environmental and exemption under the Board’s class historic reports which address the material effect on employees of the exemption procedures at 49 CFR companies involved in the effects, if any, of the abandonment on 1182.9.1 NEC seeks to implement the the environment and historic resources. restructuring. restructuring as part of an overall If the verified notice contains false or SEA will issue an environmental consolidation of its corporate structure assessment (EA) by January 6, 2009. misleading information, the Board shall in order to achieve organizational and summarily revoke the exemption and Interested persons may obtain a copy of operational efficiencies and related cost the EA by writing to SEA (Room 1100, require divestiture. Petitions to revoke reductions. the exemption under 49 U.S.C. 13541(d) Under the transaction, NEC, a 1 may be filed at any time. See 49 CFR The Board will grant a stay if an informed Delaware corporation, intends to decision on environmental issues (whether raised 1182.9(c). by a party or by the Board’s Section of reorganize its corporate structure by An original and 10 copies of all Environmental Analysis (SEA) in its independent pleadings, referring to STB Docket No. investigation) cannot be made before the 1 The Board exempted intra-corporate family exemption’s effective date. See Exemption of Out- transactions of motor carriers of passengers that do MCF–21031, must be filed with the of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any not result in significant operational changes, Surface Transportation Board, 395 F request for a stay should be filed as soon as possible adverse changes in service levels, or a change in the Street, SW., Washington, DC 20423– so that the Board may take appropriate action before competitive balance with carriers outside the 0001. In addition, a copy of each the exemption’s effective date. corporate family in Class Exemption for Motor 2 Each OFA must be accompanied by the filing Passenger Intra-Corporate Family Transactions, pleading must be served on Thomas W. fee, which is currently set at $1,500. See 49 CFR STB Finance Docket No. 33685 (STB served Feb. 18, Wilcox, 401 9th St., NW., Suite 1000, 1002.2(f)(25). 2000.) Washington, DC 20004.
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Board decisions and notices are Clymers; (2) TPW at Logansport; and (3) DEPARTMENT OF TRANSPORTATION available on our Web site at http:// CERA at Kokomo. Surface Transportation Board www.stb.gov. US Rail certifies that its projected Decided: December 22, 2008. annual revenues as a result of the [STB Finance Docket No. 35207] By the Board, David M. Konschnik, transaction will not exceed those that Director, Office of Proceedings. would qualify it as a Class III carrier and Morristown & Erie Railway Inc., d/b/a Stourbridge Railway—Operation Jeffrey Herzig, further certifies that its projected annual Exemption—Stourbridge Railroad Clearance Clerk. revenues will not exceed $5 million. Company [FR Doc. E8–30953 Filed 12–30–08; 8:45 am] The earliest this transaction may be BILLING CODE 4915–01–P consummated is January 16, 2009, the Morristown & Erie Railway Inc., effective date of the exemption (30 days d/b/a Stourbridge Railway (ME d/b/a after the corrected notice exemption was STRY), a Class III rail carrier, has filed DEPARTMENT OF TRANSPORTATION filed). a verified notice of exemption under 49 CFR 1150.41 to operate, pursuant to an Surface Transportation Board Pursuant to the Consolidated agreement with Stourbridge Railroad Appropriations Act, 2008, Pub. L. No. Company (SBRR), SBRR’s [STB Finance Docket No. 35205] 110–161, § 193, 121 Stat. 1844 (2007), approximately 24.80 miles of rail line US Rail Corporation—Lease and nothing in this decision authorizes the extending between milepost 0.0 at Operation Exemption—Winamac following activities at any solid waste Lackawaxen, in Pike County, PA, and Southern Railway Company and rail transfer facility: Collecting, storing milepost 24.8 at Honesdale, in Wayne Kokomo Grain Co., Inc. or transferring solid waste outside of its County, PA. The agreement also original shipping container; or provides that ME d/b/a STRY will have US Rail Corporation (US Rail), a Class separating or processing solid waste exclusive passenger operating rights III rail carrier, has filed a verified notice (including baling, crushing, compacting over the line. ME d/b/a STRY will of exemption under 49 CFR 1150.41 to and shredding). The term ‘‘solid waste’’ interchange freight with the Central acquire by lease and to operate is defined in section 1004 of the Solid New York Railroad Company at 1 approximately 58.89 miles of rail lines Waste Disposal Act, 42 U.S.C. 6903. milepost 0.0 at Lackawaxen, PA. owned by Winamac Southern Railway The earliest this transaction can be Company (WSRY) and Kokomo Grain If the verified notice contains false or consummated is January 16, 2009, the Co., Inc., located in Indiana: (1) The misleading information, the exemption effective date of the exemption (30 days Bringhurst Line, between milepost 50.1 is void ab initio. Petitions to revoke the after the exemption was filed). at Bringhurst and milepost 71.5 at Van exemption under 49 U.S.C. 10502(d) ME d/b/a STRY certifies that its Jct. (Logansport); (2) the Kokomo Line, may be filed at any time. The filing of projected annual revenues as a result of between milepost 74.5 at Eighteenth St. a petition to revoke will not the transaction will not result in ME Yard (Logansport) and milepost 97.9 at automatically stay the effectiveness of d/b/a STRY’s becoming a Class II or Kokomo; (3) the Kokomo Belt Line, the exemption. Petitions for stay must Class I rail carrier and that its projected between milepost 0.0 at E. Markland be filed no later than January 9, 2009 (at annual revenues will not exceed $5 Ave. (Kokomo) and milepost 1.5 at S. least 7 days before the exemption million. Union St. (Kokomo); and (4) the Amboy becomes effective). Pursuant to the Consolidated Appropriations Act, 2008, Public Law Line, between milepost 147.07 at An original and 10 copies of all ± No. 110–161, § 193, 121 Stat. 1844 Amboy and milepost 134.48 at pleadings, referring to STB Finance Marion.2 (2007), nothing in this decision Docket No. 35205, must be filed with Pursuant to the lease agreement, US authorizes the following activities at any the Surface Transportation Board, 395 E Rail will also obtain incidental trackage solid waste rail transfer facility: Street, SW., Washington, DC 20423– rights over 3.0 miles of rail line owned collecting, storing, or transferring solid by Toledo, Peoria & Western Railway 0001. In addition, a copy of each waste outside of its original shipping Corp. (TPW), between milepost 71.5 at pleading must be served on Eric M. container; or separating or processing Van Jct. (Logansport) and milepost 74.5 Hocky, One Commerce Square, 2005 solid waste (including baling, crushing, at Eighteenth St. Yard (Logansport).3 US Market Street, Suite 1910, Philadelphia, compacting, and shredding). The term Rail will interchange traffic with: (1) PA 19103. ‘‘solid waste’’ is defined in section 1004 NSR at Marion Goodman Yard and Board decisions and notices are of the Solid Waste Disposal Act, 42 available on our Web site at http:// U.S.C. 6903. 1 Central Railroad Company of Indianapolis www.stb.dot.gov. If the verified notice contains false or (CERA) currently operates the lines, but will no misleading information, the exemption longer after December 31, 2008. Decided: December 22, 2008. is void ab initio. Petitions to revoke the 2 A notice in this docket was originally filed on By the Board, David M. Konschnik, exemption under 49 U.S.C. 10502(d) December 5, 2008. On December 17, 2008, US Rail’s Director, Office of Proceedings. may be filed at any time. The filing of representative filed a notice styled a ‘‘corrected’’ notice containing a number of revisions to the Jeffrey Herzig, a petition to revoke will not original notice. In response, the Board halted Clearance Clerk. automatically stay the effectiveness of publication of the original notice scheduled for [FR Doc. E8–31067 Filed 12–30–08; 8:45 am] the exemption. Stay petitions must be December 19, 2008. Because the sought revisions filed by January 9, 2009 (at least 7 days are not de minimis in nature, the corrected notice BILLING CODE 4915–01–P is being served and published as a new notice before the exemption becomes today. effective). 3 In Winamac Southern Railway Company— An original and 10 copies of all Trackage Rights Exemption—A. & R. Line, Inc., STB pleadings, referring to STB Finance Finance Docket No. 35208 (STB served Dec. 24, 2008), WSRY obtained authority to operate Docket No. 35207, must be filed with pursuant to these same trackage rights to correct an the Surface Transportation Board, 395 E earlier oversight. Street, SW., Washington, DC 20423–
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0001. In addition, a copy of each DEPARTMENT OF THE TREASURY Economic Policy Advisor to the SED, pleading must be served on John K. Department of Treasury, 1500 Fiorilla, Esq., Capehart & Scatchard, Open Meeting of the Advisory Pennsylvania Avenue, NW., P.A., 8000 Midlantic Drive, Suite 300S, Committee on the Ten-Year Framework Washington, DC 20220, at (202) 622– Mount Laurel, NJ 08054. for Energy and Environment 6780. Board decisions and notices are AGENCY: Office of the Special Envoy to SUPPLEMENTARY INFORMATION: In available on our Web site at http:// China and the SED, Department of the accordance with section 10(a) of the www.stb.dot.gov. Treasury. Federal Advisory Committee Act, 5 ACTION: Notice of meeting. U.S.C. App. II, section 10(a), and the Decided: December 22, 2008. regulations thereunder, Katherine Casey By the Board, David M. Konschnik, SUMMARY: The Department of Treasury’s Delhotal, Designated Federal Officer of Director, Office of Proceedings. Advisory Committee on the Ten-Year the Advisory Committee, has ordered Jeffrey Herzig, Framework for Energy and Environment publication of this notice that the Clearance Clerk. will convene its first meeting on Advisory Committee will convene its Thursday, January 15, 2009, in the Large [FR Doc. E8–31017 Filed 12–30–08; 8:45 am] first meeting on Thursday, January 15, Conference Room of the main BILLING CODE 4915–01–P 2009, in the Large Conference Room in Department Building, 1500 the Main Department Building, 1500 Pennsylvania Avenue, NW., Pennsylvania Avenue, NW., Washington, DC, beginning at 2:30 p.m. Washington, DC 20220 beginning at 2:30 Eastern Time. The meeting will be open DEPARTMENT OF THE TREASURY p.m. Eastern Time. The meeting will be to the public. open to the public. Because the meeting Office of the Secretary DATES: The meeting will be held on will be held in a secured facility, Thursday, January 15, 2009 at 2:30 p.m. members of the public who plan to List of Countries Requiring Eastern Time. attend the meeting must contact the Cooperation With an International ADDRESSES: The Advisory Committee Office of the Special Envoy to China and Boycott will convene its first meeting in the the SED at (202) 622–6780, by 5 p.m. Large Conference Room of the Main Eastern Time on January 7th, 2009, to In order to comply with the mandate Department Building, 1500 inform the Department of the desire to of section 999(a)(3) of the Internal Pennsylvania Avenue, NW., attend the meeting and to provide the Revenue Code of 1986, the Department Washington, DC. The public is invited information that will be required to of the Treasury is publishing a current to submit written statements with the facilitate entry into the Main list of countries which require or may Advisory Committee by any of the Department Building. The purpose of require participation in, or cooperation following methods: this meeting is to discuss general organizational matters of the Advisory with, an international boycott (within Electronic Statements Committee and begin discussing the the meaning of section 999(b)(3) of the • Please use the following e-mail Internal Revenue Code of 1986). issues impacting the Ten-Year address to submit electronic copies of Framework on Energy and Environment. On the basis of the best information your written statements: Dated: December 22, 2008. currently available to the Department of [email protected]. Lindsay Valdeon, the Treasury, the following countries Paper Statements require or may require participation in, Deputy Executive Secretary, Treasury • Department. or cooperation with, an international Send paper statements in triplicate boycott (within the meaning of section to Advisory Committee on the Ten-Year [FR Doc. E8–31065 Filed 12–30–08; 8:45 am] 999(b)(3) of the Internal Revenue Code Framework for Energy and BILLING CODE 4810–25–P of 1986). Environment, Office of the Special Envoy to China and the SED, Room Kuwait 1308, Department of Treasury, 1500 DEPARTMENT OF THE TREASURY Lebanon Pennsylvania Avenue, NW., Washington, DC 20220. Office of Foreign Assets Control Libya In general, the Department will also Additional Designation of Entities Qatar make such statements available for Pursuant to Executive Order 13382 Saudi Arabia public inspection and copying in the AGENCY: Office of Foreign Assets Syria Department’s Library, Room 1428, Main Department Building, 1500 Control, Treasury. United Arab Emirates Pennsylvania Avenue, NW., ACTION: Notice. Yemen, Republic of Washington, DC 20220, on official business days between the hours of 10 SUMMARY: The Treasury Department’s Iraq is not included in this list, but its a.m. and 5 p.m. Eastern Time. You can Office of Foreign Assets Control status with respect to future lists make an appointment to inspect (‘‘OFAC’’) is publishing the names of remains under review by the statements by telephoning (202) 622– two newly designated entities whose Department of the Treasury. 0990. All statements, including property and interests in property are Dated: December 19, 2008. attachments and other supporting blocked pursuant to Executive Order 13382 of June 28, 2005, ‘‘Blocking John L. Harrington, materials, received are part of the public record and subject to public disclosure. Property of Weapons of Mass International Tax Counsel (Tax Policy). You should submit only information Destruction Proliferators and Their [FR Doc. E8–30877 Filed 12–30–08; 8:45 am] you wish to make available publicly. Supporters.’’ BILLING CODE 4810–25–M FOR FURTHER INFORMATION CONTACT: DATES: The designation by the Director Casey Delhotal, Environmental and of OFAC of the two entities identified in
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this notice pursuant to Executive Order weapons of mass destruction and the described in clause (2) above or any 13382 is effective on December 17, means of delivering them. person whose property and interests in 2008. Section 1 of the Order blocks, with property are blocked pursuant to the certain exceptions, all property and Order; and (4) any person determined FOR FURTHER INFORMATION CONTACT: interests in property that are in the by the Secretary of the Treasury, in Assistant Director, Compliance United States, or that hereafter come consultation with the Secretary of State, Outreach & Implementation, Office of within the United States or that are or the Attorney General, and other relevant Foreign Assets Control, Department of hereafter come within the possession or agencies, to be owned or controlled by, the Treasury. Washington, DC 20220, control of United States persons, of: (1) or acting or purporting to act for or on tel.: (202) 622–2490. The persons listed in an Annex to the behalf of, directly or indirectly, any SUPPLEMENTARY INFORMATION: Order; (2) any foreign person person whose property and interests in Electronic and Facsimile Availability determined by the Secretary of State, in property are blocked pursuant to the consultation with the Secretary of the Order. This document and additional Treasury, the Attorney General, and On December 17, 2008, the Director of information concerning OFAC are other relevant agencies, to have available from OFAC’s Web site OFAC, in consultation with the engaged, or attempted to engage, in Departments of State, Justice, and other (http://www.treas.gov/offices/ activities or transactions that have relevant agencies, designated two enforcement/ofac) or via facsimile materially contributed to, or pose a risk entities whose property and interests in through a 24-hour fax-on demand of materially contributing to, the property are blocked pursuant to service, tel.: (202) 622–0077. proliferation of weapons of mass Executive Order 13382. Background: destruction or their means of delivery (including missiles capable of delivering The list of additional designees is as On June 28, 2005, the President, such weapons), including any efforts to follows: invoking the authority, inter alia, of the manufacture, acquire, possess, develop, 1. ASSA CORP (a.k.a. ‘‘ASSA’’), New International Emergency Economic transport, transfer or use such items, by York, New York, Tax ID No. 1368932, Powers Act (50 U.S.C. 1701–1706) any person or foreign country of United States [NPWMD]. (‘‘IEEPA’’), issued Executive Order proliferation concern; (3) any person 2. ASSA CO. LTD., 6 Britania Place, 13382 (70 FR 38567, July 1, 2005) (the determined by the Secretary of the Bath Street, St. Helier JE2 4SU, Jersey ‘‘Order’’), effective at 12:01 a.m. eastern Treasury, in consultation with the [NPWMD]. daylight time on June 29, 2005. In the Secretary of State, the Attorney General, Order, the President took additional and other relevant agencies, to have Dated: December 23, 2008. steps with respect to the national provided, or attempted to provide, Adam Szubin, emergency described and declared in financial, material, technological or Director, Office of Foreign Assets Control. Executive Order 12938 of November 14, other support for, or goods or services [FR Doc. E8–31125 Filed 12–30–08; 8:45 am] 1994, regarding the proliferation of in support of, any activity or transaction BILLING CODE 4811–45–P
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Part II
Department of Commerce National Oceanic and Atmospheric Administration
50 CFR Part 660 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2009–2010 Biennial Specifications and Management Measures; Proposed Rule
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DEPARTMENT OF COMMERCE submit Confidential Business where such harvest will not deter Information or otherwise sensitive or rebuilding of overfished stocks. Routine National Oceanic and Atmospheric protected information. management measures for the Administration NMFS will accept anonymous commercial fisheries include: Bycatch comments. Attachments to electronic limits, trip and cumulative landing 50 CFR Part 660 comments will be accepted in Microsoft limits, time/area closures, size limits, [Docket No. 0809121213–81246–01] Word, Excel, WordPerfect, or Adobe and gear restrictions. Routine PDF file formats only. management measures for the RIN 0648–AX24 FOR FURTHER INFORMATION CONTACT: recreational fisheries include bag limits, size limits, gear restrictions, fish Magnuson-Stevens Act Provisions; Gretchen Arentzen (Northwest Region, NMFS), phone: 206–526–6147, fax: 206– dressing requirements, and time/area Fisheries Off West Coast States; closures. Routine management measures Pacific Coast Groundfish Fishery; 526–6736 and e-mail [email protected]. are used to modify fishing behavior 2009–2010 Biennial Specifications and during the fishing year to allow a Management Measures SUPPLEMENTARY INFORMATION: harvest specification to be achieved, or AGENCY: National Marine Fisheries Electronic Access to prevent a harvest specification from Service (NMFS), National Oceanic and being exceeded. The groundfish fishery This proposed rule is accessible via is managed with a variety of other Atmospheric Administration (NOAA), the Internet at the Office of the Federal Commerce. regulatory requirements that are not Register’s Web site at http:// considered routine, and which are ACTION: Proposed rule; request for www.gpoaccess.gov/fr/index.html. outside of this rulemaking and found at comments. Background information and documents 50 CFR 660, subpart G. The regulations are available at the Pacific Fishery SUMMARY: NMFS proposes a rule to set at 50 CFR 660, subpart G include, but Management Council’s Web site at are not limited to: Long-term harvest the 2009–2010 harvest specifications http://www.pcouncil.org/. and management measures for allocations; recordkeeping and reporting groundfish taken in the U.S. exclusive Background requirements; monitoring requirements; license limitation programs; and economic zone (EEZ) off the coasts of The amount of each Pacific Coast essential fish habitat (EFH) protection Washington, Oregon, and California and groundfish species or species group that measures. Together the routine to revise rebuilding plans for four of the is available for harvest in a specific year management measures and regulations seven overfished rockfish species, is referred to as a harvest specification. consistent with the Mangunson-Stevens at 50 CFR 660, subpart G are used to Harvest specifications include manage the Pacific Coast groundfish Fishery Conservation and Management acceptable biological catches (ABCs), Act and the Pacific Coast Groundfish fishery to stay within the harvest optimum yields (OYs), and harvest specifications identified in the Fishery Management Plan. Together, the guidelines (HGs). Harvest specifications revisions to rebuilding plans and the rulemaking. may also include ‘‘set-asides’’ of The Pacific Coast Groundfish Fishery 2007–2008 harvest specifications and harvestable amounts of fish. management measures are intended to Management Plan (FMP) requires the The ABC is a biologically based Council to set harvest specifications and rebuild overfished stocks as soon as estimate of the amount of fish that may possible, taking into account the status management measures for groundfish at be harvested each year without affecting least biennially. This proposed rule and biology of the stocks, the needs of the sustainability of the resource. The would set 2009–2010 harvest fishing communities, and the ABC may be modified with specifications and management interaction of the overfished stocks precautionary adjustments to account measures for all of the 90 plus within the marine environment. for uncertainty. An OY is a target groundfish species or species groups DATES: Comments on this proposed rule harvest level for a species or species managed under the Pacific Coast must be received no later than 5 p.m., groups. The OYs may be set equal to the Groundfish FMP, except for Pacific local time on January 30, 2009. ABC for the species or species group, whiting. Pacific whiting harvest ADDRESSES: You may submit comments, but are often set lower as a specifications are proposed as a range in identified by RIN 0648–AX24 by any precautionary measure. The Council’s this action. The Council will consider one of the following methods: policies on setting ABCs, OYs, and other final Pacific whiting specifications after • Electronic Submissions: Submit all harvest specifications are discussed new stock assessments are prepared at electronic public comments via the later in the preamble to this proposed the beginning of each year. The final Federal eRulemaking Portal http:// rule. Proposed harvest specifications for specifications for 2009 and 2010 will be www.regulations.gov. 2009–2010 are provided in Tables 1a announced following the March 2009 • Fax: 206–526–6736, Attn: Gretchen through 2c. and March 2010 Council meetings, Arentzen Management measures being respectively. • Mail: D. Robert Lohn, proposed for 2009–2010 work in There are seven Pacific Coast Administrator, Northwest Region, combination with the existing groundfish species that are currently NMFS, 7600 Sand Point Way NE, regulations to create a management being managed under rebuilding plans Seattle, WA 98115–0070, Attn: Gretchen structure that is intended to constrain established in Amendment 16–4 to the Arentzen. fishing so the catch of overfished FMP. Amendment 16–4 was developed Instructions: All comments received groundfish species does not exceed the and approved to respond to the decision are a part of the public record and will rebuilding-based OYs while allowing, to in Natural Resources Defense Council v. generally be posted to http:// the extent practicable, the OYs for NMFS, 421 F.3d 872 (9th Cir. 2005) www.regulations.gov without change. healthier groundfish stocks that co- [hereinafter NRDC v. NMFS]. The All Personal Identifying Information (for occur with the overfished stocks to be overfished species are: Bocaccio, canary example, name, address, etc.) achieved. In order to rebuild overfished rockfish, cowcod, darkblotched voluntarily submitted by the commenter species, allowable harvest levels of rockfish, Pacific Ocean Perch (POP), may be publicly accessible. Do not healthy species will only be achieved widow rockfish, and yelloweye rockfish.
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This action proposes to revise fishing communities. Fishing available during the fishing year, NMFS rebuilding plans for four of the seven communities need a sustainable fishery and the Council’s knowledge may overfished groundfish species (canary that is safe, well managed, and change. Catch data vary in quality and rockfish, darkblotched rockfish, profitable, that provides jobs and abundance both before and during the cowcod, and yelloweye rockfish), incomes, that contributes to the local season, and catch of the most consistent with the approach taken in social fabric, culture, and image of the constraining overfished species may Amendment 16–4, by revising target community, and helps market the also occur in fisheries not managed rebuilding dates and/or harvest rates community and its services and under the Pacific Coast groundfish FMP. specified in Federal regulations at 50 products. In its 2007–2008 Managing a coastwide fishery to ensure CFR 660.365. recommendations for overfished species that OYs of overfished species are not The focus of the preamble discussion rebuilding plans and groundfish exceeded is particularly difficult is the Council’s ABC and OY policies specifications and management because of the low OY levels. If new for 2009 and 2010, new harvest measures, the Council was clear that it information received during the season specifications, new fishery specific did not expect fishing community needs reveals that landings are occurring at a management measures, and other issues could be met. The Council took the faster pace than were initially related to the management of the Pacific needs of communities into account as it anticipated, management action would Coast groundfish fishery in 2009 and analyzed different rebuilding plans and be needed to keep the harvest of healthy 2010. Preambles to prior proposed rules management measures alternatives. As a stocks and the incidental catch of have more thoroughly discussed result, the rebuilding plans, groundfish overfished species at or below their bycatch accounting and reduction specifications and management specified OYs. If these inseason measures (See 67 FR 1555, January 11, measures recommended by the Council adjustments to management measures 2002; 68 FR 936, January 7, 2003; 69 FR and adopted for 2007–2008 were are dramatic, such as an early closure of 1380, January 8, 2004; 69 FR 56563, expected to allow fishing businesses a fishery, then the effects of September 21, 2004 for historical and communities to operate at a level management actions on the fishing information on the bycatch model). On that would provide for the continued communities can be severe. June 27, 2006, NMFS published a existence of those fishing businesses To prevent major inseason proposed rule to implement and communities and would only allow fluctuations in available harvest, the Amendment 18 to the FMP on bycatch opportunities for economic growth or 2009–2010 harvest levels account for mitigation (71 FR 36506.) The preamble profit if they were consistent with the uncertainty in order to minimize the to the Amendment 18 proposed rule adopted rebuilding policies. In many potential need for dramatic inseason discussed NMFS and Council bycatch instances the harvests of healthy stocks measures. In other words, currently accounting and mitigation policies, were curtailed by the projected effects available scientific information is used programs, and regulations. The on overfished species. The Council used to design management measures that are preamble for the 2007 and 2008 harvest this same approach in the development projected to result in overfished species specifications and management of the 2009 and 2010 specifications and harvest levels that are somewhat lower measures fully described a new management measures. than their OYs. This practice provides a approach to overfished species Further discussion on how the needs buffer to account for both scientific management that was taken by NMFS, of fishing communities were taken into uncertainty and unexpected the Council, and state and tribal account can be found in the preamble to occurrences. In general, a buffer helps partners in light of NRDC v. NMFS (71 the proposed rule for the 2007–2008 prevent OYs from being exceeded. Even FR 57764, September 29, 2006). The specifications and management with these safeguards, information that same approach has been followed in measures (71 FR 57765, September 29, becomes available during the 2009–2010 this rulemaking. Issues that were 2006). The supporting DEIS for this fishing year may reveal that previously thoroughly discussed in previous action assesses, through the analysis of set management measures need to be rulemakings will only be briefly several rebuilding alternatives, the revised inseason. If that is the case, discussed in this preamble as they needs of groundfish fishing management measures will be pertain to 2009–2010 fisheries. On communities, the dependence of fishing appropriately adjusted inseason to keep December 2005, NMFS published a final communities on overfished species, and harvest from exceeding OYs. EIS on the designation of groundfish the vulnerability of fishing communities Specification and Management Measure EFH and minimization of adverse to further near-term reductions in Development Process fishing effects on EFH. (http:// groundfish harvest. www.nwr.noaa.gov/Groundfish-Halibut/ The process for setting biennial Management Measure Approach Groundfish-Fishery-Management/NEPA- specifications begins with stock Documents/EFH/-Final-EIS.cfm). The In considering the effects of the action assessments to evaluate the status of the final EFH EIS provides information on on fishing communities, the effects of groundfish stocks or stock complexes. the interactions of groundfish species inseason fishery management changes After being prepared by a stock with their physical environment. on fishing communities were assessment scientist, each stock Amendment 16–4 and the 2007–2008 considered. At the start of each biennial assessment is reviewed by the Council’s groundfish specifications and management cycle, NMFS and the stock assessment review (STAR) team as management measures expand upon the Council establish fishery management well as the Council’s Scientific and EFH EIS’s analysis to analyze the measures that are expected to allow Statistical Committee (SSC). The SSC interactions of groundfish species with fishers to harvest as much of the healthy reviews the stock assessments and each other and with other marine species OYs as possible without provides guidance to the Council species within the California Current exceeding allowable harvest levels for relative to the stock assessment’s ecosystem. co-occurring overfished species. These suitability for use in groundfish fishery Consistent with the FMP, the socio- management measures are set using the management decision making. The SSC economic effects of this action on best scientific information available at also endorses the assessments and communities were analyzed to provide the time. However, as catch data and identifies if they are the ‘‘best available guidance on the effects of the action on new scientific information may become science’’ on the stock’s status. During
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the review process for the 2009–2010 alternative that eliminated fishing- 2008 meeting. Final recommendations stock assessments, the SSC indicated related mortality beginning in 2009 on the rebuilding OYs and the that the current stock assessments were (TF=0) was considered for each management measures needed to keep more thorough and of a higher quality overfished species. By developing fishery harvests within the OYs were than those used in the previous individual overfished species OY, the presented at the Council’s June 2008 management cycles. At its June, tradeoffs between the amount of meeting. The rebuilding alternatives September and November 2007 allowable harvest, alternative rebuilding that were considered and Council meetings, the Council reviewed the new periods, and fishing constraints relative recommendations are further discussed stock assessments, stock assessment to a particular overfished species could in the OY Policies and Rebuilding updates and rebuilding analyses, and be identified. Parameters for Overfished Species made recommendations regarding the Prior to 2007, the Council was section of this preamble. use of the various stock assessments for provided with analyses on preferred In summary, when making its final setting the 2009–2010 specifications. No OYs for each overfished species in recommendations for rebuilding new species were identified as isolation from other species rather than optimum yields (OYs) for 2009–2010, overfished or approaching an overfished considering how different overfished the Council took into account the status condition. species OYs might affect or constrain and biology of the stocks by looking for At its November 2007 meeting, the other overfished species. Beginning the shortest possible rebuilding periods Council adopted initial fishery with Amendment 16–4 and the 2007 within a suite of management measures specifications based on the new and 2008 specifications and that provided the greatest reduction in assessments and rebuilding analyses. management measures and continued catch of the most sensitive and lowest These recommendations included for 2009 and 2010, individual productivity species. The Council took preliminary ABCs and ranges of OYs for overfished species OYs were integrated the needs of fishing communities into most groundfish species, and where into rebuilding OYs that more explicitly account by providing fishing possible, preferred OYs. As a result of took the interaction of the overfished opportunities where such opportunities the new stock assessments, the SSC species within the marine ecosystem would have a minimal effect on recommended that the Council consider into consideration. The interrelated rebuilding periods for stocks with revisions to three overfished species nature of Pacific Coast groundfish stocks higher productivity, and by rebuilding plans: Canary rockfish; makes this consideration necessary. The recommending restrictive management darkblotched rockfish; and cowcod. At degree of interaction between overfished measures focused on stocks with the this same meeting, the Council provided species and other stocks is such that lowest productivity levels. a variety of potential management ‘‘rebuilding as quickly as possible while ABC Policy measures to be considered for the 2009– taking into account the needs of fishing 2010 fisheries. Over winter, the communities’’ is not possible based The Council develops annual Council’s advisory bodies met to discuss solely on a species-by-species approach. estimates of the ABC for major and analyze the Council’s preliminary To consider the needs of the fishing groundfish stocks. When setting the fishery specifications and potential communities and the status and biology 2009 and 2010 ABCs, three categories of management measures based on the of the stocks, the 2009 and 2010 species were identified. The first were initial specifications. specifications for overfished species those species for which quantitative At its April 2008 meeting, the Council were considered in an integrated stock assessments can be conducted identified its preferred final 2009 and manner as was done in 2007 and 2008. because there is adequate data. Stock 2010 ABCs for all groundfish species To build integrated rebuilding OY assessments (a biological evaluation of and species complexes; identified alternatives, the individual overfished the condition of a stock or stock preliminary preferred OYs for most species OYs were arranged in strategic complex) are used to estimate the managed groundfish species and species combinations that could be analyzed to population status of each assessed stock complexes; adopted revised rebuilding assess how changes in harvest relative to its unfished biomass level. plans for canary rockfish, cowcod, and availability of the various overfished Stock assessments were used to estimate darkblotched rockfish; and species would constrain fishing the current level of the abundance, recommended a range of 2009–2010 opportunities by sector, north and south changes in abundance over time, groundfish management measure of 40°10′ N. lat. (N. lat.), and on the depletion levels relative to an unfished alternatives for analysis that were continental shelf and slope. The state, fishing mortality, mortality from designed to keep catch levels within the rebuilding OY alternatives were other causes, and how changes in final preferred OYs. The newly adopted arranged to show how fishing harvest levels are likely to affect the rebuilding analyses were used to opportunities may be constrained by stock’s abundance. The second category develop ranges of OY alternatives for sector (or gear type) and region along included species for which some canary rockfish, cowcod, and the West Coast, depending on the biological indicators are available, but darkblotched rockfish, while the amount of allowable harvest of each are not sufficient to support a previously adopted rebuilding plans species. By adopting a suite of OYs for quantitative analysis. The third category were used for the remaining overfished overfished species in April 2008, the included minor species which are species. For each individual overfished Council was provided the opportunity caught, but where the only available species a range of OY alternatives was to take a realistic look at minimal information is on the landed biomass. described by the target year to rebuild harvest levels that would rebuild as For 2009 and 2010, the Council (TTARGET), median time to rebuild, a quickly as possible taking into account maintained a policy of using a default spawning potential ratio (SPR = the the status and biology of the stocks and harvest rate as a proxy for the fishing ratio of the equilibrium spawning extractive scientific take of overfished mortality rate that is expected to achieve output per recruit under fished stocks. The rebuilding OY ranges the maximum sustainable yield (FMSY). conditions to the spawning output per recommended by the Council at its A proxy is used because there is recruit under no fishing), the maximum April 2008 meeting provided a starting insufficient information for most Pacific time to rebuild (TMAX), and probability point for more detailed analysis which Coast groundfish stocks. In 2009 and of rebuilding by TMAX (PMAX). An OY was presented to the Council at its June 2010, the following default harvest rate
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proxies, based on the Council’s SSC To estimate stock abundance and model has been bracketed on either side recommendations, were used: F40% for population trends, each stock by alternative model scenarios, which flatfish and Pacific Whiting, F50% for assessment relies on various types and capture the overall degree of uncertainty rockfish (including thornyheads), and sources of information with the in the assessment, a 2-way decision F45% for other groundfish such as principal information coming from the table analysis (states-of-nature versus sablefish and lingcod. The ABCs for commercial and recreational fisheries management action) is used to present groundfish species or species groups are themselves. For example, basic fishery the repercussions of uncertainty. The derived by solving for the fishery dependent data for stock assessments SSC makes recommendations to the removals resulting in an SPR equal to includes the amount of fish caught, the Council on the appropriateness of using the harvest rate proxy. individual sizes of the fish and their the different stock assessments for A rate of F40% can be explained as biological characteristics (e.g., age, management purposes, after which the that which reduces the SPR to 40 maturity, sex), and the ratio of fish Council considers adoption of the stock percent and is therefore a more caught to the time spent fishing (catch- assessments, use of the stock assessment aggressive rate than F45% or F50%. The per-unit-of-effort). In addition to fishery for the development of rebuilding FMP allows default harvest rate proxies dependent data, fishery independent analysis, and the ABCs resulting from to be modified as scientific knowledge data for stock assessments are collected the base model runs of the stock improves for a particular species. A during scientific research surveys. In assessments. fishing mortality or harvest rate will addition, Pacific Coast groundfish stock Species that had ABCs in 2007 and mean different things for different assessments identify areas of 2008 continue to have ABCs in 2009 stocks, depending on the productivity of uncertainty and modeling difficulties. and 2010. Blue rockfish and longnose a particular species. For highly When data are lacking for a particular skate had been part of species productive species (those with species, it can result in uncertainty and complexes because they were less individuals that grow and mature modeling problems for the stock rigorously assessed. These two stocks quickly and produce many young that assessment scientists. have now had more quantitative stock survive to an age where they are caught In preparation for setting new ABC assessments prepared. As a result of the in the fishery) a higher fishing mortality values for 2009 and 2010, 15 stock new assessment, longnose skate is being rate may be used, such as F40%. Fishing assessments were prepared. Full stock removed from the other species complex mortality rate policies must account for assessments, those that consider the and assigned species specific ABC several complicating factors, including appropriateness of the assessment values for the 2009 and 2010 the capacity of mature individuals to model and that revise the model as management cycle. However, blue produce young over time and the necessary, were prepared for the rockfish will remain within the minor optimal stock size necessary for the following stocks: Sablefish; longnose rockfish species group and its ABC highest level of productivity within that skate; cowcod south of 36°00′ N. lat. contribution will revise the ABC values stock. (Conception area); blue rockfish south of specified for the complex. For some groundfish species, there is 42°00′ N. lat.; black rockfish north of For species that did not have new little or no detailed biological data Cape Falcon (46°16′ N. lat.); black stock assessments prepared, the Council available on which to base ABCs, and rockfish south of 46°16′ N. lat.; canary considered a single ABC derived from therefore only rudimentary stock rockfish; chilipepper rockfish off the base model of the most recent stock assessments have been prepared; for California and Oregon; darkblotched assessment or continued to use the other species, no stock assessments have rockfish north of 36°00′ N. lat.; and results of rudimentary stock been prepared and the ABC levels were arrowtooth flounder. Stock assessment assessments, or the historical landings based on historical landings. Since updates, those that run new data data. Species or species complexes 2000, the Council has applied a more through an existing model without without new stock assessments include: precautionary policy when setting ABCs changing the model, were prepared for: Lingcod; Pacific cod; cabezon; Dover for species with only rudimentary or no English sole; widow rockfish; bocaccio sole; petrale sole; starry flounder; stock assessments. The ABC policy prior south of 40°30′ N. lat. (Cape splitnose rockfish; yellowtail; to 2000 had been to assume that fishing Mendocino); POP north of 40°30′ N. lat.; shortspine thornyhead; longspine mortality was equal to natural mortality and yelloweye. In addition to the 15 thornyhead; California scorpionfish; (F=M); the current policy is to assume stock assessments, an academic exercise minor rockfish north of 40°10′ N. lat. that fishing mortality is 75 percent of was conducted that investigated minor rockfish south of 40°10′ N. lat.; natural mortality (F=0.75M). fluctuations in the shortbelly rockfish ‘‘other flatfish; and ‘‘other fish’’. biomass through the use of a population Specific information on species without 2009–2010 Groundfish ABCs model based on standard methodology any new stock assessment information A biennial management cycle for and a variety of both traditional and are provided in the footnotes to Table 1a setting harvest specifications and untraditional data. and Table 2a in the proposed management measures was Each new stock assessment includes a regulations. The stock assessment cycle implemented in 2004 and biennial base model which is accepted by the and the process for adoption of a final specification were first established for reviewers. Because it is essential that ABC for Pacific whiting are detailed the 2005 and 2006 management cycle. uncertainty in the analysis be captured below. During the first year in a biennial cycle, and transmitted to decision makers, Species that are not overfished and new stock assessments are prepared and alternative models are developed from had new stock assessments or stock the results of the new assessments are the base model by bracketing the assessment updates prepared and reviewed by the Council and adopted dominant dimension of uncertainty adopted for use in setting harvest for use. In some cases, a stock (e.g., stock-recruitment steepness or R0, specifications by the Council include: assessment needs to be refined and the natural mortality rate, survey Sablefish; arrowtooth flounder; English final assessment may not be reviewed catchability, recent year-class strength, sole; chilipepper rockfish; black by the Council and adopted for use until weights on conflicting CPUE series, etc.) rockfish north of 46°16′ N. lat. (Cape later in the first year or early in the Alternative models show the contrast in Falcon); black Rockfish south of 46°16′ second year of the biennial cycle. management implications. Once a base N. lat.; longnose skate; and blue
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rockfish. Specific information on the Canary Rockfish (Sebastes Pinniger) from the late 1980s and early 1990s ABCs for species that are not overfished A new coastwide stock assessment move through the population, the rate at and have new stock assessments or was completed in 2007 for canary which the biomass increases and the assessment updates are provided in the rockfish. The stock assessment, which stock recovers may slow. In previous footnotes to Table 1a and Table 2a. used the stock synthesis II model assessments, the stock-recruitment steepness was precisely estimated at a New assessments were prepared for (currently the standard model for west low value. Given the changes in the each of the seven overfished species. coast groundfish), included a number of model structure, the stock-recruitment The following stock assessment major changes to the data and modeling approach. New data used in the model steepness could not be reliably summaries pertain to species that have estimated within the model. Therefore a been declared overfished with either included fishery dependent age structure data from the port and on- less precise approach of using a higher new stock assessments or stock valued ‘‘prior’’ distribution that was assessment updates. In addition, the board observer sampling programs; and, fishery independent data derived from developed from a meta-analysis of U.S. academic analysis of shortbelly rockfish west coast rockfishes was used in the is summarized in this section. the NMFS triennial bottom trawl survey, the Northwest Fisheries Science base model. The SSC endorsed the base model and Bocaccio (Sebastes Paucispinis) Center’s trawl survey relative biomass decision table, which included ‘‘high’’ indices and biological sampling, and the and ‘‘low’’ states of nature, as the best A stock assessment update and a Southwest Fisheries Science Center/ available science for Council decision- rebuilding analysis were prepared in Northwest Fisheries Science Center/ 2007 for the bocaccio stock in the making. The SSC indicated that the Pacific Whiting Conservation ‘‘low’’ and ‘‘high’’ states of nature southern and central California area (the Cooperative coastwide prerecruit stock south of Cape Mendocino, CA). should be considered to be equally survey. Although the new data were not likely and half as likely as the base- The last full assessment for bocaccio highly influential, they did address rockfish was conducted in 2003 and model. The canary rockfish ABC of 937 previously identified issues. mt for 2009 and 940 mt for 2010 are used the original Stock Synthesis I In this assessment and in previous derived from the base model with an model. A stock assessment update assessments, fishery selectivity (the F F proxy. followed in 2005. Like the 2005 stock probability that a fish of a certain length 50% MSY assessment update, the new stock or age will be captured by a given gear) Cowcod (Sebastes levis) assessment update followed the was modeled in multi-year time blocks Cowcod in the Conception area was methodology and assumptions of the with changes in selectivity allowed assessed in 2007. The 2007 assessment 2003 bocaccio assessment as closely as between blocks. In the new assessment, was originally scheduled to be an possible. Updated information on the time blocks for fishery selectivity update. However, a number of technical fishery landings, length compositions, were simplified. In contrast to the issues were raised and it was and the California Cooperative Oceanic previous assessment, where blocks were determined that a full assessment was Fisheries Investigations (CalCoFI) defined arbitrarily to improve model fit, most appropriate. An age-structured juvenile survey were used to update the the current assessment defined production model was used for the new assessment. Although the three model selectivity blocks according to major assessment. The new stock assessment approaches from the 2003 assessment management actions and known included substantial changes to both were included in the update (the three changes in fishing practices (e.g., the data and model structure. models are further described in the change to ‘‘high-rise’’ rockfish trawls in Gear selectivity, which had been mis- 2004–2005 proposed rule (69 FR 56550, the late 1970s). The new approach was specified in the 2005 assessment, was September 21, 2004)), the STATc model considered to be a more objective and corrected and revised. The growth curve was again considered as the base model rigorous approach to defining selectivity for cowcod was re-estimated based on and was the focus of the update, with blocks. The results of the new corrected data. The commercial and limited consideration given to the assessment estimate the canary rockfish recreational sectors were modeled as STARb1 and STARb2 models. spawning biomass to be at 32.4 percent separate fisheries. The commercial of its unfished biomass in 2007. This is The results of the stock assessment landings from 1900 to 1968 were in contrast to the previous assessment update indicated that the bocaccio stock revised. The California Commercial which estimated the spawning biomass biomass has continued to increase. The Cooperative Groundfish Program (1969– to be at 9.4 percent in 2005. Fishing 1999 year class is still a driving factor, 1985) revised landings estimates were mortality rates have been less than and a larger than average 2003 year class incorporated into the assessment. In 1 percent since 2001, indicating that addition, significant changes were made appears to be evident based on updated overfishing has not occurred since then. to the spatial stratification and the length composition data from the The rate of increase in the biomass is model used to develop the Commercial southern California recreational fishery. highly dependent on the level of Passenger Fishing Vessel Logbook The bocaccio stock was estimated to be productivity (the value used to define indices. The value used for the stock- at 12.7 percent of its unfished biomass the stock-recruitment steepness has a recruitment steepness was changed. in 2007. major influence on stock productivity The estimated depletion of cowcod The SSC recognized that unresolved estimates). After a period of above was strongly affected by the correction problems and major uncertainties average recruitment in the late 1980s of technical errors. As a result of the identified in the 2003 assessment still and early 1990s, recent stock model changes, the cowcod spawning remain, but endorsed the updated recruitment has generally been low. The biomass in 2005 was believed to be bocaccio stock assessment as being the only estimates of higher recruitments between 3.8 and 24.4 percent of its best available science for the Council’s were in 1999 and 2001. There is little unfished spawning biomass with the management recommendations. The information other than the pre- base model estimating the stock to be at bocaccio ABC of 793 metric tons (mt) for recruitment index to inform the 4.0 percent of its unfished biomass, 2009 and 2010 was based on the STATc assessment model about recruitment rather than between 14 and 21 percent base model with an F50% FMSY proxy. after 2002. As the larger recruitments of its unfished spawning biomass as was
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previously estimated in the 2005 the last assessment estimated the Center slope survey biomass indices and assessment. The new assessment darkbloched rockfish stock to be 16 age compositions for 1999–2004; and estimated the cowcod spawning percent of its unfished spawning new 2006 Northwest Fishery Science biomass to be between 4.1 percent and biomass in 2005. In recent years the Center slope survey biomass indices and 27.3 percent of its unfished spawning stock has been rebuilding, with age compositions. biomass in 2007, with the base model spawning output having increased by 68 The results of the stock assessment estimate being 4.6 percent. The percent over the last five years primarily update estimated that the POP spawning spawning biomass is estimated to be due to strong 1999 and 2000 year- biomass was at 27.5 percent of its slowly increasing (by about 0.3 percent classes (fish in a stock born in the same unfished spawning biomass at the start per year). An unresolved problem for year). The darkblotched rockfish of 2007. The POP biomass shows an the stock assessment was the lack of spawning biomass appears to have increasing trend with indications of a data on stock productivity and recent increased steadily over the past 5 or 6 strong 1999 year class in both the survey biomass trends. Indications of recent years. Since 2001, overfishing occurred and fishery age composition data over stock increases are inferred from the only once, with estimated catch several years. Assessment results are model but have not been confirmed by exceeding the ABC by 14 mt (5.8 highly consistent with the previous observations. percent) in 2004. assessment, except that a stronger 1999 The SSC endorsed the base model and The estimates of natural mortality year class is estimated. The current the decision table based on the ‘‘low’’ (deaths in a fish stock caused by assessment indicates that the 1999 year and ‘‘high’’ states of nature for Council predation, pollution, senility, etc., but class is the strongest since the 1960s. decision making. The cowcod ABC of 13 not fishing) were a major source of A number of sources of uncertainty mt for 2009 and 14 mt for 2010 ABC uncertainty in the stock assessment. The are explicitly included in the stock were based on the results of the stock value used for natural mortality was not assessment. For example, allowance is assessment which was based on the changed from the previous assessment. made for uncertainty in natural STATc base model with an F50% FMSY However, the decision tables presented mortality, the parameters of the stock- proxy1. in the analysis bracketed alternative recruitment relationship, and the survey states of nature for natural mortality. catchability coefficients. Sensitivity Darkblotched Rockfish (Sebastes The largest change in modeling analyses based upon alternative model Crameri) assumptions between the 2005 and 2007 structures and data set choices In 2007, a new stock assessment was stock assessments was the value of conducted during the 2003 and 2005 prepared for darkblotched rockfish in spawner-recruitment steepness (a stock assessment process suggest that the combined U.S. Vancouver, parameter that has a major influence on the overall uncertainty may be greater Columbia, Eureka and Monterey areas. stock productivity). During the review than that predicted by a single model The stock synthesis model II was used process, a disagreement occurred specification. Other sources of for the stock assessment. The SSC regarding the use of a fixed parameter at uncertainty that are not included in the indicated that changes to the the median value of a ‘‘prior’’ current model include: The degree of darkblotched rockfish stock assessment distribution developed from a meta- connection between the U.S. west coast model represented a substantial analysis of U.S. west coast rockfishes and Canadian stock; the effect of advancement. Changes to the stock and an estimate of steepness from climatic variables on recruitment, assessment included: New and updated within the assessment model using the growth, and survival of POP; gender catch data; new and updated discard prior distribution. The SSC differences in growth and survival; a rate estimates; new data from the recommended using a spawner- possible nonlinear relationship between Northwest Fishery Science Center slope recruitment steepness value estimated individual spawner biomass and and shelf trawl surveys; conditional age- within the stock assessment model effective spawning output; and a more at-length data developed using because it incorporates what appears to complicated relationship between age consistent aging criteria; and data from be meaningful information from the and maturity. a new generalized linear mixed model current stock assessment into the The SSC determined that the Pacific (GLMM) that allows the data for the productivity estimate. Ocean perch assessment update various survey vessels to be combined The SSC endorsed the darkblotched complied with the terms of reference for into a single continuous time-series of rockfish stock assessment as the best updates and endorsed its use for biomass indices. In addition, a full available science for setting 2009 and Council decision-making. The POP ABC range of length compositions were used 2010 harvest specifications. The of 1,160 mt for 2009 and 1,173 mt for for discarded catch, rather than the darkblotched rockfish ABC of 437 mt for 2010 are derived from the base model average size, of discards. The new 2009 and 440 mt for 2010 are derived with an F50% FMSY proxy. assessment eliminated Alaska Fishery from the base model with an F50% FMSY Science Center slope trawl survey data proxy. Widow Rockfish (Sebastes Entomelas) from the ‘‘super years’’ (consisting of In 2007, a stock assessment update combined data from multiple years of POP (Sebastes alutus) was conducted for widow rockfish in partial coastal coverage), the 1977 In 2007, a stock assessment update U.S. Vancouver, Columbia, Eureka, triennial shelf survey data, and the POP was prepared for POP (Pacific ocean Monterey, and Conception areas. The survey data from 1975–1985. These data perch) in the U.S. Vancouver and widow rockfish stock in these areas is were removed because the data were Columbia areas which used the same assumed to be a single mixed stock. The unlikely to produce realistic model as in the 2003 and 2005 age-based population model used in selectivities and were relatively assessments, a forward projection age- 2005 was updated with new catch data, insignificant given all the other data structured model. New information age compositions data, and catch-per- available. used in the stock assessment update unit-of-effort time series data from 2005 The new stock assessment estimated included: Updated and new catch data and 2006. the darkbloched rockfish stock to be at for 2003–2006; updated and new fishery Since 2001, the widow rockfish 22 percent of its unfished spawning age composition data from 1999–2006; biomass has shown an increasing trend biomass level in 2007. In comparison, recalculated Northwest Fishery Science with the results of the new stock
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assessment estimating the spawning technical error in the definition of age Council process, was peer reviewed biomass to be at 35.5 percent of its and length classes, and the inclusion of using a structure similar to the Council’s unfished spawning biomass in 2007. Washington trawl-caught age stock assessment review process This is in contrast to steady declines in compositions included in the age- (external reviewers, including a Center the widow rockfish biomass that composition inputs for the Washington for Independent Experts reviewer) and occurred between 1977 and 2001. Like hook-and-line fishery. These problems using the Council’s terms of reference the 2005 stock assessment, the stock were corrected in developing the 2007 for groundfish stock assessments. assessment update shows that the stock base model. In addition, the natural Although the assessment does not fully biomass may not have declined below mortality rate was revised upwards. The satisfy the Council’s terms of reference the overfished species threshold of 25 changes to the stock assessment model for groundfish stock assessments, the percent of its unfished spawning led to downward revisions in the SSC indicated that it represented biomass, as was estimated in previous amount of spawning biomass and the improved knowledge about shortbelly assessments. Fishing mortality rates level of depletion, relative to the 2006 rockfish and might be suitable for have been less than 6 percent since assessment. management purposes in place of the 2001, indicating that overfishing has not The long-term biomass trajectory from previously used inferences from the occurred since then. the new stock assessment is very similar hydroacoustic surveys conducted As with the previous stock to that in the 2006 assessment. during 1977 and 1980. The SSC also assessment, a major source of Spawning biomass declined steadily noted that the assessment of shortbelly uncertainty within the current stock and rather rapidly, beginning in the rockfish does improve knowledge about assessment is the lack of a reliable early-1970s, with no indication of one of the non-commercial species abundance index (information obtained increase until roughly 2001. The included in the Pacific Coast from samples or observations and used amount of spawning biomass in all Groundfish FMP and hence provides as a measure of the weight or number years is lower in the current base model information relevant to further of fish which make up a stock) for than in the previous assessment, due to understanding the ecosystem impacts widow rockfish. The primary source of the correction of data/input errors on the fish populations managed by the information on trends in abundance of discussed above. As a result of the new Council, as well as the implications of widow rockfish was fishery dependent assessment, yelloweye rockfish was the choice between static and dynamic information derived from the Oregon estimated to be at 14.5 percent of its unfished biomass. The shortbelly bottom trawl logbook data. Because the unfished spawning biomass in 2007. rockfish ABC of 6,950 mt for 2009 and catch rates have been very low due to As in the previous assessments, the 2010 is 50 percent of the status quo catch restrictions, no Oregon bottom sparseness of the size and age ABC. Given the results of the academic trawl logbook data after 1999 can be composition data and the lack of a assessment, an ABC of 6,950 mt is an relevant fishery-independent survey has used in the assessment. Based on the amount at which the stock is projected limited the ability to assess the status of recommendation of the 2003 STAR to remain in a state of equilibrium. panel, fishery independent data derived the yelloweye rockfish resource. from the National Marine Fisheries Further, due to catch restrictions since OY-Setting Policies Service triennial bottom trawl survey 2002, catch-per-unit-effort data no The Council recommends annual were used to develop an additional longer reflect the real changes in harvest levels, which are OYs, for the abundance index. Additional areas of population abundance, and discard species or species groups that it uncertainty include: The estimated estimates are highly uncertain. The manages. The Magnuson-Stevens Act value used for natural mortality; current version of Stock Synthesis II requires the FMP to prevent overfishing estimates of stock recruitment model does not allow for the while achieving, on a continuing basis, relationships; the use of Santa Cruz considerable uncertainty in estimated the OY from each fishery. Overfishing is juvenile survey data; and the landings. This makes it difficult to defined in the National Standard relationship of the Canadian stock to the evaluate the true uncertainty of model Guidelines (50 CFR part 600, subpart D) U.S. stock. results. Internal estimates of standard The SSC endorsed the use of the error on depletion estimates were on the as exceeding the fishing mortality rate assessment results by the Council in order of 2–2.5 percent and are likely to (F) needed to produce MSY on a support of management decisions. The underestimate uncertainty. continuing basis. widow rockfish ABC of 7,728 mt for Overall, the update is consistent with A biennial management cycle, 2009 and 6,937 mt for 2010 are derived the previous assessment and the SSC adopted under Amendment 17 to the FMP, is being used to establish the 2009 from the base model with an F50% FMSY endorsed the update model with the proxy. revised natural mortality rate for use in and 2010 harvest specifications and status determination and management management measures. At the beginning Yelloweye Rockfish (Sebastes of the stock. The yelloweye rockfish of the biennial management cycle, two Ruberrimus) ABC of 31 mt for 2009 and 32 mt for one-year ABCs and OYs will be adopted A stock assessment update was 2010 are derived from the base model for each species or species complex the prepared for yelloweye rockfish in 2007 with an F50% FMSY proxy. Council proposes to manage. The using the stock Synthesis II model. New annual OYs will be applied in the same catch data were added for 2006, based Shortbelly Rockfish (Sebastes jordani) manner as has been done in previous on the Groundfish Management Team’s To understand the potential years. If an OY is not achieved or is bycatch scorecard. The catch histories environmental determinants of exceeded in the first year, the underage for all fleets were updated for the period fluctuations in the recruitment and or overage will not be transferred to the 1983–2005. abundance of an unexploited rockfish following year, as such a transfer could In the process of updating data for use population in the California Current result in too much fishing or other in the stock assessment update, several ecosystem, an academic assessment was management problems in the second errors were identified in the data and conducted for shortbelly rockfish in year. Overages or underages are input files used for the previous 2007. The analysis, which was accounted for in subsequent stock assessment. The errors included: A conducted by NMFS outside the assessments, which are populated with
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historical total catch and other relevant adjustments may be made to an OY if Lingcod data. it is necessary to address uncertainty in The latest lingcod stock assessment The 2009 and 2010 OYs for species the data or to reduce the risk of a stock was prepared in 2005 and estimated the other than those managed with or a co-occurring species from being coastwide stock to be above 40 percent overfished species rebuilding plans are overfished. of unfished spawning biomass. Lingcod set at levels that are expected to prevent If a stock falls below 25 percent of its is therefore considered to be a healthy overfishing, equal to or less than their unfished spawning biomass (B ) and stock. When a stock is above 40 percent ABCs. For overfished species, the OYs 25% is declared overfished, the revised of its unfished spawning biomass, the are set at levels that allow the Magnuson-Stevens Act requires the FMP harvest policy allows the OY to be overfished species to rebuild as quickly set equal to the ABC. Under Alternative as possible, taking into account the Council to develop and implement a 1, coastwide OYs of 5,205 mt in 2009 status and biology of the stock, the rebuilding plan within two years from and 4,785 in 2010 were derived by needs of fishing communities, and the the declaration date. In addition, the interaction of the stock within the Council has the discretion to make combining the 612 mt southern area additional OY adjustments for stocks (south of 43° N. lat.) status quo OY with marine ecosystem. The specific OYs ° being adopted for overfished species are with only rudimentary stock the northern area (north of 43 N. lat.) described below in ‘‘OY Policies and assessments. For such stocks, the OYs of 4,593 mt in 2009 and 4,173 mt Rebuilding Parameters for Overfished Council’s policy is to set the OY at 75 in 2010. The northern area OYs were Species.’’ percent of the ABC. For stocks that have derived from the 2005 assessment for The ‘‘40–10’’ harvest policy is used to not been quantitatively assessed and the northern substock with the OYs set set OYs for species that are not managed where the ABC is based on historical equal to the ABCs. The southern area under overfished species rebuilding data, the OY policy is to set the OY at status quo OY of 612 mt was the 2006 plans. The 40–10 harvest policy is 50 percent of the ABC. For further OY which had been used in 2007 and designed to prevent stocks from information on precautionary 2008 as a precautionary measure to becoming overfished. If a stock’s adjustments for stocks that have not allow the southern portion of the stock spawning biomass is larger than the been quantitatively assessed, see the to continue to increase in biomass. The biomass needed to produce MSY (BMSY), preamble discussion of the Annual Council recommended OY is OY the OY may be set equal to or less than Specification and Management Alternative 2 (5,278 mt in 2009 and ABC. The Council uses 40 percent as a Measures published on January 11, 2001 4,829 mt in 2010) which is based on the default proxy for BMSY, also referred to (66 FR 2338). 2005 assessment with the coastwide OY as B40%. A stock with a current that was set equal to the ABC. The spawning biomass between 25 percent 2009 and 2010 OYs for Healthy and Council recommended the coastwide Precautionary Zone Species of the unfished level and BMSY (also OY under Alternative 2 as lingcod is considered to be a healthy stock referred to as the precautionary Species that had OYs in 2007 and coastwide. threshold) is said to be in the 2008 continue to have OYs in 2009 and ‘‘precautionary zone.’’ The 40–10 2010. As stated above, the FMP provides Sablefish harvest policy reduces the fishing guidance on setting harvest Under the Pacific coast groundfish mortality rate when a stock’s biomass is specifications based on a stock’s at or below the precautionary threshold. FMP, sablefish is considered to be a estimated biomass level. For each The further the stock biomass is below precautionary zone stock because the species or species group where there the precautionary threshold, the greater most recent stock assessment estimated was no new stock assessment or for the reduction in OY relative to the ABC. the stock to be at 38.3 percent of its those species where the FMP provided The slope of the line reduces the OY unfished biomass coastwide. At its clear guidance on the harvest strategy, below B40% to zero at B10%. This is, in April 2008 meeting, the Council effect, a default rebuilding policy that is the Council considered a single considered three alternative approaches intended to foster a quicker return to the combination of ABC/OY harvest levels for setting coastwide, northern and for 2009 and 2010. These species BMSY level than would occur with southern subarea (north and south of fishing at the ABC level. The OYs for included: Pacific cod; splitnose rockfish 36° N. lat.) OYs for sablefish. Sablefish stocks that have been declared south; yellowtail rockfish north; allocations are defined by the FMP and overfished (where the stock biomass shortspine thornyhead; longspine apply to the subareas north and south of thornyhead; black rockfish north; Dover ° was below B25%, and where the stock 36 N. lat. Therefore, the coastwide OY has not yet rebuild to B40≠ or greater) are sole; petrale sole; starry flounder; is proportioned to the subareas and used set in accordance with species-specific English sole; and other flatfish. The to define the subarea OYs. rebuilding plans that are designed to Council recommended final adoption of At its April 2008 meeting the Council meet the rebuilding requirements of the the ABC/OYs values for these species at considered three OY alternatives for Magnuson-Stevens Act. For further its April 2008 meeting. Further sablefish. Alternative 1 was based on information on the 40–10 harvest policy information on the OYs for these species the ABC from the 2007 sablefish stock see Section 5.3 of the Pacific Coast can be found in the footnotes to Table assessment base model with the Groundfish FMP. 1a. and Table 2a. The Council application of the 40–10 harvest policy After considering appropriate considered alternative OYs for the which resulted in a coastwide OY of analysis, the Council may recommend following non-overfished species: 9,795 mt in 2009 (9,452 mt north of 36° setting the OY higher than what the Lingcod south of 42° N. lat.; sablefish; N. lat., and 343 mt south of 36° N. lat.) default OY harvest policy specifies as shortbelly rockfish; chilipepper and 8,988 mt in 2010 (8,673 mt north of long as the OY does not exceed the ABC rockfish; black rockfish south of 42° N. 36° N. lat. and 315 mt south of 36° N. (which is set at FMSY); complies with the lat.; minor rockfish north and south of lat.) Apportionment of the OY to the requirements of the Magnuson-Stevens 40°10′ N. lat.; California scorpionfish; northern and southern subareas was Act; and is consistent with the National cabezon; arrowtooth flounder; longnose done by applying the average proportion Standard Guidelines. On a case-by-case skate (a species within the other fish of 2000–2001 landings of sablefish north basis, additional precautionary complex); and Pacific whiting. of 36° N. lat. (96.5 percent) and south
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of 36° N. lat. (3.5 percent) to the stock biomass to be at 67 percent of its was set equal to the ABC. The resulting coastwide OY value. Alternative 2 was unfished spawning biomass in 2006. OYs were 920 mt in 2009 and 831 mt based on the ABC from the 2007 Based on the advice of the SSC, the in 2010. Alternative 2 was based on a sablefish stock assessment base model Council used the academic assessment constant catch scenario using 1,000 mt with the application of the 40–10 to develop two alternative approaches for the southern area. OY Alternative 3 harvest policy. The coastwide projected for establishing OYs for shortbelly was based on the sum of the OY set yield from the 2007 assessment was rockfish. Under the first approach equal to the ABC for that portion of the apportioned to the area north of 36° N. (Alternative 1) the status quo OY was stock south of 46°16’ N. lat. as derived lat. (72 percent) and the Conception area reduced to 25 percent resulting in an from the 2007 medium productivity south of 36° N. lat. (28 percent) using OY of 3,475 mt in 2009 and 2010. The stock assessment model and three the average 2003–2006 proportions shortbelly rockfish stock would be percent of the yield from the northern estimated from the Northwest Fishery expected to increase in abundance area stock assessment base model where Science Center’s shelf-slope trawl under the Alternative 1 harvest rate. the OY was set equal to the ABC. The survey. The Conception area OY was Under the second approach (Alternative resulting OYs were 1,469 mt in 2009 then adjusted to 50 percent to account 2), the status quo OY was reduced to 50 and 1,317 mt in 2010. for greater assessment and survey percent resulting in an OY of 6,950 mt The Council recommended the OY uncertainty south of 36° N. lat. To in 2009 and 2010. The stock would be Alternative 2. Uncertainties in the 2007 derive the coastwide OYs, the northern expected to remain in its current southern black rockfish assessment, and southern area OYs were summed. equilibrium under the Alternative 2 implications for management, and The resulting coastwide OYs were 8,423 harvest rate. The Council recommended comments from the SSC indicating that mt in 2009 (7,052 mt north of 36° N. lat., adoption of Alternative 2. the decision table, coupled with the and 1,371 mt south of 36° N. lat.) and probabilities assigned to the various Chilipepper Rockfish 7,729 mt in 2010 (6,471 mt north of 36° states of nature, provides a large N. lat. and 1,258 mt south of 36° N. lat.) The latest chilipepper stock contrast in possible outcomes, which The third OY alternative considered by assessment was prepared in 2007 and implies a highly uncertain assessment the Council (Alternative 3) was based on indicated that the stock was healthy. At (relative to other rockfish assessments). the ABC from the 2007 sablefish stock its April 2008 meeting the Council If productivity is actually low, the stock assessment’s low abundance model with considered 3 alternative approaches to biomass under Alternative 2 is projected the application of the 40–10 harvest setting OYs for chilipepper rockfish. to be at 34.7 percent of its unfished policy. The subarea apportionment Under the first approach (Alternative 1) spawning biomass in 2016 and not as methodology used to derive OY the OY of 2,000 mt in 2009 and 2010, close to the overfished level as Alternative 2 specifications was used is less than the ABC and is a Alternative 3, which projects the under Alternative 3. The resulting precautionary OY intended to reduce spawning biomass to be at 29 percent of coastwide OY for 2009 was 6,250 mt the potential catch of bocaccio which its unfished spawning biomass in 2016. ° co-occur with chilipepper rockfish. The (5,233 mt north of 36 N. lat., and 1,018 California Scorpionfish mt south of 36° N. lat.) and for 2010 it second alternative, Alternative 2 had was 5,777 mt (4,837 mt north of 36° N. OYs (2,099 mt in 2009 and 2010) based A 2005 stock assessment on California lat., and 941 mt south of 36° N. lat.) on the estimated MSY at an F50% SPR scorpionfish indicated the stock was The Council recommended that the harvest rate as estimated in the 2007 healthy, with an estimated spawning coastwide and northern and southern assessment. The third approach, stock biomass of 79.8 percent of its subarea OY under Alternative 2 be Alternative 3, had OYs (3,037 mt in unfished spawning biomass in 2005. adopted. The precautionary reduction in 2009 and 2,576 mt in 2010) that were set The California scorpionfish assessment the southern OY results in a large OY equal to the ABC for each year as used a recreational catch data stream for the Conception Area relative to projected by the base model in the 2007 based upon Commercial Passenger recent catches. The Cowcod assessment. The Council recommended Fishing Vessel (CPFV) logbook data Conservation Area (CCA) closes a Alternative 2 which reduces the risk of expanded to total recreational catch significant amount of the Conception overfishing chilipepper. Although using a proportion of CPFV to total Area to fishing and the area-swept chilipepper catch has been constrained recreational catch (based upon Marine biomass estimates for the Conception because they co-occur with overfished Recreational Fisheries Statistics Survey area are based on the assumption that species, particularly bocaccio rockfish, catch history). The Council’s SSC catch rates outside of the CCAs are increases in canary, bocaccio or widow approved this assessment, with the comparable to those inside (the survey rockfish OYs may allow for greater caveat that the ABC/OY from this does not sample within the CCAs). A chilipepper rockfish targeting assessment could only be related to precautionary reduction of 50 percent opportunities. recreational catch calculated in the was used in the southern area to same manner as this catch stream. Black Rockfish South of 42° N. lat. account for the uncertainty inherent in Consequently, an alternative ABC/OY using a short time-series of relative A new stock assessment for Black was generated by modifying the original abundance for setting the OY. The rockfish south of Cape Falcon (46°16′ N. ABC/OY from the assessment so that it apportionment of biomass using the lat.), estimated the stock to be at 70 could be compared and tracked using trawl survey data (Alternatives 2 and 3) percent of its unfished spawning California Recreational Fisheries Survey incorporates the best available biomass in 2007. At its April 2008 (CRFS) catch estimates. information on the sablefish stock meeting, the Council considered three Because the stock is above B40% distribution. alternative OYs for the area south of 42° coastwide, the OY could be set equal to N. lat. Alternative 1 was the sum of the the ABC. Both the original stock Shortbelly Rockfish OY set equal to the ABC as derived from assessment and the modified stock In 2007 an academic assessment the 2007 low productivity stock assessment were used to develop 2 conducted for shortbelly rockfish assessment model, and three percent of California scorpionfish OY alternatives. indicated the shortbelly stock was the yield from the northern area stock The Alternative 1 OY (111 mt in 2009 healthy and estimated the spawning assessment base model where the OY and 99 mt in 2010) is based on the
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results of the 2005 stock assessment as 79 percent of its unfished spawning for the portion of the stock occurring in modified to incorporate CRFS estimates. biomass in 2007. OY Alternative 1 waters off California north of Point Alternative 2 (175 mt in 2009 and 155 (5,245 mt in 2009 and in 2010) for Conception (34°27′ N. lat.). The blue mt in 2010) was a value that was arrowtooth flounder is based on the rockfish stock was estimated to be at intermediate to the 2007–2008 OY of MSY at an F40% harvest rate as 29.7 percent of its unfished spawning 137 mt from the 2007–2008 OY from the estimated in the 2007 assessment. The biomass in 2007; therefore, the stock is base model with the CPFV modification, Alternative 2 OYs (11,267 in 2009 and considered in the precautionary zone. and the 2007–2008 OY of 219 mt from 10,112 mt in 2010), were based on the Blue rockfish is currently managed the base model without the CPFV OY being set equal to the ABC for the under the minor rockfish complex; modification. The Council stock. These alternative OYs compare to however the Council considered recommended the higher Alternative 2 the status quo ABC/OY of 5,800 mt from removing blue rockfish from the minor OYs because the stock is considered to 2007 and 2008. The Council rockfish complex and setting a species- be healthy and recent harvests have recommended Alternative 2 which is specific OY. In addition, the Council been relatively low. the OY being set equal to the estimated considered setting a harvest guideline ABC for the stock. Increases to the Cabezon for blue rockfish within the minor arrowtooth flounder OY raised concerns rockfish north and minor rockfish south The Council considered OY about potential impacts on overfished OY, rather than setting a species- alternatives based on the most recent species, particularly canary. specific OY. cabezon assessment, which was done Because the blue rockfish stock off for the portion of the stock occurring in Longnose Skate California (that portion south of 42° N. waters off California in 2005. In 2005, The council considered three lat.) is under both the minor nearshore the Cabezon stock was estimated to be longnose skate alternative OYs based on rockfish north and the minor nearshore at 40.1 percent of its unfished spawning a 2007 stock assessment which rockfish south complexes, alternative biomass north of 34°27′ N. lat. and 28.3 estimated the stock to be at 66 percent OYs were considered for each minor percent of its unfished biomass south of of its unfished spawning biomass in rockfish complex (minor rockfish south 34°27′ N. lat. Since the two substocks 2007. At its June 2008 meeting the Alternatives 1–3 and minor rockfish collectively have an estimated spawning Council recommended that the 2007 north Alternatives 1–3). In addition, two output less than B , cabezon in waters assessment be used to establish 2009 40% OY alternatives that specifically off California were considered a and 2010 harvest specifications for considered species-specific harvest precautionary zone stock. longnose skate. In doing this, longnose specifications (blue rockfish OY OY Alternative 1 (69 mt in 2009 and skate would be removed from the ‘‘other Alternatives 3 and 4) were considered 2010) was the status quo OY from 2007– fish’’ complex. 2008 and is based on a constant harvest The Council considered OY by the Council. For minor rockfish level that is consistent with a 60–20 alternatives were: Alternative 1 (901 mt south, the blue rockfish status quo harvest policy adjustment as specified in 2009 and 902 mt in 2010) was based (2007–2008) OY contribution was 232 in the California Nearshore Management on the projected OYs from the 2007 base mt, and for minor rockfish north the OY Plan. The 60–20 adjustment is model using the current estimated contribution was 30 mt. When analogous to the Council’s default 40–10 exploitation rate (0.0125); Alternative 2 considering new OYs for species rule, where, the OY equals the ABC at (1,349 mt in 2009 and 2010); which was managed within complexes, the status spawning biomasses ≥60 percent of the average landings and discard quo OY contributions are removed and initial biomass and linearly reduced mortality from 2004–2006, increased by replaced with the newly adopted values, from the ABC until, at 20 percent of 50 percent; OY Alternative 3 (3,428 mt then the OYs for all other species in the initial biomass, the OY is set to zero. in 2009 and 3,269 mt in 2010) was the complex are summed to derive the The OY Alternative 2 (74 mt in 2009 OY set equal to the ABC from the 2007 complex OY value. and 2010) is an average OY for 2009 and base model with a harvest rate proxy of The two minor rockfish south alternatives that maintained blue 2010 based on the projected values from F45% (corresponds to an exploitation the 2005 assessment using an F50% rate of 0.043). rockfish within the complex were harvest rate with the 60–20 harvest At its June 2008 meeting, the Council Alternatives 1 and 2. Alternative 3 policy adjustment. The third OY discussed the removal of longnose skate removed blue rockfish from the alternative (Alternative 3) is similar to from the ‘‘other fish’’ complex. During complex. Under the minor rockfish Alternative 2 in that the projected discussions, concerns were raised about south, Alternative 1, the OY was values are from the 2005 assessment the removal of longnose skate from the determined by replacing the old OY using an F50% harvest rate with the 60– complex. Adjustments to the other fish contribution of 116 mt for blue rockfish 20 harvest policy adjustment. However, complex that included longnose skate with the new contribution of 182 mt, under Alternative 3, the OYs were not were considered. However, for more based on the 2007 assessment base case averaged across the two years. The accurate catch accounting the Council model, given a medium productivity. resulting OYs considered under recommended removing longnose skate The resulting OYs were 1,970 mt for Alternative 3 were 69 mt in 2009 and 79 from the other fish complex and 2009 and 2010. Alternative 2 for minor mt in 2010. The Council recommended establishing species-specific rockfish south considered a new blue the Alternative 3 OYs which allow for specifications and managing it with its rockfish OY contribution of 202 mt more efficient state management of own OY of 1,349 mt in 2009 and 2010 based on the projected OY from 2007 Cabezon. (Alternative 2). An ABC of 11,200 mt stock assessment base model, given a and an OY of 5,600 mt would then be high productivity as limited by the base Arrowtooth Flounder specified for the Other Fish complex. model ABC. The resulting OYs under Alternative OYs for arrowtooth Alternative 2 were 1,990 mt in 2009 and flounder are based on a new stock Minor Rockfish North and South of 2010. OY Alternative 3 (1,788 mt in ° ′ assessment conducted in 2007 which 40 10 N. lat. 2009 and 2010) removed the status quo indicated that the stock was healthy The first blue rockfish assessment on OY contribution for blue rockfish from with a spawning biomass estimated at the West Coast was conducted in 2007 the minor nearshore rockfish south
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complex and considered managing blue Pacific Whiting which require sustaining the long term rockfish under its own specifications. Consistent with the U.S.-Canada productivity of the marine resources The Council also considered two agreement for Pacific whiting, the and fishing communities. Under the minor rockfish north alternatives that Council recommended a range of OYs FMP, when a stock assessment estimates maintained blue rockfish within the for Pacific whiting for 2009 and 2010, that a stock is below 25 percent of complex (Alternatives 1 and 2) and one and delayed adoption of final 2009 and estimated unfished spawning biomass alternative that removed blue rockfish 2010 ABCs and OYs until its March (BUNFISHED) it is declared overfished. from the complex (Alternative 3). Under 2009 and 2010 meetings, respectively. The Magnuson-Stevens Act requires that OY Alternative 1 (2,280 mt in 2009 and The final ABC and OY values overfished stocks be rebuilt to BMSY, 2010) the old blue rockfish OY recommended in March will be based which is the biomass level at which a contribution of 15 mt was removed and on stock assessments which include the stock is estimated to be able to maintain the results from the 2007 assessment its maximum sustainable yield (MSY) most recent scientific information and base model with medium productivity over time. The FMP sets a proxy B that are completed each year, just prior MSY (25 mt in 2009 and 2010) were added level for all groundfish species at 40 to the Council’s March meeting. The back in to derive a 2,280 mt OY. Under percent of a stock’s unfished spawning DEIS for the 2009 and 2010 management OY Alternative 2 (2,283 mt in 2009 and biomass level (B ). When a stock has measures considers a range for OYs and 40% 2010), the old blue rockfish OY been declared overfished a rebuilding the resulting impacts. The range of contribution of 15 mt was removed and plan must be developed and the stock alternatives considered in the DEIS for the results from the 2007 assessment must then be managed in accordance the U.S. OY are as follows: OY with high productivity, as capped by the with the rebuilding plan. An overfished Alternative 1 (134,773 mt) which is half base model ABC (28 mt in 2009 and groundfish stock is considered rebuilt 2010), were added back in to derive a the OY specified in 2008, OY once its spawning biomass reaches Alternative 2 (269,545 mt) which is the 2,283 mt OY. B40%. OY Alternative 3 (2,255 mt in 2009 status quo 2008 OY, and OY Alternative When a stock’s spawning biomass is 3 (404,318 mt) which is 150 percent of and 2010) contemplates removing blue estimated to be below B25%, a rebuilding rockfish from the northern minor the status quo OY. Given the results of analysis is prepared. Life history rockfish complex and managing blue recent assessments, the recommended characteristics (e.g., age of reproductive rockfish under its own harvest range of OYs is expected to maturity, relative productivity at specifications. To establish species- accommodate the projected results of different ages and sizes, etc.) and the specific specifications for blue rockfish, the new assessments. Revisions to the effects of environmental conditions on two OY alternatives were considered. Pacific Coast treaty Indian tribes Pacific its abundance (e.g., relative productivity OY Alternative 3 (207 mt in 2009 and whiting allocations are being proposed under inter-annual and inter-decadal 2010) was the sum of the 198 mt OY with this rulemaking. Further climate variability, availability of based on the ABC from the base model discussion of the proposed allocation suitable feed and habitat for different with the 40–10 harvest rate for the scheme is described below in the tribal life stages, etc.) are taken into account assessed portion of the California stock section. in the stock assessment and the ° ′ north of Pt. Conception at 34 27 N. lat., OY Policies and Rebuilding Parameters rebuilding analysis. A rebuilding plus 9 mt for the contribution to the OY for Overfished Species analysis for an overfished species uses south of Point Conception. OY the information in its stock assessment Under the Magnuson-Stevens Act, Alternative 4 (230 mt in 2009 and 2010) to determine TMIN, the minimum time to overfished species rebuilding periods was the sum of the 221 mt OY base on rebuild to B40≠ in the absence of fishing. must be as short as possible, taking into the OY being set equal to the ABC from For each stock, its TMIN is dependent on the 2007 stock assessment base model, account the status and biology of any a variety of physical and biological given high productivity model, plus 9 overfished stocks of fish, the needs of factors. The rebuilding analyses are fishing communities, and the mt for the contribution to the OY south used to predict TMIN for each overfished of Point Conception. The 9 mt interaction of the overfished stock of species and, in doing so, answer the contribution for the area south of Point fish within the marine ecosystem. question of what is ‘‘as quickly as Conception is a 50 percent adjustment National Standard 8 of the Magnuson- possible’’ for each of the overfished of the original ABC contribution of blue Stevens Act, 16 U.S.C. 1851(a)(8), also species. It must be noted that rebuilding rockfish from the southern minor requires consideration of fishing by the TMIN date would require nearshore rockfish complex (18 mt), communities consistent with the elimination of human-induced fishing which represents the average 1994–99 conservation requirements of the Act: mortality on a stock. Because of the harvest of blue rockfish in those waters. ‘‘Conservation and management interrelationships of the various stocks In making this determination about measures shall, consistent with the in the groundfish fishery, zero fishing removing blue rockfish from the minor conservation requirements of this Act mortality on an overfished stock would rockfish complex, the Council (including the prevention of overfishing require a complete or near complete considered the stock biology, available and rebuilding of overfished stocks), prohibition on all groundfish fishing. management strategies, and current take into account the importance of The complete absence of targeted catch levels. When blue rockfish occur fishery resources to fishing communities fishing mortality on the stock does not offshore they can be targeted separately in order to (A) provide for the sustained necessarily result in the complete from other nearshore rockfish, but those participation of such communities, and absence of human-induced mortality on that occur inshore mix with other (B) to the extent practicable, minimize the stock. nearshore rockfish stocks. Blue rockfish adverse economic impacts on such No new species were declared will continue to be managed as part of communities.’’ (1851(a)(8)). Both overfished from the 16 groundfish the minor rockfish complex. However, National Standard 8 and the rebuilding assessments conducted in 2007. the state of California will take the provisions address the difficult and However, new stock assessments and necessary action to reduce the catch of often conflicting short term and long rebuilding analyses for all of the seven blue rockfish and to monitor it closely term socioeconomic and biological overfished groundfish species were to reduce the risk of exceeding the OY. considerations in fisheries management, developed and adopted in 2007. For
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2009–2010, the Council reviewed communities, by emphasizing catch 288 mt for bocaccio in 2009 and 2010; rebuilding plans for the seven species reductions for the species most sensitive 4 mt for cowcod in 2009 and 2010; 189 and reconsidered those plans in to changes in OY harvest rates and mt for POP in 2009 and 200 mt in 2010; response to the results of new consideration of communities most 285 mt for darkblotched in 2009 and assessments and rebuilding analyses. vulnerable to shifts in groundfish 291 in 2010; and for widow rockfish 522 For four of the overfished species (POP, fishing income. mt in 2009 and 509 in 2010. bocaccio, widow rockfish, and At its April 2008 meeting, the Council Under the Council’s recommended yelloweye rockfish), the rebuilding considered seven rebuilding alternatives suite of rebuilding OYs, POP, widow progress was considered adequate by that packaged overfished species OYs rockfish, canary rockfish and bocaccio the SSC, and the new assessments and with management measures intended to OYs increase from 2008 levels, easing rebuilding analyses did not change the constrain fishing to those OYs. constraints on target species that co- fundamental understanding of the Rebuilding Alternative 1 was designed occur with the overfished species. stocks. However, for three stocks, canary to allow more fishing opportunities on However, rebuilding OYs for rockfish, darkblotched rockfish, and the continental shelf north and south of darkblotched rockfish and yelloweye cowcod, the new stock assessments 40°10′ N. lat. by specifying relatively rockfish decline from 2008 levels under resulted in fundamental changes in the higher OYs for bocaccio, canary the Council-recommended suite of understanding of the biology of the rockfish, cowcod, widow rockfish and alternatives. Reductions in the stocks, therefore those rebuilding plans yelloweye rockfish, while allowing darkblotched rockfish and yelloweye are being revised in a manner that is fewer fishing opportunities on the slope rockfish OYs would require more consistent with Amendment 16–4. by specifying relatively lower OYs for restrictive management measures to These revisions are discussed further darkblotched rockfish and POP. reduce the catch of these two species. below. Canary rockfish is very much Rebuilding Alternative 2 was conversely The impacts to the non-whiting limited ahead of schedule, while darkblotched designed to allow fewer fishing entry trawl sector under the final rockfish and cowcod are substantially opportunities on the shelf north and Council-preferred alternative are largely ° ′ behind schedule. For canary rockfish south of 40 10 N. lat. by specifying driven by the OYs for canary rockfish, and darkblotched rockfish, the changes relatively lower OYs for the shelf bocaccio rockfish, darkblotched are due primarily to changes in the species (bocaccio, canary, cowcod, rockfish, cowcod, and POP. Under the understanding of stock productivity and widow, and yelloweye), and higher final Council-preferred alternative, the depletion. In the case of cowcod, there fishing opportunities on the slope by limited entry bottom trawl sector is was a departure from the expected specifying relatively higher OYs for the predicted to generate approximately rebuilding trajectory due to the slope species (darkblotched and POP). $2.8–3 million more exvessel revenue correction of a technical flaw in the Rebuilding Alternative 3 was the most than in 2007 (Status Quo). This increase 2005 assessment. The Council also restrictive alternative coastwide because is largely driven by increases in the recommended modifications to the it was constructed with relatively low abundance of sablefish, English sole and yelloweye rockfish rebuilding plan. OYs for all the overfished species. arrowtooth flounder, as opposed to Rebuilding Alternative 4 was the most changes in rebuilding species OYs. The Council continued to use an liberal alternative coastwide since it was Fishing opportunity and economic integrated rebuilding strategy that constructed with relatively high OYs for impacts to the nearshore groundfish moves fishing effort off of the more all the overfished species. Rebuilding sector are largely driven by the need to sensitive rebuilding species and on to Alternatives 5a and 5b allowed mixed reduce the catch of canary and the less sensitive rebuilding species fishing opportunities by sector north yelloweye rockfish. In areas south of (i.e., off of species with longer and south of 40°10′ N. lat. and in 40°10′ N. lat., observer data has not rebuilding times and onto species able shallow and deeper waters and are shown an interaction with yelloweye to rebuild quicker). This concept was designed to show further trade-offs rockfish, so canary rockfish is the determined to be the best way of taking between rebuilding OYs that may not be driving constraint in this area. The into account the biology of the stocks captured by rebuilding Alternatives 1 impacts to recreational sectors are and the needs of fishing communities in through 4. The preferred suite of driven by the OYs for yelloweye a programmatic fashion that overfished species OYs identified by the rockfish, canary rockfish, and to a lesser simultaneously considered all Council in April 2008 included: 105 mt extent, bocaccio and widow rockfish. rebuilding species and groundfish for canary in 2009 and 2010; 17 mt for The OY alternatives for yelloweye sectors. Earlier, this notice discussed the yelloweye in 2009 and 14 mt in 2010; rockfish are based on the 2007 Council’s decision-making process and 288 mt for bocaccio in 2009 and 2010; assessment, which is an update of the how that process focused the Council’s 3 mt for cowcod in 2009 and 2010; 189 2006 assessment, and the 2007 decision on a suite of inter-related OYs mt for POP in 2009 and 200 mt in 2010; rebuilding analysis which is based on for overfished species. As discussed 300 mt for darkblotched in 2009 and the 2007 updated assessment. The 2007 above, the overfished species OYs 306 in 2010; and 475 mt for widow updated assessment did not constrain fishing for all co-occurring rockfish in 2009 and 2010. significantly change the understanding groundfish species and for some non- At its June 2008 meeting, the Council of stock productivity, although the groundfish species as well, making the made final recommendations on: 2009– median time to rebuild under the status suite of overfished species OYs the 2010 OYs; rebuilding plan revisions; quo harvest rate ramp-down strategy is cornerstone of the entire groundfish bycatch limits for the proposed 2009 now predicted to be 2082 instead of harvest specifications and management exempted fishing permits (EFPs); and 2084, largely due to a higher assumed measures package. As also discussed groundfish management measures natural mortality rate. Yelloweye above, recommending a suite of designed to keep catch levels within the rockfish have a life history that interrelated overfished species OYs final preferred OYs. The final preferred illustrates the classic challenge of allowed the Council to consider a suite of overfished species OYs rebuilding overfished rockfish stocks; management package that best takes into recommended by the Council included: they are slow to mature, have low account the status and biology of those 105 mt for canary in 2009 and 2010; 17 productivity, and can live in excess of stocks and the needs of fishing mt for yelloweye in 2009 and in 2010; 100 years. Given their low productivity,
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small changes in yelloweye rockfish expected to cause severe impacts to account the status and biology of any long-term harvest rates can result in fisheries and communities. The Council overfished stock of fish and the needs of large changes in the time to rebuild. expressed strong concern about the fishing communities. According to the rebuilding analysis, in severity of the impact on communities At their April 2008 meeting, the the absence of fishing beginning in 2009 resulting from ramp-down strategy as Council requested an analysis of the (TF = 0), the stock would be rebuilt in the OY drops below 17 mt. The Council associated impacts of yelloweye 2049. Continuing the ramp-down also expressed concern that the current rockfish catch sharing between directed strategy, adopted in Amendment 16–4, stock assessment for yelloweye rockfish groundfish sectors and state recreational of 17 mt 2009 and 14 mt in 2010, with was data-poor, but was hopeful that the fisheries. The alternative catch sharing the SPR going to 0.719 beginning in next assessment (a full assessment with was to be based on the 2005 and 2007 2011 produces a median year to rebuild additional data) would be more projections of catch documented by the of 2082. In contrast, applying the SPR of optimistic. Groundfish Management Team in the 0.719 beginning in 2009 (which would The Council initially identified a final bycatch scorecards. This is the first produce an OY of 13.3 mt in 2009 and preference for maintaining the 2007– management cycle where all three states 13.6 mt in 2010) produces the same 2008 ramp-down strategy, which have been constrained by yelloweye median year to rebuild. Therefore, slight reduced the yelloweye rockfish OY to rockfish. In prior management cycles, changes in the OY at the beginning of 17 mt in 2009 and 14 mt in 2010. The the California fisheries were more the rebuilding schedule make little to no median time to rebuild the stock under constrained by the availability of canary difference in the time needed to rebuild. the status quo was 2082. Although rockfish than yelloweye rockfish. yelloweye rockfish was the most Potential harvest guidelines for When setting the 2007 and 2008 constraining species to the fishery, the yelloweye rockfish that would be harvest specifications and management Council considered it to be prudent to available for the different groundfish measures, the Council recognized the stick with the ramp-down approach as fisheries were provided for each OY need to restrict the fisheries based on higher OYs could result in a greatly alternative. At its June 2008 meeting, the new yelloweye rockfish assessment, extended rebuilding period, or make the Council recommended adoption of but also took into account the reductions after 2010 even more an alternative catch sharing arrangement potentially widespread negative effects difficult on the fishery. At its April 2008 for yelloweye rockfish that restructured of an immediate reduction in OY and meeting, the Council requested analysis the catch sharing based on the 2005 recommended an OY ramp-down of an alternative ramp-down approach bycatch scorecard: Limited entry non- strategy over a 5-year period. The ramp- that would specify both the 2009 and whiting trawl 0.6 mt; limited entry down strategy provides time to collect 2010 OYs as 17 mt (F66.3%), before whiting 0.0 mt; limited entry fixed gear much needed additional data that could ramping down to the status quo SPR 1.4 mt; directed open access 1.1 mt; better inform new management harvest rate of F71.9% in 2011. After Washington recreational 2.7 mt; Oregon measures for greater yelloweye rockfish consideration of the new information recreational 2.4 mt; California catch reduction, and reduces the available at the Council’s June 2008 recreational 2.7 mt; and 0.3 for immediate adverse impacts to fishing meeting, the Council chose to exempted fishing. communities while altering the recommend a yelloweye rockfish OY of For cowcod, the SSC recommended rebuilding period by less than one year. 17 mt in both 2009 and 2010 and to revising the cowcod rebuilding plan The ramped down OY adopted for maintain the target rebuilding year of based on the new 2007 stock assessment yelloweye rockfish during the 2007 and 2084 in the status quo yelloweye because of technical errors in the 2005 2008 management cycle began with an rebuilding plan. Although the original assessment that led to a flawed OY of 23 mt in 2007 and 20 mt in 2008. ramp-down analysis was done assuming understanding of the status and biology The OY was to be reduced each year an OY of 14 mt in 2010, as noted above, of the stock. The Council initially until ultimately reaching 14 mt in 2011. an OY of 17 mt in 2010 does not recommended an OY of 3 mt in 2009 Under this approach the yelloweye significantly alter the rebuilding and 2010 based on a higher SPR harvest rockfish rebuilding plan would revert to schedule. rate (F83.6%) at its April 2008 meeting. a constant harvest rate of F = 0.0101 A 17 mt OY in 2010 would require a The 2007 and 2008 status quo OY was percent through the rebuilt date of 2084. more abrupt adjustment by management 4 mt. Because a 3-mt alternative was not The yelloweye rockfish OY ramp-down and industry as the fishery transitions to analyzed in the original 2007 cowcod strategy was a departure from the the constant harvest rate in 2011. rebuilding analysis, the Council practice of setting constant harvest rates However, maintaining a slightly higher deferred their decision on revised that are intended to carry through time OY in 2010 would allow both cowcod rebuilding plan parameters to the rebuilt dates. The 2009–2010 OY management and industry to learn how until June 2008. Cowcod is an alternatives developed for yelloweye to manage to the highly restrictive unproductive stock that is more rockfish were based on the 2007 stock harvest levels needed to rebuild depleted than previously thought. assessment update and the 2007 yelloweye. Scientific data collection Although cowcod impacts have been rebuilding analysis. The stock may be allowed with the slightly higher minimized by prohibiting retention and assessment update and rebuilding OY. Scientific data are needed to area closures in California waters, there analysis did not significantly change the improve stock assessments and to help have been instances when 3 mt has been understanding of stock productivity, understand how to make fishery catch estimated to have been incidentally although the median time to rebuild the reductions. The Council did not taken. stock under the status quo harvest rate recommend revising the target The majority of incidental catch of ramp-down strategy was projected to be rebuilding year or the harvest control cowcod has occurred in the recreational 2082 instead of 2084 as previously rule for 2011 and beyond. This constant and trawl fisheries. With the increased estimated. The change in median harvest rate beginning in 2011 is a key sablefish OY the trawl fishery could be rebuilding time was largely due to a feature of the yelloweye rebuilding plan curtailed if the 3 mt cowcod OY were higher assumed natural mortality rate. and represents the Council’s primary specified. The Council indicated that All of the yelloweye rockfish OYs decision on how to rebuild the stock in there were few remaining restrictions considered by the Council were as short a time as possible, taking into available under the groundfish FMP that
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would further reduce the take of provide a reasonable probability of current darkblotched rebuilding plan by cowcod. The Council made the harvesting the available whiting harvest specifying a target rebuilding year of recommendation for 4 mt on the belief allocation if similar to 2008. At its June 2028 and a harvest control rule of that additional large scale closures of 2008 meeting, and for the reasons F62.1%. This is a more conservative fisheries to further reduce cowcod take discussed above regarding the harvest rate, but a longer time to would be devastating to California relationship between darkblotched rebuild. fishing communities. rockfish catch and widow rockfish catch For canary, the SSC recommended The departure from the expected in the Pacific whiting fishery, the revising the status quo canary rockfish rebuilding trajectory, due to correction Council made a final OY (Sebastes pinniger) rebuilding plan of the technical flaw that existed in the recommendation for widow rockfish of adopted under Amendment 16–4 since 2005 assessment, resulted in a longer 522 mt in 2009 and 509 mt in 2010. The the new assessment fundamentally time to rebuild the cowcod stock than Council’s recommended OYs are based changed the understanding of stock was originally estimated because of a on the status quo SPR harvest rate of productivity. The Council lower estimated depletion level. Given F95.0%. The Council elected to maintain recommended an OY of 105 mt for both this was a fundamental revision in the the target rebuilding year (2015) and the 2009 and 2010, an increase from 2007– understanding of the biology of cowcod, harvest control rule (F95.0%) in the 2008 OY of 44 mt, but consistent with the SSC indicated that a revision in widow rockfish rebuilding plan. the existing rebuilding plan. The TTARGET was warranted. The Council The SSC recommended revising the Council also recommended revising the recommended formally revising the status quo darkblotched rockfish target rebuilding year from 2063 to target rebuilding year in the cowcod 2021, which is two years longer than rebuilding plan adopted under rebuilding plan from 2039 to 2072 and F=0 and maintaining the SPR harvest Amendment 16–4 since the new the SPR harvest rate from F to rate of F defined in the current 90.0% assessment fundamentally changed the 88.7% F . canary rebuilding plan. Given the new 82.1% understanding of stock productivity. It The SSC recommended maintaining understanding of the condition of the was determined that the status quo the status quo bocaccio rebuilding plan stock and the revised rebuilding plan, target rebuilding year of 2011 in the adopted under Amendment 16–4 since the Council indicated that setting the current darkblotched rebuilding plan the new assessment did not appreciably canary OY to 105 mt was a prudent cannot be achieved even under a zero change the understanding of the stock’s approach while still precautionary and harvest rebuilding strategy T = . status from the previous assessment. F 0 consistent with the Magnuson-Stevens The Council elected to maintain the Reductions in the darkblotched rockfish Act requirements. The fishing status quo target rebuilding year of 2026 OYs are highly limiting to the trawl communities have endured substantial fisheries because darkblotched rockfish and SPR harvest rate (F77.7%) in the hardship with the 44 mt canary OY in current bocaccio rebuilding plan with a co-occurs with the most economically 2007 and 2008 because substantial corresponding OY of 288 mt in both important species in the fishery such as harvest of other healthy species was 2009 and 2010. The SSC concluded that petrale sole, sablefish, and whiting. foregone, regardless of best efforts to bocaccio was showing adequate Darkblotched appears to restrict reduce incidental catch. progress towards rebuilding. exvessel revenues in the trawl fisheries At their April 2008 meeting, the The new assessment and rebuilding more than other species such as canary. Council requested an analysis of the analysis confirmed that widow rockfish Although the relationship between associated impacts of canary rockfish stock is on track for recovery by the next widow rockfish and darkblotched catch sharing between directed assessment cycle. Widow rockfish is rockfish incidentally taken in the Pacific groundfish sectors and state recreational incidentally taken in the Pacific whiting whiting fishery is uncertain, attempts to fisheries. The alternative catch sharing fishery, where the catch of widow avoid darkblotched rockfish have was to be based on the 2005 and 2007 rockfish is constrained under bycatch resulted in increased widow rockfish projections of catch, documented by the limits. Constraining widow rockfish catch and vice versa. The Council Groundfish Management Team in the incidental catch inseason has resulted considered reducing the darkblotched final bycatch scorecards. Potential in the Pacific whiting fishery having to OY below the preferred OYs of 475 in harvest guidelines for canary rockfish shift their fishing areas to better avoid 2009 and 2010 that had been were provided for each OY alternative. widow rockfish, and early closure in preliminarily recommended in April At its June 2008 meeting, the Council 2007 when the widow rockfish bycatch and increasing the widow rockfish to recommended adoption of an alternative limit was reached. However, as 522 mt in 2009 and 509 mt in 2010. By catch sharing arrangement for canary discussed above, efforts to reduce increasing the widow rockfish OY, the rockfish based on the initial 2005 widow bycatch have resulted in whiting fishery would be encouraged to scorecard. The following recommended increased darkblotched rockfish adjust their fishing strategy to further alternative would provide flexibility for bycatch. Widow rockfish also occurs, reduce their bycatch of darkblotched some fisheries: Limited entry non- but less frequently, in fixed gear and rockfish, and the needs of fishing whiting trawl 19.7 mt; limited entry recreational fisheries. communities would continue to be whiting 18.0 mt; limited entry fixed gear At its April 2008 meeting the Council taken into account. The lower OY for 2.5 mt; directed open access 2.2 mt; recommended a preliminary preferred darkblotched rockfish would result in Washington recreational 4.9 mt; Oregon OY for widow rockfish of 475 mt in faster rebuilding of that stock while the recreational 16.0 mt; and California 2009 and 2010. Although widow time to rebuild widow rockfish would recreational 22.9 mt. rockfish is projected to be rebuilt after remain unchanged. Therefore, the Information on the status and biology the next assessment, the Council darkblotched rockfish recommendation of POP and their effects on fishing recognized that the stock is not yet was reduced from the 300 in 2009 and communities has remained relatively rebuilt and will need to be fully 306 in 2010, recommended in April unchanged since the analysis of the assessed before the next biennial 2008, to 285 mt in 2009 and 291 mt in 2007 and 2008 harvest specifications management period. A recommendation 2010, recommended in June 2008. and Amendment 16–4. Therefore, the of 475 mt is lower than required by the Because of the new stock assessment, Council recommended an OY of 189 mt rebuilding plan, but was considered to the Council recommends revising the in 2009 and 200 mt in 2010. The
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Council elected to maintain the status the OYs for healthy stocks may not be between 27 fm and 137 fm (50 and 250 quo target rebuilding year of 2017 and achieved. m). Larger fish tend to be found deeper. the SPR harvest rate F86.4% specified in The OY alternatives analyzed in the Bocaccio are found in a wide variety of the current POP rebuilding plan. DEIS were based on harvest rates habitats, often on or near bottom For each approved overfished species estimated from the rebuilding features but sometimes over muddy rebuilding plan, the following simulation program and were calculated bottoms. Bocaccio are usually found parameters are specified in the FMP: using a Spawning Potential Ratio or SPR near the bottom, however, they may also Estimates of unfished biomass (B0) and (the ratio of the equilibrium spawning occur as much as 16.4 fm (30 m) off the target biomass (BMSY); the year the stock output per recruit under fished bottom. Tagging studies have shown would be rebuilt in the absence of conditions to the spawning output per that young fish move up to 148 km (92 fishing (TMIN); the year the stock would recruit under no fishing) which may be miles). Maximum age of bocaccio was be rebuilt if all fishing mortality were to converted to an instantaneous rate of determined to be at least 40 and perhaps cease beginning in 2007 (TF=0); the year fishing mortality (F). Given fishery more than 50 years. the stock would be rebuilt if the selectivity patterns and basic life history Management measures for 2009 and maximum time period permissible parameters, there is an inverse 2010: Bocaccio have historically been under National Standard Guidelines relationship between the harvest control taken by commercial trawl and fixed gear vessels and in the recreational were applied (TMAX); the target year in rule (F) and SPR harvest rate. When which the stock would be rebuilt under there is no fishing, each new female fisheries. Adult bocaccio are often caught with Chilipepper rockfish and the adopted rebuilding plan (TTARGET recruit is expected to achieve 100 also referred to as the median time to percent of its spawning potential have been observed schooling with rebuild); the spawning potential ratio (SPR=100%, F=0). As fishing intensity speckled, vermilion, widow, and ° ′ (SPR = the ratio of the equilibrium increases, expected lifetime yellowtail rockfish. South of 40 10 N. spawning output per recruit under reproduction declines due to this added lat. the bottom trawl, limited entry fixed fished conditions to the spawning source of mortality. Calculation of the gear, and open access fishing output per recruit under no fishing); harvest control rule SPR has the benefit opportunities, in the depths where and/or, the harvest control rule (F). of standardizing for differences in bocaccio are most commonly Other relevant rebuilding information is growth, maturity, fecundity, natural encountered, have been reduced also included in the FMP. The estimated mortality, and fishery selectivity through the use of RCAs. To rebuilding parameters serve as patterns and, as a consequence, the SSC accommodate incidental catch of shelf management benchmarks in the FMP recommended that the SPR harvest rate species, very small limits are allowed to and the FMPs are not amended when be used routinely. The SPR harvest rate be retained with large footrope and the values change after new stock for each species is being provided so midwater trawl gear, but harvest of assessments are completed, as is likely that fishing intensity can be more easily bocaccio is prohibited with small to happen. compared and to standardize the basis footrope trawl gear. Chilipepper Rebuilding parameters being codified of rebuilding calculations. If the rockfish limits for limited entry large rebuilding SPR target is revised upward footrope and mid water trawl gear are in regulation (50 CFR 660.365) are the ° ′ harvest control rule and the target time (a reduction in fishing mortality) in the available for the area south of 40 10 N. to rebuild. If, after a new stock rebuilding plan without changing the lat. and may be reduced inseason if assessment, the Council and NMFS target rebuilding year the new rate is set incidental catch of bocaccio is greater conclude that the parameters defined in for the duration of the rebuilding than pre-season projections. The regulation should be revised, the period. Chilipepper rockfish limits are conservative and not expected to result revision will be implemented through Bocaccio the Federal rulemaking process with in the bocaccio OY being exceeded. public notice and opportunity for Date declared overfished: March 3, Pink shrimp trawl vessels fishing in comment. Any changes to the values in 1999. waters off the State of California will Areas affected: Monterey and regulation will be supported by a continue to be required to have and use Conception. corresponding analysis. Approved fin fish excluder devices that are Status of stock: In 2007 it was at 12.7 rebuilding plans are implemented intended to reduce the catch of percent of its unfished spawning through setting OYs and establishing overfished species including bocaccio. biomass: Bocaccio are vulnerable to commercial management measures necessary to B0: 13,554 Billion eggs. maintain the fishing mortality within non trawl gears and to recreational BMSY: 5,421 Billion eggs. the OYs to achieve objectives related to fishing gear. To accommodate incidental TMIN: 2019. rebuilding requirements. The rebuilding catch of bocaccio in commercial fixed TF=0: 2020. OYs and management measures being gear fisheries, very small limits are TMAX: 2033. allowed to be retained. California implemented through Federal Target year to rebuild: 2026. regulations are summarized below. recreational fisheries will constrain Median year to rebuild: 2023. incidental bocaccio catch with Management measures adopted for 2009 SPR target fishing intensity: 77.7 recreational fishery bag limits. and 2010 are expected to keep the percent. incidental catch of overfished species ABC: 793 mt in 2009 and 2010. Canary Rockfish within the adopted OYs. Management OY: 288 mt in 2009 and 2010. Date declared overfished: January 4, measures designed to rebuild overfished Biology of the stock: Bocaccio are 2000 (65 FR 221). species, or to prevent species from historically most abundant in waters off Affected area: Coastwide. becoming overfished, may restrict the central and southern California. Status of the stock: In 2007 it was at harvest of relatively healthy stocks that Juveniles settle in nearshore waters after 32.4 percent of its unfished spawning are harvested with overfished species. a several month pelagic stage. Adults biomass. As a result of the constraining range from depths of 6.5–261 fm (12– B0: 32,561 mt. management measures imposed to 478 m). Most adults are caught off the BMSY: 13,024 mt. rebuild overfished species, a number of middle and lower shelf at depths TMIN: 2019.
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TF=0: 2019. required to use selective flatfish trawl depth range. Recent submersible work, TMAX: 2041. gear. By allowing higher limits for large however, indicates that cowcod size Target year to rebuild: 2021. and small footrope gear in areas seaward distribution may be more associated Median year to rebuild: 2020. of the RCAs and prohibiting its use in with sea floor structure than depth. In SPR target fishing intensity: 88.7 nearshore areas, there is an incentive for Monterey Bay, juvenile cowcod recruit percent. vessels to fish in deeper waters, beyond to fine sand and clay sediments at ABC: 937 mt in 2009, 940 mt in 2010. the range of canary rockfish. depths of 22–56 fm (40–100 m) during OY: 105 in 2009 and 2010. Incidental catch of canary rockfish Biology of the stock: Canary rockfish the months of March–September. Adults during the primary season for whiting are a continental shelf (shelf) species. are found at depths of 50–280 fm (90– will be constrained by sector-specific Juveniles settle in nearshore waters after 500 m) usually on high relief rocky bycatch limits that require closure of the a several month pelagic stage. Adults bottom. Adult cowcod are believed to be range from depths of 25–475 fm (46–868 commercial whiting fisheries when less abundant in depths greater than 175 m). Most adults are caught off the reached. For 2009 and 2010 the canary fm (323 m). middle and lower shelf at depths rockfish bycatch limits are: 6.1 mt for Management measures in 2009 and between 44 fm and 109 fm (80 and 200 the catcher/processor sector, 4.3 for the 2010: All directed cowcod fishing has m). Larger fish tend to be found in mothership sector, and 7.6 mt for the been prohibited since 2001. Retention of deeper waters. Canary rockfish are shore-based sector. A final 2009 and cowcod will continue to be prohibited usually associated with areas of high 2010 whiting ABC and OY will be for all commercial and recreational relief such as pinnacles, but also occur adopted at the Council’s March meeting fisheries. To prevent incidental cowcod over flat rock or mud and boulder and the bycatch limits may be harvest, two Cowcod Conservation bottoms. They are usually found near reconsidered at that time and adjusted Areas (CCAs) (the Eastern CCA and the the bottom and are occasionally found inseason. The non-trawl limited entry Western CCA) in the Southern off the bottom or in soft-bottom habitats fisheries will be constrained by RCAs California Bight were delineated to that are atypical for rockfish. A tagging coastwide that are intended to reduce encompass key cowcod habitat areas study showed that canary rockfish can the catch of canary rockfish. Pink and known areas of high catches. The migrate up to 700 km (435 miles). The shrimp trawl vessels fishing in waters CCAs were codified into regulation on maximum age of canary rockfish is 84 off the states of Washington, Oregon and November 4, 2003 (68 FR 62374). years. California will continue to be required Fishing for groundfish is prohibited Management measures in 2009 and by the states to have and use fin fish within the CCAs, except that minor 2010: Unavoidable incidental catches of excluder devices that are intended to nearshore rockfish, California canary rockfish occur in trawl, fixed reduce the catch of overfished species scorpionfish, cabezon, lingcod, and gear, open access, and recreational including canary rockfish. greenling may be taken from waters fisheries targeting groundfish, as well as Recreational fisheries are managed where the bottom depth is less than 20 commercial and recreational fisheries through bag limits, size limits and fm (36.9 m). seasons. Seasons are shorter than they targeting species other than groundfish. Darkblotched Rockfish Adult canary rockfish are often caught were in the past in order to reduce catch Date declared overfished: January 11, with bocaccio, sharpchin rockfish, of canary rockfish. As necessary, 2001 (66 FR 2338). yelloweye rockfish, yellowtail seasons can be shortened more and bag limits reduced to stay within the OYs. Areas affected: Coastwide. rockfishes, and lingcod. Researchers Status of the stock: In 2007 it was at have also observed canary rockfish The retention of canary rockfish is prohibited in the recreational fisheries. 22.4 percent of its unfished spawning associated with silvergray and widow biomass level. rockfish. Management measures Cowcod SB0: 30,640 mt. intended to limit bycatch of canary Date declared overfished: January 4, SBMSY: 12,256 mt. rockfish include RCAs, cumulative trip 2000. TMIN: 2015. limits to constrain the fishery Areas affected: Point Conception TF=0: 2018. coastwide, and bycatch limits in the (34°27′ N. lat.) to the U.S. Mexico TMAX: 2040. whiting fishery. Canary’s wide boundary. ABC: 437 mt in 2009, 440 mt in 2010. geographic distribution and catchability Status of stock: In 2007 it was at 4.6 OY: 285 mt in 2009, 291 mt in 2010. in all fisheries makes it more difficult to percent of unfished spawning biomass. Target (median) year to rebuild: 2028. manage with species specific RCAs, like B0: 2,494 mt. SPR target fishing intensity: 62.1 percent for 2009 and 2010. yelloweye rockfish and cowcod. BMSY: 997 mt. Bottom trawling is prohibited in the Biology of the stock: Darkblotched TMIN: 2060. trawl RCA, which covers depths where TF=0: 2061. rockfish are most abundant on the outer canary rockfish have been most TMAX: 2098. continental shelf and slope, mainly frequently caught. Cumulative limits are Target (median) year to rebuild: 2072. north of Point Reyes (38° N. lat.). Most structured to discourage targeting of SPR target fishing intensity: 82.1 adult darkblotched rockfish are shelf species while allowing very low percent. associated with hard substrates on the levels of incidental take to be landed. ABC: 13 mt in 2009 and 14 mt in lower shelf and upper slope at depths Because vessels fishing with trawl gear 2010. between 77 and 200 fm (140 and 365 m). shoreward of the trawl RCA are more OY: 4 mt in 2009 and 2010. Darkblotched rockfish migrate to deeper likely to encounter canary rockfish than Biology of the stock: Cowcod are waters with increasing size and age. those fishing seaward of the RCA, found at depths of 11–200 fm (75–366 Diurnal migration, rising off bottom at differential trip limits have been used m). Cowcod range from central Oregon night, is also a likely behavior of for large footrope, small footrope and to central Baja California and Guadalupe darkblotched rockfish. Fish landed in selective flatfish trawl gear. To reduce Island. However, they are rare off California generally had smaller size at incidental take of canary rockfish in the Oregon and Northern California. It has age than fish landed in the two northern area north of 40°10′ N. lat., vessels long been argued that smaller cowcod states (Oregon and Washington). Size at fishing shoreward of the RCAs are are found at the shallow end of the age in the 2003 and 2004 survey data
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did not, however, change significantly shoreside fishery. A final 2009 and 2010 Because POP co-occur with with latitude. whiting ABC and OY will be adopted at darkblotched rockfish, measures to Management measures in 2009 and the Council’s March meetings in those reduce the incidental catch of 2010: Because of their deeper years, and the bycatch limits may be darkblotched rockfish benefit POP. distribution, darkblotched rockfish are reconsidered at that time and adjusted These measures include seaward trawl caught almost exclusively by inseason. RCA boundaries that are established to commercial vessels. Most landings have keep fishing effort in deeper water POP been made by bottom trawl vessels where POP are less abundant, and targeting flatfish on the shelf, and Date declared overfished: March 3, cumulative limits for POP and minor rockfish and the DTS species on the 1999. slope rockfish that are intended to slope. Even once the darkblotched Areas affected: Vancouver and discourage targeting while allowing low rockfish population is rebuilt to BMSY, Columbia. levels of incidental catch to be landed. its population size will still be small Status of stock: Following the 2007 As needed, trip limits for other co- relative to the larger complex of slope stock assessment, the stock in 2007 was occurring species may be adjusted to rockfish species. Since 2001, believed to be at 27.5 percent of reduce POP bycatch. darkblotched rockfish have had species unfished spawning biomass level. specific ABCs and OYs, and were SB0: 36,983 units of spawning output. Widow Rockfish removed from the minor slope rockfish SBMSY: 14,793 units of spawning Date declared overfished: January 11, complex. In continued recognition of its output. 2001. status as a minor, but increasingly TMIN: 2009. Areas affected: Coastwide. healthy, stock within a larger stock TF=0: 2010. Status of stock: In 2007 it was at 35.5 complex, darkblotched rockfish TMAX: 2042. percent of its unfished spawning continues to be managed within the Target year to rebuild: 2017. biomass. minor slope rockfish trip limits. Median year to rebuild: 2011. B0: 50,746 million eggs. SPR target fishing intensity: 86.4 Management measures intended to limit BMSY: 20,298 million eggs. bycatch of darkblotched rockfish and percent. TMIN: 2009. maintain fishing mortality within the ABC: 1,160 mt in 2009 and 1,173 mt TF=0: 2009. OY specified for 2004 include (1) RCAs in 2010. TMAX: 2023. and (2) cumulative trip limits. OY: 189 mt in 2009 and 200 mt 2010. Target year to rebuild: 2015. The boundaries of the RCAs vary by Biology of the stock: The POP Median year to rebuild: 2009. season and fishing sector and may be population off the northern U.S. west SPR target fishing intensity: 95.0 modified in response to new coast (Columbia and U.S.-Vancouver percent. information about geographical and areas) is at the southern extreme of the ABC: 7,728 mt in 2009, 6,937 mt in seasonal distribution of bycatch. The stock’s range. POP are found on the 2010. seaward boundary of the trawl RCA was upper continental slope (slope), 109– OY: 522 in 2009 and 509 in 2010. set at a depth that was likely to keep 150 fm (200–275 m) during the summer Biology of the stock: Widow rockfish fishing effort in deeper waters and away and somewhat deeper, 164–246 fm are most abundant off northern Oregon from areas where the bycatch of (300–450 m), during the winter. Adults and southern Washington and are one of darkblotched rockfish was highest. sometimes aggregate up to 16 fm (29 m) the most abundant West Coast rockfish. During the winter months, above hard bottom features and may Young of the year recruit to shallow modifications to the line allow for the then disperse and rise into the water nearshore waters after spending up to 5 harvest of flatfish while minimizing the column at night. The maximum age of months as pelagic larvae and juveniles impacts on darkblotched rockfish. POP has been determined to be 70 to 90 in offshore waters. Adults range from Cumulative limits for slope rockfish years. The mean generation time is 28 bottom depths of 13 fm to 300 fm (24 north of 40°10′ N. lat. are intended to years. POP recruitment into the m to 549 m). Most adults occur near the accommodate incidental take of spawning population occurs at 3 years shelf break at bottom depths between 77 darkblotched rockfish. These slope of age. Age of maturity and size varies fm to 115 fm (140 m to 210 m). Adults rockfish limits are intended to allow with locality. POP reach 90 percent of are semi pelagic with their behavior vessels to retain slope rockfish taken as their maximum size by age 20 years. being dynamic. Large concentrations of bycatch in the DTS (Dover sole, Management measures for 2009 and widow rockfish form at night and thornyhead, sablefish) fishery. 2010: POP tend to occur in similar disperse at dawn, an atypical pattern for Cumulative limits for splitnose rockfish, depths as darkblotched rockfish, rockfish. Widow rockfish tend to be a co-occurring species between 40°10′ although they have a more northern more easily caught in higher abundance N. lat. and 38° N. lat., are constrained geographic distribution. Adult POP are during El Nin˜ o (anomalously warm and to reduce the catch of darkblotched often caught with other upper slope dry) years. Maximum age of widow rockfish. As needed, trip limits for other groundfish such as Dover sole, rockfish is 59 years. co-occurring species are adjusted to thornyheads, sablefish, and Management measures in 2009 and reduce darkblotched rockfish bycatch. darkblotched, rougheye, and sharpchin 2010: Historically, widow rockfish were Incidental catch of darkblotched rockfish. North of 40°10′ N. lat., POP are caught with yellowtail rockfish in rockfish during the primary season for caught in similar fisheries as waters off Washington. In the California whiting will be constrained by sector- darkblotched rockfish. POP are rarely and Oregon fisheries large pure catches specific bycatch limits that require caught in the recreational fisheries. of widow rockfish were taken from closure of the commercial whiting Management measures for 2009 and midwater schools. Current commercial fisheries when reached. For 2009 and 2010 that are intended to limit the limits for widow rockfish are intended 2010, the darkblotched rockfish bycatch bycatch of POP and keep fishing to accommodate incidental catch and do limits for the commercial whiting mortality within the OY include (1) not provide an incentive for directed fisheries are: 8.5 mt for the catcher/ RCAs to restrict fishing in areas where fishing. Therefore, the midwater trawl processor fishery; 6.0 mt for the POP are found and (2) cumulative trip fisheries for yellowtail rockfish, a co- mothership fishery; and 10.5 mt for the limits. occurring species with widow rockfish,
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are also being constrained. Because rockfish is particularly vulnerable to because most species are not bottom trawl opportunities for more hook and line gear. Currently, only individually identified on landing. constraining shelf rockfish species incidental harvest of yelloweye rockfish Species compositions, based on continue to be extremely limited, RCA is allowed in tribal and non tribal hook proportions encountered in samples of management measures to restrict fishing and line fisheries, and in recreational landings and extrapolated observer data, on the shelf is expected to be beneficial fisheries. are applied during the year. However, to the recovery of widow rockfish. Non Under the Council’s recommended final results are not available until after trawl fisheries have little incidental alternative a 20 fm depth restriction the end of the year. catch of widow rockfish. between 40°10′ N. lat. and 42°50.00′ N. In the preamble to the proposed rule Incidental catch of widow rockfish lat. (Cape Blanco) would be required for for the 2007–2008 groundfish during the primary season for whiting, the open access nearshore fishery. specifications and management will continue to be constrained by Limited entry fixed gear fisheries would measures, NMFS discussed overfishing sector-specific bycatch limits that have a seaward RCA boundary of 100 fm that had occurred in 2004. This require closure of the commercial north of 46°53.30′ N. lat. (Point proposed rule discusses overfishing fisheries when reached. For 2009 and Chehalis) and a 125 fm seaward RCA estimated to have occurred in 2005 and 2010 the widow rockfish bycatch limits boundary between Cape Blanco and 2006 and preliminary indicators of are: 153 mt for the catcher/processor 45°03.83 N. lat. (Cascade Head). whether overfishing occurred on any sector; 108 mt for the mothership sector; However, a 100-fm seaward RCA species in 2007. When new data are and 189 mt for the shore-based sector. boundary line would be in place for all available, NMFS updates estimates of Final 2009 and 2010 Whiting ABCs and non-trawl fixed gear fisheries on days whether overfishing has occurred as OYs will be adopted at the Council’s when the commercial halibut fishery is part of the agency’s report to Congress March meeting and the bycatch limits open. Yelloweye Rockfish Conservation on the Status of U.S. Fisheries (http:// may be reconsidered at that time and Areas (YRCAs) will continue to be used www.nmfs.noaa.gov/sfa/ adjusted inseason. to reduce yelloweye rockfish catch in statusoffisheries/SOSmain.htm). the commercial fixed gear, open access, NMFS estimates that overfishing Yelloweye Rockfish and recreational fisheries. Six new occurred on petrale sole during the 2005 Date declared overfished: January 11, YRCAs are proposed, five of which are fishing season, since the total catch of 2002. applicable to both commercial non- petrale sole exceeded its ABC of 2,762 Areas affected: Coastwide. trawl sectors and the recreational mt by 4 mt (100.1 percent of the ABC). Status of stock: In 2007 it was fishery off California, and may be In 2005, the Dover sole OY of 7,476 mt believed to be at 14.5 percent of its implemented through inseason action if was exceeded by 31 mt (100.4 percent unfished spawning biomass. additional management measures are of the OY), the cabezon OY of 69 mt was B0: 3,062 mt. necessary to keep impacts on yelloweye exceeded by 11 mt (116 percent of the BMSY: 1,225 mt. rockfish below their rebuilding OY. The OY), and the canary rockfish OY of 46.8 TMIN: 2046. other new YRCA applies to the mt was exceeded by 1.9 mt (104 percent TF=0: 2049. recreational fishery off Washington, and of the OY). Although the level of catch TMAX: 2090. is designated as an area to be avoided exceeded the OYs for Dover sole, Target (median) year to rebuild: 2084. by commercial fishers. YRCAs off the cabezon and canary rockfish, SPR target fishing intensity: 66.3 Coasts of Washington, Oregon, and overfishing did not occur because total percent in 2009 and 2010, 71.9 for 2011 California are defined at § 660.390. catch was below the ABCs of 8,522 mt and beyond. Restrictions for all of the status quo for Dover sole, 103 mt for Cabezon and ABC: 31 mt in 2009, 32 mt in 2010. YRCAs are unchanged via this action. 270 mt for canary rockfish. For all OY: 17 in each of 2009 and 2010. remaining groundfish species or species Biology of the stock: Yelloweye Overfishing groups, NMFS estimates that total catch rockfish juveniles have been found at The Magnuson-Stevens Act defines was below both ABCs and OYs in 2005. depths greater than 8 fm (15 m) in areas ‘‘overfishing’’ as ‘‘a rate or level of NMFS estimates that no overfishing of high bottom relief. Adults range to fishing mortality that jeopardizes the occurred during the 2006 fishing season, depths of 300 fm (549 m). Most adults capacity of a fishery to produce the since no ABCs were exceeded. In 2006, are caught off the middle and lower maximum sustainable yield on a the Dover sole OY of 7,564 mt was shelf at depths between 50 fm and 98 fm continuing basis.’’ Under the FMP, exceeded by 166 mt (102.2 percent of (91 m and 180 m). Adult yelloweye ABCs for all species are set at the FMSY the OY), the canary rockfish OY of 47.1 rockfish tend to be solitary and are level, the level that, for a particular year, mt was exceeded by 9.9 mt (121 percent usually associated with areas of high is intended to produce maximum of the OY), and the minor rockfish south relief with refuges such as caves and sustainable yield for that species on a OY for the nearshore species of 615 mt crevices, but also occur on mud adjacent continuing basis. None of the 2009 or was exceeded by 96 mt (116 percent of to rock structures. They are usually 2010 ABCs would be set higher than the OY). Although, the level of catch found on or near the bottom. Maximum FMSY or its proxy, none of the OYs exceeded the OY for these species, age of yelloweye rockfish is 115 years. would set higher than the corresponding overfishing did not occur because total Researchers have observed adult ABCs, and the management measures in catch was below the ABCs of 8,589 mt yelloweye rockfish associated with this proposed rule are designed to keep for Dover sole, 270 mt for canary bocaccio, cowcod, greenspotted, and harvest levels within specified OYs. rockfish, or 3,412 mt for minor rockfish tiger rockfish. When evaluating whether overfishing south. For all remaining groundfish Management measures in 2009 and has occurred for any species under the species or species groups, NMFS 2010: Yelloweye rockfish inhabit areas FMP, NMFS compares that species’ estimates that total catch was below typically inaccessible to trawl gear. In estimated total catch (landed catch + both ABCs and OYs. NMFS has taken the coastal trawl fishery, incidental discard) in a particular year to its ABC action to prevent the fisheries from catch occurs during the harvest of other for that year. Overfishing is difficult to exceeding the ABCs and OYs for these target fisheries operating at the fringes detect inseason for many groundfish, species and does not expect that harvest of yelloweye rockfish habitat. Yelloweye particularly for minor rockfish species, exceedances in 2005 or 2006 will
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jeopardize the rebuilding progress for management measures addressed below, high yelloweye encounter rates in hook either species. the Council recommended revisions to and line fisheries and the Council Preliminary data from the 2007 RCA boundary lines needed to ensure recommended that these areas could be fisheries show that no ABCs were that the lines better approximate the used as inseason closures, implemented exceeded in 2007. NMFS will not have depth contours they are intended to by NMFS and the State, if additional complete observer data on the 2007 represent and the lines that approximate reductions in yelloweye rockfish catch fisheries until late 2008, at which time each depth contour do not intersect or in the California recreational fishery or NMFS will be better able to analyze cross over each other. New RCA lines the commercial non-trawl fishery are total groundfish catch to determine proposed via this action include a new necessary during the biennium. These whether overfishing occurred on any 25-fm (46-m) boundary line areas include the general areas of Point other species. approximation off the coast of southern St. George, South Reef, Reading Rock, ° ′ 2009–2010 Fishery Management Washington, between 47 31.70 N. lat. and Point Delgada (North and South). ° ′ Measures (Queets River) and 46 38.17 N. lat. This proposed rule would make changes (Leadbetter Point). This new modified to the groundfish conservation area and As discussed earlier in this document, management line would be available, if RCA boundary line regulations at 50 groundfish fishery management necessary, to expand the recreational CFR 660.390 through 660.394, measures for 2009–2010 are intended to RCA shoreward as an inseason action to implementing area closures off rebuild overfished species as quickly as reduce impacts on canary and Washington and defining areas off possible, taking into account the status yelloweye rockfish in this area. In California, making them available for and biology of the stocks and the needs Washington Marine area 4, between potential inseason closure, as part of of fishing communities. Within the 48°02.35′ N. lat. and 47°59.50′ N. lat., routine recreational management constraints of protecting overfished the boundary line approximating the measures. species, the Council’s management 100-fm (183-fm) depth contour, which is The management measures proposed measure recommendations are intended generally used as the seaward boundary in this rule are only part of the overall to allow fishery participants as much line for the non-trawl RCA, is expanded management strategy for West Coast access to healthy stocks as possible. In seaward to encompass and eliminate groundfish. NMFS will continue to 2009 and beyond, fishing communities fishing effort in an area of known canary require vessels to carry and operate will have to forego much of the and yelloweye rockfish impacts. VMS units to monitor fishing locations, available harvestable surplus of healthy and to carry observers when requested groundfish stocks that co-occur with Changes to the RCA lines in waters by NMFS. NMFS and the states will overfished species so that overfished offshore of the state of California are again be conducting stock assessments species may be rebuilt as quickly as proposed to better approximate depth over the next two years, which will possible. Management measures contours and correct errors. There are inform the 2011–2012 specifications intended to address the rebuilding sixteen changes to boundary lines that and management measures process and needs of specific overfished species are approximate depth contours, used to provide a gauge for rebuilding progress. discussed earlier in this document, in define the trawl and non-trawl RCAs, Federal regulations for the West Coast the species-specific sections of ‘‘OY proposed in this proposed rule. The groundfish fishery are found in 50 CFR, Policies and Rebuilding Parameters for Council also recommended new discrete subpart G, §§ 660.301 through 660.399. Overfished Species’’. conservation areas off the coasts of Definitions for terms used in groundfish The types of management measures in Washington and California to reduce regulations are at § 660.302. this proposed rule do not vary fishery impacts to overfished species. Prohibitions are at § 660.306. Routine significantly from those used in recent As explained in past actions to and automatic fishery management years to reduce the incidental catch of implement groundfish specifications measures, as identified at § 660.370 and overfished species while allowing some and management measures, area implemented in §§ 660.370 through harvest of co-occurring healthy stocks. closures and other fishing restrictions to 660.385 and in Tables 3–5 of subpart G, Management measures are intended to protect overfished species have been will continue to be available for revision allow overfished species to rebuild by designed to best minimize overfished through the inseason management reducing their catch in times and areas species bycatch using the mechanisms process. Management measures for the where they most frequently occur, to most appropriate to the fishery non-trawl sablefish fisheries are found minimize bycatch with gear and fishing managed. As a result, the fishery at § 660.372, although daily/weekly area restrictions, and to distribute management regime for recreational sablefish limits are found in Tables 4 groundfish harvest throughout the year fisheries is different than that and 5 (North) and Tables 4 and 5 as much as possible to maintain implemented for commercial fisheries. (South) of subpart G. Management groundfish fishing opportunities and Yelloweye rockfish are not commonly measures for the primary Pacific markets. The fisheries management caught in trawl fisheries; therefore, whiting season are found at § 660.373, regime tends to be most constrained by management measures to minimize although trip limits for vessels operating protective measures for yelloweye and incidental catch of yelloweye focus outside of the primary season are found canary rockfish coastwide. Trawl most strongly on constraining the in Tables 3 (North) and (South) of fisheries are additionally constrained by recreational and non-trawl commercial subpart G. Coordinates for all of the measures to prevent bycatch of POP, fisheries. Off the coast of Washington, a closed areas affecting the groundfish darkblotched, and widow rockfish. new recreational closed area is fisheries, including the EFH Groundfish management measures proposed, and would also be designated conservation areas, are found in that will continue to be used in 2009– as an area to be voluntarily avoided for §§ 660.390 through 660.399. 2010 include: Trip and bag limits, size the commercial sectors, called the limits, differential trip limits by gear Westport Offshore YRCA. Off the coast Limited Entry Trawl Fishery type, season openings and closures, of California, five discrete yelloweye Management Measures large-scale area closures such as the rockfish conservation areas (YRCAs), The types of management measures RCAs, gear restrictions, and bycatch which include both state and Federal proposed for the limited entry trawl limits. In addition to the fishery-specific waters, were documented as areas of fishery in 2009–2010 are similar to
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those implemented for 2007–2008. The divided at commonly used geographic the RCA to reduce impacts to canary specific closed areas and cumulative coordinates, listed at § 660.302 under rockfish. Projected impacts on landings limits are slightly different ‘‘North-South management area’’, in darkblotched rockfish were within the than in the past biennium. When addition to the division at 40°10.00′ N. 2007 and 2008 OYs. Harvestable compared to management measures at lat. These routine adjustments to the concentrations of darkblotched rockfish the start of the 2007–2008 biennium, the RCA boundaries and the rationale for are sometimes found as far south as 38° seaward and shoreward boundaries of setting seaward and shoreward N. lat., which necessitates a more the trawl RCA are divided on a finer boundaries were discussed in detail in conservative seaward trawl RCA spatial scale North of 40°10.00′ N. lat. the inseason action that published in boundary line for the area between When compared to management the Federal Register on April 18, 2007 40°10.00′ and 38° N. lat. than for south measures at the start of the 2007–2008 (72 FR 19390). This proposed rule of 38° N. lat. North of 40°10.00′ N. lat., biennium, landing limits for some would continue to use the finer scale the seaward boundary of the Trawl RCA species and gear types are more liberal spatial management used in 2007 and is at a line that approximates 250-fm in response to increased harvest 2008 and the seaward and shoreward (458-m) in January–April and specifications resulting from new or trawl RCA boundaries which will be November–December (modified for updated stock assessments for canary divided at specific latitudes to reduce petrale sole fishing in winter months) rockfish, sablefish, bocaccio, pacific impacts to canary rockfish, while and at a line that approximates 200-fm ocean perch, and widow rockfish. allowing harvest opportunities for (366-m) in May–October. ° ′ Section ‘‘2009–2010 Groundfish ABCs’’ healthy co-occurring stocks. This South of 40 10.00 N. lat., the trawl of this proposed rule describes the new approach is primarily based on the need RCA boundaries are most affected by the stock assessments used in deciding the to reduce canary rockfish bycatch, and need to reduce incidental catch of 2009–2010 harvest specifications. More it is also expected to reduce incidental bocaccio and canary rockfish, both of liberal management measures for certain take of widow and yelloweye rockfish. which are shelf species. The focus on species and gear types at different times The Council recommended shelf protection in the south means that of the year are intended to allow implementing a shoreward boundary the southern trawl RCA is narrower than in the north, which covers both shelf increased harvest of healthy stocks, in line approximating the 75-fm (137-m) ° ′ times and areas that have lower impacts depth contour for the trawl RCA and slope habitat. South of 40 10.00 N. on overfished groundfish species. More throughout the year, except in the area lat., the trawl RCA is primarily restrictive management measures are North of Cape Alava (48°10.00′ N. lat.). proposed to be between 100-fm (183-m) intended to respond to the need to Between Cape Alava and the U.S./ and 150-fm (274-m) with an extension rebuild overfished species as quickly as Canada border, where the highest of the seaward trawl RCA boundary to possible, taking into account various canary rockfish impacts occurred in a petrale-modified 200-fm (368.6-m) line factors, and also to implement harvest 2005, the RCA will extend to the shore, in winter months (January–February and November–December) between 38° reductions resulting from a new closing the fishing area shoreward of the ° ′ ° ′ darkblotched rockfish stock assessment. RCA for the entire year. To reduce and 40 10.00 N. lat. South of 34 27.00 NMFS’s bycatch model for the limited incidental take of canary rockfish N. lat., the trawl RCA around islands is entry trawl fishery does not differ shoreward of the RCA, vessels operating proposed to be between the shoreline significantly from that used in setting shoreward of the RCA in the area north and 150-fm (274-m). Modifications to cumulative trip the 2007–2008 fishery management of 40°10.00′ N. lat. are required to use limits in the non-whiting trawl fishery measures, except that new and more selective flatfish trawl gear. The Council used in conjunction with closed area recent observer data has been considered moving the shoreward management are intended to control incorporated into that model. boundary of the RCA even closer to the catch of target species and to reduce As in past years, trawl fisheries shore than 75-fm (137-m). However, the impacts on co-occurring overfished continue to be managed with differing Council determined that moving trawl stocks. For the 2009–2010 biennium, RCAs and cumulative trip limits north operations farther inshore could disturb cumulative trip limits are adjusted from and south of 40°10.00′ N. lat. North of sensitive Dungeness crab habitat. In status quo in response to: Changes in 40°10.00′ N. lat., the shoreward addition to the concern about crab specifications that may increase or boundary of the trawl RCA is set habitat, information in 2007 and 2008 decrease allowable catch of target primarily based on the need to reduce indicated that effort decreased more species; changes in specifications or canary rockfish bycatch, although its than anticipated when the shoreward rebuilding plans that may increase or location is also expected to reduce boundary of the RCA was brought decrease allowable catch of co-occurring incidental take of other, northern shoreward of the boundary line overfished species; and the most overfished shelf species such as widow approximating the 75-fm (137-m) depth recently available fishery information and yelloweye rockfish. Most adult contour. Therefore the shoreward from ongoing 2008 fisheries. canary rockfish are caught off the boundary of the trawl RCA is not Coastwide adjustments in cumulative middle and lower continental shelf, proposed to be shoreward of the trip limits are proposed for Dover sole, therefore vessels operating shoreward of boundary line approximating the 75-fm longspine and shortspine thornyheads, the RCA are more likely to encounter (137-m) depth contour in the 2009–2010 and sablefish (DTS complex) based on canary rockfish than those operating biennium. the landings information in the 2008 seaward of the RCA. At their March The seaward boundary proposed for fishery, and new 2009–2010 2007 meeting, the Council the trawl RCA north of 40°10.00′ N. lat. specifications. Lower than anticipated recommended finer scale spatial is primarily designed to reduce bycatch landings of sablefish early in the 2008 management North of 40°10.00′ N. lat. of northern slope overfished species, fishery indicate that cumulative limits in response to higher than expected POP and darkblotched rockfish. In 2007 can be raised in January through April canary rockfish bycatch rates from 2005 and 2008, the seaward boundaries of the of the 2009–2010 biennium, to provide observer data. On April 17, 2007, NMFS RCA were liberalized by moving them additional fishing opportunity early in implemented seaward and shoreward shoreward, with the intent of shifting the calendar year and reduce the boundaries for the northern trawl RCA some of the nearshore effort seaward of seasonal increases, that were made
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through inseason adjustments in 2008, bycatch limit for each species has been limit, due to imprecise projections. If a resulting in a more constant availability used for all commercial sectors of the sector is closed before actually attaining of fishing opportunity throughout the fishery. the bycatch limit, a portion of a sector’s calendar year. Generally, longspine and Concern that bycatch in one sector Pacific whiting allocation could remain shortspine thornyhead cumulative would result in the closure of a different unharvested. However, the Council limits are reduced coastwide in sector of the fishery led the Council to indicated that closing upon actual response to reduced 2009–2010 recommend sector-specific bycatch attainment, as is currently done, specifications, relative to status quo. limits rather than a single bycatch limit includes too much of a risk of exceeding North of 40°10.00′ N. lat., cumulative for all commercial sectors. The bycatch the bycatch limit and potentially limits for vessels using selective flatfish limits will be divided among sectors in resulting in the OY for a bycatch limit trawl gear to target various flatfish the same percentages as the whiting is species being exceeded. species are generally increased due to allocated. Therefore, this proposed rule At its June 2007 meeting, the Council additional availability of co-occurring specifies sector-specific bycatch limits recommended that NMFS implement canary rockfish in the nearshore area for each of the commercial sectors of the Federal regulations for a maximized where selective flatfish trawl gear is Pacific whiting fishery. If a sector- retention and monitoring program in the primarily used. specific bycatch limit is reached or is Pacific whiting shoreside fishery. The South of 40°10.00′ N. lat., cumulative projected to be reached, the Pacific recommended rulemaking would limits for splitnose rockfish, sablefish, whiting fishery for that sector would be require vessels participating in the Dover sole and chilipepper rockfish are closed. When a sector is closed because Pacific whiting shoreside fishery to increased due to lower than expected a bycatch limit has been reached or was procure and pay for video-based catches of these species in 2008. projected to be reached, unused electronic monitor system (EMS) Cumulative limits for minor slope amounts of the bycatch limit species services, and for Pacific whiting rockfish and darkblotched rockfish are would be rolled-over to the remaining shoreside first receivers to procure and reduced between 40°10.00′ and 38° N. sectors of the non-tribal Pacific whiting pay for the services of one independent lat. to reduce impacts on overfished fishery. If a sector reaches its whiting catch monitor. Catch monitors are darkblotched rockfish, and to keep total allocation, unused amounts of bycatch individuals who are primarily mortality within the 2009–2010 limit species would be shifted to those responsible for collecting catch data that darkblotched rockfish OYs. sectors of the non-tribal Pacific whiting is used for fish ticket verification. NMFS The tables that further describe fishery that remain open. The following is in the process of implementing the species specific cumulative trip limits bycatch limits are proposed for 2009 maximized retention program for the in the limited entry trawl fishery can be and 2010: for catcher/processors 6.1 mt shoreside whiting fishery recommended found in tables 3 (North) and 3 (South) of canary rockfish, 153.0 mt of widow by the Council in June 2007, and of subpart G. rockfish; and 8.5 mt of darkblotched anticipates that a final rule will be in rockfish; for motherships 4.3 mt of place soon after the effective date of the Limited Entry Whiting Trawl Fishery canary rockfish, 108.0 mt of widow 2009–2010 harvest specifications and The Council recommended an rockfish; and 6.0 mt of darkblotched management measures proposed by this assortment of management measures for rockfish; and for shore-based 7.6 mt of action. the Pacific whiting fishery, including: canary rockfish, 189.0 mt of widow To ensure the integrity of the Sector-specific bycatch limits, closing rockfish; and 10.5 mt of darkblotched shoreside whiting monitoring program, the whiting fishery upon projected rockfish. including the increased requirements of attainment of a bycatch limit, When the Council sets final 2009 and sector-specific bycatch limits, the mandatory monitoring of Pacific 2010 Pacific whiting harvest levels the Council recommended that NMFS whiting deliveries for fish ticket bycatch limits may be reevaluated, and increase the catch monitor coverage verification, maximized retention the Council may make requirements from what had been requirements for catcher vessels recommendations to revise the limits. It recommended in June 2007 (one catch delivering to mothership processors, must be noted that bycatch limits are monitor per facility) to full coverage in exceptions to some regulations for not allocations, but instead are a which all Pacific whiting deliveries are Pacific whiting shoreside vessels that management tool used to control the monitored by catch monitors (the are 75 feet in length or less, new potential impacts of the non-tribal number of individual catch monitors observer coverage requirements for Pacific whiting fisheries on other per facility would vary depending on Pacific whiting shoreside vessels that groundfish fisheries. Canary rockfish is the hours of operation and the number sort catch at sea, and provisions to allow the only bycatch limit species for which of Pacific whiting deliveries received inseason depth-based closures. a harvest guideline is being established each day). The catch monitor coverage specifically for the whiting fishery. requirements recommended by the Sector-Specific Bycatch Limits The Council also recommended that Council are not being implemented by To allow the Pacific whiting industry NMFS implement regulatory provisions this action because an analysis of the to have the opportunity to harvest that allow each sector of the whiting impacts must first be completed. NMFS higher OYs, the Council has used fishery to be closed through an intends to implement the catch bycatch limits to restrict the catch of automatic action when NMFS projects monitoring provisions in a subsequent certain overfished species. With bycatch the attainment of a bycatch limit. rulemaking that implements all of the limits, the industry has the opportunity Closing on the projected attainment was provisions of the Pacific whiting to harvest a larger amount of whiting, if recommended as a measure to reduce shoreside fisheries maximized retention they can do so while keeping the the risk of exceeding a specified bycatch and monitoring program. It is incidental catch of overfished species limit and possibly an overfished species anticipated that the proposed within adopted bycatch limits. In recent OY. The Council recognized that closing maximized retention and monitoring years, bycatch limits have been used for upon projected attainment may program action will include the the most constraining overfished inadvertently result in a bycatch limit following provisions: Catch monitor species; darkblotched, canary and being exceeded or result in the actual coverage specifications, requirements to widow rockfish. Since 2005, a single catch being well under the bycatch procure catch monitors from NMFS
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certified catch monitor providers, and service provider and pay all associated vessels that sort at sea are unmonitored. defined responsibilities of first receivers costs. The Council recommended that NMFS relative to the acceptance of unsorted The Council also recommended that require Pacific whiting shoreside vessels catch and catch monitoring. NMFS prohibit discarding by catcher that sort their catch at sea to procure The mothership sector of the whiting vessels in the mothership sector. and pay for the services of NMFS- fishery is composed of catcher vessels Because current regulations do not certified observers in the same manner that harvest Pacific whiting and contain language that specifically as the at sea processors. Allowing mothership vessels that process, but do prohibits catcher vessels in the fishers to land value-added Pacific not harvest Pacific whiting. Regulations mothership sector from dumping catch whiting catch is expected to increase at 50 CFR 660.314(c) and 660.314(e) at sea, a prohibition is being added to exvessel revenues and offset the added require mothership processors to pay for clarify the intent of the existing overhead cost of observers. and carry two observers. Observers regulations. Regulations at The Council recommended that sample catch received from the catcher § 660.306(i)(2) currently prohibit vessels NMFS implement regulations that allow vessels and provide data used to from interfering with or biasing the depth-based closures for the whiting estimate total catch by species. The sampling employed by an observer by fishery as an inseason management catcher vessels are currently mechanically or physically sorting or measure when NMFS projects that a unmonitored. In recent years the discarding catch before sampling. This sector of the non-tribal Pacific whiting Council has raised concern about language was intended to include the fishery will reach a bycatch limit before increased incentives to discard bycatch dumping of catch at sea by catcher the Pacific whiting allocation for the limit species to prevent the fishery from vessels. sector is projected to be reached. being closed. Current groundfish regulations at 50 Regulatory provisions would allow for To ensure the integrity of the whiting CFR 660.302 define shore-based depth-specific closures using the monitoring program, including the processing as an activity that occurs at specified depth-based management lines increased requirements of sector- a facility that is permanently fixed to of 75 fm (137 m), 100 fm (183 m) or 150 specific bycatch limits in the Pacific land and involves the preparation or fm (274 m) to be used to restrict the whiting fishery, the Council packaging of groundfish for human fishery by sector. Although bycatch rate recommended that NMFS require consumption, retail sale, industrial uses estimates vary by depth and sector, the catcher vessels delivering to or long-term storage, including, but not analysis suggests that fishing deeper motherships to pay for and use EMS limited to, cooking, canning, smoking, that 150 fm (274 m) results in reduced monitoring at all times to insure that salting, drying, filleting, freezing, or canary and yelloweye rockfish rates, catch is being retained. EMS units rendering into meal or oil. It does not while deeper fishing is more likely to consist of two or more closed circuit mean heading and gutting unless result in increased catch of television cameras, global positioning additional preparation is done. In darkblotched and widow rockfish. systems (GPS), hydraulic and winch addition to allowing heading and Maintaining the ability to restrict the sensors, and on-board data storage. gutting, the Council recommended that Pacific whiting fishery to depths to NMFS has determined that EMS is a an exemption be provided for the shore- reduce the catch of bycatch limit species suitable tool for monitoring full or based sector that would allow Pacific provides the fishery participants with maximized retention in the whiting whiting shoreside vessels 75 feet in flexibility to avoid overfished species, fishery. The EMS requirements for length or less, to remove the tails of but maintains a mechanism for further catcher vessels in the mothership sector whiting and to allow the catch to be reducing the incidental take if recommended by the Council are not frozen to increase the value. The Pacific necessary. Taking this flexible approach being implemented by this action. whiting allocation taken by these allows the conditions in the fishery as Because the infrastructure necessary to vessels would continue to be attributed well as the tradeoffs between the three support EMS monitoring is not to the shore-based allocation. depleted rockfish species and Chinook currently in regulation and was not In 2006 and 2007, a single vessel salmon to be taken into consideration. analyzed in the DEIS, NMFS intends to headed and gutted Pacific whiting at implement the requirements in a sea. The vessel used a smaller net and Limited Entry Fixed Gear and Open subsequent rulemaking. To assure that shorter tows to maintain product Access Non-trawl Fishery Management only qualified businesses provide EMS quality. Head and gut machines were Measures services, the Federal regulations for a used at sea and the product was Management measures for the limited maximized retention and monitoring immediately placed in thick slurry of entry fixed gear and open access non- program for the Pacific whiting ice. As a result, the vessel was able to trawl fisheries tend to be similar shoreside fishery as recommended by significantly increase its at-sea because the majority of participants in the Council in June 2007 includes EMS production and ex-vessel price of both fisheries use hook-and-line gear. system specifications and performance Pacific whiting. Because the Pacific These fisheries will be most constrained standards as well as EMS provider whiting were only headed and gutted by management measures to decrease certification requirements. NMFS (i.e., the tails were left on) and not impacts on yelloweye rockfish. The intends to certify providers through an frozen, the vessel’s activities did not non-trawl RCA boundaries proposed for application and review process in result in the vessel being considered an 2009–2010 are the same as those which businesses provide information at-sea processor. Allowing the Pacific implemented for the non-trawl fisheries regarding their ability to provide whiting to be tailed and frozen would in 2007–2008, except for the following adequate services to support the EMS further increase the value of the catch. proposed changes. The seaward and monitoring, data storage and data Under current regulation, shoreward boundaries of the non-trawl processing needs. NMFS anticipates that unmonitored Pacific whiting shoreside RCA vary along the coast, and are the subsequent rulemaking will require vessels that sort at sea are allowed to divided at commonly used geographic the owners of catcher vessels fish within the RCAs. The integrity of coordinates, defined in § 660.306, participating in the Pacific whiting the RCAs as well as the ability to including the status quo division at the mothership fishery to procure EMS monitor bycatch limits was identified as north-south management line at services from a NMFS EMS certified an issue when Pacific whiting shoreside 40°10.00′ N. lat. in Northern California.
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New divisions of the RCA boundaries because of the different abundances of fleets. Development and are established based on recently overfished species along the coast. implementation of a federal logbook available fishery information, indicating The Salmon Troll YRCA is found in system would take more time than is that some areas where the non-trawl groundfish regulation at § 660.383 and available for this rulemaking. Therefore, fishery occurs have higher yelloweye § 660.390, and in the Pacific Coast it is under consideration for rockfish impacts than others, and the salmon regulations at § 660.405. implementation in the future. RCA boundaries are adjusted to reduce Like trawl fishery participants, non- Management measures for the limited impacts to yelloweye rockfish in these trawl vessels are also subject to several entry fixed gear fishery, including gear areas. The seaward boundary between groundfish closed areas other than those requirements, are found at § 660.382, 45°03.83′ N. lat. (Cascade Head) and within the RCA boundary lines and with management measures specific to 42°50.00′ N. lat. (Cape Blanco) is those intended for EFH conservation. the primary sablefish season found at The following closed areas apply to all proposed to be moved from the § 660.372. Limited entry fixed gear trip non-trawl vessels, including both open boundary line approximating the 100-fm limits are found in Table 4 (North) and access and limited entry fixed gear Table 4 (South) of subpart G of part 660. (183-m) depth contour to the boundary vessels, and have not been proposed for Management measures for the open line approximating the 125-fm (229-m) modification in 2009 and beyond access fishery, including gear depth contour, except on days when the (§ 660.390): A Cordell Banks Closed requirements, are found at § 660.383. directed halibut fishery is open, the Area; closed areas around the Farallon Open access trip limits are found in seaward boundary remains at the line Islands off San Francisco and San Mateo Table 5 (North) and Table 5 (South) of approximating the 100-fm (183-m) Counties, CA; the Eastern CCA. subpart G of part 660. depth contour. This change in the The non-trawl fisheries have little to seaward boundary is designed to reduce no incidental catch of POP, Open Access Non-Groundfish Trawl impacts on yelloweye in the limited darkblotched, or widow rockfish. The Gear Fisheries Management Measures entry fixed gear sablefish fishery. Also, effects of these fisheries on bocaccio, Open access non-groundfish trawl the shoreward RCA boundary from canary, cowcod, and yelloweye rockfish gear (used to harvest ridgeback prawns, 42°50.00′ N. lat. to 40°10.00′ N. lat. is are constrained as much as possible by California halibut, sea cucumbers, and proposed to be moved from the the non-trawl RCA, described above, pink shrimp) is managed with ‘‘per trip’’ boundary line approximating the 30-fm and by the YRCAs and CCAs. Trip limits, cumulative trip limits, and area (55-m) depth contour to the boundary limits proposed for the non-trawl closures. Trip limits in 2009–2010 are line approximating the 20-fm (37-m) fisheries in 2009–2010 are similar to similar to those in 2007–2008. The depth contour. This change is proposed those that applied to these fisheries in species-specific open access limits because WCGOP data has shown higher 2007–2008. The open access sablefish apply; in addition vessels may not yelloweye bycatch rates in this area, and limit is more conservative than the exceed overall groundfish limits. As in this change would attempt to reduce limited entry limit, recognizing that the past years, the pink shrimp fishery is bycatch rates in this specific area. The open access fleet can expand to an subject to species-specific limits that are non-trawl RCA boundaries from North unknown number of participants. Tier different from other open access limits to South are proposed to be as follows: limits for the limited entry sablefish- for lingcod and sablefish. Also, as in From the U.S./Canada Border and endorsed fleet are higher than in 2007– past years, thornyheads may not be ° ′ 2008, reflecting the higher sablefish OY taken and retained in the open access 45 03.83 N. lat. the non-trawl RCA is ° ′ proposed to be between the shoreline for 2009–2010 sablefish harvest fisheries north of 34 27.00 N. lat. Trawling with open access non- and a boundary line approximating the specifications: In 2009, Tier 1, 61,296 lb groundfish gear for pink shrimp will be 100-fm (183-m) depth contour. Between (27,803 kg); Tier 2, 27,862 lb (12,638 ° ′ ° ′ kg); Tier 3, 15,921 lb (7,221 kg). For permitted within the trawl RCA; 45 03.83 N. lat. and 42 50.00 N. lat. the however, the states require pink shrimp non-trawl RCA is proposed to be 2010 the limits are as follows, Tier 1, 56,081 lb (25,437 kg); Tier 2, 25,492 lb trawlers to use finfish excluder devices between the boundary lines to reduce their groundfish bycatch, approximating the 30-fm (55-m) and the (11,562 kg); Tier 3, 14,567 lb (6,648 kg). Similar to the limited entry trawl particularly to prevent bycatch mortality 125-fm (229-m) depth contours. for canary and other rockfishes. ° ′ ° ′ fishery, landings of spiny dogfish and Between 42 50.00 N. lat. and 40 10.00 Pacific cod taken in the non-trawl Trawling for ridgeback prawns, N. lat. the non-trawl RCA is proposed to fisheries will be subject to trip limits California halibut, and sea cucumber is be between boundary lines throughout the 2009–2010 management subject to the same RCA area closures as approximating 20-fm (37-m) and 100-fm cycle. In addition, trip limits for the limited entry trawl fishery, except (183-m) depth contours. Between ° that ridgeback prawn trawling will be ° ′ ° ′ sablefish south of 36 N. lat. were 40 10.00 N. lat. and 34 27.00 N. lat. the increased above 2007–2008 levels. permitted out to a boundary line non-trawl RCA is proposed to be These limits are increased due to higher approximating the 100-fm (183-m) between boundary lines approximating specifications for sablefish in this area depth contour if and when the inshore the 30-fm (55-m) and 150-fm (274-m) for 2009–2010 and prohibitions against boundary line of the limited entry trawl ° ′ depth contours. Between 34 27.00 N. fishing within the non-trawl RCA limit RCA is moved shallower than 100-fm lat. and the U.S. border with Mexico, the effects of these fisheries on (183-m). RCA restrictions off California including waters around islands, the overfished species. are particularly intended to reduce non-trawl RCA is proposed to be Salmon trollers will be allowed to bycatch and bycatch mortality for between boundary lines approximating keep incidentally caught lingcod with a southern and coastwide overfished the 60-fm (110-m) and 150-fm (274-m) ratio limit of 1 lingcod per 15 Chinook, species such as bocaccio, cowcod, and depth contours. The Council also plus 1 lingcod up to a trip limit of 10 canary rockfish. The CCA boundaries adopted new YRCAs off northern lingcod, up to a maximum limit of 400 are not proposed to be changed for open California defined in this proposed rule lbs per month. access non-groundfish trawl vessels. for later implementation through The Council recommended Management measures for the open inseason action if necessary. The mandatory logbooks for the limited access fisheries, including gear boundary lines vary along the coast entry and open access fixed gear fishing requirements, are found at § 660.383.
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Trip limits are found in Table 5 (North) 2010 will be similar to those in 2007– catch of overfished species according to and Table 5 (South) of subpart G of part 2008, beginning in mid-March and where those species occur and where 660. ending in mid-October, although the fishing effort is strongest. The season north of 48°10.00′ N. lat. (Cape California-wide combined bag limit for Recreational Fisheries Management Alava) will not begin until mid-April. the Rockfish-Cabezon-Greenling (RCG) Measures South of Leadbetter Point off the state of complex would continue to be 10 fish Recreational fisheries management Washington, when halibut are onboard per day when the season is open. RCG measures are designed to limit catch of the vessel from May through September, sub-bag limits will also remain the overfished and nearshore species to there will be no retention of groundfish, same, except that the cabezon limit sustainable levels while also allowing except sablefish and Pacific cod. statewide will increase from one fish to viable fishing seasons. Overfished Off Oregon, recreational fishing for two fish per day and the bocaccio limit species that are taken in recreational groundfish will be closed offshore of a will increase south of 40°10.00′ from fisheries are bocaccio, cowcod, canary, boundary line approximating the 40-fm one fish to two fish per day, making the and yelloweye rockfish. Because sport (73-m) depth contour from April bag limit consistent for the entire state fisheries are more concentrated in through September. Recreational of California. Fishing for lingcod will be nearshore waters, the 2009–2010 fisheries participation is heaviest during closed in the winter months to prevent recreational fishery management these months and this closure is catch of lingcod during its spawning measures are also intended to constrain intended to move the groundfish and nesting season. This rule proposes catch of nearshore species such as black fisheries inshore of the continental shelf to remove the gear restriction regarding rockfish and cabezon. These protections to reduce incidental catch of canary and maximum hook size, number of hooks, are particularly important for fisheries yelloweye rockfish. The Stonewall Bank and weight for sanddabs and ‘‘other off California, where the bulk of West YRCA currently in place for the flatfish’’. The efficacy of this gear Coast recreational fishing occurs. recreational Pacific halibut fishery off restriction was analyzed using the CRFS Washington, Oregon, and California Oregon (71 FR 10850, March 3, 2006) database and was shown to have a each proposed, and the Council will remain the same as in 2007–2008. minimal reduction on impact rates of recommended, different combinations In addition, EFH Conservation Areas, overfished species. of seasons, bag limits, area closures, and listed at § 660.306, also apply to Between the Oregon/California border size limits to best fit the requirements to recreational fisheries using bottom to 40°10.00′ N. lat. the recreational rebuild overfished species found in contact gear off Oregon. The Oregon their regions, and the needs and recreational fishery marine fish bag fishery will be open May 15 through constraints of their particular limit will be increased from 8 to 10 fish September 15 (April–November for recreational fisheries. in aggregate. As in waters off lingcod) in waters shallower than the Recreational fisheries in northern 20-fm (37-m) depth contour. Between Washington, retention of yelloweye and ° ′ ° ′ California and Washington are canary rockfish continues to be 40 10.00 N. lat. and 38 57.00 N. lat. the constrained by the need to reduce prohibited. The lingcod bag limit will recreational fishery will be open May yelloweye impacts. In order to reduce increase from 2 fish to 3 fish per day, 15–August 15 in waters shallower than yelloweye impacts the Council adopted the 20-fm (37-m) depth contour. and the size limit will remain 22 inches ° ′ ° ′ a new yelloweye RCA (YRCA) off (56 cm), as in Washington. The flatfish Between 38 57.00 N. lat. and 37 11.00 Westport, Washington which would daily bag limit will remain 25 fish in N. lat. the recreational fishery will be prohibit fishing for, and retention and aggregate (excluding Pacific halibut). open June 13–October 31 in waters possession of groundfish and halibut. For 2009–2010, recreational fisheries shallower than a boundary line The Council also adopted new YRCAs off California are proposed to be approximating the 30-fm (55-m) depth ° ′ off northern California defined in this managed as six separate areas, up from contour. Between 37 11.00 N. lat. and ° proposed rule for later implementation four in 2007–2008, to allow more 36 N. lat. the recreational fishery will through inseason action as necessary. precision and flexibility in minimizing be open May 1–November 15 in waters The status quo catch sharing plan for impacts on overfished stocks: The shallower than a boundary line southern black rockfish OY of 42:58 Northern area is defined as the area approximating the 40-fm (73-m) depth between California and Oregon is from the Oregon/California border to contour. Between 36° N. lat. and proposed in this rule. 40°10.00′ N. lat.; the North-Central 34°27.00′ N. lat. the recreational fishery Off Washington, recreational fishing North of Pt. Arena area is defined as the will be open May 1–November 15 in for groundfish and halibut will continue area from 40°10.00′ N. lat. to 38°57.00′ waters shallower than a boundary line to be prohibited inside the North Coast N. lat.; the North-Central South of Pt. approximating the 40-fm (73-m) depth Recreational YRCA, a C-shaped closed Arena area is defined as the area from contour. Between 34°27.00′ N. lat. and area off the northern Washington coast, 38°57.00′ N. lat. to 37°11.00′ N. lat.; the the U.S./Mexico border, the recreational and the South Coast Recreational YRCA. South-Central Monterey area is defined fishery will be open from March– In addition, a new Recreational YRCA is as the area from 37°11.00′ N. lat. to 36° December in waters shallower than a established, called the Westport N. lat.; the South-Central Morro Bay boundary like approximating the 60-fm Offshore YRCA. Coordinates for all of area is defined as the area from 36° N. (110-m) depth contour. These time and these YRCAs are defined at 50 CFR lat. to 34°27.00′ N. lat. and the South area closures are primarily intended to 660.390. The RCA for recreational area is defined as the area from reduce catch of yelloweye rockfish, as fishing off Washington will be the same 34°27.00′ N. lat. to the U.S./Mexico well as other co-occurring overfished as in 2008. The groundfish bag limit off border. California updated its rockfish species such as bocaccio and Washington will remain the same as in recreational fisheries catch model with canary rockfish. Cowcod catch in the 2007–2008: 15 aggregate bottomfish bag data from the California Recreational area south of 34°27.00′ N. lat. continues limit; 10 rockfish sub-limit with no Fisheries Survey (CRFS) to make to be constrained by the CCAs, which retention of canary or yelloweye recommendations to the Council for the are closed throughout the year to rockfish; 2 lingcod sub-limit, with the 2009–2010 fisheries. Season and area recreational fishing for groundfish. This lingcod minimum size of 22 inches (56 closures differ between California proposed rule does not propose to cm). The lingcod seasons in 2009 and regions to better prevent incidental modify the fishing restrictions within
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the CCAs for the recreational fisheries. fish in conjunction with the Council Tribal set-asides for the Quileute and In addition, EFH Conservation Areas, process for determining harvest Makah Tribes in the amounts of 8,000 listed at § 660.306, apply to recreational specifications and management mt. and 42,000 mt., respectively, which fisheries using bottom contact gear off measures. The Council’s groundfish represents the amounts requested or California. fisheries require a high degree of agreed upon at the time the shares of the Management measures for coordination among the tribal, state, and 2009 fishery were being established by recreational fisheries off all three West federal co-managers in order to rebuild the Council in accordance with the Coast states are found at § 660.384. overfished species and prevent procedures set forth in 50 CFR 660.324. Washington Coastal Tribal Fisheries overfishing, while allowing fishermen These interim individual Tribal set- Management Measures opportunities to sustainably harvest asides for 2009 only are not in any over 90 species of groundfish managed manner to be considered a In 1994, the United States formally under the FMP. The management determination of treaty rights to the recognized that the four Washington approach for whiting has been harvest of Pacific whiting for use in coastal treaty Indian tribes (Makah, developed following these procedures. future fishing seasons, nor do they set Quileute, Hoh, and Quinault) have Since 1996, only the Makah Tribe has precedent for individual Tribal treaty rights to fish for groundfish in the prosecuted the tribal fishery for Pacific allocations of the Pacific whiting Pacific Ocean, and concluded that, in whiting. However, for the 2009–2010 resource: the amounts being set aside for general terms, the quantification of harvest specification cycle, three of the each tribe for 2009 are based on the those rights is 50 percent of the four coastal tribes indicated their intent timely requests from the tribes at the harvestable surplus of groundfish that to participate at some point during this June Council meeting. pass through the tribes’ usual and two-year period. The Quinault Nation NMFS and the co-managers have also accustomed fishing areas (described at indicated their intent to start fishing in begun the process of determining the 50 CFR 660.324). 2010, and both the Quileute and Makah long-term tribal allocation for whiting. For those species with tribal Tribes indicated they intended to fish in They met at the September 2008 allocations, the tribal allocation is both 2009 and 2010. All three tribes Council meeting and agreed on a subtracted from the species OY before notified NOAA Fisheries during the process in which NOAA would pull limited entry and open access November 2007 Council meeting and together the current information allocations are derived. The tribal subsequently followed up with written regarding whiting, circulate it among fisheries for sablefish, black rockfish, proposals prior to the March 8–14, 2008 the co-managers, seek comment on the and whiting are separate fisheries and Council meeting as anticipated in the information and possible analyses, and are not governed by the limited entry or applicable regulations. then prepare analyses of the information open access regulations or allocations. After the initial tribal requests were to be used by the co-managers in The tribes regulate these fisheries so as received, several meetings and developing a tribal allocation for use in to not exceed their allocations. discussions occurred between the tribal, 2010 and beyond. This process is on- The tribal harvest guideline for black state, and federal co-managers. These going. Its goal is agreement among the rockfish is 9.1 mt (20,000 lbs) for the meetings resulted in an understanding co-managers on a total tribal allocation management area between the U.S./ by NOAA and the State of Washington for incorporation into the Council’s Canada border and Cape Alava that a tribal allocation of 50,000 mt. in planning process for the 2010 season. ° ′ (48 10.00 N. lat.) and is 4.5 mt (10,000 2009 would satisfy the needs expressed The further goal is to provide the tribes lbs) for the management area between by the Quileute and the Makah. This the time and information to develop the Destruction Island and Leadbetter Point was based on the separate requests of inter-tribal allocation or other necessary ° ′ (46 38.17 N. lat.). Similar to past years, the Quileute for up to 8,000 mt. in 2009 management agreement. the tribal sablefish set aside is 10 and the Makah for up to 42,000 mt. in NOAA Fisheries believes that the percent of the OY north of 36° N. lat., 2009, for a total of 50,000 mt. 50,000 mt. interim set aside for 2009 less 1.6 percent for estimated discard Based on the requests received from only, although higher than the prior mortality. For both 2009 and 2010, the the Tribes during the schedule specified tribal set asides, is still clearly within tribal sablefish set aside is 694 mt. in 50 CFR § 660.324, the Pacific the tribal treaty right to Pacific whiting. The regulations at 50 CFR 660.324(d) Fisheries Management Council Although as described above, further establish the process by which the tribes recommended a tribal set-aside of scientific review will occur in late 2008 with treaty fishing rights in the area 50,000 metric tons (mt.) for 2009 only, and early 2009, current knowledge on covered by the Pacific Coast Groundfish with the Makah Tribe to manage 42,000 the distribution and abundance of the Fishery Management Plan (FMP) request mt., including the bycatch amounts coastal Pacific whiting stock reveals that new allocations or regulations specific associated with this portion of the set- 50,000 mt. lies within the range of a to the tribes, in writing, before the first aside, and the Quileute Tribe to manage tribal treaty right to Pacific whiting. As of the two meetings at which the 8,000 mt., including the bycatch described above, the co-managers are Council considers groundfish amounts associated with this portion of working to determine the long-term management measures. The regulations the set-aside. The Council also tribal set-aside for 2010 and beyond further state ‘‘the Secretary will develop requested that NOAA Fisheries convene before the Council planning for the 2010 tribal allocations and regulations under the co-managers, including the states of whiting season concludes. this paragraph in consultation with the Oregon and Washington, and the The tribes do not have formal affected tribe(s) and, insofar as possible, Washington coastal treaty tribes, in allocation for Pacific cod or lingcod; with tribal consensus.’’ These government to government discussions however, the Council recommended procedures employed by NOAA in to develop a proposal for 2010 and adopting a tribal proposal for tribal implementing tribal treaty rights under beyond for tribal set-asides of Pacific Pacific cod and lingcod harvest the FMP, in place since May 31, 1996, Whiting. In accordance with this guidelines in 2009 and 2010. In both were designed to provide a framework recommendation, NOAA Fisheries 2009 and 2010, the tribes will be subject process by which NOAA Fisheries can proposes an overall Tribal set-aside of to an annual 400-mt Pacific cod harvest accommodate tribal treaty rights by 50,000 mt. for 2009 only. Further, guideline and a 250 mt harvest setting aside appropriate amounts of NOAA proposes interim individual guideline for lingcod. Spiny dogfish,
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thornyheads, and several rockfish Groundfish stocks are distributed Environmental Protection Agency species taken in tribal fisheries will be throughout Federal and State waters. published a notice of availability for the managed via limited entry trip limits, Therefore, the Federal harvest limits draft EIS on August 29, 2008 (73 FR described below. (OYs) include fish taken in both Federal 50962.) A copy of the DEIS is available For some species for which the tribes and State waters, as do vessel trip limits online at http://www.pcouncil.org/. have a modest harvest, no specific for individual groundfish species. Other The Council considered two sets of allocation has been determined. Rather Federal management measures related alternatives for 2009–2010 groundfish than try to reserve specific allocations to federally-regulated groundfish fishing management, the first set of alternatives for the tribes, NMFS is establishing trip also apply to landings and other addressed the selection of ABCs and limits recommended by the tribes and shoreside activities in Washington, OYs and the second set of alternatives the Council to accommodate tribal Oregon and California. provided a range of management fisheries. The Makah tribe is proposing measures based on the initial range of a directed longline fishery for spiny Housekeeping Measures OYs considered. For species that were dogfish, in which the fishery would be NMFS is proposing to correct and not overfished, and for which there was restricted to limited entry fixed gear update the definitions in § 660.302 as a no new stock assessment information cumulative trip limits. housekeeping measure within this the Council considered only a single For rockfish species, the 2009–2010 action. Changes to the definitions ABC alternative. For overfished species, tribal fisheries will operate under trip section pertaining to commonly used and species with new or updated stock and cumulative limits, and will be geographic coordinates and prohibited assessments the Council narrowed the required by tribal regulations to fully species are intended to improve the range of ABC/OY alternatives by retain all overfished and marketable grammar and comprehensibility of the eliminating the no harvest alternative rockfish species. All tribal fisheries are regulatory language and to correct and by eliminating some of the harvest restricted to limited entry cumulative misspellings. Housekeeping changes to alternatives at the higher end of the limit for longspine and shortspine the definitions do not change the intent range. Then the Council arranged suites thornyheads. For Other Minor or effect of those prohibitions. NMFS is of OY alternatives for overfished species Nearshore, Shelf and Slope rockfish, all also proposing to correct and update the that ranged from the low end to the high tribal fisheries are restricted to a 300-lb description of the limited entry fixed end of the range of ABCs/OYs, so that (136-kg) per trip limit for each species gear sablefish primary season dates in management measures could be group, or equal to the limited entry trip § 660.303 and § 660.372. Changes to considered for that range of overall limits North of 40°10.00′ N. lat. if trip these sections pertaining to primary harvest. limits for those species groups are made season dates are intended to improve The range of management measure less restrictive than 300-lb per trip the grammar and comprehensibility of alternatives intended to keep total catch through inseason adjustments during the regulatory language. Housekeeping at the low end of the ABC/OY 2009–2010. For canary and yelloweye changes to the season dates description alternatives are considered here, since rockfish, all tribal fisheries are restricted do not change the intent or effect of the these were the alternatives the Council to trip limits of 300-lb (136-kg) and 100- primary sablefish season dates. NMFS is evaluated for their effects on small lb (45-kg), respectively. The tribes will also proposing to clarify language as entities. Management measure continue to develop depth, area, and § 660.373(b)(3)(ii) regarding cumulative alternatives included the no action time restrictions in the directed tribal trip limits for whiting vessels using alternative, which would have Pacific halibut fishery in order to multiple trawl gear types. Changes to implemented the 2007–2008 regime for minimize impacts on yelloweye these sections pertaining to cumulative 2009–2010; and a range of alternative rockfish. Tribal fishing regulations, as trip limits in the whiting fishery are management measures that would be recommended by the tribes and the intended to improve the grammar and necessary to keep the cumulative Council and adopted by NMFS, are in comprehensibility of the regulatory impacts of all sectors of the fishery Federal regulations at 50 CFR 660.385. language. Housekeeping changes to the below the preliminarily preferred OYs for overfished species. All of the Federal and State Jurisdiction cumulative trip limit description do not change the intent or effect of the alternatives included management The management measures herein, as cumulative trip limits in the whiting measures intended to constrain target well as Federal regulations at 50 CFR fishery. In addition, any references to fisheries for healthy stocks to minimize part 660, subpart G, govern groundfish the years 2007 or 2008 are removed, or the effects of the fisheries on rebuilding fishing vessels of the United States in revised to read 2009 or 2010, as stocks. the U.S. EEZ from 3–200 nautical miles appropriate. Each of the alternatives analyzed by offshore of the coasts of Washington, the Council was expected to have Oregon, and California. The States of Classification different overall effects on the economy. Washington, Oregon, and California At this time, NMFS has preliminarily Among other factors, the DEIS for this retain jurisdiction in state waters from determined that the 2009–2010 action reviewed alternatives for 0–3 nautical miles offshore. This is true groundfish harvest specifications and expected increases or decreases in even though boundaries of some fishing management measures, which this revenue and income from 2007 levels. areas cross between Federal and state proposed rule would implement, are Alternative 1 was expected to decrease waters. Under their own legal consistent with the national standards annual income, as compared to the no authorities, the states generally conform of the Magnuson-Stevens Act and other action alternative, from combined their state regulations to the Federal applicable laws. NMFS, in making that recreational angler expenditures and management measures, so measures that final determination, will take into commercial fisheries landings by $75.2 apply to Federal and state waters are the account the data, views, and comments million, and decrease the number of same. This is not true in every case, received during the comment period. coastwide fisheries-related jobs by 3,226 however, and fishers are advised to A DEIS was prepared for the 2009– jobs. Alternative 2 was expected to consult both state and Federal 2010 groundfish harvest specifications decrease annual income, as compared to regulations if they intend to fish in both and management measures. The DEIS the no action alternative, from state and Federal waters. includes an RIR and an IRFA. The combined recreational angler
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expenditures and commercial fisheries However, some sectors are more or less No-Action (status quo regulations), and landings by $34.1 million, and decrease severely affected by management Council’s preferred (regulations the number of coastwide fisheries- measures to rebuild overfished species. associated with this rule). For the related jobs by 1,446 jobs. Alternative 3 Although the yelloweye rebuilding commercial fleets, the Council’s was expected to increase annual period is the same as the status quo preferred Alternative leads to $104 income, as compared to the no action TTARGET, the OYs for 2009 and 2010 are million in projected ex-vessel revenues. alternative, from combined recreational lower than in past years. These lower This is $13 million greater than the No- angler expenditures and commercial yelloweye OYs will negatively affect Action Alternative projection—$91 fisheries landings by $1.8 million, and northern hook-and-line fisheries, million and $20 million greater than increase the number of coastwide particularly the recreational fisheries. those earned in 2007. These increases fisheries-related jobs by 41 jobs. The The increase in the English sole and are from the increase in the sablefish OY Council’s preferred alternative was arrowtooth flounder OYs, and the and the use of the 2008 whiting OY for expected to have a range of annual expected stable whiting OY, will projecting the 2009 and 2010 whiting income effects, depending on the level stabilize the effects of this action on the OYs. In 2007, the commercial and tribal of Pacific whiting OYs chosen in 2007 trawl fisheries. The increase in the fleets harvested 5,200 mt of the 5,900 mt and 2008, from decreasing annual sablefish OY will positively affect all of sablefish OY and received about $21 income by $37.2 million at the low the commercial fisheries. On a million in ex-vessel revenues. The whiting OY to increasing annual income coastwide basis, the commercial ex- proposed 2009–10 sablefish OYs are by $0.6 million, as compared to the no vessel revenues for the major directed about 8,400 mt each—a 46 percent action alternative, from combined groundfish sectors are estimated to be increase. In 2007, whiting vessels recreational angler expenditures and approximately $104 million, and the harvested about 86 percent of the commercial fisheries landings. The number of recreational bottomfish 243,000 OY, earning about $39 million Council’s preferred alternative was charter boat trips is estimated to be in ex-vessel revenues. The 2008 OY is expected to have a range of annual 399,000. These figures are 124 percent 269,000 mt—an 11 percent increase. employment effects, depending on the of 2007 exvessel revenues, and 96 Please note that in 2008, it is likely that level of Pacific whiting OYs chosen in percent of 2007 recreational charter boat harvests will reach only 60 percent of 2007 and 2008, from decreasing trips. this OY. employment by 1,699 jobs at the low This proposed rule has been The Council’s analysis provides whiting OY to decreasing employment determined to be not significant for impacts by gear group or fishery. Under by 7 jobs at the high whiting OY. The purposes of Executive Order 12866. these proposed regulations, the Council’s preferred alternative is This proposed rule will regulate projected commercial ex-vessel primarily designed to meet the businesses that harvest groundfish. revenues for the non-tribal directed overfished species rebuilding According to the Small Business groundfish groups are about $90 million requirement of the Magnuson-Stevens Administration, a small commercial yearly. These figures represent slight Act to rebuild overfished species as harvesting business is one that has increases from the No-Action (status quickly as possible, taking into account annual receipts under $4.0 million and the status and biology of the stocks and a small charterboat business is one that quo) alternative. Forecast revenues for the needs of fishing communities. has annual receipts under $6.5 million. the limited entry non-whiting trawl fleet The Council’s final preferred The Council estimates that nearly 2,600 are higher than those forecast under alternative was developed through an small entities harvest groundfish. These previous years’ (2007–2008) integrated approach of analyzing entities include those that either target management regime. The prime reason alternative suites of rebuilding harvest groundfish or harvest groundfish as for this increase is the increase in the levels and rebuilding trajectories for all bycatch and include limited entry sablefish OY as opposed to changes in of the overfished species, in the same trawlers and fixed gear, open access the rebuilding species OYs. However, manner that was used for 2007 and 2008 participants, the west coast charterboat the proposed area-based management and Amendment 16–4. This approach fleet, and the tribal fleets. Included in controls for this fishery are likely to be allowed the Council to develop a this estimate are businesses, probably more limiting than those developed for management package that focused the fewer than 30, that should be classified the 2007–2008 fisheries. These changes greatest protection on the most sensitive as ‘‘large’’ businesses as they are will lead to a decrease in fishable area overfished species and the most affiliates or components of large and a potential increase in the cost of vulnerable fishing communities, in processing companies. Following past fishing because vessels traveling to and order to meet the Magnuson-Stevens Act practice, the Council classifies the four fishing at deeper depths will need more requirement to rebuild as quickly as catcher-processors that fish and process fuel. The projected revenues earned by possible, taking into account the status in the whiting fishery ‘‘large’’ entities as limited entry whiting fishery (which and biology of the overfished stocks and they are components of large includes the catcher-processor fleet) are the needs of fishing communities. For international seafood companies. similar to those projected for the non-overfished species, the effects of Noting the exceptions above, the previous biennial period. However, the this action will be that they will be Council has classified all harvesters in potential amount of ex-vessel revenue harvested in 2009–2010 at or below the groundfish fishery as ‘‘small will chiefly depend on the Pacific MSY harvest levels. Harvests of most businesses.’’ Therefore, projected whiting assessment, adopted yearly by non-overfished species will not achieve impacts for the fishery provide the the Council during the March meeting. their MSY levels, primarily because context for the impacts on these Fixed gear sablefish harvesters will their harvest will be constrained to businesses. Chapter 7 of the DEIS produce more revenue than earned in achieve faster rebuilding of co-occurring provides the analysis that underlies the the 2007–08 period because of the overfished species. RIR and IRFA analysis found in Chapter higher sablefish OY. However, similar to The economic effect of this action is 10 of the DEIS and the following the situation for limited entry trawlers, that many fishery sectors are expected discussion. The analysis provides area management will be more to achieve social and economic benefits projections that compare various restrictive and cause harvesting costs to that are similar to status quo levels. alternatives considered including: 2007, rise. The nearshore groundfish fishery
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will be able to reach ex-vessel revenues requirements in the proposed rule. 2006, which addressed salmon take in that equal the status quo but also will Within its recommendations for the both the Pacific whiting midwater trawl face increased area limits. Under the 2009 Specifications and Management and groundfish bottom trawl fisheries. proposed rules, tribal groundfish measures, the Council recommended In its 2006 Supplemental Biological fisheries should produce the same mandatory logbooks for the limited Opinion, NMFS concluded that catch amount of ex-vessel revenues and entry and open access fixed gear fishing rates of salmon in the 2005 whiting personal income as under the No-Action fleets. However, development and fishery were consistent with Alternative. implementation of a Federal logbook expectations considered during prior For the coastwide recreational fishery, system would take more time than is consultations. Chinook bycatch has the projected number of charterboat and available for this rulemaking and will be averaged about 7,300 over the last 15 private angler trips associated with this considered for implementation in the years and has only occasionally rule is higher under the proposed future. References to collections-of- exceeded the reinitiation trigger of compared to the No Action alternative information made in this action are 11,000. Since 1999, annual Chinook and are less than in 2007. Under the No intended to properly cite those bycatch has averaged about 8,450. The Action Alternative, 1.2 million angler collections in Federal regulations, and Chinook Evolutionarily Significant trips are projected. These trips would not to alter their effect in any way. Units (ESUs) most likely affected by the lead to an estimated $114 million in No Federal rules have been identified whiting fishery have generally improved angler expenditures and $90 million in that duplicate, overlap, or conflict with in status since the 1999 ESA section 7 personal income (profits, wages, and this action. consultation. Although these species other income that result from angler NMFS issued Biological Opinions remain at risk, as indicated by their ESA expenditures and remain in fishing under the ESA on August 10, 1990, listing, NMFS concluded that the higher communities). Under the Council- November 26, 1991, August 28, 1992, observed bycatch in 2005 does not preferred Alternative, anglers will take September 27, 1993, May 14, 1996, and require a reconsideration of its prior ‘‘no an estimated 1.27 million trips and December 15, 1999, pertaining to the jeopardy’’ conclusion with respect to spend $118 million and yield $93 effects of the Pacific Coast groundfish the fishery. For the groundfish bottom million in personal income. This is an FMP fisheries on Chinook salmon trawl fishery, NMFS concluded that increase of 3 percent compared to No (Puget Sound, Snake River spring/ incidental take in the groundfish Action alternative but lower than the summer, Snake River fall, upper fisheries is within the overall limits 2007 levels of expenditure ($122 Columbia River spring, lower Columbia articulated in the Incidental Take million) and personal income ($96 River, upper Willamette River, Statement of the 1999 Biological million). As groundfish are caught in Sacramento River winter, Central Valley Opinion. The groundfish bottom trawl targeted bottomfish trips and in targeted spring, California coastal), coho salmon limit from that opinion was 9,000 fish trips for halibut, salmon, tuna and other (Central California coastal, southern annually. NMFS will continue to species, these estimates are projections Oregon/northern California coastal), monitor and collect data to analyze take for the total west coast recreational chum salmon (Hood Canal summer, levels. NMFS also reaffirmed its prior fishery. For groundfish-targeted trips Columbia River), sockeye salmon (Snake determination that implementation of only, the No Action Alternative leads to River, Ozette Lake), and steelhead the Groundfish FMP is not likely to $48 million in personal income. This is (upper, middle and lower Columbia jeopardize the continued existence of slightly down from 2007 levels of $51 River, Snake River Basin, upper any of the affected ESUs. million. Charterboats are considered Willamette River, central California Lower Columbia River coho (70 FR small businesses. Under these proposed coast, California Central Valley, south/ 37160, June 28, 2005) were recently regulations, coastwide, the projected central California, northern California, listed and Oregon Coastal coho (73 FR annual number of charterboat trips for southern California). These biological 7816, February 11, 2008) were recently all species is 399,000 trips. This is a opinions have concluded that relisted as threatened under the ESA. decrease from 2007 levels of 414,000 implementation of the FMP for the The 1999 biological opinion concluded trips and a slight increase from the No- Pacific Coast groundfish fishery was not that the bycatch of salmonids in the Action level of 392,000 trips. The expected to jeopardize the continued Pacific whiting fishery were almost impacts to the recreational sectors are existence of any endangered or entirely Chinook salmon, with little or driven by the OYs for yelloweye threatened species under the no bycatch of coho, chum, sockeye, and rockfish, canary rockfish, and to a lesser jurisdiction of NMFS, or result in the steelhead. The Southern Distinct extent bocaccio and widow rockfish. destruction or adverse modification of Population Segment (DPS) of green The 2009–10 yelloweye rockfish OYs critical habitat. sturgeon (71 FR 17757, April 7, 2006) under the final Council preferred NMFS reinitiated a formal ESA were also recently listed as threatened alternative represent a decrease of 3 mt section 7 consultation in 2005 for both under the ESA. As a consequence, from No Action levels. Management the Pacific whiting midwater trawl NMFS has reinitiated its Section 7 measures designed so as not to exceed fishery and the groundfish bottom trawl consultation on the PFMC’s Groundfish the yelloweye rockfish OY also keep fishery. The December 19, 1999 FMP. recreational catch within harvest Biological Opinion had defined an Pursuant to Executive Order 13175, guidelines for other potentially 11,000 Chinook incidental take this proposed rule was developed after constraining species, such as canary threshold for the Pacific whiting fishery. meaningful consultation and rockfish. The proposed yelloweye During the 2005 Pacific whiting season, collaboration with tribal officials from bycatch reduction measures include the 11,000 Chinook incidental take the area covered by the FMP. Under the restricting recreational fisheries to threshold was exceeded, triggering Magnuson-Stevens Act at 16 U.S.C. depths shallower than 20 fm in certain reinitiation. Also in 2005, new WCGOP 1852(b)(5), one of the voting members of areas and/or during certain months and data became available, allowing NMFS the Pacific Council must be a expanding areas to protect yelloweye to complete an analysis of salmon take representative of an Indian tribe with rockfish. in the bottom trawl fishery. federally recognized fishing rights from There are no new reporting, record- NMFS prepared a Supplemental the area of the Council’s jurisdiction. In keeping, and other compliance Biological Opinion dated March 11, addition, regulations implementing the
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FMP establish a procedure by which the additional preparation is done. (Also see (i) A catcher/processor or mothership tribes with treaty fishing rights in the an exception to certain requirements at 125-ft (38.1-m) LOA or longer must area covered by the FMP request new § 660.373(a)(iii) pertaining to Pacific carry two NMFS-certified observers, and allocations or regulations specific to the whiting shoreside vessels 75-ft (23-m) or a catcher-processor or mothership tribes, in writing, before the first of the less LOA that, in addition to heading shorter than 125-ft (38.1-m) LOA must two meetings at which the Council and gutting, remove the tails and freeze carry one NMFS-certified observer, each considers groundfish management catch at sea.) day that the vessel is used to take, measures. The regulations at 50 CFR * * * * * retain, receive, land, process, or 660.324(d) further state ‘‘the Secretary Prohibited species means those transport groundfish. will develop tribal allocations and species and species groups whose (ii) A Pacific whiting shoreside vessel regulations under this paragraph in retention is prohibited unless that sorts catch at sea must carry one consultation with the affected tribe(s) authorized by provisions of this section NMFS-certified observer, from the time and, insofar as possible, with tribal or other applicable law. The following the vessel leaves port on a trip in which consensus.’’ The tribal management are prohibited species: Any species of the catch is sorted at sea to the time that measures in this proposed rule have salmonid, Pacific halibut, Dungeness all catch from that trip has been been developed following these crab caught seaward of Washington or offloaded. procedures. The tribal representative on Oregon, and groundfish species or * * * * * the Council made a motion to adopt the species groups under the PCGFMP for (d) * * * non-whiting tribal management which quotas have been achieved (3) * * * measures, which was passed by the and/or the fishery closed. (iii) Hardware and software. Pacific Council. Those management measures, 3. In § 660.303, paragraph (c) is whiting vessels that are required to which were developed and proposed by revised to read as follows: carry one or more NMFS-certified the tribes, are included in this proposed observers under provisions at § 660.303 Reporting and recordkeeping. rule. The tribal whiting set aside was paragraphs (c)(1)(i) and (ii) of this based on the requests from the affected * * * * * section must provide hardware and tribes at the June meeting. (c) Any person landing groundfish software pursuant to regulations at 50 must retain on board the vessel from List of Subjects in 50 CFR Part 660 CFR 679.50(f)(1)(iii)(B)(1) and 50 CFR which groundfish is landed, and 679.50(f)(2), as follows: provide to an authorized officer upon Fishing, Fisheries, and Indian * * * * * request, copies of any and all reports of Fisheries. (B) NMFS-supplied software. Ensuring groundfish landings containing all data, Dated: December 9, 2008. that each vessel that is required to carry and in the exact manner, required by the Samuel D. Rauch III, a NMFS-certified observer obtains the applicable state law throughout the data entry software provided by the Deputy Assistant Administrator for cumulative limit period during which a Regulatory Programs, National Marine NMFS for use by the observer. landing occurred and for 15 days Fisheries Service. thereafter. For participants in the * * * * * For the reasons set out in the primary sablefish season (detailed at (e) Procurement of observer services preamble, 50 CFR part 660 is proposed § 660.372(b)), the cumulative limit by catcher/processors, motherships, and to be amended as follows: period to which this requirement Pacific whiting shoreside vessels that applies is April 1 through October 31 or, sort at sea. Owners of vessels required PART 660—FISHERIES OFF WEST for an individual permit holder, when to carry observers under provisions at COAST STATES that permit holder’s tier limit is paragraph (c)(1)(i) or (ii) of this section 1. The authority citation for part 660 attained, whichever is earlier. must arrange for observer services from an observer provider permitted by the continues to read as follows: * * * * * North Pacific Groundfish Observer Authority: 16 U.S.C. 1801 et seq. 4. In § 660.306, a new paragraph (f)(7) is added to read as follows: Program under 50 CFR 679.50(i), except 2. In § 660.302, paragraph (2)(x) of the that: definition for ‘‘North-South § 660.306 Prohibitions. * * * * * management area’’, and the definition * * * * * 6. In § 660.365, paragraphs (b), (c), (d), for the introductory text of ‘‘Processing (f) * * * and (g) are revised to read as follows: or to process’’ and the definition for (7) Sort or discard any portion of the ‘‘Prohibited species’’ are revised to read catch taken by a catcher vessel in the § 660.365 Overfished species rebuilding as follows: mothership sector prior to the catch plans. * * * * * § 660.302 Definitions. being received on a mothership, and prior to the observer being provided (b) Canary rockfish. The target year * * * * * access to the unsorted catch, with the for rebuilding the canary rockfish stock North-South management area *** exception of minor amounts of catch to BMSY is 2021. The harvest control (2) * * * rule to be used to rebuild the canary ° ′ that are lost when the codend is (x) Cape Arago, OR—43 20.83 N. lat. separated from the net and prepared for rockfish stock is an annual SPR harvest * * * * * transfer. rate of 88.7 percent. Processing or to process means the * * * * * (c) Cowcod. The target year for preparation or packaging of groundfish 5. In § 660.314, paragraphs (c)(1), rebuilding the cowcod stock south of to render it suitable for human (d)(3)(iii) introductory text, (d)(3)(iii)(B), Point Conception to BMSY is 2072. The consumption, retail sale, industrial uses and (e) introductory text are revised to harvest control rule to be used to or long-term storage, including, but not read as follows: rebuild the cowcod stock is an annual limited to, cooking, canning, smoking, SPR harvest rate of 82.1 percent. salting, drying, filleting, freezing, or § 660.314 Groundfish observer program. (d) Darkblotched rockfish. The target rendering into meal or oil, but does not (c) * * * year for rebuilding the darkblotched mean heading and gutting unless (1) NMFS-certified observers. rockfish stock to BMSY is 2028. The
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harvest control rule to be used to guideline, commercial harvest § 660.372 Fixed gear sablefish fishery rebuild the darkblotched rockfish stock guideline, or a sector’s allocation is management. is an annual SPR harvest rate of 62.1 reached, or is projected to be reached; * * * * * percent. (ii) Close all sectors or a single sector (b) * * * ° * * * * * of the fishery when a bycatch limit is (1) Season dates. North of 36 N. lat., (g) Yelloweye rockfish. The target year reached or projected to be reached; the primary sablefish season for the for rebuilding the yelloweye rockfish (iii) Reapportion unused Pacific limited entry, fixed gear, sablefish- stock to BMSY is 2084. The harvest whiting allocation to other sectors of the endorsed vessels begins at 12 noon l.t. control rule to be used to rebuild the fishery; on April 1 and ends at 12 noon l.t. on yelloweye rockfish stock is an annual (iv) Reapportion unused bycatch limit October 31, or for an individual permit SPR harvest rate of 66.3 percent in 2009 species to other sectors of the Pacific holder when that permit holder’s tier and in 2010. Yelloweye rockfish is whiting fishery. limit has been reached, whichever is subject to a ramp-down strategy where (V) Implement the Ocean Salmon earlier, unless otherwise announced by the harvest level has been reduced Conservation Zone, described at the Regional Administrator through the annually from 2007 through 2009. § 660.373(c)(3), when NMFS projects the routine management measures process Yelloweye rockfish will remain at the Pacific whiting fishery may take in described at § 660.370(c). 2009 level in 2010. Beginning in 2011, excess of 11,000 Chinook within a * * * * * yelloweye rockfish will be subject to a calendar year, 9. In § 660.373, paragraphs (a), constant harvest rate strategy with a (vi) Implement Pacific Whiting (b)(3)(ii), and (b)(4) are revised, and new constant SPR harvest rate of 71.9 Bycatch Reduction Areas, described at paragraph (c)(4) is added to read as percent. § 660.373(c)(3), when NMFS projects a follows: 7. In § 660.370 paragraphs (c)(1)(ii), sector-specific bycatch limit will be (d), (h)(6)(i)(A) through (C), and § 660.373 Pacific whiting (whiting) fishery reached before the sector’s whiting management. (h)(6)(ii)(A) and (B) are revised to read allocation. as follows: (a) Sectors. (2) [Reserved] (1) The catcher/processor sector is § 660.370 Specifications and management * * * * * composed of catcher/processors, which measures. (h) * * * are vessels that harvest and process * * * * * (6) * * * whiting during a calendar year. (c) * * * (i) * * * (2) The mothership sector is (1) * * * (A) Coastwide—widow rockfish, composed of motherships and catcher (ii) Differential trip landing limits and canary rockfish, darkblotched rockfish, vessels that harvest whiting for delivery frequency limits based on gear type, yelloweye rockfish, shortbelly rockfish, to motherships. Motherships are vessels closed seasons, and bycatch limits. Trip black rockfish, blue rockfish, minor that process, but do not harvest, whiting landing and frequency limits that differ nearshore rockfish, minor shelf rockfish, during a calendar year. by gear type and closed seasons may be minor slope rockfish, shortspine and (3) The shore-based sector is imposed or adjusted on a biennial or longspine thornyhead, Dover sole, composed of vessels that harvest more frequent basis for the purpose of arrowtooth flounder, petrale sole, starry whiting for delivery to Pacific whiting rebuilding and protecting overfished or flounder, English sole, other flatfish, shoreside first receivers. depleted stocks. To achieve the lingcod, sablefish, Pacific cod, spiny Notwithstanding the other provisions of rebuilding of an overfished or depleted dogfish, other fish, longnose skate, and 50 CFR Part 660, Subpart G, a vessel stock, bycatch limits may be established Pacific whiting; that is 75 feet or less LOA that harvests and adjusted to be used to close the (B) North of 40°10′ N. lat.—POP, whiting and, in addition to heading and primary season for any sector of the yellowtail rockfish; gutting, cuts the tail off and freezes the Pacific whiting fishery described at (C) South of 40°10′ N. lat.—minor whiting, is not considered to be a § 660.373(b), before the sector’s Pacific shallow nearshore rockfish, minor catcher/processor nor is it considered to whiting allocation is achieved if the deeper nearshore rockfish, California be processing fish. Such a vessel is applicable bycatch limit is reached. scorpionfish, chilipepper rockfish, considered a participant in the shore- Bycatch limit amounts are specified at bocaccio rockfish, splitnose rockfish, based whiting sector, and is subject to § 660.373(b)(4). Pacific sanddabs, cowcod and cabezon. regulations and allocations for that * * * * * (ii) * * * sector. (d) Automatic actions. Automatic (b) * * * (A) Coastwide—widow rockfish, management actions may be initiated by (3) * * * canary rockfish, darkblotched rockfish, the NMFS Regional Administrator (ii) If, during a primary whiting yelloweye rockfish, shortbelly rockfish, without prior public notice, opportunity season, a whiting vessel harvests a black rockfish, blue rockfish, minor to comment, or a Council meeting. groundfish species other than whiting nearshore rockfish, minor shelf rockfish, These actions are nondiscretionary, and for which there is a midwater trip limit, minor slope rockfish, shortspine and the impacts must have been taken into then that vessel may also harvest up to longspine thornyhead, Dover sole, account prior to the action. Unless another footrope-specific limit for that arrowtooth flounder, petrale sole, starry otherwise stated, a single notice will be species during any cumulative limit flounder, English sole, other flatfish, published in the Federal Register period that overlaps the start or end of lingcod, sablefish, Pacific cod, spiny making the action effective if good cause the primary whiting season. dogfish, longnose skate, other fish, exists under the APA to waive notice (4) Bycatch limits in the whiting Pacific whiting, and Pacific sanddabs; fishery. The bycatch limits for the and comment. ° ′ (1) Automatic actions are used in the (B) North of 40 10 N. lat.—POP, whiting fishery may be established, Pacific whiting fishery to: yellowtail rockfish; adjusted, and used inseason to close a (i) Close sectors of the fishery or to * * * * * sector or sectors of the whiting fishery reinstate trip limits in the shore-based 8. In § 660.372, paragraph (b)(1) is to achieve the rebuilding of an fishery when a whiting harvest revised to read as follows: overfished or depleted stock. These
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limits are routine management measures (C) Shore-based sector. Whiting may species or species groups, Table 3 under § 660.370(c) and, as such, may be not be taken and retained, possessed, or (North) and Table 3 (South) provide adjusted inseason or may have new landed by a catcher vessel participating cumulative and/or trip limits that are species added to the list of those with in the shore-based sector except as specific to different types of trawl gear: bycatch limits. Closure of a sector or authorized under a trip limit specified large footrope, small footrope (including sectors when a bycatch limit is under § 660.370(c). selective flatfish), selective flatfish, projected to be reached is an automatic (iv) The Regional Administrator will midwater, and multiple types. If Table action under § 660.370(d). announce in the Federal Register when 3 (North) and Table 3 (South) provide (i) The whiting fishery bycatch limit a bycatch limit is reached, or is gear specific limits for a particular is apportioned among the sectors projected to be reached, specifying the species or species group, it is unlawful identified in paragraph (a) of this action being taken as specified under to take and retain, possess or land that section based on the same percentages paragraph (b)(4) of this section. The species or species group with limited used to allocate whiting among the Regional Administrator will announce entry trawl gears other than those listed. sectors, established in § 660.323(a). The in the Federal Register any * * * * * sector specific bycatch limits are: For reapportionment of bycatch limit (d) Groundfish Conservation Areas catcher/processors 6.1 mt of canary species. In order to prevent exceeding (GCAs) applicable to trawl vessels. A rockfish, 153.0 mt of widow rockfish, the bycatch limits or to avoid GCA, a type of closed area, is a and 8.5 mt of darkblotched rockfish; for underutilizing the Pacific whiting geographic area defined by coordinates motherships 4.3 mt of canary rockfish, resource, prohibitions against further expressed in degrees of latitude and 108.0 mt of widow rockfish, and 6.0 mt taking and retaining, receiving, or at-sea longitude. The latitude and longitude of darkblotched rockfish; and for shore- processing of whiting, or coordinates of the GCA boundaries are based 7.6 mt of canary rockfish, 189.0 reapportionment of bycatch limits specified at §§ 660.390 through 660.394. mt of widow rockfish, and 10.5 mt of species may be made effective A vessel that is fishing within a GCA darkblotched rockfish. immediately by actual notice to fishers listed in this paragraph (d) with trawl (ii) The Regional Administrator may and processors, by e-mail, Internet gear authorized for use within a GCA make available for harvest to the other (http://www.nwr.noaa.gov/Groundfish- may not have any other type of trawl sectors of the whiting fishery identified Halibut/Groundfish-Fishery- gear on board the vessel. The following in § 660.323, the amounts of a sector’s Management/Whiting-Management/ GCAs apply to vessels participating in bycatch limit species remaining when a index.cfm), phone, fax, letter, press the limited entry trawl fishery. sector is closed because its whiting release, and/or USCG Notice to Mariners Additional closed areas that specifically allocation or a bycatch limit has been (monitor channel 16 VHF), followed by apply to the Pacific whiting fisheries are reached or is projected to be reached. publication in the Federal Register. described at § 660.373(c). The remaining bycatch limit species (c) * * * * * * * * shall be redistributed in proportion to (4) Pacific Whiting Bycatch Reduction 11. In § 660.382 paragraphs (c)(4) each sector’s initial whiting allocation. Areas. Vessels using limited entry through (8) are redesignated as (c)(10) When considering redistribution of midwater trawl gear during the primary through (14), and new paragraphs (c)(4) bycatch limits between the sectors of the whiting season may be prohibited from through (9) are added, to read as whiting fishery, the Regional fishing shoreward of a boundary line follows: Administrator will take into approximating the 75-fm (137-m), 100- consideration the best available data on fm (183-m) or 150-fm (274-m) depth § 660.382 Limited entry fixed gear fishery total projected fishing impacts on the contours. Latitude and longitude management measures. bycatch limit species, as well as impacts coordinates for the boundary lines * * * * * on other groundfish species. approximating the depth contours are (c) * * * (iii) If a bycatch limit is reached or is provided at § 660.393(a). Closures may (4) Westport Offshore Recreational projected to be reached, the following be implemented inseason for a sector(s) YRCA. The latitude and longitude action applicable to the sector may be through automatic action, defined at coordinates that define the Westport taken. 660.370(d), when NMFS projects that a Offshore Recreational YRCA boundaries (A) Catcher/processor sector. Further sector will exceed a bycatch limit are specified at § 660.390. The Westport taking and retaining, receiving, or at-sea specified for that sector before the Offshore Recreational YRCA is processing of whiting by a catcher/ sector’s whiting allocation is projected designated as an area to be avoided (a processor is prohibited. No additional to be reached. voluntary closure) by commercial fixed unprocessed whiting may be brought on * * * * * gear fishers. board after at-sea processing is 10. In § 660.381, paragraphs (c) (5) Point St. George YRCA. The prohibited, but a catcher/processor may introductory text and (d) introductory latitude and longitude coordinates of continue to process whiting that was on text are revised to read as follows: the Point St. George YRCA boundaries board before at-sea processing was are specified at § 660.390. Fishing with prohibited. § 660.381 Limited entry trawl fishery limited entry fixed gear is prohibited (B) Mothership sector. Further management measures. within the Point St. George YRCA, on receiving or at-sea processing of whiting * * * * * dates when the closure is in effect. It is by a mothership is prohibited. No (c) Cumulative trip limits and unlawful to take and retain, possess, or additional unprocessed whiting may be prohibitions by limited entry trawl gear land groundfish taken with limited brought on board after at-sea processing type. Management measures may vary entry fixed gear within the Point St. is prohibited, but a mothership may depending on the type of trawl gear (i.e., George YRCA, on dates when the continue to process whiting that was on large footrope, small footrope, selective closure is in effect. The closure is not in board before at-sea processing was flatfish, or midwater trawl gear) used effect at this time, and commercial prohibited. Whiting may not be taken and/or on board a vessel during a fishing for groundfish is open within the and retained, possessed, or landed by a fishing trip, cumulative limit period, Point St. George YRCA from January 1 catcher vessel participating in the and the area fished. Trawl nets may be through December 31. This closure may mothership sector. used on and off the seabed. For some be imposed through inseason
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adjustment. Limited entry fixed gear the Point Delgada (South) YRCA YRCA, on dates when the closure is in vessels may transit through the Point St. boundaries are specified at § 660.390. effect. The closure is not in effect at this George YRCA, at any time, with or Fishing with limited entry fixed gear is time, and commercial fishing for without groundfish on board. prohibited within the Point Delgada groundfish is open within the South (6) South Reef YRCA. The latitude (South) YRCA, on dates when the Reef YRCA from January 1 through and longitude coordinates of the South closure is in effect. It is unlawful to take December 31. This closure may be Reef YRCA boundaries are specified at and retain, possess, or land groundfish imposed through inseason adjustment. § 660.390. Fishing with limited entry taken with limited entry fixed gear Open access vessels may transit through fixed gear is prohibited within the within the Point Delgada (South) YRCA, the South Reef YRCA, at any time, with South Reef YRCA, on dates when the on dates when the closure is in effect. or without groundfish on board. closure is in effect. It is unlawful to take The closure is not in effect at this time, (7) Reading Rock YRCA. The latitude and retain, possess, or land groundfish and commercial fishing for groundfish and longitude coordinates of the taken with limited entry fixed gear is open within the Point Delgada Reading Rock YRCA boundaries are within the South Reef YRCA, on dates (South) YRCA from January 1 through specified at § 660.390. Fishing with when the closure is in effect. The December 31. This closure may be open access gear is prohibited within closure is not in effect at this time, and imposed through inseason adjustment. the Reading Rock YRCA, on dates when commercial fishing for groundfish is Limited entry fixed gear vessels may the closure is in effect. It is unlawful to open within the South Reef YRCA from transit through the Point Delgada take and retain, possess, or land January 1 through December 31. This (South) YRCA, at any time, with or groundfish taken with open access gear closure may be imposed through without groundfish on board. within the Reading Rock YRCA, on inseason adjustment. Limited entry * * * * * dates when the closure is in effect. The fixed gear vessels may transit through 12. In § 660.383 paragraph (c)(4) closure is not in effect at this time, and the South Reef YRCA, at any time, with through (10) are redesignated as (c)(10) commercial fishing for groundfish is or without groundfish on board. through (16), and new paragraphs (c)(4) open within the Reading Rock YRCA (7) Reading Rock YRCA. The latitude through (9) are added, to read as from January 1 through December 31. and longitude coordinates of the follows: This closure may be imposed through Reading Rock YRCA boundaries are inseason adjustment. Open access specified at § 660.390. Fishing with § 660.383 Open access fishery vessels may transit through the Reading limited entry fixed gear is prohibited management measures. Rock YRCA, at any time, with or within the Reading Rock YRCA, on * * * * * without groundfish on board. dates when the closure is in effect. It is (c) * * * (8) Point Delgada (North) YRCA. The unlawful to take and retain, possess, or (4) Westport Offshore Recreational latitude and longitude coordinates of land groundfish taken with limited YRCA. The latitude and longitude the Point Delgada (North) YRCA entry fixed gear within the Reading coordinates that define the Westport boundaries are specified at § 660.390. Rock YRCA, on dates when the closure Offshore Recreational YRCA boundaries Fishing with open access gear is is in effect. The closure is not in effect are specified at § 660.390. The Westport prohibited within the Point Delgada at this time, and commercial fishing for Offshore Recreational YRCA is (North) YRCA, on dates when the groundfish is open within the Reading designated as an area to be avoided (a closure is in effect. It is unlawful to take Rock YRCA from January 1 through voluntary closure) by commercial fixed and retain, possess, or land groundfish December 31. This closure may be gear fishers. taken with open access gear within the imposed through inseason adjustment. (5) Point St. George YRCA. The Point Delgada (North) YRCA, on dates Limited entry fixed gear vessels may latitude and longitude coordinates of when the closure is in effect. The transit through the Reading Rock YRCA, the Point St. George YRCA boundaries closure is not in effect at this time, and at any time, with or without groundfish are specified at § 660.390. Fishing with commercial fishing for groundfish is on board. open access gear is prohibited within open within the Point Delgada (North) (8) Point Delgada (North) YRCA. The the Point St. George YRCA, on dates YRCA from January 1 through December latitude and longitude coordinates of when the closure is in effect. It is 31. This closure may be imposed the Point Delgada (North) YRCA unlawful to take and retain, possess, or through inseason adjustment. Open boundaries are specified at § 660.390. land groundfish taken with open access access vessels may transit through the Fishing with limited entry fixed gear is gear within the Point St. George YRCA, Point Delgada (North) YRCA, at any prohibited within the Point Delgada on dates when the closure is in effect. time, with or without groundfish on (North) YRCA, on dates when the The closure is not in effect at this time, board. closure is in effect. It is unlawful to take and commercial fishing for groundfish (9) Point Delgada (South) YRCA. The and retain, possess, or land groundfish is open within the Point St. George latitude and longitude coordinates of taken with limited entry fixed gear YRCA from January 1 through December the Point Delgada (South) YRCA within the Point Delgada (North) YRCA, 31. This closure may be imposed boundaries are specified at § 660.390. on dates when the closure is in effect. through inseason adjustment. Open Fishing with open access gear is The closure is not in effect at this time, access vessels may transit through the prohibited within the Point Delgada and commercial fishing for groundfish Point St. George YRCA, at any time, (South) YRCA, on dates when the is open within the Point Delgada (North) with or without groundfish on board. closure is in effect. It is unlawful to take YRCA from January 1 through December (6) South Reef YRCA. The latitude and retain, possess, or land groundfish 31. This closure may be imposed and longitude coordinates of the South taken with open access gear within the through inseason adjustment. Limited Reef YRCA boundaries are specified at Point Delgada (South) YRCA, on dates entry fixed gear vessels may transit § 660.390. Fishing with open access gear when the closure is in effect. The through the Point Delgada (North) is prohibited within the South Reef closure is not in effect at this time, and YRCA, at any time, with or without YRCA, on dates when the closure is in commercial fishing for groundfish is groundfish on board. effect. It is unlawful to take and retain, open within the Point Delgada (South) (9) Point Delgada (South) YRCA. The possess, or land groundfish taken with YRCA from January 1 through December latitude and longitude coordinates of open access gear within the South Reef 31. This closure may be imposed
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through inseason adjustment. Open boundary line approximating the 30-fm in the annual management measures for access vessels may transit through the (55-m) depth contour from March 15 Pacific halibut fisheries, which are Point Delgada (South) YRCA, at any through June 15, except that recreational published in the Federal Register and time, with or without groundfish on fishing for sablefish and Pacific cod is are announced on the NMFS halibut board. permitted within the recreational RCA hotline, 1–800–662–9825. The * * * * * from May 1 through June 15. Retention minimum size limit for cabezon 13. In § 660.384, of lingcod seaward of the boundary line retained in the recreational fishery is 16- a. Redesignate paragraphs (c)(1)(i)(C) approximating the 30-fm (55-m) depth in (41-cm), and for greenling is 10-in as (c)(1)(i)(D), and (c)(3)(i)(E) as contour south of 46°58′ N. lat. is (26-cm). Taking and retaining canary (c)(3)(i)(J); prohibited on Fridays and Saturdays rockfish and yelloweye rockfish is b. Revise newly redesignated from July 1 through August 31. For prohibited at all times and in all areas. paragraphs (c)(1)(i)(D)(1) and (2); additional regulations regarding the (3) * * * c. Revise paragraphs (c)(1)(iii)(A), Washington recreational lingcod fishery, (i) * * * (c)(1)(iii)(B), (c)(2)(iii), (c)(3)(i)(A)(1) see paragraph (c)(1)(iii) of this section. (A) * * * through (4), (c)(3)(ii)(A)(1) through (4), Coordinates for the boundary line (1) Between 42° N. lat. (California/ (c)(3)(ii)(B), (c)(3)(iii)(A)(1) through (4), approximating the 30-fm (55-m) depth Oregon border) and 40°10.00′ N. lat. (c)(3)(iv), (c)(3)(v)(A)(2) and contour are listed in § 660.391. (North Region), recreational fishing for (c)(3)(v)(A)(3); (iii) * * * all groundfish (except ‘‘other flatfish’’ as (A) Between the U.S./Canada border d. Add paragraphs (c)(1)(i)(C), specified in paragraph (c)(3)(iv) of this to 48°10′ N. lat. (Cape Alava) (c)(3)(i)(A)(5), (c)(3)(i)(A)(6), (c)(3)(i)(E) section) is prohibited seaward of the 20- (Washington Marine Area 4), through (I), (c)(3)(ii)(A)(5), fm (37-m) depth contour along the recreational fishing for lingcod is open, (c)(3)(ii)(A)(6), (c)(3)(iii)(A)(5), mainland coast and along islands and for 2009, from April 16 through October (c)(3)(iii)(A)(6) and (c)(3)(v)(A)(4); to offshore seamounts from May 15 15, and for 2010, from April 16 through read as follows: through September 15; and is closed October 15. § 660.384 Recreational fishery (B) Between 48°10′ N. lat. (Cape entirely from January 1 through May 14 management measures. Alava) and 46°16′ N. lat. (Washington/ and from September 16 through December 31 (i.e., prohibited seaward of * * * * * Oregon border) (Washington Marine the shoreline). (c) * * * Areas 1–3), recreational fishing for ° ′ ° ′ (1) * * * lingcod is open for 2009, from March 14 (2) Between 40 10 N. lat. and 38 57 (i) * * * through October 17, and for 2010, from N. lat. (North-Central North of Point (C) Westport Offshore Recreational March 13 through October 16. Arena Region), recreational fishing for Yelloweye Rockfish Conservation Area. (2) * * * all groundfish (except ‘‘other flatfish’’ as Recreational fishing for groundfish and (iii) Bag limits, size limits. The bag specified in paragraph (c)(3)(iv) of this halibut is prohibited within the limits for each person engaged in section) is prohibited seaward of the 20- Westport Offshore Recreational YRCA. recreational fishing in the EEZ seaward fm (37-m) depth contour along the It is unlawful for recreational fishing of Oregon are three lingcod per day, mainland coast and along islands and vessels to take and retain, possess, or which may be no smaller than 22 in (56 offshore seamounts from May 15 land groundfish taken with recreational cm) total length; and 10 marine fish per through August 15; and is closed gear within the Westport Offshore day, which excludes Pacific halibut, entirely from January 1 through May 14 Recreational YRCA. A vessel fishing in salmonids, tuna, perch species, and from August 16 through December the Westport Offshore Recreational sturgeon, sanddabs, flatfish, lingcod, 31 (i.e., prohibited seaward of the YRCA may not be in possession of any striped bass, hybrid bass, offshore shoreline). Closures around the Farallon groundfish. Recreational vessels may pelagic species and baitfish (herring, Islands (see paragraph (c)(3)(i)(C) of this transit through the Westport Offshore smelt, anchovies and sardines), but section) and Cordell Banks (see Recreational YRCA with or without which includes rockfish, greenling, paragraph (c)(3)(i)(D) of this section) groundfish on board. The Westport cabezon and other groundfish species. also apply in this area. Offshore Recreational YRCA is defined The bag limit for all flatfish is 25 fish (3) Between 38°57′ N. lat. and 37°11′ by latitude and longitude coordinates per day, which excludes Pacific halibut, N. lat. (North-Central South of Point specified at § 660.390. but which includes all soles, flounders Arena Region), recreational fishing for (D) * * * and Pacific sanddabs. In the Pacific all groundfish (except ‘‘other flatfish’’ as (1) Between the U.S. border with halibut fisheries, retention of groundfish specified in paragraph (c)(3)(iv) of this Canada and the Queets River, is governed in part by annual section) is prohibited seaward of the recreational fishing for groundfish is management measures for Pacific boundary line approximating the 30-fm prohibited seaward of a boundary line halibut fisheries, which are published in (55-m) depth contour along the approximating the 20-fm (37-m) depth the Federal Register. Between the mainland coast and along islands and contour from May 21 through Oregon border with Washington and offshore seamounts from June 13 September 30, except on days when the Cape Falcon, when Pacific halibut are through October 31; and is closed Pacific halibut fishery is open in this onboard the vessel, groundfish may not entirely from January 1 through June 12 area. Days open to Pacific halibut be taken and retained, possessed or and from November 1 through recreational fishing off Washington are landed, except sablefish and Pacific cod. December 31 (i.e., prohibited seaward of announced on the NMFS hotline at Between Cape Falcon and Humbug the shoreline). Closures around the (206) 526–6667 or (800) 662–9825. Mountain, during days open to the Farallon Islands (see paragraph Coordinates for the boundary line Oregon Central Coast ‘‘all-depth’’ sport (c)(3)(i)(C) of this section) and Cordell approximating the 20-fm (37-m) depth halibut fishery, when Pacific halibut are Banks (see paragraph (c)(3)(i)(D) of this contour are listed in § 660.391. onboard the vessel, no groundfish may section) also apply in this area. (2) Between the Queets River and be taken and retained, possessed or Coordinates for the boundary line Leadbetter Point, recreational fishing for landed, except sablefish and Pacific cod. approximating the 30-fm (55-m) depth groundfish is prohibited seaward of a ‘‘All-depth’’ season days are established contour are listed in § 660.391.
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(4) Between 37°11′ N. lat. and 36° N. fm (110-m) depth contours are specified Region), recreational fishing for the RCG lat. (Monterey South-Central Region), in §§ 660.391 and 660.392. complex is open from May 15 through recreational fishing for all groundfish * * * * * September 15 (i.e., it’s closed from (except ‘‘other flatfish’’ as specified in (E) Point St. George Yelloweye January 1 through May 14 and from paragraph (c)(3)(iv) of this section) is Rockfish Conservation Area (YRCA). September 16 through December 31). prohibited seaward of a boundary line Recreational fishing for groundfish is (2) Between 40°10′ N. lat. and 38°57′ approximating the 40-fm (73-m) depth prohibited within the Point St. George N. lat. (North Central North of Point contour along the mainland coast and YRCA, as defined by latitude and Arena Region), recreational fishing for along islands and offshore seamounts longitude coordinates at § 660.390, on the RCG Complex is open from May 15 from May 1 through November 15; and dates when the closure is in effect. The through August 15 (i.e., it’s closed from is closed entirely from January 1 closure is not in effect at this time, and January 1 through May 14 and May 16 through April 30 and from November 16 recreational fishing for groundfish is through December 31). through December 31 (i.e., prohibited open within the Point St. George YRCA (3) Between 38°57′ N. lat. and 37°11′ seaward of the shoreline). Coordinates from January 1 through December 31. N. lat. (North Central South of Point for the boundary line approximating the This closure may be imposed through Arena Region), recreational fishing for 40-fm (73-m) depth contour are inseason adjustment. the RCG Complex is open from June 13 specified in § 660.391. (F) South Reef YRCA. Recreational through October 31 (i.e., it’s closed from (5) Between 36° N. lat. and 34°27′ N. fishing for groundfish is prohibited January 1 through June 12 and lat. (Morro Bay South-Central Region), within the South Reef YRCA, as defined November 1 through December 31. recreational fishing for all groundfish by latitude and longitude coordinates at (4) Between 37°11′ N. lat. and 36° N. (except ‘‘other flatfish’’ as specified in § 660.390, on dates when the closure is lat. (Monterey South-Central Region), paragraph (c)(3)(iv) of this section) is in effect. The closure is not in effect at recreational fishing for the RCG prohibited seaward of a boundary line this time, and recreational fishing for Complex is open from May 1 through approximating the 40-fm (73-m) depth groundfish is open within the South November 15 (i.e., it’s closed from contour along the mainland coast and Reef YRCA from January 1 through January 1 through April 30 and from along islands and offshore seamounts December 31. This closure may be November 16 through December 31). from May 1 through November 15; and imposed through inseason adjustment. (5) Between 36′ N. lat. and 34°27′ N. is closed entirely from January 1 (G) Reading Rock YRCA. Recreational lat. (Morro Bay South-Central Region), through April 30 and from November 16 fishing for groundfish is prohibited recreational fishing for the RCG through December 31 (i.e., prohibited within the Reading Rock YRCA, as Complex is open from May 1 through seaward of the shoreline). Coordinates defined by latitude and longitude November 15 (i.e., it’s closed from for the boundary line approximating the coordinates at § 660.390, on dates when January 1 through April 30 and from 40-fm (73-m) depth contour are the closure is in effect. The closure is November 16 through December 31). specified in § 660.391. not in effect at this time, and (6) South of 34°27′ N. latitude (South (6) South of 34°27′ N. latitude (South recreational fishing for groundfish is Region), recreational fishing for the RCG Region), recreational fishing for all open within the Reading Rock YRCA Complex is open from March 1 through groundfish (except California from January 1 through December 31. December 31 (i.e., it’s closed from scorpionfish as specified below in this This closure may be imposed through January 1 through February 28. paragraph and in paragraph (v) and inseason adjustment. (B) Bag limits, hook limits. In times ‘‘other flatfish’’ as specified in (H) Point Delgada (North) YRCA. and areas when the recreational season paragraph (c)(3)(iv) of this section) is Recreational fishing for groundfish is for the RCG Complex is open, there is prohibited seaward of a boundary line prohibited within the Point Delgada a limit of 2 hooks and 1 line when approximating the 60-fm (110-m) depth (North) YRCA, as defined by latitude fishing for rockfish. The bag limit is 10 contour from March 1 through and longitude coordinates at § 660.390, RCG Complex fish per day coastwide. December 31 along the mainland coast on dates when the closure is in effect. Retention of canary rockfish, yelloweye and along islands and offshore The closure is not in effect at this time, rockfish and cowcod is prohibited. seamounts, except in the CCAs where and recreational fishing for groundfish North of 40°10′ N. lat., within the 10 fishing is prohibited seaward of the 20- is open within the Point Delgada (North) RCG Complex fish per day limit, no fm (37-m) depth contour when the YRCA from January 1 through December more than 2 may be bocaccio, no more fishing season is open (see paragraph 31. This closure may be imposed than 2 may be greenling (kelp and/or (c)(3)(i)(B) of this section). Recreational through inseason adjustment. other greenlings) and no more than 2 fishing for all groundfish (except (I) Point Delgada (South) YRCA. may be cabezon. South of 40°10′ N. lat., California scorpionfish and ‘‘other Recreational fishing for groundfish is within the 10 RCG Complex fish per day flatfish’’) is closed entirely from January prohibited within the Point Delgada limit, no more than 2 may be bocaccio, 1 through February 28 (i.e., prohibited (South) YRCA, as defined by latitude no more than 2 may be greenling (kelp seaward of the shoreline). Recreational and longitude coordinates at § 660.390, and/or other greenlings) and no more fishing for California scorpionfish south on dates when the closure is in effect. than 2 may be cabezon. Multi-day limits of 34°27′ N. lat. is prohibited seaward of The closure is not in effect at this time, are authorized by a valid permit issued a boundary line approximating the 40- and recreational fishing for groundfish by California and must not exceed the fm (73-m) depth contour from January 1 is open within the Point Delgada daily limit multiplied by the number of through February 28, and seaward of the (South) YRCA from January 1 through days in the fishing trip. 60-fm (110-m) depth contour from December 31. This closure may be * * * * * March 1 through December 31, except in imposed through inseason adjustment. (iii) * * * the CCAs where fishing is prohibited (J) * * * (A) * * * seaward of the 20-fm (37-m) depth (ii) * * * (1) Between 42° N. lat. (California/ contour when the fishing season is (A) * * * Oregon border) and 40°10.00′ N. lat. open. Coordinates for the boundary line (1) Between 42° N. lat. (California/ (North Region), recreational fishing for approximating the 40-fm (73-m) and 60- Oregon border) and 40°10′ N. lat. (North lingcod is open from May 15 through
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September 15 (i.e., it’s closed from (3) Between 36° N. lat. and 34°27′ N. southern Washington coast intended to January 1 through May 14 and from lat. (Morro Bay South Central Region), protect yelloweye rockfish. The September 16 through December 31). recreational fishing for California Westport Recreational YRCA is defined (2) Between 40°10′ N. lat. and 38°57′ scorpionfish is open from May 1 by straight lines connecting the N. lat. (North Central North of Point through November 30 (i.e., it’s closed following specific latitude and Arena Region), recreational fishing for from January 1 through April 30 and longitude coordinates in the order lingcod is open from May 15 through from December 1 through December 31). listed: August 15 (i.e., it’s closed from January (4) South of 34°27′ N. lat. (South (1) 46°54.30′ N. lat., 124°53.40′ W. 1 through May 14 and May 16 through Region), recreational fishing for long.; December 31). California scorpionfish is open from (2) 46°54.30′ N. lat., 124°51.00′ W. (3) Between 38°57′ N. lat. and 37°11′ January 1 through December 31. long.; N. lat. (North Central South of Point * * * * * (3) 46°53.30′ N. lat., 124°51.00′ W. Arena Region), recreational fishing for 14. In § 660.385, paragraphs (a), (b)(1), long.; lingcod is open from June 13 through (b)(2)(i)(A)(1), (b)(2)(i)(B)(2), (4) 46°53.30′ N. lat., 124°53.40′ W. October 31 (i.e., it’s closed from January (b)(2)(i)(B)(3), and (e) are revised to read long.; and connecting back to 46°54.30′ 1 through June 12 and November 1 as follows: N. lat., 124°53.40′ W. long. through December 31. * * * * * (4) Between 37°11′ N. lat. and 36° N. § 660.385 Washington coastal tribal (g) Point St. George YRCA. The Point fisheries management measures. lat. (Monterey South-Central Region), St. George YRCA is an area off the recreational fishing for lingcod is open * * * * * northern California coast, northwest of from May 1 through November 15 (i.e., (a) Sablefish. The tribal allocation is Point St. George, intended to protect it’s closed from January 1 through April 694 mt per year. This allocation is, for yelloweye rockfish. The Point St. George 30 and from November 16 through each year, 10 percent of the Monterey ° YRCA is defined by straight lines December 31). through Vancouver area (North of 36 N. connecting the following specific (5) Between 36′ N. lat. and 34°27′ N. lat.) OY, less 1.6 percent estimated latitude and longitude coordinates in lat. (Morro Bay South-Central Region), discard mortality. the order listed: recreational fishing for lingcod is open (b) * * * (1) 41°51.00′ N. lat., 124°23.75′ W. from May 1 through November 15 (i.e., (1) Black Rockfish. For the long.; it’s closed from January 1 through April commercial harvest of black rockfish off (2) 41°51.00′ N. lat., 124°20.75′ W. 30 and from November 16 through Washington State, a harvest guideline long.; December 31). of: 20,000 lb (9,072 kg) north of Cape ° ′ ° ′ ° ′ (3) 41 48.00 N. lat., 124 20.75 W. (6) South of 34°27′ N. latitude (South Alava, WA (48 10 N. lat.) and 10,000 lb long.; Region), recreational fishing for lingcod (4,536 kg) between Destruction Island, (4) 41°48.00′ N. lat., 124°23.75′ W. is open from April 1 through November WA (47°40′ N. lat.) and Leadbetter ° ′ ° ′ long.; and connecting back to 41 51.00 30 (i.e., it’s closed from January 1 Point, WA (46 38.17 N. lat.). There are N. lat., 124°23.75′ W. long. through March 31 and from December 1 no tribal harvest restrictions for black (h) South Reef YRCA. The South Reef through 31). rockfish in the area between Cape Alava YRCA is an area off the northern * * * * * and Destruction Island. California coast, southwest of Crescent (iv) ‘‘Other flatfish’’. Coastwide off (2) * * * City, intended to protect yelloweye California, recreational fishing for (i) * * * rockfish. The South Reef YRCA is ‘‘other flatfish’’ is permitted both (A) * * * defined by straight lines connecting the shoreward of and within the closed (1) Small and large footrope trawl following specific latitude and areas described in paragraph (c)(3)(i) of gear—17,000 lb (7,711-kg) per 2 months. longitude coordinates in the order this section. ‘‘Other flatfish’’ are defined * * * * * listed: at § 660.302 and include butter sole, (B) * * * (1) 41°42.20′ N. lat., 124°16.00′ W. curlfin sole, flathead sole, Pacific (2) Selective flatfish trawl gear— long.; sanddab, rex sole, rock sole, and sand 5,000-lb (2,268-kg) per 2 months. (2) 41°42.20′ N. lat., 124°13.80′ W. sole. Recreational fishing for ‘‘other (3) Multiple bottom trawl gear—5,000- long.; flatfish’’ is permitted within the closed lb (2,268-kg) per 2 months. (3) 41°40.50′ N. lat., 124°13.80′ W. areas. ‘‘Other flatfish,’’ except Pacific * * * * * long.; sanddab, are subject to the overall 20- (e) Pacific whiting. The tribal set- (4) 41°40.50′ N. lat., 124°16.00′ W. fish bag limit for all species of finfish, aside for 2009 is 50,000 mt, with 42,000 long.; and connecting back to 41°42.20′ of which there may be no more than 10 to be managed by the Makah Tribe and N. lat., 124°16.00′ W. long. fish of any one species. There is no 8,000 mt to be managed by the Quileute (i) Reading Rock YRCA. The Reading season restriction or size limit for ‘‘other Tribe. Rock YRCA is an area off the northern flatfish;’’ however, it is prohibited to * * * * * California coast, between Crescent City filet ‘‘other flatfish’’ at sea. There is a 15. In § 660.390, paragraphs (f) and Eureka, intended to protect limit of 2 hooks and 1 line when fishing through (j) are redesignated as yelloweye rockfish. The Reading Rock for ‘‘other flatfish’’. paragraphs (l) through (p), paragraph (e) YRCA is defined by straight lines (v) * * * is redesignated as paragraph (f), and connecting the following specific (A) * * * new paragraphs (e), and (g) through (k) latitude and longitude coordinates in (2) Between 37°11′ N. lat. and 36° N. are added to read as follows: the order listed: lat. (Monterey South Central Region), (1) 41°21.50′ N. lat., 124°12.00′ W. recreational fishing for California § 660.390 Groundfish conservation areas. long.; scorpionfish is open from May 1 * * * * * (2) 41°21.50′ N. lat., 124°10.00′ W. through November 30 (i.e., it’s closed (e) Westport Offshore Recreational long.; from January 1 through April 30 and YRCA. The Westport Offshore (3) 41°20.00′ N. lat., 124°10.00′ W. from December 1 through December 31). Recreational YRCA is an area off the long.;
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(4) 41°20.00′ N. lat., 124°12.00′ W. (7) 46°16.00′ N. lat., 124°12.50′ W. (42) 43°29.72′ N. lat., 124°17.78′ W. long.; and connecting back to 41°21.50′ long.; long.; N. lat., 124°12.00′ W. long. (8) 46°15.99′ N. lat., 124°12.04′ W. (43) 43°27.63′ N. lat., 124°19.11′ W. (j) Point Delgada YRCAs. The Point long.; long.; Delgada YRCAs are two areas off the (9) 46°13.72′ N. lat., 124°11.04′ W. (44) 43°20.66′ N. lat., 124°25.39′ W. northern California coast, south of Point long.; long.; Delgada and Shelter Cove, intended to (10) 46°09.50′ N. lat., 124°07.62′ W. (45) 43°15.57′ N. lat., 124°26.86′ W. protect yelloweye rockfish. The long.; long.; Northern Point Delgada YRCA is (11) 46°04.00′ N. lat., 124°03.20′ W. (46) 43°06.88′ N. lat., 124°29.30′ W. defined by straight lines connecting the long.; long.; ° ′ ° ′ following specific latitude and (12) 45 57.61 N. lat., 124 01.85 W. (47) 43°03.37′ N. lat., 124°29.06′ W. longitude coordinates in the order long.; long.; ° ′ ° ′ listed: (13) 45 51.73 N. lat., 124 01.06 W. (48) 43°01.03′ N. lat., 124°29.41′ W. ° ′ ° ′ long.; long.; (1) 39 59.00 N. lat., 124 05.00 W. ° ′ ° ′ long.; (14) 45 47.27 N. lat., 124 01.22 W. (49) 42°56.59′ N. lat., 124°31.93′ W. ° ′ ° ′ long.; long.; (2) 39 59.00 N. lat., 124 03.00 W. ° ′ ° ′ long.; (15) 45 43.19 N. lat., 124 00.32 W. (50) 42°54.08′ N. lat., 124°34.55′ W. ° ′ ° ′ long.; long.; (3) 39 57.00 N. lat., 124 03.00 W. ° ′ ° ′ long.; (16) 45 36.11 N. lat., 124 00.38 W. (51) 42°51.16′ N. lat., 124°37.02′ W. ° ′ ° ′ long.; long.; (4) 39 57.00 N. lat., 124 05.00 W. ° ′ ° ′ long.; and connecting back to 39°59.00′ (17) 45 32.95 N. lat., 124 01.38 W. (52) 42°49.27′ N. lat., 124°37.73′ W. ° ′ long.; long.; N. lat., 124 05.00 W. long. ° ′ ° ′ (k) Southern Point Delgada YRCA. (18) 45 27.47 N. lat., 124 01.46 W. (53) 42°46.02′ N. lat., 124°37.54′ W. The Southern Point Delgada YRCA is long.; long.; (19) 45°23.18′ N. lat., 124°01.94′ W. defined by straight lines connecting the (54) 42°45.76′ N. lat., 124°35.68′ W. long.; following specific latitude and long.; (20) 45°19.04′ N. lat., 124°01.29′ W. longitude coordinates in the order (55) 42°42.25′ N. lat., 124°30.47′ W. long.; long.; listed: (21) 45°16.79′ N. lat., 124°01.90′ W. (1) 39°57.00′ N. lat., 124°05.00′ W. (56) 42°40.51′ N. lat., 124°29.00′ W. long.; long.; long.; (22) 45°13.54′ N. lat., 124°01.64′ W. (2) 39°57.00′ N. lat., 124°02.00′ W. (57) 42°40.00′ N. lat., 124°29.01′ W. long.; long.; long.; (23) 45°09.56′ N. lat., 124°01.94′ W. (3) 39°54.00′ N. lat., 124°02.00′ W. (58) 42°39.64′ N. lat., 124°28.28′ W. long.; long.; long.; (24) 45°06.15′ N. lat., 124°02.38′ W. (4) 39°54.00′ N. lat., 124°05.00′ W. (59) 42°38.80′ N. lat., 124°27.57′ W. ° ′ long.; long.; long.; and connecting back to 39 57.00 (25) 45°00.77′ N. lat., 124°03.72′ W. N. lat., 124°05.00′ W. long. (60) 42°35.42′ N. lat., 124°26.77′ W. long.; long.; * * * * * (26) 44°49.08′ N. lat., 124°06.49′ W. ° ′ ° ′ 16. In § 660.391 paragraphs (d) (61) 42 33.13 N. lat., 124 29.06 W. long.; long.; through (m) are redesignated as (27) 44°40.06′ N. lat., 124°08.14′ W. (62) 42°31.44′ N. lat., 124°30.71′ W. paragraphs (e) through (n), and new long.; long.; paragraph (d) is added to read as (28) 44°36.64′ N. lat., 124°08.51′ W. (63) 42°29.03′ N. lat., 124°31.71′ W. follows: long.; long.; (29) 44°29.41′ N. lat., 124°09.24′ W. (64) 42°24.98′ N. lat., 124°29.95′ W. § 660.391 Latitude/longitude coordinates long.; defining the 10-fm (18-m) through 40-fm (73- (30) 44°25.18′ N. lat., 124°09.37′ W. long.; m) depth contours. (65) 42°20.05′ N. lat., 124°28.16′ W. long.; * * * * * (31) 44°16.34′ N. lat., 124°10.30′ W. long.; (66) 42°14.24′ N. lat., 124°26.03′ W. (d) The 25-fm (46-m) depth contour long.; between the Queets River, WA, and 42° ° ′ ° ′ long.; (32) 44 12.16 N. lat., 124 10.82 W. ° ′ ° ′ N. lat., modified to reduce impacts on long.; (67) 42 10.23 N. lat., 124 23.93 W. canary and yelloweye rockfish by ° ′ ° ′ long.; (33) 44 06.59 N. lat., 124 11.00 W. ° ′ ° ′ shifting the line shoreward in the area long.; (68) 42 06.20 N. lat., 124 22.70 W. between 47°31.70′ N. lat. and 46°44.18′ ° ′ ° ′ long.; (34) 44 02.09 N. lat., 124 11.24 W. ° ′ ° ′ N. lat., is defined by straight lines long.; (69) 42 04.66 N. lat., 124 21.49 W. connecting all of the following points in ° ′ ° ′ long.; and (35) 43 57.82 N. lat., 124 11.60 W. ° ′ ° ′ the order stated: long.; (70) 42 00.00 N. lat., 124 20.80 W. (1) 47°31.70′ N. lat., 124°34.66′ W. (36) 43°53.44′ N. lat., 124°12.34′ W. long. long.; long.; * * * * * (2) 47°25.67′ N. lat., 124°32.78′ W. (37) 43°49.19′ N. lat., 124°13.08′ W. 17. In § 660.392: long.; long.; A. Paragraphs (a)(120) through (192) (3) 47°12.82′ N. lat., 124°26.00′ W. (38) 43°45.19′ N. lat., 124°13.73′ W. are revised, and paragraph (a)(193) is long.; long.; added; (4) 46°52.94′ N. lat., 124°18.94′ W. (39) 43°41.22′ N. lat., 124°14.59′ W. B. Paragraphs (f)(137) through (194) long.; long.; are revised, and paragraphs (f)(195) (5) 46°44.18′ N. lat., 124°14.89′ W. (40) 43°37.52′ N. lat., 124°15.05′ W. through (204) are added: long.; long.; C. Paragraphs (g)(1) through (28) are (6) 46°38.17′ N. lat., 124°13.70′ W. (41) 43°33.97′ N. lat., 124°16.00′ W. revised, and paragraph (g)(29) is long.; long.; removed;
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D. Paragraphs (h)(1) through (14) are (145) 34°01.28′ N. lat., 119°00.21′ W. (180) 33°18.45′ N. lat., 117°35.73′ W. revised; long.; long.; E. Paragraphs (i)(1) through (16) are (146) 34°00.19′ N. lat., 119°03.14′ W. (181) 33°10.29′ N. lat., 117°25.68′ W. revised, and paragraph (i)(17) is added; long.; long.; F. Paragraphs (j)(144) through (244) (147) 33°59.66′ N. lat., 119°03.10′ W. (182) 33°07.47′ N. lat., 117°21.62′ W. are revised, and paragraphs (j)(245) long.; long.; through (253) are added; (148) 33°59.54′ N. lat., 119°00.88′ W. (183) 33°04.47′ N. lat., 117°21.24′ W. G. Paragraphs (k)(1) through (31) are long.; long.; ° ′ ° ′ revised, and paragraphs (k)(32) through (149) 34 00.82 N. lat., 118 59.03 W. (184) 32°59.89′ N. lat., 117°19.11′ W. (38) are removed, and long.; long.; ° ′ ° ′ H. Paragraphs (m)(1) through (18) are (150) 33 59.11 N. lat., 118 47.52 W. (185) 32°57.41′ N. lat., 117°18.64′ W. revised. long.; ° ′ ° ′ long.; The revisions and additions read as (151) 33 59.07 N. lat., 118 36.33 W. (186) 32°55.71′ N. lat., 117°18.99′ W. follows: long.; long.; (152) 33°55.06′ N. lat., 118°32.86′ W. ° ′ ° ′ § 660.392 Latitude/longitude coordinates (187) 32 54.43 N. lat., 117 16.93 W. long.; long.; defining the 50-fm (91-m) through 75-fm (153) 33°53.56′ N. lat., 118°37.75′ W. (188) 32°52.34′ N. lat., 117°16.73′ W. (137-m) depth contours. long.; long.; * * * * * (154) 33°51.22′ N. lat., 118°36.14′ W. (189) 32°52.64′ N. lat., 117°17.76′ W. (a) * * * long.; (120) 36°10.41′ N. lat., 121°42.88′ W. ° ′ ° ′ long.; (155) 33 50.48 N. lat., 118 32.16 W. ° ′ ° ′ long.; long.; (190) 32 52.24 N. lat., 117 19.36 W. (121) 36°02.56′ N. lat., 121°36.37′ W. ° ′ ° ′ long.; (156) 33 51.86 N. lat., 118 28.71 W. ° ′ ° ′ long.; long.; (191) 32 47.06 N. lat., 117 21.92 W. (122) 36°01.11′ N. lat., 121°36.39′ W. (157) 33°50.09′ N. lat., 118°27.88′ W. long.; ° ′ ° ′ long.; long.; (192) 32 41.93 N. lat., 117 19.68 W. (123) 36°00.00′ N. lat., 121°35.15′ W. (158) 33°49.95′ N. lat., 118°26.38′ W. long.; and ° ′ ° ′ long.; long.; (193) 32 33.59 N. lat., 117 17.89 W. (124) 35°58.26′ N. lat., 121°32.88′ W. (159) 33°50.73′ N. lat., 118°26.17′ W. long. long.; long.; * * * * * (125) 35°40.38′ N. lat., 121°22.59′ W. (160) 33°49.86′ N. lat., 118°24.25′ W. (f) * * * long.; long.; (137) 36°00.00′ N. lat., 121°35.34′ W. ° ′ ° ′ (126) 35 27.74 N. lat., 121 04.69 W. (161) 33°48.10′ N. lat., 118°26.87′ W. long.; long.; long.; (138) 35°58.25′ N. lat., 121°32.88′ W. ° ′ ° ′ (127) 35 01.43 N. lat., 120 48.01 W. (162) 33°47.54′ N. lat., 118°29.66′ W. long.; long.; long.; ° ′ ° ′ ° ′ ° ′ (139) 35 40.38 N. lat., 121 22.59 W. (128) 34 37.98 N. lat., 120 46.48 W. (163) 33°44.10′ N. lat., 118°25.25′ W. long.; long.; long.; (140) 35°26.31′ N. lat., 121°03.73′ W. ° ′ ° ′ ° ′ ° ′ (129) 34 32.98 N. lat., 120 43.34 W. (164) 33 41.78 N. lat., 118 20.28 W. long.; long.; long.; (141) 35°01.36′ N. lat., 120°49.02′ W. ° ′ ° ′ ° ′ ° ′ (130) 34 27.00 N. lat., 120 33.31 W. (165) 33 38.18 N. lat., 118 15.69 W. long.; long.; long.; (142) 34°39.52′ N. lat., 120°48.72′ W. (131) 34°23.47′ N. lat., 120°24.76′ W. ° ′ ° ′ (166) 33 37.50 N. lat., 118 16.71 W. long.; long.; long.; (143) 34°31.26′ N. lat., 120°44.12′ W. (132) 34°25.78′ N. lat., 120°16.82′ W. ° ′ ° ′ (167) 33 35.98 N. lat., 118 16.54 W. long.; long.; long.; (144) 34°27.00′ N. lat., 120°36.00′ W. (133) 34°24.65′ N. lat., 120°04.83′ W. (168) 33°34.15′ N. lat., 118°11.22′ W. long.; long.; long.; (145) 34°23.00′ N. lat., 120°25.32′ W. (134) 34°23.18′ N. lat., 119°56.18′ W. (169) 33°34.29′ N. lat., 118°08.35′ W. long.; long.; long.; (146) 34°25.65′ N. lat., 120°17.20′ W. (135) 34°19.20′ N. lat., 119°41.64′ W. (170) 33°35.53′ N. lat., 118°06.66′ W. long.; long.; long.; ° ′ ° ′ (136) 34°16.82′ N. lat., 119°35.32′ W. (171) 33°35.93′ N. lat., 118°04.78′ W. (147) 34 23.18 N. lat., 119 56.17 W. long.; long.; long.; ° ′ ° ′ (137) 34°13.43′ N. lat., 119°32.29′ W. (172) 33°34.97′ N. lat., 118°02.91′ W. (148) 34 18.73 N. lat., 119 41.89 W. long.; long.; long.; ° ′ ° ′ (138) 34°05.39′ N. lat., 119°15.13′ W. (173) 33°33.84′ N. lat., 117°59.77′ W. (149) 34 11.18 N. lat., 119 31.21 W. long.; long.; long.; ° ′ ° ′ (139) 34°07.98′ N. lat., 119°13.43′ W. (174) 33°35.33′ N. lat., 117°55.89′ W. (150) 34 10.01 N. lat., 119 25.84 W. long.; long.; long.; (140) 34°07.64′ N. lat., 119°13.10′ W. (175) 33°35.05′ N. lat., 117°53.72′ W. (151) 34°03.88′ N. lat., 119°12.46′ W. long.; long.; long.; (141) 34°04.56′ N. lat., 119°13.73′ W. (176) 33°31.32′ N. lat., 117°48.01′ W. (152) 34°03.58′ N. lat., 119°06.71′ W. long.; long.; long.; (142) 34°03.90′ N. lat., 119°12.66′ W. (177) 33°27.99′ N. lat., 117°45.19′ W. (153) 34°04.52′ N. lat., 119°04.89′ W. long.; long.; long.; (143) 34°03.66′ N. lat., 119°06.82′ W. (178) 33°26.93′ N. lat., 117°44.24′ W. (154) 34°01.28′ N. lat., 119°00.27′ W. long.; long.; long.; (144) 34°04.58′ N. lat., 119°04.91′ W. (179) 33°25.46′ N. lat., 117°42.06′ W. (155) 34°00.20′ N. lat., 119°03.18′ W. long.; long.; long.;
VerDate Aug<31>2005 17:52 Dec 30, 2008 Jkt 217001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\31DEP2.SGM 31DEP2 pwalker on PROD1PC71 with PROPOSALS2 Federal Register / Vol. 73, No. 251 / Wednesday, December 31, 2008 / Proposed Rules 80553
(156) 33°59.60′ N. lat., 119°03.14′ W. (191) 32°56.11′ N. lat., 117°18.41′ W. (21) 33°48.11′ N. lat., 119°59.72′ W. long.; long.; long.; (157) 33°59.45′ N. lat., 119°00.87′ W. (192) 32°55.31′ N. lat., 117°18.80′ W. (22) 33°49.14′ N. lat., 120°03.58′ W. long.; long.; long.; (158) 34°00.71′ N. lat., 118°59.07′ W. (193) 32°54.38′ N. lat., 117°17.09′ W. (23) 33°52.95′ N. lat., 120°10.00′ W. long.; long.; long.; (159) 33°59.05′ N. lat., 118°47.34′ W. (194) 32°52.81′ N. lat., 117°16.94′ W. (24) 33°56.00′ N. lat., 120°17.00′ W. long.; long.; long.; (160) 33°58.86′ N. lat., 118°36.24′ W. (195) 32°52.56′ N. lat., 117°19.30′ W. (25) 34°00.12′ N. lat., 120°28.12′ W. long.; long.; long.; (161) 33°55.05′ N. lat., 118°32.85′ W. (196) 32°50.86′ N. lat., 117°20.98′ W. (26) 34°08.23′ N. lat., 120°36.25′ W. long.; long.; long.; (162) 33°53.63′ N. lat., 118°37.88′ W. (197) 32°46.96′ N. lat., 117°22.69′ W. (27) 34°08.80′ N. lat., 120°34.58′ W. long.; long.; long.; and (163) 33°51.22′ N. lat., 118°36.13′ W. (198) 32°45.58′ N. lat., 117°22.38′ W. (28) 34°09.83′ N. lat., 120°25.61′ W. long.; long.; long. ° ′ ° ′ (164) 33 50.19 N. lat., 118 32.19 W. (199) 32°44.98′ N. lat., 117°21.87′ W. (h) * * * ° ′ ° ′ long.; long.; (1) 33 04.44 N. lat., 118 37.61 W. ° ′ ° ′ (165) 33 51.28 N. lat., 118 29.12 W. (200) 32°43.52′ N. lat., 117°19.32′ W. long.; long.; (2) 33°02.56′ N. lat., 118°34.12′ W. ° ′ ° ′ long.; (166) 33 49.89 N. lat., 118 28.04 W. (201) 32°41.52′ N. lat., 117°20.12′ W. long.; long.; (3) 32°55.54′ N. lat., 118°28.87′ W. ° ′ ° ′ long.; (167) 33 49.95 N. lat., 118 26.38 W. (202) 32°37.00′ N. lat., 117°20.10′ W. long.; ° ′ ° ′ long.; long.; (4) 32 55.02 N. lat., 118 27.69 W. (168) 33°50.73′ N. lat., 118°26.16′ W. ° ′ ° ′ long.; (203) 32 34.76 N. lat., 117 18.77 W. ° ′ ° ′ long.; long.; and (5) 32 49.78 N. lat., 118 20.88 W. (169) 33°50.06′ N. lat., 118°24.79′ W. ° ′ ° ′ long.; (204) 32 33.70 N. lat., 117 18.46 W. ° ′ ° ′ long.; long. (6) 32 48.32 N. lat., 118 19.89 W. (170) 33°48.48′ N. lat., 118°26.86′ W. long.; (g) * * * ° ′ ° ′ long.; (1) 34°09.83′ N. lat., 120°25.61′ W. (7) 32 47.60 N. lat., 118 22.00 W. (171) 33°47.75′ N. lat., 118°30.21′ W. long.; long.; ° ′ ° ′ long.; (2) 34°07.03′ N. lat., 120°16.43′ W. (8) 32 44.59 N. lat., 118 24.52 W. (172) 33°44.10′ N. lat., 118°25.25′ W. long.; long.; ° ′ ° ′ long.; (3) 34°06.38′ N. lat., 120°04.00′ W. (9) 32 49.97 N. lat., 118 31.52 W. (173) 33°41.77′ N. lat., 118°20.32′ W. long.; long.; long.; (10) 32°53.62′ N. lat., 118°32.94′ W. (4) 34°07.90′ N. lat., 119°55.12′ W. (174) 33°38.17′ N. lat., 118°15.69′ W. long.; long.; long.; (11) 32°55.63′ N. lat., 118°34.82′ W. (5) 34°05.07′ N. lat., 119°37.33′ W. (175) 33°37.48′ N. lat., 118°16.72′ W. long.; long.; long.; (12) 33°00.71′ N. lat., 118°38.42′ W. (6) 34°05.04′ N. lat., 119°32.80′ W. (176) 33°35.80′ N. lat., 118°16.65′ W. long.; long.; ° ′ ° ′ long.; ° ′ ° ′ (13) 33 03.49 N. lat., 118 38.81 W. (177) 33°33.92′ N. lat., 118°11.36′ W. (7) 34 04.00 N. lat., 119 26.70 W. long.; and long.; ° ′ ° ′ long.; ° ′ ° ′ (14) 33 04.44 N. lat., 118 37.61 W. (178) 33°34.09′ N. lat., 118°08.15′ W. (8) 34 02.27 N. lat., 119 18.73 W. long. long.; long.; ° ′ ° ′ (i) * * * (179) 33°35.73′ N. lat., 118°05.01′ W. (9) 34 00.98 N. lat., 119 19.10 W. (1) 33°28.15′ N. lat., 118°38.17′ W. long.; long.; ° ′ ° ′ long.; (180) 33°33.75′ N. lat., 117°59.82′ W. (10) 33 59.44 N. lat., 119 21.89 W. (2) 33°29.23′ N. lat., 118°36.27′ W. long.; long.; long.; ° ′ ° ′ (181) 33°35.25′ N. lat., 117°55.89′ W. (11) 33 58.70 N. lat., 119 32.22 W. (3) 33°28.85′ N. lat., 118°30.85′ W. long.; long.; long.; ° ′ ° ′ (182) 33°35.03′ N. lat., 117°53.80′ W. (12) 33 57.81 N. lat., 119 33.72 W. (4) 33°26.69′ N. lat., 118°27.37′ W. long.; long.; long.; (183) 33°31.37′ N. lat., 117°48.15′ W. (13) 33°57.65′ N. lat., 119°35.94′ W. (5) 33°26.30′ N. lat., 118°25.38′ W. long.; long.; long.; (184) 33°27.49′ N. lat., 117°44.85′ W. (14) 33°56.14′ N. lat., 119°41.09′ W. (6) 33°25.35′ N. lat., 118°22.83′ W. long.; long.; long.; (185) 33°16.63′ N. lat., 117°34.01′ W. (15) 33°55.84′ N. lat., 119°48.00′ W. (7) 33°22.60′ N. lat., 118°18.82′ W. long.; long.; long.; (186) 33°07.21′ N. lat., 117°21.96′ W. (16) 33°57.22′ N. lat., 119°52.09′ W. (8) 33°19.49′ N. lat., 118°16.91′ W. long.; long.; long.; (187) 33°03.35′ N. lat., 117°21.22′ W. (17) 33°59.32′ N. lat., 119°55.65′ W. (9) 33°17.13′ N. lat., 118°16.58′ W. long.; long.; long.; (188) 33°02.14′ N. lat., 117°20.26′ W. (18) 33°57.73′ N. lat., 119°55.06′ W. (10) 33°16.65′ N. lat., 118°17.71′ W. long.; long.; long.; (189) 32°59.87′ N. lat., 117°19.16′ W. (19) 33°56.48′ N. lat., 119°53.80′ W. (11) 33°18.35′ N. lat., 118°27.86′ W. long.; long.; long.; (190) 32°57.39′ N. lat., 117°18.72′ W. (20) 33°49.29′ N. lat., 119°55.76′ W. (12) 33°20.07′ N. lat., 118°32.34′ W. long.; long.; long.;
VerDate Aug<31>2005 17:52 Dec 30, 2008 Jkt 217001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 E:\FR\FM\31DEP2.SGM 31DEP2 pwalker on PROD1PC71 with PROPOSALS2 80554 Federal Register / Vol. 73, No. 251 / Wednesday, December 31, 2008 / Proposed Rules
(13) 33°21.82′ N. lat., 118°32.08′ W. (173) 36°31.96′ N. lat., 121°56.27′ W. (208) 34°00.22′ N. lat., 119°03.20′ W. long.; long.; long.; (14) 33°23.15′ N. lat., 118°29.89′ W. (174) 36°31.74′ N. lat., 121°58.24′ W. (209) 33°59.56′ N. lat., 119°03.36′ W. long.; long.; long.; (15) 33°24.99′ N. lat., 118°32.25′ W. (175) 36°30.57′ N. lat., 121°59.66′ W. (210) 33°59.35′ N. lat., 119°00.92′ W. long.; long.; long.; (16) 33°25.73′ N. lat., 118°34.88′ W. (176) 36°27.80′ N. lat., 121°59.30′ W. (211) 34°00.49′ N. lat., 118°59.08′ W. long.; and long.; long.; (17) 33°28.15′ N. lat., 118°38.17′ W. (177) 36°26.52′ N. lat., 121°58.09′ W. (212) 33°59.07′ N. lat., 118°47.34′ W. long. long.; long.; (j) * * * (178) 36°23.65′ N. lat., 121°58.94′ W. (213) 33°58.73′ N. lat., 118°36.45′ W. (144) 37°28.20′ N. lat., 122°54.92′ W. long.; long.; long.; (179) 36°20.93′ N. lat., 122°00.28′ W. (214) 33°55.24′ N. lat., 118°33.42′ W. (145) 37°27.34′ N. lat., 122°52.91′ W. long.; long.; long.; (180) 36°18.23′ N. lat., 122°03.10′ W. (215) 33°53.71′ N. lat., 118°38.01′ W. (146) 37°26.45′ N. lat., 122°52.95′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (181) 36 14.21 N. lat., 121 57.73 W. (216) 33 51.19 N. lat., 118 36.50 W. (147) 37°26.06′ N. lat., 122°51.17′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (182) 36 14.68 N. lat., 121 55.43 W. (217) 33 49.85 N. lat., 118 32.31 W. (148) 37°23.07′ N. lat., 122°51.34′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (183) 36 10.42 N. lat., 121 42.90 W. (218) 33 49.61 N. lat., 118 28.07 W. (149) 37°11.00′ N. lat., 122°43.89′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (184) 36 02.55 N. lat., 121 36.35 W. (219) 33 49.77 N. lat., 118 26.34 W. ° ′ ° ′ long.; long.; (150) 37 07.00 N. lat., 122 41.06 W. ° ′ ° ′ ° ′ ° ′ long.; (185) 36 01.04 N. lat., 121 36.47 W. (220) 33 50.36 N. lat., 118 25.84 W. ° ′ ° ′ long.; long.; (151) 37 04.12 N. lat., 122 38.94 W. ° ′ ° ′ ° ′ ° ′ long.; (186) 36 00.00 N. lat., 121 35.40 W. (221) 33 49.92 N. lat., 118 25.05 W. ° ′ ° ′ long.; long.; (152) 37 00.64 N. lat., 122 33.26 W. ° ′ ° ′ ° ′ ° ′ long.; (187) 35 58.25 N. lat., 121 32.88 W. (222) 33 48.70 N. lat., 118 26.70 W. ° ′ ° ′ long.; long.; (153) 36 59.15 N. lat., 122 27.84 W. ° ′ ° ′ ° ′ ° ′ long.; (188) 35 39.35 N. lat., 121 22.63 W. (223) 33 47.72 N. lat., 118 30.48 W. (154) 37°01.41′ N. lat., 122°24.41′ W. long.; long.; (189) 35°25.09′ N. lat., 121°03.02′ W. (224) 33°44.11′ N. lat., 118°25.25′ W. long.; (155) 36°58.75′ N. lat., 122°23.81′ W. long.; long.; (190) 35°10.84′ N. lat., 120°55.90′ W. (225) 33°41.62′ N. lat., 118°20.31′ W. long.; long.; long.; (156) 36°59.17′ N. lat., 122°21.44′ W. (191) 35°04.35′ N. lat., 120°51.62′ W. (226) 33°38.15′ N. lat., 118°15.85′ W. long.; long.; long.; (157) 36°57.51′ N. lat., 122°20.69′ W. (192) 34°55.25′ N. lat., 120°49.36′ W. (227) 33°37.53′ N. lat., 118°16.82′ W. long.; ° ′ ° ′ long.; long.; (158) 36 51.46 N. lat., 122 10.01 W. (193) 34°47.95′ N. lat., 120°50.76′ W. (228) 33°35.76′ N. lat., 118°16.75′ W. long.; ° ′ ° ′ long.; long.; (159) 36 48.43 N. lat., 122 06.47 W. (194) 34°39.27′ N. lat., 120°49.16′ W. (229) 33°33.76′ N. lat., 118°11.37′ W. long.; ° ′ ° ′ long.; long.; (160) 36 48.66 N. lat., 122 04.99 W. (195) 34°31.05′ N. lat., 120°44.71′ W. (230) 33°33.76′ N. lat., 118°07.94′ W. long.; ° ′ ° ′ long.; long.; (161) 36 47.75 N. lat., 122 03.33 W. (196) 34°27.00′ N. lat., 120°36.54′ W. (231) 33°35.59′ N. lat., 118°05.05′ W. long.; ° ′ ° ′ long.; long.; (162) 36 51.23 N. lat., 121 57.79 W. (197) 34°22.60′ N. lat., 120°25.41′ W. (232) 33°33.67′ N. lat., 117°59.98′ W. long.; long.; long.; ° ′ ° ′ (163) 36 49.72 N. lat., 121 57.87 W. (198) 34°25.45′ N. lat., 120°17.41′ W. (233) 33°34.98′ N. lat., 117°55.66′ W. long.; long.; long.; ° ′ ° ′ (164) 36 48.84 N. lat., 121 58.68 W. (199) 34°22.94′ N. lat., 119°56.40′ W. (234) 33°34.84′ N. lat., 117°53.83′ W. long.; long.; long.; (165) 36°47.89′ N. lat., 121°58.53′ W. (200) 34°18.37′ N. lat., 119°42.01′ W. (235) 33°31.43′ N. lat., 117°48.76′ W. long.; long.; long.; (166) 36°48.66′ N. lat., 121°50.49′ W. (201) 34°11.22′ N. lat., 119°32.47′ W. (236) 33°16.61′ N. lat., 117°34.49′ W. long.; long.; long.; (167) 36°45.56′ N. lat., 121°54.11′ W. (202) 34°09.58′ N. lat., 119°25.94′ W. (237) 33°07.43′ N. lat., 117°22.40′ W. long.; long.; long.; (168) 36°45.30′ N. lat., 121°57.62′ W. (203) 34°03.89′ N. lat., 119°12.47′ W. (238) 33°02.93′ N. lat., 117°21.12′ W. long.; long.; long.; (169) 36°38.54′ N. lat., 122°01.13′ W. (204) 34°03.57′ N. lat., 119°06.72′ W. (239) 33°02.09′ N. lat., 117°20.28′ W. long.; long.; long.; (170) 36°35.76′ N. lat., 122°00.87′ W. (205) 34°04.53′ N. lat., 119°04.90′ W. (240) 32°59.91′ N. lat., 117°19.28′ W. long.; long.; long.; (171) 36°32.58′ N. lat., 121°59.12′ W. (206) 34°02.84′ N. lat., 119°02.37′ W. (241) 32°57.27′ N. lat., 117°18.82′ W. long.; long.; long.; (172) 36°32.95′ N. lat., 121°57.62′ W. (207) 34°01.30′ N. lat., 119°00.26′ W. (242) 32°56.17′ N. lat., 117°19.43′ W. long.; long.; long.;
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(243) 32°55.22′ N. lat., 117°19.09′ W. (24) 33°47.28′ N. lat., 119°57.30′ W. D. Newly redesignated paragraphs long.; long.; (a)(261), (262), and (304) and (h)(188), (244) 32°54.30′ N. lat., 117°17.13′ W. (25) 33°47.36′ N. lat., 120°00.39′ W. (201), (206), and (249) are revised. long.; long.; The additions and revisions read as (245) 32°52.89′ N. lat., 117°17.03′ W. (26) 33°49.16′ N. lat., 120°05.06′ W. follows: long.; long.; (246) 32°52.61′ N. lat., 117°19.50′ W. (27) 33°52.00′ N. lat., 120°08.15′ W. § 660.393 Latitude/longitude coordinates defining the 100 fm (183 m) through 150 fm long.; long.; (274 m) depth contours. (247) 32°50.85′ N. lat., 117°21.14′ W. (28) 33°58.11′ N. lat., 120°25.59′ W. long.; long.; (a) * * * (35) 48°02.35′ N. lat., 125°17.30′ W. (248) 32°47.11′ N. lat., 117°22.95′ W. (29) 34°02.15′ N. lat., 120°32.70′ W. long.; long.; long.; (36) 48°02.35′ N. lat., 125°18.07′ W. (249) 32°45.66′ N. lat., 117°22.60′ W. (30) 34°08.86′ N. lat., 120°37.12′ W. long.; long.; long.; and (37) 48°00.00′ N. lat., 125°19.30′ W. ° ′ ° ′ (31) 34°10.82′ N. lat., 120°33.26′ W. (250) 32 42.99 N. lat., 117 20.70 W. long.; long.; long. (251) 32°40.72′ N. lat., 117°20.23′ W. * * * * * * * * * * (213) 37°26.81′ N. lat., 122°55.57′ W. long.; (m) * * * (252) 32°38.11′ N. lat., 117°20.59′ W. ° ′ ° ′ long.; (1) 33 28.17 N. lat., 118 38.16 W. (214) 37°26.78′ N. lat., 122°53.91′ W. long.; and long.; (253) 32°33.83′ N. lat., 117°19.18′ W. ° ′ ° ′ long.; (2) 33 29.35 N. lat., 118 36.23 W. (215) 37°25.74′ N. lat., 122°54.13′ W. long. long.; long.; (k) * * * ° ′ ° ′ (3) 33 28.85 N. lat., 118 30.85 W. (216) 37°25.33′ N. lat., 122°53.59′ W. (1) 34°10.82′ N. lat., 120°33.26′ W. long.; long.; long.; (4) 33°26.69′ N. lat., 118°27.37′ W. ° ′ ° ′ ° ′ ° ′ (217) 37 25.29 N. lat., 122 52.57 W. (2) 34 11.78 N. lat., 120 28.12 W. long.; long.; long.; (5) 33°26.33′ N. lat., 118°25.37′ W. ° ′ ° ′ ° ′ ° ′ (218) 37 24.50 N. lat., 122 52.09 W. (3) 34 08.65 N. lat., 120 18.46 W. long.; long.; long.; (6) 33°25.35′ N. lat., 118°22.83′ W. ° ′ ° ′ ° ′ ° ′ (219) 37 23.25 N. lat., 122 53.12 W. (4) 34 07.01 N. lat., 120 10.46 W. long.; long.; long.; (7) 33°22.47′ N. lat., 118°18.53′ W. (5) 34°06.56′ N. lat., 120°04.00′ W. * * * * * long.; (261) 36°00.00′ N. lat., 121°35.41′ W. long.; ° ′ ° ′ (8) 33 19.51 N. lat., 118 16.82 W. long.; (6) 34°08.11′ N. lat., 119°55.01′ W. long.; ° ′ ° ′ ° ′ ° ′ (262) 35 57.84 N. lat., 121 32.81 W. long.; (9) 33 17.07 N. lat., 118 16.38 W. long.; (7) 34°05.18′ N. lat., 119°37.94′ W. long.; long.; (10) 33°16.58′ N. lat., 118°17.61′ W. * * * * * (304) 32°53.36′ N. lat., 117°19.97′ W. (8) 34°05.22′ N. lat., 119°35.52′ W. long.; long.; (11) 33°18.35′ N. lat., 118°27.86′ W. long.; (9) 34°05.12′ N. lat., 119°32.74′ W. long.; * * * * * long.; ° ′ ° ′ (h) * * * (12) 33 20.07 N. lat., 118 32.35 W. ° ° ′ (10) 34°04.32′ N. lat., 119°27.32′ W. long.; (187) 39 39.82 N. lat., 123 59.98 W. ° ′ ° ′ long.; long.; (13) 33 21.82 N. lat., 118 32.09 W. ° ° ′ (11) 34°02.32′ N. lat., 119°18.46′ W. long.; (188) 39 34.59 N. lat., 123 58.08 W. long.; (14) 33°23.15′ N. lat., 118°29.99′ W. long.; (12) 34°00.95′ N. lat., 119°18.95′ W. long.; * * * * * long.; (15) 33°24.96′ N. lat., 118°32.21′ W. (201) 38°18.75 N. lat., 123°31.21′ W. (13) 33°59.40′ N. lat., 119°21.74′ W. long.; long.; long.; (16) 33°25.67′ N. lat., 118°34.88′ W. * * * * * (14) 33°58.70′ N. lat., 119°32.21′ W. long.; (206) 38°06.15 N. lat., 123°30.00′ W. long.; (17) 33°27.57′ N. lat., 118°37.90′ W. long.; (15) 33°56.12′ N. lat., 119°41.10′ W. long.; and * * * * * long.; (18) 33°28.17′ N. lat., 118°38.16′ W. (216) 37°26.10 N. lat., 122°57.07′ W. (16) 33°55.74′ N. lat., 119°48.00′ W. long. long.; long.; 18. In § 660.393: (217) 37°26.51 N. lat., 122°54.23′ W. (17) 33°56.91′ N. lat., 119°52.04′ W. A. Paragraphs (a)(210) through (297) long.; long.; are redesignated as (a)(220) through (218) 37°25.05′ N. lat., 122°55.64′ W. (18) 33°59.06′ N. lat., 119°55.38′ W. (307), and paragraphs (a)(35) through long.; long.; (209) are redesignated as (a)(38) through (219) 37°24.42′ N. lat., 122°54.94′ W. (19) 33°57.82′ N. lat., 119°54.99′ W. (212); long.; long.; B. Paragraphs (h)(215) through (291) (220) 37°25.16′ N. lat., 122°52.73′ W. (20) 33°56.58′ N. lat., 119°53.75′ W. are redesignated as (h)(224) through long.; long.; (300), and paragraphs (h)(187) through (221) 37°24.55′ N. lat., 122°52.48′ W. (21) 33°54.43′ N. lat., 119°54.07′ W. (214) are redesignated as (h)(188) long.; long.; through (215); (222) 37°22.81′ N. lat., 122°54.36′ W. (22) 33°52.67′ N. lat., 119°54.78′ W. C. New paragraphs (a)(35) through long.; long.; (37), (a)(213) through (219), (h)(187), (223) 37°19.87′ N. lat., 122°53.98′ W. (23) 33°48.33′ N. lat., 119°55.09′ W. and (h)(216) through (223) are added; long.; long.; and * * * * *
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(249) 36°00.00′ N. lat., 121°35.45′ W. G. New paragraphs (m)(119) and (120) (165) 37°55.07′ N. lat., 123°27.20′ W. long.; are added, and long.; * * * * * H. Newly redesignated paragraphs * * * * * 19. In § 660.394: (m)(121) and (122) are revised. ° ′ ° ′ The additions and revisions read as (179) 36 55.69 N. lat., 122 22.32 W. A. Paragraphs (l)(179) through (214) follows: long.; are redesignated as (l)(180) through * * * * * (242), paragraphs (l)(164) through § 660.394 Latitude/longitude coordinates (l)(177) are redesignated as (l)(166) defining the 180-fm (329-m) through 250-fm (m) * * * through (179), and paragraph (l)(130) (457-m) depth contours. (119) 39°56.44′ N. lat., 124°12.52′ W. through (163) are redesignated as * * * * * long.; paragraphs (l)(131) through (164); (l) * * * ° ′ ° ′ ° ′ ° ′ (120) 39 54.98 N. lat., 124 08.71 W. B. Paragraphs (l)(178) is removed; (121) 40 38.87 N. lat., 124 30.15 W. long.; long.; C. Paragraph (l)(121) is revised; (121) 39°52.60′ N. lat., 124°10.01′ W. D. New paragraphs (l)(130) and (165) * * * * * long.; (130) 40°16.29′ N. lat., 124°34.50′ W. are added; ° ′ ° ′ E. Newly designated paragraphs long.; (122) 39 37.37 N. lat., 124 00.58 W. (l)(140) and (179) are revised; * * * * * long.; F. Paragraphs (m)(119) through (199) (140) 39°55.72′ N. lat., 124°09.86′ W. * * * * * are redesignated as (m)(121) through long.; 20. In part 660, subpart G, Tables 1– (201); * * * * * 5 are revised to read as follows: TABLE 1a. TO PART 660, SUBPART G—2009, SPECIFICATIONS OF ABCS, OYS, AND HGS, BY MANAGEMENT AREA [Weights in metric tons]
ABC specifications HG b
Species ABC contributions by area OY b ABC Commercial Recreational Vancouver a Columbia Eureka Monterey Conception
ROUNDFISH:
Lingcod c N of 42° N. lat
S of 42° N. lat ...... 4,473 805 5,278 5,278
Pacific Cod e ...... 3,200 (d) 3,200 1,600 1,200
Pacific Whiting (f) ...... (f) (f) 134,773– 404,318
Sablefish g N of 36° N. lat ...... 7,052 6,347
S of 36° N. lat ...... 9,914 9,914 1,371 1,371
Cabezon h
S of 42° N. lat ...... (d) 81 25 106 69
FLATFISH:
Dover sole i ...... 29,453 29,453 16,500
English sole j ...... 14,326 14,326 14,326
Petrale sole k ...... 1,509 1,302 2,811 2,433
Arrowtooth flounder l ...... 11,267 11,267 11,267
Starry Flounder m ...... 1,509 1,509 1,004
Other flatfish n ...... 6,731 6,731 4,884
ROCKFISH:
Pacific Ocean Perch o ...... 1,160 1,160 189 187
Shortbelly p ...... 6,950 6,950 6,950
Widow q ...... 7,728 7,728 522 460.4 7.2
Canary r ...... 937 937 105 42.3 43.8
Chilipepper s ...... (d) 3,037 3,037 2,885 2,885
Bocaccio t ...... (d) 793 793 288 206.4 67.3
Splitnose u ...... (d) 615 615 461
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TABLE 1a. TO PART 660, SUBPART G—2009, SPECIFICATIONS OF ABCS, OYS, AND HGS, BY MANAGEMENT AREA— Continued [Weights in metric tons]
ABC specifications HG b
Species ABC contributions by area OY b ABC Commercial Recreational Vancouver a Columbia Eureka Monterey Conception
Yellowtail v ...... 4,562 (d) 4,562 4,562
Shortspine thornyhead w N of 34°27′ N. lat ...... 1,608 1,608
S of 34°27′ N. lat ...... 2,437 2,437 414
Longspine thornyhead x ..... N of 34°27′ N. lat ...... 2,231
S of 34°27′ N. lat ...... 3,766 3,766 395
Cowcod y ...... (d) 13 13 4
Darkblotched z ...... 437 437 285 282.05
Yelloweye aa ...... 31 17 3.1
California Scorpionfish bb ... 175 175 175
Black cc N of 46°16′ N. lat ...... 490 490 490
S of 46°16′ N. lat ...... 1,469 1,469 1,000
Minor Rockfish dd N of 40°10′ N. lat ...... 3,678 3,678 2,283
Minor Rockfish ee S of 40°10′ N. lat ...... 3,384 3,384 1,990
Remaining ...... 1,640 1,318
Bank ff ...... (d) 350
Blackgill gg ...... (d) 292
Blue ...... 28 213 Bocaccio north ...... 318
Chilipepper north ...... 32
Redstripe ...... 576 (d)
Sharpchin ...... 307 45
Silvergrey ...... 38 (d)
Splitnose north ...... 242
Yellowmouth ...... 99 (d)
Yellowtail ...... 116
Gopher ...... (d) 302
Other rockfish hh ...... 2,038 2,066
SHARKS/SKATES/RATFISH/MORIDS/GRENADIERS/KELP GREENLING:
Longnose Skate ii ...... 3,428 3,428 1,349 Other fish jj ...... 11,200 11,200 5,600
TABLE 1b. TO PART 660, SUBPART G—2009, HARVEST GUIDELINES FOR MINOR ROCKFISH BY DEPTH SUB-GROUPS [Weights in metric tons]
Limited entry HG Open access HG Species Total catch Total catch Recreational Commercial ABC OY HG HG Mt % Mt %
Minor Rockfish dd N of 40°10′ N. lat ...... 3,678 2,283 91.7 8.3
Nearshore ...... 155
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TABLE 1b. TO PART 660, SUBPART G—2009, HARVEST GUIDELINES FOR MINOR ROCKFISH BY DEPTH SUB-GROUPS— Continued [Weights in metric tons]
Limited entry HG Open access HG Species Total catch Total catch Recreational Commercial ABC OY HG HG Mt % Mt %
Shelf ...... 968
Slope ...... 1,160
Minor Rockfish ee S of 40°10′ N. lat ...... 3,384 1,990 55.7 44.3
Nearshore ...... 650
Shelf ...... 714
Slope ...... 626
TABLE 1c. TO PART 660, SUBPART G—2009, OPEN ACCESS AND LIMITED ENTRY ALLOCATIONS BY SPECIES OR SPECIES GROUP [Weights in metric tons]
Commercial total catch HGs Commercial Species total catch Open access HGs Limited entry Mt % Mt
Lingcod: N of 42° N. lat.
S of 42° N. lat ...... 81.0 19.0
Sablefish kk N of 36° N. lat ...... 6,347 5,750 90.6 597 9.4
Widow ll ...... 460.4 97.0 3.0
Canary ll ...... 42.3 87.7 12.3
Chilipepper ...... 2,885 1,607 55.7 1,278 44.3
Bocaccio ll ...... 206.4 55.7 44.3
Yellowtail ...... 91.7 8.3
Shortspine thornyhead N of 34°27′ N. lat ...... 1,608 1,603 99.7 5 0.27
Minor Rockfish: N of 40°10′ N. lat ...... 91.7 8.3
S of 40°10′ N. lat ...... 55.7 44.3
a ABCs apply only to the U.S. portion of the areas footnoted. Accordingly, these species table 1a does not contain an ABC value, but Vancouver area. are included in the harvest guidelines of does contain the OY range considered in the b Optimum Yields (OYs) and Harvest ‘‘other fish’’, ‘‘other rockfish’’ or ‘‘remaining DEIS. It is anticipated that a new assessment Guidelines (HGs) are specified as total catch rockfish’’. will be available in early 2009 and the results values. A harvest guideline is a specified e Pacific Cod—The 3,200 mt ABC for the will be used to set the 2009 ABC and OY. harvest target and not a quota. The use of this Vancouver-Columbia area is based on The final ABC and OY will be published as term may differ from the use of similar terms historical landings data. The 1,600 mt OY is a separate action following the Council’s in state regulation. the ABC reduced by 50 percent as a recommendation at its March 2009 meeting. c Lingcod—A coastwide lingcod stock precautionary adjustment. A tribal harvest g Sablefish—A coastwide sablefish stock assessment was prepared in 2005. The guideline of 400 mt is deducted from the OY assessment was prepared in 2007. The lingcod biomass was estimated to be at 64 resulting in a commercial OY of 1,200 mt. sablefish biomass was estimated to be at 38.3 percent of its unfished biomass coastwide in f Pacific whiting—The most recent stock percent of its unfished biomass in 2007. The 2005. The ABC of 5,278 mt was calculated assessment was prepared in February 2008. coastwide ABC of 9,914 mt was based on the using an FMSY proxy of F45%. Because the The stock assessment base model estimated new stock assessment with a FMSY proxy of stock is above B40% coastwide, the coastwide the Pacific whiting biomass to be at 42.6 F45%. The 40–10 harvest policy was applied OY was set equal to the ABC. The tribal percent (50th percentile estimate of to the ABC then apportion between the harvest guideline is 250 mt. depletion) of its unfished biomass in 2008. northern and southern areas with 72 percent d ‘‘Other species’’—These species are Final adoption of the Pacific whiting ABC going to the area north of 36° N. lat. and 28 neither common nor important to the and OY have been deferred until the percent going to the area south of 36° N. lat. commercial and recreational fisheries in the Council’s March 2009 meeting. Therefore, The OY for the area north of 36° N. lat. is
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7,052 mt. When establishing the OY for the applied to the ABC for both the northern and coastwide ABC of 937 mt based on the 2007 area south of 36° N. lat. a 50 percent southern assessment areas then an additional rebuilding plan. The OY of 105 mt is based reduction was made resulting in a 25 percent reduction was made due to on a rebuilding plan with a target year to Conception area OY of 1,371 mt. The assessment uncertainty. rebuild of 2021 and a SPR harvest rate of 88.7 Coastwide OY of 8,423 mt is the sum of the n ‘‘Other flatfish’’ are those flatfish species percent. To derive the commercial harvest northern and southern area OYs. The tribal that do not have individual ABC/OYs and guideline of 42.3 mt, the OY is reduced by allocation for the area north of 36° N. lat. is include butter sole, curlfin sole, flathead 8.0 mt for the amount anticipated to be taken 705 mt (10 percent of the OY north of 36° N. sole, Pacific sand dab, rex sole, rock sole, and during research activity, 7.3 mt the tribal set- lat.), which is further reduced by 1.6 percent sand sole. The other flatfish ABC is based on aside, 43.8 mt the amount estimated to be (11 mt) to account for discard mortality. The historical catch levels. The ABC of 6,731 mt taken in the recreational fisheries, 0.9 mt for tribal landed catch value is 694 mt. is based on the highest landings for sanddabs the amount expected to be taken incidentally h Cabezon south of 42° N. lat. was assessed (1995) and rex sole (1982) for the 1981–2003 in non-groundfish fisheries, and 2.7 mt for in 2005. The Cabezon stock was estimated to period and on the average landings from the the amount expected to be taken during EFP be at 40 percent of its unfished biomass north 1994–1998 period for the remaining other fishing. The following harvest guidelines are of 34°27′ N. lat. and 28 percent of its flatfish species. The OY of 4,884 mt is based being specified for catch sharing in 2009: unfished biomass south of 34°27′ N. lat. in on the ABC with a 25 percent precautionary 19.7 mt for limited entry Non-Whiting Trawl, 2005. The ABC of 106 mt is based on the adjustment for sanddabs and rex sole and a 18.0 mt for limited entry Whiting Trawl, 2.2 2005 stock assessment with a harvest rate 50 percent precautionary adjustment for the mt for limited entry fixed gear, 2.5 mt for proxy of F45%. The OY of 69 mt is consistent remaining species. directed open access, 4.9 mt for Washington with the application of a 60–20 harvest rate o A POP stock assessment was prepared in recreational, 16.0 mt for Oregon recreational, policy specified in the California Nearshore 2005 and was updated in 2007. The stock and 22.9 mt for California recreational. Management Plan. assessment update estimated the stock to be s Chilipepper rockfish was assessed in 2007 i Dover sole north of 34°27′ N. lat. was at 27.5 percent of its unfished biomass in and the stock was estimated to be at 71 assessed in 2005. The Dover sole biomass 2007. The ABC of 1,160 mt for the Vancouver percent of its unfished biomass coastwide in was estimated to be at 59.8 percent of its and Columbia areas is based on the 2007 2007. The ABC of 3,037 mt is based on a unfished biomass in 2005 and was projected stock assessment update with an FMSY proxy FMSY proxy of F50%. Because the unfished to be increasing. The ABC of 29,453 mt is of F50%. The OY of 189 mt is based on a biomass is estimated to be above 40 percent based on the results of the 2005 assessment rebuilding plan with a target year to rebuild the unfished biomass, the default OY could with an FMSY proxy of F40%. Because the of 2017 and an SPR harvest rate of 86.4 be set equal to the ABC. However, the OY of stock is above B40% coastwide, the OY could percent. The OY is reduced by 2.0 mt for the 2,885 mt was the ABC reduced by 5 percent be set equal to the ABC. The OY of 16,500 amount anticipated to be taken during as a precautionary measure for uncertainty in mt is less than the ABC. The OY is set at the research activity and 0.14 mt for the amount the stock assessment. Open access is MSY harvest level which is considerably expected to be taken during EFP fishing. allocated 44.3 percent (1,278 mt) of the larger than the coastwide catches in any p Shortbelly rockfish remains an commercial HG and limited entry is allocated recent years. unexploited stock and is difficult to assess 55.7 percent (1,607 mt) of the commercial j A coastwide English sole stock assessment quantitatively. To understand the potential HG. was prepared in 2005 and updated in 2007. environmental determinants of fluctuations t A bocaccio stock assessment and a The stock was estimated to be at 116 percent in the recruitment and abundance of an rebuilding analysis were prepared in 2007. of its unfished biomass in 2007. The stock unexploited rockfish population in the The bocaccio stock was estimated to be at biomass is believed to be declining. The ABC California Current ecosystem, a non- 13.8 percent of its unfished biomass in 2007. of 14,326 mt is based on the results of the quantitative assessment was conducted in The ABC of 793 mt for the Monterey- 2007 assessment update with an FMSY proxy 2007. The results of the assessment indicated Conception area is based on the new of F40%. Because the stock is above B40%, the the shortbelly stock was healthy with an assessment with an FMSY proxy of F50%. The OY was set equal to the ABC. estimated spawning stock biomass at 67 OY of 288 mt is based on a rebuilding plan k A petrale sole stock assessment was percent of its unfished biomass in 2005. The with a target year to rebuild of 2026 and a prepared for 2005. In 2005 the petrale sole ABC and OY are being set at 6,950 mt which SPR harvest rate of 77.7 percent. To derive stock was estimated to be at 32 percent of its is 50 percent of the 2008 ABC and OY values. the commercial harvest guideline of 206.4 unfished biomass coastwide (34 percent in The stock is expected to remain at its current mt, the OY is reduced by 2.0 mt for the the northern assessment area and 29 percent equilibrium with these harvest specifications. amount anticipated to be taken during in the southern assessment area). The ABC of q Widow rockfish was assessed in 2005 and research activity, 67.3 mt for the amount 2,811 mt is based on the 2005 stock an update was prepared in 2007. The stock estimated to be taken in the recreational assessment with a F40% FMSY proxy. To assessment update estimated the stock to be fisheries, 1.3 mt for the amount expected to derive the OY, the 40–10 harvest policy was at 36.2 percent of its unfished biomass in be taken incidentally in non-groundfish applied to the ABC for both the northern and 2006. The ABC of 7,728 mt is based on the fisheries, and 11.0 mt for the amount southern assessment areas. As a stock assessment update with an F50% FMSY expected to be taken during EFP fishing. precautionary measure, an additional 25 proxy. The OY of 522 mt is based on a u Splitnose rockfish—The ABC is 615 mt in percent reduction was made in the OY rebuilding plan with a target year to rebuild the Monterey-Conception area. The 461 mt contribution for the southern area due of 2015 and an SPR harvest rate of 95 OY for the area reflects a 25 percent assessment uncertainty. The coastwide OY is percent. To derive the commercial harvest precautionary adjustment because of the less 2,433 mt in 2009. guideline of 460.4 mt the OY is reduced by rigorous stock assessment for this stock. In l Arrowtooth flounder was assessed in 2007 1.1 mt for the amount anticipated to be taken the north (Vancouver, Columbia and Eureka and was estimated to be at 79 percent of its during research activity, 45.5 mt for the tribal areas), splitnose is included within the minor unfished biomass in 2007. Because the stock set-aside, 7.2 mt the amount estimated to be slope rockfish OY. Because the harvest is above B40%, the OY is set equal to the ABC. taken in the recreational fisheries, 0.4 mt for assumptions used to forecast future harvest m Starry Flounder was assessed for the first the amount expected to be taken incidentally were likely overestimates, carrying the time in 2005 and was estimated to be above in non-groundfish fisheries, and 7.4 mt for previously used ABCs and OYs forward into 40 percent of its unfished biomass in 2005. the amount projected to be taken during EFP 2009 was considered to be conservative and However, the stock was projected to decline fishing. The following sector specific bycatch based on the best available data. below 40 percent in both the northern and limits will be established for the Pacific v Yellowtail rockfish—A yellowtail southern areas after 2008. The starry flounder whiting fishery: 153.0 mt for catcher/ rockfish stock assessment was prepared in assessment was considered to be a data-poor processors, 108.0 mt for motherships, and 2005 for the Vancouver, Columbia, Eureka assessment relative to other groundfish 189.0 mt for shore-based. areas. Yellowtail rockfish was estimated to be assessments. For 2009, the coastwide ABC of r Canary rockfish—A canary rockfish stock above 40 percent of its unfished biomass in 1,509 mt is based on the 2005 assessment assessment was completed in 2007 and the 2005. The ABC of 4,562 mt is based on the with a FMSY proxy of F40%. To derive the OY stock was estimated to be at 32.7 percent of 2005 stock assessment with the FMSY proxy (1,004 mt), the 40–10 harvest policy was its unfished biomass coastwide in 2007. The of F50%. The OY of 4,562 mt was set equal
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to the ABC, because the stock is above the FMSY proxy of F50%. The 17 mt OY is based obtain the total catch OY of 2,283 mt, the precautionary threshold of B40%. on a rebuilding plan with a target year to remaining rockfish ABCs were further w Shortspine thornyhead was assessed in rebuild of 2084 and an SPR harvest rate of reduced by 25 percent and other rockfish 2005 and the stock was estimated to be at 63 66.3 percent in 2009 and 2010 and an SPR ABCs were reduced by 50 percent. This was percent of its unfished biomass in 2005. The harvest rate of 71.9 percent for 2011 and a precautionary measure to address limited ABC of 2,437 mt is based on a F50% FMSY beyond. The OY is reduced by 2.8 mt for the stock assessment information. proxy. For that portion of the stock (66 amount anticipated to be taken during ee Minor rockfish south includes the percent of the biomass) north of Point research activity, 2.3 mt the amount ‘‘remaining rockfish’’ and ‘‘other rockfish’’ Conception (34°27′ N. lat.), the OY of 1,608 estimated to be taken in the tribal fisheries categories in the Monterey and Conception mt was set at equal to the ABC because the and 0.3 mt for the amount expected to be areas combined. These species include stock is estimated to be above the taken incidentally in non-groundfish ‘‘remaining rockfish’’ which generally precautionary threshold. For that portion of fisheries. The catch sharing harvest includes species that have been assessed by the stock south of 34°27′ N. lat. (34 percent guidelines for yelloweye rockfish in 2009 and less rigorous methods than stock assessment, of the biomass), the OY of 414 mt was the 2010 are: limited entry non whiting trawl 0.6 and ‘‘other rockfish’’ which includes species portion of the ABC for the area reduced by mt, limited entry whiting 0.0 mt, limited that do not have quantifiable stock 50 percent as a precautionary adjustment due entry fixed gear 1.4 mt, directed open access assessments. Blue rockfish has been removed to the short duration and amount of survey 1.1 mt, Washington recreational 2.7 mt, from the ‘‘other rockfish’’ and added to the data for that area. Oregon recreational 2.4 mt, California remaining rockfish. The ABC of 3,384 mt is x Longspine thornyhead was assessed recreational 2.7 mt, and 0.3 mt for exempted the sum of the individual ‘‘remaining coastwide in 2005 and the stock was fishing. rockfish’’ ABCs plus the ‘‘other rockfish’’ estimated to be at 71 percent of its unfished bb California Scorpionfish south of 34°27′ ABCs. The remaining rockfish ABCs continue biomass in 2005. The coastwide ABC of 3,766 N. lat. was assessed in 2005 and was to be reduced by 25 percent (F=0.75M) as a mt is based on a F50% FMSY proxy. The OY estimated to be above 40 percent of its precautionary adjustment. The remaining is set equal to the ABC because the stock is unfished biomass in 2005. The ABC of 175 rockfish ABCs are further reduced by 25 above the precautionary threshold. Separate mt is based on the new assessment with a percent, with the exception of blackgill OYs are being established for the areas north harvest rate proxy of F50%. Because the stock rockfish (see footnote gg). The other rockfish and south of 34°27′ N. lat. (Point is above B40% coastwide, the OY is set equal ABCs were reduced by 50 percent. This was Conception). The OY of 2,231 mt for that to the ABC. a precautionary measure due to limited stock portion of the stock in the northern area (79 cc New assessments were prepared for assessment information. The resulting minor percent) the ABC reduced by 25 percent as black rockfish south of 45°56.00 N. lat. (Cape rockfish OY is 1,990 mt. a precautionary adjustment. For that portion Falcon, Oregon) and for black rockfish north ff Bank rockfish—The ABC is 350 mt which of the stock in the south of 34°27′ N. lat. (21 of Cape Falcon. The ABC for the area north is based on a 2000 stock assessment for the percent), the OY of 395 mt was the portion of 46°16′ N. lat. (Washington) is 490 mt (97 Monterey and Conception areas. This stock of the ABC for the area reduced by 50 percent percent) of the 505 mt ABC contribution from contributes 263 mt towards the minor as a precautionary adjustment due to the the northern assessment area. The ABC for rockfish OY in the south. short duration and amount of survey data for the area south of 46°16′ N. lat. (Oregon and gg Blackgill rockfish in the Monterey and that area. California) is 1,469 mt which is the sum of Conception areas was assessed in 2005 and y Cowcod in the Conception area was a contribution of 15 mt (3 percent) from the is estimated to be at 49.9 percent of its assessed in 2007 and the stock was estimated northern area assessment, and 1,454 mt from unfished biomass in 2008. The ABC of 292 to be between 3.4 to 16.3 percent of its the southern area assessment. The ABCs were mt for the Monterey and Conception areas is unfished biomass. The ABC for the area based on the results of the new assessment based on the 2005 stock assessment with an south of 36° N. lat., the Conception and and derived using an FMSY proxy of F50%. FMSY proxy of F50% and is the two year Monterey areas, is 13 mt and is based on the Because both portions of the stock are above average ABC for the 2007 and 2008 periods. 2007 rebuilding analysis in which the 40 percent, the OYs could be set equal to the This stock contributes 292 mt towards minor Conception area stock assessment projection ABCs. For the area north of 46°16′ N. lat., the rockfish south. was doubled to account for both areas. A OY of 490 mt is set equal to the ABC. The hh ‘‘Other rockfish’’ includes rockfish single OY of 4 mt is being set for both areas. following tribal harvest guidelines are being species listed in 50 CFR 660.302. A new The OY of 4 mt is based on a rebuilding plan set: 20,000 lb (9.1 mt) north of Cape Alava, stock assessment was conducted for blue with a target year to rebuild of 2072 and an WA (48°09.50′ N. lat.) and 10,000 lb (4.5 mt) rockfish in 2007. As a result of the new stock SPR rate of 82.1 percent. The amount between Destruction Island, WA (47°40′ N. assessment, the blue rockfish contribution to anticipated to be taken during research lat.) and Leadbetter Point, WA (46°38.17′ N. the other rockfish group is of 232 mt in the activity is 0.2 mt and the amount expected lat.) The OY for the area south of 46°16′ N. north and 30 mt in the south are removed. to be taken during EFP activity is 0.24 mt. lat. is being set at 1,000 mt which is a A new contribution of 28 mt contribution in z Darkblotched rockfish was assessed in constant harvest level. The black rockfish OY the north and 202 mt contribution in the 2007 and a rebuilding analysis was prepared. in the area south of 46°16′ N. lat., is south is added to the remaining rockfish. The The new stock assessment estimated the subdivided with separate HGs being set for ABC for the remaining species is based on stock to be at 22.4 percent of its unfished the area north of 42° N. lat. (580 mt/58 historical data from a 1996 review landings biomass in 2007. The ABC is projected to be percent) and for the area south of 42° N. lat. and includes an estimate of recreational 437 mt and is based on the 2007 stock (420 mt/42 percent). landings. Most of these species have never dd assessment with an FMSY proxy of F50%. The Minor rockfish north includes the been assessed quantitatively. OY of 285 mt is based on a rebuilding plan ‘‘remaining rockfish’’ and ‘‘other rockfish’’ ii Longnose skate was fully assessed in with a target year to rebuild of 2028 and an categories in the Vancouver, Columbia, and 2006 and an assessment update was SPR harvest rate of 62.1 percent. The Eureka areas combined. These species completed in 2007. The ABC of 3,428 is commercial OY of 282.05 mt is the OY include ‘‘remaining rockfish’’, which based on the 2007 with an FMSY proxy of reduced by 2.0 mt for the amount anticipated generally includes species that have been F45%. Longnose skate was previously to be taken during research activity and 0.95 assessed by less rigorous methods than stock managed as part of the Other Fish complex. mt for the amount projected to be taken assessments, and ‘‘other rockfish’’, which The 2009 OY of 1,349 mt is a precautionary during EFP activity. includes species that do not have OY based on historical total catch increased aa Yelloweye rockfish was fully assessed in quantifiable stock assessments. Blue rockfish by 50 percent. 2006 and an assessment update was has been removed from the ‘‘other rockfish’’ jj ‘‘Other fish’’ includes sharks, skates, rays, completed in 2007. The 2007 stock and added to the remaining rockfish. The ratfish, morids, grenadiers, kelp greenling, assessment update estimated the spawning ABC of 3,678 mt is the sum of the individual and other groundfish species noted above in stock biomass in 2006 to be at 14 percent of ‘‘remaining rockfish’’ ABCs plus the ‘‘other footnote d/. The longnose skate contribution its unfished biomass coastwide. The 31 mt rockfish’’ ABCs. The remaining rockfish is being removed from this complex. coastwide ABC was derived from the base ABCs continue to be reduced by 25 percent kk Sablefish allocation north of 36° N. lat.— model in the new stock assessment with an (F=0.75M) as a precautionary adjustment. To The limited entry allocation is further
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divided with 58 percent allocated to the ll Specific open access/limited entry necessary to meet the overall rebuilding trawl fishery and 42 percent allocated to the allocations specified in the FMP have been target while allowing harvest of healthy fixed-gear fishery. suspended during the rebuilding period as stocks. TABLE 2a. TO PART 660, SUBPART G—2010, AND BEYOND, SPECIFICATIONS OF ABCS, OYS, AND HGS, BY MANAGEMENT AREA [Weights in metric tons]
ABC specifications HG b
Species ABC specifications by area OY b ABC Commercial Recreational Vancouver a Columbia Eureka Monterey Conception
Lingcod c N of 42° N. lat ......
S of 42° N. lat ...... 4,058 771 4,829 4,829
Pacific Cod e ...... 3,200 (d) 3,200 1,600
Pacific Whiting f ...... (f) (f) 134,773– 404,318
Sablefish g N of 36° N. lat ...... 5,824
S of 36° N. lat ...... 9,217 9,217 1,258
Cabezon h S of 42° N. lat ...... (d) 86 25 111 79
FLATFISH:
Dover sole ...... 28,582 28,582 16,500
English sole j ...... 9,745 9,745 9,745
Petrale sole k ...... 1,514 1,237 2,751 2,393
Arrowtooth flounder l ...... 10,112 10,112 10,112
Starry Flounder m ...... 1,578 1,578 1,077
Other flatfish n ...... 6,731 6,731 4,884
ROCKFISH:
Pacific Ocean Perch o ...... 1,173 1,173 200 198
Shortbelly p ...... 6,950 6,950 6,950
Widow q ...... 6,937 6,937 509 447.4 7.2
Canary r ...... 940 940 105 42.3 43.8
Chilipepper s ...... (d) 2,576 2,576 2,447 2,447
Bocaccio t ...... (d) 793 793 288 206.4 67.3
Splitnose u ...... (d) 615 615 461
Yellowtail v ...... 4,562 (d) 4,562 4,562
Shortspine thornyhead w N of 34°27′ N. lat ...... 1,591 1,591
S of 34°27′ N. lat ...... 2,411 2,411 410
Longspine thornyhead x N of 34°27′ N. lat ...... 2,175
S of 34°27′ N. lat ...... 3,671 3,671 385
Cowcod y ...... (d) 14 14 4
Darkblotched z ...... 440 440 291 288.05
Yelloweye aa ...... 32 17 3.1 8.0
California Scorpionfish bb .... 155 155 155
Black cc N of 46°16′ N. lat ...... 464 464 464
S of 46°16′ N. lat ...... 1,317 1,317 1,000
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TABLE 2a. TO PART 660, SUBPART G—2010, AND BEYOND, SPECIFICATIONS OF ABCS, OYS, AND HGS, BY MANAGEMENT AREA—Continued [Weights in metric tons]
ABC specifications HG b
Species ABC specifications by area OY b ABC Commercial Recreational Vancouver a Columbia Eureka Monterey Conception
Minor Rockfish dd N of 40°10′ N. lat ...... 3,678 3,678 2,283
Minor Rockfish ee S of 40°10′ N. lat ...... 3,384 3,384 1,990
Remaining ...... 1,640 1,318
Bank ff ...... (d) 350
Blackgill gg ...... (d) 292
Blue ...... 28 213 Bocaccio north ...... 318 Chilipepper north ...... 32
Redstripe ...... 576 (d)
Sharpchin ...... 307 45
Silvergrey ...... 38 (d)
Splitnose north ...... 242
Yellowmouth ...... 99 (d)
Yellowtail ...... 116
Gopher ...... (d) 302
Other rockfish hh ...... 2,038 2,066
SHARKS/SKATES/RATFISH/MORIDS/GRENADIERS/KELP GREENLING:
Longnose Skate ii ...... 3,269 3,269 1,349 Other fish jj ...... 11,200 11,200 5,600
TABLE 2b. TO PART 660, SUBPART G—2008, HARVEST GUIDELINES FOR MINOR ROCKFISH BY DEPTH SUB-GROUPS [Weights in metric tons]
Limited entry HG Open access HG Species Total catch Total catch Recreational Commercial ABC OY HG HG Mt % Mt %
Minor Rockfish dd N of 40°10′ N. lat ...... 3,678 2,283 91.7 8.3
Nearshore ...... 155
Shelf ...... 968
Slope ...... 1,160
Minor Rockfish ee S of 40°10′ N. lat ...... 3,382 1,990 55.7 44.3
Nearshore ...... 650
Shelf ...... 714
Slope ...... 626
TABLE 2c. TO PART 660, SUBPART G—2008, OPEN ACCESS AND LIMITED ENTRY ALLOCATIONS BY SPECIES OR SPECIES GROUP [Weights in metric tons]
Commercial total catch HGs Commercial total Species catch HGs Limited entry Open access Mt % Mt %
Lingcod:
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TABLE 2c. TO PART 660, SUBPART G—2008, OPEN ACCESS AND LIMITED ENTRY ALLOCATIONS BY SPECIES OR SPECIES GROUP—Continued [Weights in metric tons]
Commercial total catch HGs Commercial total Species catch HGs Limited entry Open access Mt % Mt %
N of 42° N. lat.
S of 42° N. lat ...... 81.0 19.0
Sablefish kk N of 36° N. lat ...... 5,824 5,276 90.6 548 9.4
Widow ll ...... 97.0 3.0
Canary ll ...... 42.3 87.7 12.3
Chilipepper ...... 2,447 1,363 55.7 1,084 44.3
Bocaccio ll ...... 206.4 55.7 44.3
Yellowtail ...... 91.7 8.3
Shortspine thornyhead N of 34°27′ N. lat ...... 1,591 1,586 99.7 5 0.27
Minor Rockfish: N of 40°10′ N. lat ...... 91.7 8.3
S of 40°10′ N. lat ...... 55.7 44.3
a ABCs apply only to the U.S. portion of the table 1a does not contain an ABC value, but with the application of a 60–20 harvest rate Vancouver area. does contain the OY range considered in the policy specified in the California Nearshore b Optimum Yields (OYs) and Harvest DEIS. It is anticipated that a new assessment Management Plan. Guidelines (HGs) are specified as total catch will be available in early 2010 and the results i Dover sole north of 34° 27′ N. lat. was values. A harvest guideline is a specified will be used to set the 2010 ABC and OY. assessed in 2005. The Dover sole biomass harvest target and not a quota. The use of this The final ABC and OY will be published as was estimated to be at 59.8 percent of its term may differ from the use of similar terms a separate action following the Council’s unfished biomass in 2005 and was projected in state regulation. recommendation at its March 2010 meeting. to be increasing. The ABC of 29,453 mt is c Lingcod—A coastwide lingcod stock g Sablefish—A coastwide sablefish stock based on the results of the 2005 assessment assessment was prepared in 2005. The assessment was prepared in 2007. The with an FMSY proxy of F40%. Because the lingcod biomass was estimated to be at 64 coastwide sablefish biomass was estimated to stock is above B40% coastwide, the OY could percent of its unfished biomass coastwide in be at 38.3 percent of its unfished biomass in be set equal to the ABC. The OY of 16,500 2005. The ABC of 5,278 mt was calculated 2007. The coastwide ABC of 9,914 mt was mt is less than the ABC. The OY is set at the using an FMSY proxy of F45%. Because the based on the new stock assessment with a MSY harvest level which is considerably stock is above B40% coastwide, the coastwide FMSY proxy of F45%. The 40–10 harvest policy larger than the coastwide catches in any OY was set equal to the ABC. The tribal was applied to the ABC then apportioned recent years. harvest guideline is 250 mt. between the northern and southern areas j A coastwide English sole stock assessment d ‘‘Other species’’—these species are with 72 percent going to the area north of 36° was prepared in 2005 and updated in 2007. neither common nor important to the N. lat. and 28 percent going to the area south The stock was estimated to be at 116 percent commercial and recreational fisheries in the of 36° N. lat. The OY for the area north of of its unfished biomass in 2007. The stock areas footnoted. Accordingly, these species 36° N. lat. is 6,471 mt. When establishing the biomass is believed to be declining. The ABC are included in the harvest guidelines of OY for the area south of 36° N. lat. a 50 of 9,745 mt is based on the results of the 2007 ‘‘other fish’’, ‘‘other rockfish’’ or ‘‘remaining percent reduction was made resulting in a assessment update with an FMSY proxy of rockfish’’. Conception area OY of 1,258 mt. The OY for F40%. Because the stock is above B40%, the e Pacific Cod—The 3,200 mt ABC for the the area north of 36° N. lat. is 5,824 mt. The OY was set equal to the ABC. Vancouver-Columbia area is based on Coastwide OY of 7,729 mt is the sum of the k A petrale sole stock assessment was historical landings data. The 1,600 mt OY is northern and southern area OYs. The tribal prepared for 2005. In 2005 the petrale sole the ABC reduced by 50 percent as a allocation for the area north of 36° N. lat. is stock was estimated to be at 32 percent of its precautionary adjustment. A tribal harvest 647 mt (10 percent of the OY north of 36° N. unfished biomass coastwide (34 percent in guideline of 400 mt is deducted from the OY lat.), which is further reduced by 1.6 percent the northern assessment area and 29 percent resulting in a commercial OY of 1,200 mt. (10 mt) to account for discard mortality. The in the southern assessment area). The ABC of f Pacific whiting—Pacific whiting—The tribal landed catch value is 637 mt. 2,751 mt is based on the 2005 assessment h most recent stock assessment was prepared Cabezon south of 42° N. lat. was assessed with a F40% FMSY proxy. To derive the OY, in February 2008. The stock assessment base in 2005. The Cabezon stock was estimated to the 40–10 harvest policy was applied to the model estimated the Pacific whiting biomass be at 40 percent of its unfished biomass north ABC for both the northern and southern to be at 42.6 percent (50th percentile estimate of 34° 27′ N. lat. and 28 percent of its assessment areas. As a precautionary of depletion) of its unfished biomass in 2008. unfished biomass south of 34° 27′ N. lat. in measure, an additional 25 percent reduction Final adoption of the Pacific whiting ABC 2005. The ABC of 106 mt is based on the was made in the OY contribution for the and OY have been deferred until the 2005 stock assessment with a harvest rate southern area due to assessment uncertainty. Council’s March 2009 meeting. Therefore, proxy of F45%. The OY of 79 mt is consistent The coastwide OY is 2,393 mt in 2010.
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l Arrowtooth flounder was assessed in 2007 taken in the recreational fisheries, 0.4 mt for previously used ABCs and OYs forward into and was estimated to be at 79 percent of its the amount expected to be taken incidentally 2010 was considered to be conservative and unfished biomass in 2007. Because the stock in non-groundfish fisheries, and 7.4 mt for based on the best available data. v is above B40%, the OY is set equal to the ABC. EFP fishing activities. The following sector Yellowtail rockfish—A yellowtail m Starry Flounder was assessed for the first specific bycatch limits will be established for rockfish stock assessment was prepared in time in 2005 and was estimated to be above the Pacific whiting fishery: 153.0 mt for 2005 for the Vancouver, Columbia, Eureka 40 percent of its unfished biomass in 2005. catcher/processors, 108.0 mt for motherships, areas. Yellowtail rockfish was estimated to be However, the stock was projected to decline and 189.0 mt for shore-based. above 40 percent of its unfished biomass in below 40 percent in both the northern and r Canary rockfish—A canary rockfish stock 2005. The ABC of 4,562 mt is based on the southern areas after 2008. For 2010, the assessment was completed in 2007 and the 2005 stock assessment with the FMSY proxy coastwide ABC of 1,578 mt is based on the stock was estimated to be at 32.7 percent of of F50%. The OY of 4,562 mt was set equal 2005 assessment with a FMSY proxy of F40%. its unfished biomass coastwide in 2007. The to the ABC, because the stock is above the To derive the OY of 1,077 mt, the 40–10 coastwide ABC of 940 mt is based on a FMSY precautionary threshold of B40%. w harvest policy was applied to the ABC for proxy of F50%. The OY of 105 mt is based on Shortspine thornyhead was assessed in both the northern and southern assessment a rebuilding plan with a target year to rebuild 2005 and the stock was estimated to be at 63 areas then an additional 25 percent reduction of 2021 and a SPR harvest rate of 88.7 percent of its unfished biomass in 2005. The was made due to assessment uncertainty. percent. To derive the commercial harvest ABC of 2,411 mt is based on a F50% FMSY n ‘‘Other flatfish’’ are those flatfish species guideline of 42.3 mt, the OY is reduced by proxy. For that portion of the stock (66 that do not have individual ABC/OYs and 8.0 mt for the amount anticipated to be taken percent of the biomass) north of Point include butter sole, curlfin sole, flathead during research activity, 7.3 mt the tribal set- Conception (34°27′ N. lat.), the OY of 1,591 sole, Pacific sand dab, rex sole, rock sole, and aside, 43.8 mt the amount estimated to be mt was set at equal to the ABC because the sand sole. The other flatfish ABC is based on taken in the recreational fisheries, 0.9 mt for stock is estimated to be above the historical catch levels. The ABC of 6,731 mt the amount expected to be taken incidentally precautionary threshold. For that portion of is based on the highest landings for sanddabs in non-groundfish fisheries, and 2.7 mt for the stock south of 34°27′ N. lat. (34 percent (1995) and rex sole (1982) for the 1981–2003 the amount expected to be taken during EFP of the biomass), the OY of 410 mt was the period and on the average landings from the fishing. The following harvest guidelines are portion of the ABC for the area reduced by 1994–1998 period for the remaining other being specified for catch sharing in 2009: 50 percent as a precautionary adjustment due flatfish species. The OY of 4,884 mt is based 19.7 mt for limited entry Non-Whiting Trawl, to the short duration and amount of survey on the ABC with a 25 percent precautionary 18.0 mt for limited entry Whiting Trawl, 2.2 data for that area. adjustment for sanddabs and rex sole and a mt for limited entry fixed gear, 2.5 mt for x Longspine thornyhead was assessed 50 percent precautionary adjustment for the directed open access, 4.9 mt for Washington coastwide in 2005 and the stock was remaining species. recreational, 16.0 mt for Oregon recreational, estimated to be at 71 percent of its unfished o A POP stock assessment was prepared in and 22.9 mt for California recreational. biomass in 2005. The coastwide ABC of 3,671 s 2005 and was updated in 2007. The stock Chilipepper rockfish was assessed in 2007 mt is based on a F50% FMSY proxy. The OY assessment update estimated the stock to be and the stock was estimated to be at 71 is set equal to the ABC because the stock is at 27.5 percent of its unfished biomass in percent of its unfished biomass coastwide in above the precautionary threshold. Separate 2007. The ABC of 1,160 mt for the Vancouver 2007. The ABC of 2,576 mt is based on the OYs are being established for the areas north and Columbia areas is based on the 2007 new assessment with an FMSY proxy of F50%. and south of 34°27′ N. lat. (Point stock assessment update with an FMSY proxy Because the unfished biomass is estimated to Conception). The OY of 2,175 mt for that of F50%. The OY of 200 mt is based on a be above 40 percent the unfished biomass, portion of the stock in the northern area (79 rebuilding plan with a target year to rebuild the default OY could be set equal to the ABC. percent) was the ABC reduced by 25 percent of 2017 and an SPR harvest rate of 86.4 However, the OY of 2,447 mt was the ABC as a precautionary adjustment. For that percent. The OY is reduced by 2.0 mt for the reduced by 5 percent as a precautionary portion of the stock in the southern area (21 amount anticipated to be taken during measure. Open access is allocated 44.3 percent), the OY of 385 mt was the portion research activity and 0.14 mt for the amount percent (1,084 mt) of the commercial HG and of the ABC for the area reduced by 50 percent expected to be taken during EFP fishing. limited entry is allocated 55.7 percent (1,363 as a precautionary adjustment due to the p Shortbelly rockfish remains an mt) of the commercial HG. short duration and amount of survey data for unexploited stock and is difficult to assess t A bocaccio stock assessment and a that area. quantitatively. To understand the potential rebuilding analysis were prepared in 2007. y Cowcod in the Conception area was environmental determinants of fluctuations The bocaccio stock was estimated to be at assessed in 2007 and the stock was estimated in the recruitment and abundance of an 13.8 percent of its unfished biomass in 2007. to be between 3.4 to 16.3 percent of its unexploited rockfish population in the The ABC of 793 mt for the Monterey- unfished biomass. The ABC for the Monterey California Current ecosystem, a non- Conception area is based on the new stock and Conception areas is 14 mt and is based quantitative assessment was conducted in assessment with an FMSY proxy of F50%. The on the 2007 rebuilding analysis in which the 2007. The results of the assessment indicated OY of 288 is based on a rebuilding plan with Conception area stock assessment projection the shortbelly stock was healthy with an a target year to rebuild of 2026 and a SPR was doubled to account for both areas. A estimated spawning stock biomass at 67 harvest rate of 77.7 percent. To derive the single OY of 4 mt is being set for both areas. percent of its unfished biomass in 2005. The commercial harvest guideline of 206.4 mt, The OY of 4 mt is based on a rebuilding plan ABC and OY are being set at 6,950 mt which the OY is reduced by 2.0 mt for the amount with a target year to rebuild of 2072 and an is 50 percent of the 2008 ABC and OY values. anticipated to be taken during research SPR rate of 82.1 percent. The amount The stock is expected to remain at its current activity, 67.3 mt for the amount estimated to anticipated to be taken during research equilibrium with these harvest specifications. be taken in the recreational fisheries, 1.3 mt activity is 0.2 mt and the amount expected q Widow rockfish was assessed in 2005 and for the amount expected to be taken to be taken during EFP activity is 0.24 mt. an update was prepared in 2007. The stock incidentally in non-groundfish fisheries, and z Darkblotched rockfish was assessed in assessment update estimated the stock to be 11.0 mt for the amount expected to be taken 2007 and a rebuilding analysis was prepared. at 36.2 percent of its unfished biomass in during EFP fishing. The new stock assessment estimated the 2006. The ABC of 6,937 mt is based on the u Splitnose rockfish—The ABC is 615 mt in stock to be at 22.4 percent of its unfished stock assessment update with an F50% FMSY the Monterey-Conception area. The 461 mt biomass in 2007. The ABC is projected to be proxy. The OY of 509 is based on a OY for the area reflects a 25 percent 440 mt and is based on the 2007 stock rebuilding plan with a target year to rebuild precautionary adjustment because of the less assessment with an FMSY proxy of F50%. The of 2015 and an SPR harvest rate or 95 rigorous stock assessment for this stock. In OY of 291 mt is based on a rebuilding plan percent. To derive the commercial harvest the north (Vancouver, Columbia and Eureka with a target year to rebuild of 2028 and an guideline of 447.4 mt the OY is reduced by areas), splitnose is included within the minor SPR harvest rate of 62.1 percent. The 1.1 mt for the amount anticipated to be taken slope rockfish OY. Because the harvest commercial OY of 288.05 is the OY reduced during research activity, 45.5 mt for the tribal assumptions used to forecast future harvest by 2.0 mt for the amount anticipated to be set-aside, 7.2 mt the amount estimated to be were likely overestimates, carrying the taken during research activity and 0.95 mt for
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the amount projected to be taken during EFP WA (48°09.50′ N. lat.) and 10,000 lb (4.5 mt) ff Bank rockfish—The ABC is 350 mt which activity. between Destruction Island, WA (47°40′ N. is based on a 2000 stock assessment for the aa Yelloweye rockfish was fully assessed in lat.) and Leadbetter Point, WA (46°38.17′ N. Monterey and Conception areas. This stock 2006 and an assessment update was lat.) For the area south of 46°16′ N. lat., the contributes 263 mt towards the minor completed in 2007. The 2007 stock OY of 1,000 mt is a constant harvest level. rockfish OY in the south. assessment update estimated the spawning The black rockfish OY in the area south of gg Blackgill rockfish in the Monterey and stock biomass in 2006 to be at 14 percent of 46°16′ N. lat., is subdivided with separate Conception areas was assessed in 2005 and its unfished biomass coastwide. The 31 mt HGs being set for the area north of 42° N. lat. is estimated to be at 49.9 percent of its coastwide ABC was derived from the base (580 mt/58 percent) and for the area south of unfished biomass in 2008. The ABC of 292 model in the new stock assessment with an 42° N. lat. (420 mt/42 percent). mt for the Monterey and Conception areas is dd FMSY proxy of F50%. The 17 mt OY is based Minor rockfish north includes the based on the 2005 stock assessment with an on a rebuilding plan with a target year to ‘‘remaining rockfish’’ and ‘‘other rockfish’’ FMSY proxy of F50% and is the two year rebuild of 2084 and an SPR harvest rate of categories in the Vancouver, Columbia, and average ABC for the 2007 and 2008 periods. 66.3 percent in 2009 and 2010 and an SPR Eureka areas combined. These species This stock contributes 292 mt towards minor harvest rate of 71.9 percent for 2011 and include ‘‘remaining rockfish’’, which rockfish south. beyond. The OY is reduced by 2.8 mt for the generally includes species that have been hh ‘‘Other rockfish’’ includes rockfish amount anticipated to be taken during assessed by less rigorous methods than stock species listed in 50 CFR 660.302. A new research activity, 2.3 mt the amount assessments, and ‘‘other rockfish’’, which stock assessment was conducted for blue estimated to be taken in the tribal fisheries includes species that do not have rockfish in 2007. As a result of the new stock and 0.3 mt for the amount expected to be quantifiable stock assessments. Blue rockfish assessment, the blue rockfish contribution to taken incidentally in non-groundfish has been removed from the ‘‘other rockfish’’ the other rockfish group is of 232 mt in the fisheries. The catch sharing harvest and added to the remaining rockfish. The north and 30 mt in the south are removed. guidelines for yelloweye rockfish in 2009 and ABC of 3,678 mt is the sum of the individual A new contribution of 28 mt contribution in 2010 are: Limited entry non whiting trawl 0.6 ‘‘remaining rockfish’’ ABCs plus the ‘‘other the north and 202 mt contribution in the mt, limited entry whiting 0.0 mt, limited rockfish’’ ABCs. The remaining rockfish south is added to the remaining rockfish. The entry fixed gear 1.4 mt, directed open access ABCs continue to be reduced by 25 percent 1.1 mt, Washington recreational 2.7 mt, (F = 0.75M) as a precautionary adjustment. ABC for the remaining species is based on Oregon recreational 2.4 mt, California To obtain the total catch OY of 2,283 mt, the historical data from a 1996 review landings recreational 2.7 mt, and 0.3 mt for exempted remaining rockfish ABCs were further and includes an estimate of recreational fishing. reduced by 25 percent and other rockfish landings. Most of these species have never bb California Scorpionfish south of 34°27′ ABCs were reduced by 50 percent. This was been assessed quantitatively. ii N. lat. (point Conception) was assessed in a precautionary measure to address limited Longnose skate was fully assessed in 2005 and was estimated to be above 40 stock assessment information. 2006 and an assessment update was percent of its unfished biomass in 2005. The ee Minor rockfish south includes the completed in 2007. The ABC of 3,428 is ABC of 155 mt is based on the new ‘‘remaining rockfish’’ and ‘‘other rockfish’’ based on the 2007 with an FMSY proxy of F45%. Longnose skate was previously assessment with a harvest rate proxy of F50%. categories in the Monterey and Conception managed as part of the Other Fish complex. Because the stock is above B40% coastwide, areas combined. These species include the OY is set equal to the ABC. ‘‘remaining rockfish’’ which generally The 2009 OY of 1,349 mt is a precautionary cc New assessments were prepared for includes species that have been assessed by OY based on historical total catch increased black rockfish south of 45° 56.00 N. lat. (Cape less rigorous methods than stock assessment, by 50 percent. Falcon, Oregon) and for black rockfish north and ‘‘other rockfish’’ which includes species jj ‘‘Other fish’’ includes sharks, skates, rays, of Cape Falcon. The ABC for the area north that do not have quantifiable stock ratfish, morids, grenadiers, kelp greenling, of 46° 16′ N. lat. (Washington) is 464 mt (97 assessments. Blue rockfish has been removed and other groundfish species noted above in percent) of the 478 mt ABC contribution from from the ‘‘other rockfish’’ and added to the footnote d. The longnose skate contribution the northern assessment area. The ABC for remaining rockfish. The ABC of 3,382 mt is is being removed from this complex. the area south of 46° 16′ N. lat. (Oregon and the sum of the individual ‘‘remaining kk Sablefish allocation north of 36° N. lat.— California) is 1,317 mt which is the sum of rockfish’’ ABCs plus the ‘‘other rockfish’’ The limited entry allocation is further a contribution of 14 mt (3 percent) from the ABCs. The remaining rockfish ABCs continue divided with 58 percent allocated to the northern area assessment, and 1,303 mt from to be reduced by 25 percent (F = 0.75M) as trawl fishery and 42 percent allocated to the the southern area assessment. The ABCs were a precautionary adjustment. The remaining fixed-gear fishery. ll derived using an FMSY proxy of F50%. rockfish ABCs are further reduced by 25 Specific open access/limited entry Because both portions of the stock are above percent, with the exception of blackgill allocations specified in the FMP have been 40 percent, the OYs could be set equal to the rockfish (see footnote gg). The other rockfish suspended during the rebuilding period as ABCs. For the area north of 46°16′ N. lat., the ABCs were reduced by 50 percent. This was necessary to meet the overall rebuilding OY of 490 mt is set equal to the ABC. The a precautionary measure due to limited stock target while allowing harvest of healthy following tribal harvest guidelines are being assessment information. The resulting minor stocks. set: 20,000 lb (9.1 mt) north of Cape Alava, rockfish OY is 1,990 mt. BILLING CODE 3510–2–P
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[FR Doc. E8–30778 Filed 12–30–08; 8:45 am] BILLING CODE 3510–22–C
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Part III
Department of Labor Mine Safety and Health Administration 30 CFR Parts 6, 14, 18, et al. Flame-Resistant Conveyor Belt, Fire Prevention and Detection, and Use of Air From the Belt Entry; Final Rule
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DEPARTMENT OF LABOR I. Introduction • Recommendation 3—Improved fire II. Statutory and Rulemaking Background resistance standards for all underground Mine Safety and Health Administration III. Section-by-Section Analysis coal mines; A. Flame-Resistant Conveyor Belt • Recommendation 4—Coordinating 30 CFR Parts 6, 14, 18, 48, and 75 1. General belt testing with other countries; 2. Discussion of Final Rule • RIN 1219–AB59 3. Conforming Amendments Recommendation 5—Belt entry and conveyor belt maintenance; B. Fire Prevention and Detection and • Flame-Resistant Conveyor Belt, Fire Approval of the Use of Air From the Belt Recommendation 6—Special Prevention and Detection, and Use of Entry To Ventilate Working Sections requirements for the use of belt air; • Air From the Belt Entry 1. General Recommendation 7—Belt air 2. Discussion of Final Rule approval recommendation; AGENCY: Mine Safety and Health IV. Regulatory Economic Analysis • Recommendation 8—Discontinuing Administration (MSHA), Labor. A. Executive Order 12866 point-type heat sensors; B. Population-at-Risk ACTION: Final rule. • Recommendation 9—Smoke C. Benefits sensors; SUMMARY: This final rule addresses the D. Compliance Costs • Recommendation 10—Use of diesel- V. Feasibility recommendations of the Technical discriminating sensors; A. Technological Feasibility • Study Panel (Panel) on the Utilization of B. Economic Feasibility Recommendation 11—Review of Belt Air and the Composition and Fire VI. Regulatory Flexibility Act and Small AMS records; Retardant Properties of Belt Materials in Business Regulatory Enforcement • Recommendation 12—AMS Underground Coal Mining. The Panel Fairness Act (SBREFA) operator training certification; was established under Section 11 of the A. Definition of a Small Mine • Recommendation 13—Minimum Mine Improvement and New Emergency B. Factual Basis for Certification and maximum air velocities; Response (MINER) Act of 2006. The VII. Paperwork Reduction Act of 1995 • Recommendation 14—Escapeways final rule is consistent with the Panel’s A. Summary and leakage; recommendations and includes B. Procedural Details • Recommendation 15—Lifelines; VIII. Other Regulatory Considerations • Recommendation 16—Point- requirements for: Flame-resistant A. The Unfunded Mandates Reform Act of conveyor belts; training Atmospheric feeding; 1995 • Monitoring System operators; levels of B. Treasury and General Government Recommendation 17—Respirable respirable dust in belt entries; airlocks dust; Appropriations Act of 1999: Assessment • along escapeways; minimum and of Federal Regulations and Policies on Recommendation 18—Mine maximum air velocities; approval for Families methane; • the use of air from the belt entry to C. Executive Order 12630: Government Recommendation 19—Inspections; ventilate working sections; monitoring Actions and Interference With and • point-feed regulators; smoke sensors; Constitutionally Protected Property Recommendation 20—Research. Rights A copy of the Panel’s report is standardized tactile signals on lifelines; D. Executive Order 12988: Civil Justice replacing point-type heat sensors with available on MSHA’s Web site at: Reform http://www.msha.gov/beltair/ carbon monoxide sensors; and belt E. Executive Order 13045: Protection of conveyor and belt entry maintenance. Children From Environmental Health BeltAirFinalReport122007.pdf. The final rule is based on the Panel’s DATES: Effective Date: The final rule is Risks and Safety Risks F. Executive Order 13132: Federalism recommendations, Agency data and effective on December 31, 2008. experience, and comments and Compliance Dates: Details are in the G. Executive Order 13175: Consultation and Coordination With Indian Tribal testimony received during the SUPPLEMENTARY INFORMATION section of Governments rulemaking process. MSHA is providing this document. H. Executive Order 13211: Actions delayed compliance dates for some FOR FURTHER INFORMATION CONTACT: Concerning Regulations That requirements in the final rule for mine Patricia W. Silvey at Significantly Affect Energy Supply, operators to have adequate time to [email protected] (e-mail), (202) Distribution, or Use comply. 693–9440 (Voice), or (202) 693–9441 I. Executive Order 13272: Proper (Fax). Consideration of Small Entities in II. Statutory and Rulemaking Agency Rulemaking Background SUPPLEMENTARY INFORMATION: IX. Final Rule The Consolidated Appropriations Act Compliance Dates I. Introduction of 2008 (Pub. L. 110–161, December 26, Each mine operator shall comply with This final rule addresses the 2007) requires the Secretary to publish the following sections by the dates recommendations of the Technical regulations, consistent with the listed below. Study Panel (Panel), which was recommendations of the Panel, to 1. § 48.27(a) and §§ 75.156(a), established under Section 11 of the require that: 75.350(b), and 75.1731 by March 2, MINER Act. The Secretary of Labor [i]n any coal mine * * * belt haulage entries 2009. chartered the Panel on December 22, not be used to ventilate active working places 2. § 75.333(c)(4) by March 31, 2009. 2006 (71 FR 77069). without prior approval from the Assistant 3. §§ 75.380(d)(7), 75.380(f), Secretary. Further, a mine ventilation plan On December 20, 2007, the Panel 75.381(e)(5), and 75.381(f) by June 30, incorporating the use of air coursed through issued its final report, which included 2009. belt haulage entries to ventilate active the following 20 recommendations 4. §§ 75.350(a)(2), 75.351(e)(2), working places shall not be approved until passed by unanimous vote: the Assistant Secretary has reviewed the 75.1103–4(a), 75.1108(a), and 75.1108(b) • Recommendation 1—Conveyor belt elements of the plan related to the use of belt December 31, 2009. air and has determined that the plan at all 5. § 75.1108(c) by December 31, 2018. flammability testing and approval; times affords at least the same measure of The outline of the final rule is as • Recommendation 2—Other belt protection where belt haulage entries are not follows: tests; used to ventilate working places.
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The regulations must be finalized by that a more structured procedure be required to meet the more protective December 31, 2008. instituted to help mine inspectors BELT method for MSHA approval under Based on the Panel’s complete their inspection duties with proposed Part 14. recommendations, MSHA published a greater ease and efficiency. MSHA will However, the Agency withdrew the proposed rule on Safety Standards accomplish this through inspector proposal (67 FR 46431) on July 15, 2002, Regarding the Recommendations of the training. Recommendation 20, due to the decreased frequency of Technical Study Panel on the concerning ‘‘Research,’’ recommends conveyor belt fires. As mentioned Utilization of Belt Air and the research utilizing ventilation modeling, earlier, in accordance with Section 11 of Composition and Fire Retardant engineering design and risk analysis be the 2006 MINER Act and the Properties of Belt Materials in performed to investigate: Improved recommendation of the Panel, MSHA Underground Coal Mining in the escapeway design, reduced air leakage, issued a proposal on June 19, 2008 on Federal Register on June 19, 2008 (73 and booster fans. MSHA will Safety Standards Regarding the FR 35026). On that same date, MSHA accomplish this through the Agency’s Recommendations of the Technical published a Request for Information technical support program area, working Study Panel on the Utilization of Belt (RFI) in the Federal Register on criteria in collaboration with the National Air and the Composition and Fire for testing the toxicity and density of Institute for Occupational Safety and Retardant Properties of Belt Materials in smoke produced from burning conveyor Health (NIOSH). Underground Coal Mining. belt or similar materials (73 FR 35057). This preamble, like that of the The final rule addresses Panel The Agency will review relevant proposal, is organized in two parts. Part Recommendation No. 1—Conveyor Belt information received on the RFI and III(A) includes requirements for Flammability Testing and Approval, make a determination on appropriate improved flame-resistant conveyor and Recommendation No. 3—Improved regulatory action. belts. Part III(B) includes requirements Fire Resistance Standards for All The Agency held four public hearings for fire prevention and detection and Underground Coal Mines. Consistent on: August 19, 2008 in Salt Lake City, approval of the use of air from the belt with the Panel’s recommendations, this UT; August 21, 2008 in Lexington, KY; entry to ventilate working sections. final rule establishes a new Part 14 that August 26, 2008 in Charleston, WV; and includes the BELT method for the August 28, 2008 in Birmingham, AL. III. Section-by-Section Analysis approval of improved flame-resistant The comment period closed on A. Flame-Resistant Conveyor Belt conveyer belts. In addition, the final September 8, 2008. rule requires that improved flame- Like the proposal, the final rule 1. General resistant conveyor belts be used in all includes new and revised safety In the 1980s, MSHA and the former underground coal mines. It makes standards for underground coal mines Bureau of Mines (Bureau) of the technical and conforming changes to for those Panel recommendations that Department of the Interior developed a existing Parts 6 and 18. required rulemaking. The following five flame-resistance test for conveyor belts recommendations did not require that would result in a higher level of 2. Discussion of the Final Rule rulemaking: Recommendation 2, flame resistance than the existing 30 Final § 14.1, changed from the concerning ‘‘Other Belt Tests,’’ CFR Part 18 test. The Bureau and MSHA proposal, establishes the purpose of the recommends that MSHA adopt a drum constructed a large-scale test facility at final rule and effective date for approval friction test to be utilized for a period the Lake Lynn Laboratory. The large holders. Final Part 14 establishes the of two years to evaluate and assess the scale tests showed the effect of air flow flame resistance requirements for MSHA contribution to conveyor belt fire safety on belt flammability. These tests were approval of conveyor belts for use in of such a test. MSHA is continuing to conducted over a wide range of air underground coal mines. Applications evaluate the drum friction test to velocities. for approval or extensions of approval determine if it could complement the MSHA used the large-scale submitted after December 31, 2008 must Belt Evaluation Laboratory Test method. flammability test data to develop the meet the requirements of final Part 14. This evaluation will occur over a two- Belt Evaluation Laboratory Test (BELT), During the rulemaking process and at year period, and is consistent with the a laboratory-scale flame resistance test. each of the public hearings, MSHA Panel’s recommendation. In order for a belt to pass the BELT solicited comments on the impact of the Recommendation 4, concerning method, it must have improved fire- proposed one-year period provided ‘‘Coordinating belt testing with other resistant capability, which greatly limits manufacturers and operators to countries,’’ recommends that MSHA flame propagation. The BELT method is transition to the new belt, on existing establish contacts and maintain easy to perform, objective, correlates inventories, and associated costs to dialogue with other key mining well with large-scale tests, and is approval holders. A commenter stated countries. MSHA’s technical support economically and technologically that the transition period was adequate program area maintains continuing feasible. MSHA and the Bureau and that they would not have any contact and dialogue with other key performed extensive testing of the BELT difficulty meeting it as long as the mining countries. Recommendation 11, method. Test results over a 34-month approval process was quick. Another concerning ‘‘Review of AMS records,’’ period, based on samples of conveyor commenter stated that the timetable recommends that MSHA perform belts, reveal that the BELT method is established by the Agency may be too regular, periodic reviews of atmospheric highly precise and accurate. aggressive to assure that all the monitoring system (AMS) records at On December 24, 1992, MSHA laboratory testing and approvals are mines using air from the belt entry to published a proposal to revise the timely completed so that belt ventilate working sections. In addition, existing regulation for testing and manufacturing and delivery of the new MSHA already conducts periodic acceptance of conveyor belts (53 FR belt products are timely. Based on reviews of AMS records during regular 61524). That proposal would have Agency experience, MSHA’s timely inspections of the mine. replaced existing § 18.65 concerning processing of applications will be Recommendation 19, concerning flame-testing of conveyor belts. Under dependent upon the completeness of ‘‘Inspections of mines utilizing belt air the 1992 proposal, underground applications submitted to the Agency. in the working section,’’ recommends conveyor belts would have been To assure that the new belt will be
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available in a timely manner, the final MSHA received no comments on the Final § 14.4(a), like the proposal, is rule requires that all applications for proposal. based on existing §§ 7.3(a) and 18.6(a). approval or extensions of approval Final § 14.3, derived from existing It specifies how and where an applicant submitted after December 31, 2008 meet § 18.9(a), provides that representatives files for MSHA approval or extension of the requirements of the final rule. of the applicant and other persons approval. Paragraph (a) requires that MSHA intends to process all agreed upon by MSHA and the applications for approvals or extensions applications that fully comply with the applicant may be present during tests of approval be sent to: U.S. Department requirements in the final rule on a and evaluations conducted under this of Labor, Mine Safety and Health timely basis. Part. In response to comments, the final Administration, Chief, Approval and Final § 14.2 establishes the following rule is changed from the proposal to Certification Center, 765 Technology definitions: ‘‘Applicant’’, like the allow the Agency to consider requests Drive, Triadelphia, West Virginia 26059. proposal, is derived from existing §§ 6.2 received from others to observe tests. Alternatively, applications for approval and 7.2, and refers to an individual or Commenters requested that miners (or or extensions of approval may be filed organization that manufactures or representatives of the miners) be online at http://www.msha.gov or faxed controls the production of a conveyor allowed to observe and evaluate the to: Chief, Mine Safety and Health belt and who applies to MSHA for testing of belts. In response to this Administration Approval and approval. MSHA received no comments comment, the final rule would allow the Certification Center at 304–547–2044. on the proposal. Agency to consider requests received Since the proposal, the address of the ‘‘Approval’’, like the proposal, is from others to observe tests. It is Center has been changed (73 FR 52210); derived from existing § 7.2, and replaces important to note that such requests the final rule reflects this change. the term ‘‘acceptance’’ under existing would only apply to tests, not MSHA received no comments on the § 18.2. An approval, issued by MSHA, evaluations. MSHA’s evaluations proposal. shows that a conveyor belt has met the involve a paper review of the Final paragraph (b), like the proposal, requirements of this Part, and authorizes application and thus would not be requires that each application for a marking identifying the belt as appropriate for observation. MSHA approval contain information approved. This is consistent with other believes that observation of tests may be concerning the identification and MSHA approval regulations which appropriate if it does not involve the construction of a conveyor belt, except define ‘‘approved’’ as the general term release of proprietary information, so any information submitted in a prior which indicates that a product has met long as it does not interfere with the approval application need not be re- MSHA’s technical requirements. MSHA approval process, does not delay the submitted. An application must address received no comments on the proposal. approval, and does not create a conflict either a single specific construction, or ‘‘Extension of approval’’, like the of interest. As stated during the multiple-ply construction consisting of proposal, is derived from existing § 7.2, rulemaking process, the Agency must the same cover compound and carcass and is defined as a document issued by protect any proprietary information construction varying only by the MSHA which states that a change to a submitted. number of plies and fabric weight. conveyor belt previously approved by With this revision, MSHA intends Under the final rule, if approval of MSHA continues to meet the that the approval process for flame- multiple-ply construction is requested, requirements of this Part. An extension resistant conveyor belt be as transparent the minimum and maximum number of of approval authorizes the continued as possible, while safeguarding the plies both with thinnest-specified cover use of the approval marking after the confidentiality of all proprietary thickness and heaviest-specified fabric appropriate extension number has been information submitted by applicants. weight will be tested. added. MSHA received no comments on The Agency made a minor non- Final § 14.4(b)(1), like the proposal, the proposal. ‘‘Flame-retardant ingredient’’, like the substantive change, which clarifies that requires a technical description of the proposal, means material that inhibits it is not necessary to state that MSHA conveyor belt. This information must ignition or flame propagation. MSHA be included in the parties allowed to include: Trade name (specification or received no comments on the proposal. observe testing and evaluation. code numbers) or identification number; ‘‘Flammable ingredient’’, like the Final § 14.4, like the proposal, is cover compound type and designation proposal, means material that is capable derived from existing §§ 7.3 and 18.6, number; belt thickness and thickness of of combustion. MSHA received no and provides application procedures top and bottom covers; presence and comments on the proposal. and requirements. The final rule covers type of skim coat; presence and type of ‘‘Inert ingredient’’, like the proposal, two types of approval actions: friction coat; carcass construction means a material that does not Applications for approval and (number of plies, solid woven); carcass contribute to combustion. MSHA extensions of approval. When fabric by textile type and weight (ounces received no comments on the proposal. requesting the approval of a flame- per square yard); presence and type of ‘‘Post-approval product audit’’, like resistant conveyor belt, final § 14.4 breaker or floated ply; and the number, the proposal, is derived from existing requires that the applicant submit type, and size of cords and fabric for § 7.2, and is defined as an examination, information necessary to properly metal cord belts. MSHA received no testing, or both, by MSHA of an evaluate a conveyor belt. If, after receipt comments on the proposal. approved conveyor belt selected by of an approval, the applicant requests Proposed § 14.4(b)(3) has been MSHA to determine if it meets the approval of a similar conveyor belt or an renumbered as § 14.4(b)(2). Like the technical requirements and has been extension of approval for the original proposal, it requires the name, address, manufactured as approved. MSHA conveyor belt, the applicant will not be and telephone number of the applicant’s received no comments on the proposal. required to submit documentation representative responsible for answering ‘‘Similar conveyor belt’’, like the duplicative of previously submitted any questions regarding the application. proposal, is defined as a conveyor belt information. Only information related to The applicant may also wish to include that shares the same cover compound, changes in the previously approved the representative’s electronic mail (e- general carcass construction, and fabric conveyor belt will be required, avoiding mail) address. MSHA received no type as another approved conveyor belt. unnecessary paperwork. comments on the proposal.
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Proposed § 14.4(b)(2) has been proprietary nature of this conveyor belt requirement avoids changes being made renumbered as final § 14.4(c)(1). The information submitted under final § 14.4 that could affect the flame resistant final rule permits an applicant to under the Freedom of Information Act properties of the conveyor belt. MSHA request an approval of a similar belt or (FOIA, 5 U.S.C. 552). MSHA intends to received no comments on the proposal. extension of approval without testing if continue its existing practice of treating Final § 14.4(d)(1), (2), and (3), like the the formulation of the belt is provided information on product specifications proposal, include requirements for each and MSHA determines testing is not and performance as proprietary application for an extension of approval. necessary. The application must include information. The Agency will protect Final paragraph (d)(1) requires the formulation information on the disclosure of this information to the MSHA-assigned approval number of the compounds in the conveyor belt (for fullest extent, consistent with the FOIA. conveyor belt for which the extension is example, styrene-butadiene rubber Section 14.9 of the final rule provides sought; final paragraph (d)(2) requires (SBR), polyvinyl chloride (PVC), that MSHA notify the applicant of the description of the proposed change chloroprene, composite, or steel cable) requests for product information. MSHA to the conveyor belt; and final paragraph by specifying either: (1) Each ingredient will provide the manufacturer the (d)(3) requires the name, address, and by its chemical name along with its opportunity to present its position on telephone number of the applicant’s percentage (weight) and tolerance or disclosure. In addition, information representative responsible for answering percentage range; or (2) each flame- identified by the manufacturer as any questions regarding the application. retardant ingredient by its chemical or proprietary will not be disclosed. The applicant may also include the generic name with its percentage and Proposed § 14.4(b)(4) has been representative’s e-mail address. MSHA tolerance or percentage range, or its renumbered as final § 14.4(c)(2). It received no comments on the proposal. minimum percent. The applicant must requires the identification of any similar Final § 14.4(e), renumbered from list each flammable and inert ingredient conveyor belt for which the applicant proposed § 14.4(d), provides that MSHA by chemical, generic or trade name, already holds an approval. The final will determine if testing, additional along with the total percentage of all rule has been revised to require information, samples, or material is flammable and inert ingredients. MSHA submission of the formulation needed to evaluate an application. will evaluate this information and specifications for the approved similar Under the final rule, if an applicant determine whether testing using the belt if it has not already been submitted believes that flame testing is not BELT method should occur or if the to the Agency. This would be the same required, a statement explaining the similar belt or extension of approval can information as specified in § 14.4(c)(1). rationale must be included in the be approved without testing. Final § 14.4(c)(2)(i) requires the application. MSHA received no A commenter stated that the actual applicant to submit, as part of the comments on the proposal. formulation data required to be application, the MSHA assigned Final § 14.4(f), renumbered from submitted to MSHA is more extensive approval number of the belt that most proposed § 14.4(e), permits an applicant than the existing standard requires and closely resembles the one being to request an equivalency determination includes competitively sensitive evaluated. Final § 14.4(c)(2)(ii) requires under existing § 6.20 for a non-MSHA information. The commenter also stated an explanation of any changes from the product safety standard. MSHA received that even though MSHA intends to existing approval. MSHA’s evaluation of no comments on the proposal. protect the confidentiality of the whether a belt is similar will determine Final § 14.4(g), renumbered from information, there can be no guarantees. if the application has to be processed as proposed § 14.4(f), requires that fees This commenter stated that MSHA an extension of approval or a new calculated in accordance with Part 5, should be prohibited from requiring approval. entitled: Fee for Testing, Evaluation, compounding or formulation A commenter stated that this proposal and Approval of Mining Products, must information to be submitted as part of is confusing. This commenter further be submitted. MSHA received no the application for approval. stated that MSHA should take the safe comments on the proposal. Approving belts based upon an approach and test all belt products, Final § 14.5, like the proposal, evaluation of the formulation and regardless of the number of plies. Under requires that upon request by MSHA, construction of the belt speeds the existing Part 18, MSHA’s testing each applicant must submit three pre- approval process and reduces cost to the program for accepting belts over the last cut, unrolled, flat samples of conveyor applicant by eliminating testing fees. To 30 years includes the evaluation of belt for flame testing. Under the final approve a belt without testing, detailed similar belts. Under the existing rule, each sample must be 60 ± 1⁄4 formulation information on the program, each belt that is submitted to inches (152.4 ± 0.6 cm) long by 9 ± 1⁄8 composition and construction of the MSHA is thoroughly evaluated inches (22.9 ± 0.3 cm) wide. The previously approved belt or belt family according to existing application laboratory-scale test for flame resistance is necessary to assure that the flame- procedures to determine if additional requires testing of three samples to resistant properties would be testing is necessary or if an extension is determine acceptable performance. The maintained. This information may not justified. The use of the BELT method final rule requires pre-cut and unrolled be necessary if each belt construction is will greatly increase safety to miners by flat samples, which can be mounted for tested using the BELT method. To the approval of improved flame- testing. Uncut and rolled samples address this commenter’s concern, the resistant belt. Further, additional require additional time to be cut and final rule allows the option of information required under the final flattened for subsequent mounting in submitting detailed formulation and rule will allow MSHA to provide a full the test chamber. MSHA uses the word construction data for belts, or evaluation of the belt application. ‘‘pre-cut’’ to inform the applicant that submitting samples for testing. Final § 14.4(d), renumbered from the samples would need to be sent to Applicants who choose to submit proposed § 14.4(c), requires that any MSHA already cut to the required samples for testing would be change from the documentation on file sample size. Under existing § 18.65(a), responsible for testing fees. at MSHA that affects the technical acceptance applicants are required to When the formulation and requirements of Part 14 must be submit samples for testing. construction information is collected, submitted for approval prior to Curling of samples has presented a MSHA is required to maintain the implementing the change. This problem during testing. These
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requirements, along with the required alternatives for marking conveyor belts. rule requires that the approval holder preconditioning of samples, serve to MSHA received no comments on the assure that the product is manufactured minimize curling of samples. The proposal. as approved. MSHA received no requirement to submit samples for Final § 14.7(d), like the proposal, comments on the proposal. testing is derived from existing § 18.6(i). requires that the applicant maintain Final § 14.8(d), like the proposal, However, the requirement for the records of the initial sale of each belt requires approval holders to number and dimension of samples is having an approval marking. Under the immediately notify the MSHA Approval specific to the BELT method. MSHA final rule, the record must be retained and Certification Center of any received no comments on the proposal. for at least 5 years following the initial information that a conveyor belt has Final § 14.6, like the proposal, sale. Information on initial sales should been distributed, which does not meet addresses issuance of approval. Final include the sale date, the customer the specifications of the approval. It also § 14.6(a) provides that MSHA will issue name and address, and the belt requires that the notification include a an approval or notice of the reasons for identification by slab, batch or lot. A description of the nature and extent of denying approval after completing the five-year retention period conforms to the problem, the locations where the Agency’s testing and evaluation. The MSHA’s audit cycle. conveyor belt has been distributed, and notice of approval will be accompanied During the rulemaking process and at the approval holder’s plans for by relevant documentation and related each of the public hearings, MSHA corrective action. Under the final rule, material, covering the details of design requested comments on the 5-year notification could be by telephone, e- and construction of the conveyor belt retention period for sales records. mail, facsimile, or other similar means. upon which the approval is based. Commenters suggested that sales In addition, corrective action may MSHA received no comments on the records be kept as long as the belt is in include recalling the conveyor belt or proposal. use, whether it be at the operation it was restricting its use pending resolution of Final § 14.6(b), like the proposal, originally purchased for or other the defect. MSHA received no requires that an applicant not advertise locations. In addition, a commenter comments on the proposal. or otherwise represent a conveyor belt stated that in order to keep the record Final § 14.9 is derived from existing as approved until MSHA has issued an straight, MSHA should require that all § 18.9. It addresses the disclosure of approval. MSHA received no comments sales records follow the belt from the information. Final § 14.9(a), like the on the proposal. time of purchase to its end-of-service proposal, provides that all proprietary Final § 14.7, like the proposal, life. Based on MSHA’s experience and information concerning product includes requirements for approval data, a five-year retention period is specifications and performance marking and distribution records. Final adequate to discover any potential submitted to MSHA by the applicant § 14.7(a), like the proposal, requires that hazardous defects, such as through will be protected from disclosure. an approved conveyor belt must be MSHA’s post-approval audit process. MSHA received no comments on the marketed only under the name listed in Final § 14.8 includes requirements for proposal. the approval. MSHA received no quality assurance. MSHA received no Final § 14.9(b), like the proposal, comments on the proposal. comments on the proposal. provides that MSHA will notify Final § 14.7(b), like the proposal, is Final § 14.8(a), like the proposal, applicants or approval holders of based on existing § 18.65(f). It requires requires approval holders to flame test requests for disclosure of information approved conveyor belts to be legibly a sample of each batch, lot, or slab of concerning their conveyor belts, and and permanently marked with the conveyor belts; or flame test or inspect provide them an opportunity to present assigned MSHA approval number for a sample of each batch or lot of the their position prior to any decision on the service life of the product. The materials that contribute to the flame- disclosure. MSHA received no approval marking must be at least 1⁄2 resistance characteristic. This assures comments on the proposal. inch (1.27 cm) high, placed at intervals that the finished conveyor belt slab will Under the final rule, MSHA will treat not to exceed 60 feet (18.3 meters), and meet the flame-resistance test. MSHA information on product material, repeated at least once every foot (0.3 m received no comments on the proposal. specifications, and processes as or 30.5 centimeters) across the width of Final § 14.8(b), like the proposal, protected under exemption 4 of FOIA. the belt. MSHA requires this marking requires that the instruments used for Exemption 4 exempts from disclosure method since a conveyor belt’s edges quality assurance under paragraph (a) be ‘‘trade secrets and commercial or can wear as it passes along the conveyor calibrated according to the instrument financial information’’ obtained from an framework, causing fraying. Fraying of manufacturer’s specifications. Under outside source and ‘‘privileged or conveyor belts, which may occur during this final rule, instruments must be confidential.’’ (5 U.S.C. 552(b)(4)). normal use, can cause the approval calibrated using standards set by the Under the Department’s regulations at markings on belts to become illegible or National Institute of Standards and 29 CFR 70.26, Business information, worn. Relocating the markings from the Technology, U.S. Department of MSHA will notify the applicant of any edge of the belt to across its width Commerce, or other nationally or FOIA request seeking information permits identification of the conveyor internationally recognized standards. submitted by the applicant under the belt for a longer time. This method also The final rule also requires that the final rule. The applicant then will have enables better identification of conveyor instruments used be accurate to at least a reasonable period of time in which to belts cut from larger to smaller widths, one significant figure beyond the object to disclosure. An objecting or where worn edges are trimmed. desired accuracy. This calibration applicant must submit a ‘‘detailed MSHA received no comments on the sequence is consistent with the written statement’’ showing ‘‘why the proposal. procedure under existing § 7.7. MSHA information is a trade secret or Final § 14.7(c), like the proposal, received no comments on the proposal. commercial or financial information provides that where the construction of Final § 14.8(c), like the proposal, that is privileged or confidential’’ [29 a conveyor belt does not permit marking requires control of production in CFR 70.26(e)]. MSHA will consider the as prescribed under the final rule, other accordance with the approval. If a third applicant’s objections in deciding permanent marking may be accepted by party is assembling or manufacturing all whether to disclose the information. If MSHA. This provision allows or part of the approved belt, the final MSHA determines that the FOIA
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requires disclosure over the applicant’s except for cause, the approval holder, at is based, requirements contained in objections, MSHA will notify the MSHA’s request, make 3 samples of an § 14.11 will be followed. applicant of the documents to be approved conveyor belt of the size Final § 14.11, like the proposal, disclosed prior to the disclosure date specified in § 14.5 available to MSHA includes requirements for revocation. (unless MSHA learns that the material for an audit at no cost to MSHA. The Final § 14.11(a)(1) and (2), like the already has lawfully been made public) final rule also allows representatives of proposal, provides that MSHA may [29 CFR 70.26(f), (g)]. Under 29 CFR the applicant and other persons agreed revoke for cause an approval issued 70.26(b), when submitting documents, upon by MSHA and the applicant to be under the final rule if the conveyor belt applicants should identify the present during audit tests and (1) fails to meet the technical documents they wish to protect by evaluations; however, if MSHA receives requirements of the approval, or (2) marking them (such as stamping each a request from others to observe tests, creates a danger or hazard when used in page ‘‘Confidential’’). MSHA notes that the Agency will consider it. an underground coal mine. MSHA it has no authority under the FOIA to Commenters stated that the received no comments on the proposal. withhold applicant documents representative of miners should be given Final § 14.11(b), like the proposal, requested by a Congressional oversight an opportunity to be present during any provides that prior to revoking an committee. testing or audit conducted by the approval, the approval holder will be Final § 14.10 provides for post- Agency. The Agency agrees with the informed in writing of MSHA’s approval product audits. Final comments that requests to observe tests intention to revoke. Under the final rule, § 14.10(a), like the proposal, provides should be considered under the same the notice will (1) explain the reasons that approved conveyor belts are subject conditions as explained in final § 14.3, for the proposed revocation; and (2) to periodic audits by MSHA to which is designed to protect proprietary provide the approval holder an determine conformity with the technical rights of approval holders and not delay opportunity to demonstrate or achieve requirements upon which the approval the audit process. compliance with the product approval was based. Under the final rule, MSHA Final § 14.10(c), like the proposal, requirements. provides that conveyor belts will be will select representative conveyor belts Commenters suggested that if MSHA subject to audit for cause at any time to be audited and, upon request, the issues a revocation notice, other means MSHA believes the product is not in approval holder may obtain any final besides the internet be used, since not audit report. compliance with the technical all mine operations and miners have One commenter asked if the audit requirements of the approval. Audits access to the internet. MSHA’s existing procedures would be applied equally to allow MSHA to determine whether domestic and foreign manufacturers products are being manufactured as practice is to notify the mining who are approval holders. As MSHA approved. MSHA will select the product community of equipment and safety stated during the public hearings, all and may obtain products from sources alerts by various means, including the approval holders will be held to the other than the manufacturer, such as internet, the Agency’s district offices same approval and audit procedures, distributors or wholesalers. and inspectors, and occasionally, via regardless of location. In determining which products to mail. Other commenters stated that the audit, MSHA will consider a variety of Final § 14.11(c), like the proposal, proposal would only allow the approval factors such as whether the provides that upon request, the approval holder to receive the final post-approval manufacturer has previously produced holder will be given the opportunity for product audit report upon request to the product or similar products, a hearing. MSHA’s practice is to treat MSHA. They stated that the distribution whether the product is new or part of a approval holders as ’’licensees’’ under of similar reports involving respirators new product line, or whether the the Administrative Procedure Act (APA, are published and distributed by NIOSH product is intended for a unique 5 U.S.C. 558). Consistent with this to the mining industry, and believed application or limited distribution. practice, final § 14.11(b) provides that audit reports should be distributed, or at MSHA may also consider product approval holders be given due process least made available, to the entire complexity, the manufacturer’s previous considerations prior to revocation of an industry. Commenters added that they product audit results, extent of the approval. These considerations include would also like to have these reports product’s use in the mining community, being provided with (1) a written notice provided to the representative of miners and the time elapsed since the last audit of the Agency’s intent to revoke a and the operator be required to post a or since the product was first approved. product approval; (2) an explanation of copy on the mine bulletin board. MSHA There are other circumstances or the reasons for the proposed revocation; conducts post-approval product audits causes when additional audits may be and (3) an opportunity to demonstrate under other existing regulations, such as necessary to verify compliance with this or achieve compliance with the § 7.8(a), and consistent with both the final rule. These include complaints technical requirements for approval. proposal and the final rule, provides about the safety or performance of a Commenters suggested that if a hearing copies to the approval holders upon product, product changes that have not is held, miners and their representatives their request. The Agency has not been approved, audit test results that should be able to participate. The experienced any problems or issues warrant further testing to determine administrative procedures for with the existing regulations, and the compliance, and evaluation of revocation hearings, including final rule is the same as the proposal. In corrective action taken by an approval participation, will be determined on a the event there is a discrepancy between holder. Some commenters supported case-by-case basis consistent with the manufactured product and the these audit procedures but insisted that requirements contained in the APA. technical requirements upon which the a prompt notice of the findings of such Final § 14.11(d), which is changed approval is based, the approval holder audits be made available to all from the proposal, requires that if a would have to rectify the discrepancy interested parties, including the miners’ conveyor belt poses an imminent danger and meet the requirements in this final representatives. In the event that an to the safety or health of miners, an rule. audit finds a discrepancy between the approval may be immediately Final § 14.10(b), like the proposal, manufactured product and the technical suspended without written notice of the requires that no more than once a year, requirements upon which the approval Agency’s intention to revoke.
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Commenters suggested that MSHA be in accordance with an alternate test in pairs. The burner fuel must be at least reconsider the proposal since the determined by MSHA to be equivalent 98 percent methane (technical grade) or immediate suspension of conveyor belt under existing § 6.20 and final § 14.4(e). natural gas containing at least 93 approval necessitating removal of This testing would assure that conveyor percent methane. conveyor belt could pose serious belts meet the specifications in the final A burner unit available from the operational difficulty for mine operators rule, are difficult to ignite, and are Solarflo® Corporation Model U–10, and their employees. They suggested highly resistant to flame propagation. using Model Number 640 jets producing that MSHA develop an expedited MSHA recognizes that other tests may 7,500 BTU per hour per jet, is suitable procedure to validate any concerns exist or be developed in the future to comply with these specifications. identified and to establish a manageable which could be appropriate for This burner unit, which is an impinged approach to expeditiously remedy such evaluating flame-resistant qualities of jet burner, is the burner type used as the concerns. The commenters stated that conveyor belt for use in underground igniting source in the BELT. Any other district managers should have the coal mines. Under final paragraph (b), burner unit which meets the authority to approve alternative once a determination of equivalency is specifications would be appropriate. approaches to ‘‘immediate removal.’’ made, MSHA will publish a notice in The burner in the final rule was Such approaches could establish agreed the Federal Register. MSHA received no referenced because it is commercially upon safety precautions permitting comments on the proposal. available and provides a reliable, miners to remain at work during a Final § 14.21, like the proposal, reproducible ignition source that can conveyor belt removal/replacement describes the principal parts of the burn methane or natural gas. The BELT cycle. BELT apparatus used to test for flame results correlate well with the large- This final requirement would only be resistance of conveyor belts. Final scale belt flammability test results when applicable in the event that MSHA § 14.21(a), like the proposal, requires a using the burner in the final rule and discovers during an audit that a horizontal test chamber 66 inches (167.6 gaseous fuel in conjunction with the conveyor belt poses an imminent danger cm) long by 18 inches (45.7 cm) square other parameters. MSHA received no to miners. However, MSHA believes (inside dimensions). The chamber comments on the proposal. that it is unlikely that an audit would dimensions were established from the Final § 14.21(d), like the proposal, result in a massive recall of conveyor large-scale belt flammability studies. requires a removable steel rack, belt. Under the final rule, MSHA The test chamber must be constructed consisting of 2 parallel rails and intends that the severity of the hazard from 1 inch (2.5 cm) thick Marinite I®, supports that form a 7 ± 1⁄8 inches (17.8 identified in the audit would dictate the or equivalent insulating material. ± 0.3 cm) wide by 60 ± 1⁄8 inches (152.4 corrective action required. MSHA Should minor cracking occur in the ± 0.3 cm) long assembly to hold a belt believes that, should revocation of an Marinite I®, it can be repaired using an sample. Under final paragraph (d)(1), approval become necessary, the Agency appropriate sealant. However, the like the proposal, the 2 parallel rails, will be able to develop procedures that Marinite I® or equivalent insulating with 5 ± 1⁄8 inches (12.7 ± 0.3 cm) space will allow any identified defect to be material must be replaced and not between them comprise the top of the remedied while maintaining safety and repaired if the crack or break is across rack. The rails and supports must be health protection for miners. the total thickness. MSHA received no constructed of slotted angle iron with Consistent with the Agency’s existing comments on the proposal. practice, revocation of an approval, as Final § 14.21(b), like the proposal, holes along the top surface. Typically, the commenter suggests, is a very requires a 16-gauge (0.16 cm) stainless commercially available, 1 inch (2.5 cm) 3 1 serious action, taken only to correct a steel duct section, tapering over at least by 1 ⁄4 inch (4.4 cm) by ⁄8 inch (0.3 cm) 1 condition likely to cause death or a 24-inch (61 cm) length from a 20-inch thick angle iron with predrilled ⁄4 inch serious physical harm. MSHA’s existing (51 cm) square cross-sectional area at (0.6 cm) diameter holes spaced 1 inch regulations in Parts 7 and 15 provide the test chamber connection to a 12-inch (2.5 cm) apart is used. Under final that the Agency may suspend an (30.5 cm) diameter exhaust duct, or paragraph (d)(2), the top surface of the ± 1 ± approval without written notice, if there equivalent. The interior surface of the rack must be 8 ⁄8 inches (20.3 0.3 is an imminent danger to miners, tapered duct section must be lined with cm) from the inside roof of the test pending completion of revocation 1⁄2-inch (1.27 cm) thick ceramic blanket chamber. procedures. The final rule is changed to insulation or equivalent insulating The rack materials and dimensions provide that in the case of an imminent material. The use of stainless steel were selected so that the rack danger to miners, the approval may be minimizes corrosion and the tapered adequately supports the belt sample and immediately suspended. This is duct section allows a smooth airflow to withstands repeated tests with only consistent with MSHA’s other approval enter the exhaust duct. The tapered duct minor warping due to heat while regulations. must be lined with ceramic blanket minimizing the rack’s thermal mass. MSHA believes that removal of belts insulation to minimize high duct The distance from the top surface of the that pose an imminent danger is temperatures and thermal expansion. rack to the inside roof of the test necessary to protect miners from MSHA received no comments on the chamber was established based on the potential injury and life-threatening proposal. comparison of the test results and the hazards. Once an approval is Final § 14.21(c), like the proposal, development of correlation parameters suspended, MSHA will notify the requires a U-shaped gas-fueled with the large-scale belt flammability mining community of this action. impinged jet burner igniting source, studies. Final § 14.20, like the proposal, measuring 12 inches (30.5 cm) long and The BELT apparatus does not contain requires that conveyor belts for use in 4 inches (10.2 cm) wide, with two any pollution control system for exhaust underground coal mines be flame parallel rows of 6 jets each. Each jet fumes created during flame tests. If an resistant and tested under final § 14.20 must be spaced alternately along the U- applicant chooses to build a test (a) or (b). Under final paragraph (a), shaped burner tube. The 2 rows of apparatus and perform the BELT testing must be in accordance with the burner jets must be slanted so that they method for research or quality assurance flame test specified in final § 14.22. point toward each other and the flame purposes, some type of effluent control Under final paragraph (b), testing must from each jet impinges upon each other may be required to meet State and local
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emission standards. MSHA received no cm) from the outer lengthwise edge of of the sample 6 ± 1⁄2 inches (15.2 ± 1.27 comments on the proposal. each rail. This centers the longitudinal cm) from the entrance. This location Final § 14.22, like the proposal, axis of the sample along the centerline reduces the disturbance of the airflow specifies the test for flame resistance of of the rack with the first inch of the entering the test chamber. The location conveyor belts. The final rule addresses sample in the ignition area and not in is based on the correlation of the BELT variables that have an appreciable effect contact with the rack. The 1 ± 1⁄8 inch results to the results of large-scale belt on the test results in order to maintain (2.5 ± 0.3 cm) overlap that extends flammability studies. MSHA received consistency in the testing method. Small beyond the front of the rail facilitates no comments on the proposal. changes in barometric pressure, ignition of the belt sample by Final § 14.22(a)(5), like the proposal, humidity, and ambient temperature minimizing the thermal heat sink requires measuring the airflow with a 4- should not have a significant effect on created by the sample rack. A greater inch (10.2 cm) diameter vane the test results. Published literature overlap can result in the sample curling anemometer, or equivalent device, indicates that small changes in or pulling back from the burner during placed on the centerline of the belt atmospheric pressure have little or no the ignition period. Many PVC belts are sample 12 ± 1⁄2 inches (30.5 ± 1.27 cm) effect on flame propagation. Variations constructed with a solid woven carcass from the entrance of the chamber. in ambient temperature did not show a and the top or bottom cover is not Airflow passing through the chamber trend in either decreasing or increasing designated. If a belt is constructed must be adjusted to 200 ± 20 ft/min (61 the burn damage of belts tested. A small without a designated top cover, either ± 6 m/min). MSHA received no increase or decrease of relative humidity side of the belt could be mounted as the comments on the proposal. will not have a significant effect on the load carrying surface. MSHA received The airflow and measuring location flame propagation because conveyor no comments on the proposal. are based on comparison of the test belts are typically impervious to Final § 14.22(a)(3), like the proposal, results with the large-scale belt moisture. requires the sample to be fastened to the flammability studies. MSHA identified Final § 14.22(a), like the proposal, rails of the rack with steel washers and the variables that affect the conditions specifies the test procedure sequence. cotter pins. The final rule provides the of the test, such as air velocity and the Technical dimensions and tolerances following requirements. The cotter pin ambient air and tunnel temperatures that are critical to the proper conduct of must extend at least 3⁄4 inch (1.9 cm) while conducting several hundred belt the test and to maintain consistency in below the rails. Equivalent fasteners flame tests. the test method are specified in this may be used. A series of 5 holes Final § 14.22(a)(6), like the proposal, final rule, while dimensions that have approximately 9⁄32 inch (0.7 cm) in requires that, before starting the test on no effect on the test results are specified diameter must be made along both edges each sample, the inner surface without a tolerance and are indicated as of the belt sample, starting at the first temperature of the chamber roof be approximate. MSHA received no rail hole within 2 inches (5.1 cm) from measured at points 6 ± 1⁄2, 30 ± 1⁄2, and comments on the proposal. the front edge of the sample. The next 60 ± 1⁄2 inches (15.2 ± 1.27, 76.2 ± 1.27, ± Final § 14.22(a)(1), like the proposal, hole must be made 5 ± 1⁄4 inches (12.7 and 152.4 1.27 cm) from the front requires that three belt samples, 60 ± 0.6 cm) from the first, the third hole entrance must not exceed 95° ± 1 ± ° ⁄4 inches (152.4 0.6 cm) long by 9 must be made 5 ± 1⁄4 inches (12.7 ± 0.6 Fahrenheit (35 Centigrade) at any of ± 1⁄8-inches (22.9 ± 0.3 cm) wide, be laid cm) from the second, the fourth hole these points with the specified airflow flat at 70 ± 10 °F (21 ± 5 °C) for at least must be made approximately midway passing through the chamber. In 24 hours prior to the test. It assures that along the length of the sample, and the addition, the temperature of the air the samples are at laboratory fifth hole must be made near the end of entering the chamber during the test on temperatures, facilitates sample the sample. A washer must be placed each sample must not be less than 50° mounting, and minimizes curling over each sample hole, and a cotter pin Fahrenheit (10° Centigrade). during the test. MSHA received no must be inserted through the hole and Under the final rule, the 1⁄2 inch (1.27 comments on the proposal. spread apart to secure the sample to the cm) tolerance is needed for the A conveyor belt that has been rolled rail. MSHA received no comments on temperature measurement points to prior to testing is more likely to rebound the proposal. maintain consistency of the test to the rolled position during testing. Under the final rule, the locations of conditions. These temperature limits are This action is considered curling, and the fasteners were chosen so that the specified to maintain the repeatability of may lead to erroneous test results. majority (6 of 10) would be in the the test results and to maintain the Samples which have been rolled prior to ignition area to minimize the belt comparability obtained with the large- testing can develop sufficient curling sample pulling away from the burner, or scale belt flammability studies. An forces to overcome the holding lifting and curling during the ignition upper limit on airflow and a lower limit capabilities of the cotter pins installed period. Specific fastener locations with on the temperature of the air entering to retain the sample on the rack. Should tolerances for holes 4 and 5 were not the test chamber are included as test curling occur, MSHA would need to test identified. It is MSHA’s experience that control parameters. These test additional samples in order to assure the exact location of these fasteners is parameters are designed to assure the that reliable test results have been not critical to the retention of the test chamber temperature meets certain obtained. The Agency has determined sample and does not influence the test restrictions for each of the three tests. that the use of flat, unrolled samples results. Additional fasteners can be used MSHA received no comments on the greatly reduces the occurrence of in the ignition region for belts that lift proposal. curling. excessively. The fasteners facilitate the Final § 14.22(a)(7), like the proposal, Final § 14.22(a)(2), like the proposal, secure mounting of the belt sample and requires centering the burner in front of requires that for each of three tests, one are too small to influence the test results the sample’s leading edge with the belt sample be placed on the rails of the by heat absorption, even if additional plane, defined by the tips of the burner rack with the load carrying surface fasteners are used. jets, 3⁄4 ± 1⁄8 inch (1.9 ± 0.3 cm) from the facing up so that the sample extends 1 Final § 14.22(a)(4), like the proposal, front edge of the belt. The burner must ± 1⁄8 inch (2.5 ± 0.3 cm) beyond the front requires centering the rack and sample be centered in front of the sample’s of the rails and 1 ± 1⁄8 inch (2.5 ± 0.3 in the test chamber with the front end leading edge, so that when ignited the
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flames from the two rows of jets Final § 14.22(b), like the proposal, installed in the mine upon the effective impinge in front of the belt’s edge and requires that each tested sample must date of the final rule. These commenters distribute uniformly on the top and exhibit an undamaged portion across its stated that mine operators should only bottom surfaces of the sample. A 1⁄8 inch entire width. This requirement is based be permitted to use Part 18 belts already tolerance was added to the location on the correlation of the BELT results to in service or in their inventory. dimension for the burner jets. This the results of large-scale belt In response to comments, MSHA tolerance is important because it flammability studies. MSHA received included a new paragraph in the final maintains the consistency of the test no comments on the proposal. rule that clarifies the Agency’s intent method. The alignment of the burner Final § 14.22(c), like the proposal, with respect to the use of existing belt. provides for the uniform heating of the provides that MSHA may modify the Under the final rule, operators will have sample, which is necessary to maintain procedures of the flammability test for up to ten years to use existing belt, the consistency of the test results. belts constructed of thicknesses more which has been placed into service by The exact burner orientation needed than 3/4 inch (1.9 cm). No comments December 31, 2009. This assures that all to provide uniform distribution of flame were received on this provision. belt used in underground coal mines on the top and bottom surfaces of the Final § 14.23, like the proposal, will meet the requirements of Part 14 test sample may vary depending upon provides that MSHA may approve a within ten years. the belt sample’s thickness. Based upon conveyor belt that incorporates The final rule language also has been comparison tests and experience gained technology for which the requirements changed from the proposal to include in developing the BELT method, the of this final rule are not applicable if the the phrase, ‘‘placed in service’’ instead burner must be slanted downward from Agency determines that the conveyor of ‘‘purchased for use.’’ The Agency the vertical, at approximately a 15° belt is as safe as those which meet the intends that ‘‘placed in service’’ clarifies 3 1 requirements of the final rule. This final angle, and located ⁄4 ± ⁄8 inch (1.9 ± 0.3 that all new conveyor belts installed one cm) from the front edge of the belt. rule is intended to facilitate the year after the publication date of this Slanting of the burner compensates for introduction of new technology or new final rule will comply with Part 14 the buoyancy of the burner flames. The applications of existing technology with requirements. appropriate burner alignment necessary respect to conveyor belts. MSHA A commenter stated that mine for uniform distribution of flame may be received no comments on the proposal. operators should be permitted to determined by adjustments prior to Part 75—Mandatory Safety Standards— continue to remove belts, trim them igniting the samples under test. MSHA Underground Coal Mines Subpart L— down, and re-install the belt in their received no comments on the proposal. Fire Protection underground mines. Under the final Final § 14.22(a)(8), like the proposal, rule, mine operators may continue these Final § 75.1108 requires the use of practices if the belts have been placed requires that, with the burner lowered improved flame-resistant conveyor belt, away from the sample, the gas flow to in service in their mines prior to or ± as approved under Part 14, in during the one-year transition period, the burner must be set at 1.2 0.1 underground coal mines. This standard cubic feet per minute (SCFM) that is, the one-year period when either ± requirement is consistent with Panel Part 18 or Part 14 belt may be (34 2.8 liters per minute) and be Recommendation 3. maintained throughout the 5 to 5.1 purchased. Belts that have been placed Final § 75.1108(a) is changed from the in service prior to or during the one-year minute ignition period. One standard proposal and allows mine operators cubic foot is the amount of gas which transition period can be used until ° until December 31, 2009 to place in December 31, 2018. This belt may not be occupies one cubic foot at 72 F and one service in underground coal mines atmosphere pressure (1 cubic liter at 22 marketed for use in other underground ° conveyor belts approved under Part 14 coal mining operations after December C and 101 kilopascals). The specified or accepted under existing Part 18. gas flow provides a stable flame and is 31, 2009, but may be used by the same Final § 75.1108(b) is changed from the mine operator. based on a comparison of the test results proposal and requires that effective with the large-scale belt flammability Existing § 75.1108–1 is removed December 31, 2009, conveyor belts because it is no longer needed. studies. MSHA received no comments placed in service must be approved on the proposal. under Part 14. In the event that MSHA 3. Conforming Amendments Final § 14.22(a)(9), like the proposal, determines that Part 14 approved belt is This final rule requires conforming provides that after applying the burner not available, the Agency will consider amendments to existing approval flame to the front edge of the sample for an extension of the one-year transition regulations in Parts 6 and 18. a 5 to 5.1 minute ignition period, lower period. Notice of an extension would be the burner away from the sample and published in the Federal Register. Part 6—Testing and Evaluation by extinguish the flame. MSHA received no Final § 75.1108(c) is added in the final Independent Laboratories and Non- comments on the proposal. rule in response to comments and to MSHA Product Safety Standards Final § 14.22(a)(10), like the proposal, clarify the Agency’s intent with respect Section 6.2 concerning the definition provides that after the completion of to the use of existing conveyor belt. It of ‘‘Equivalent non-MSHA product each test, the undamaged portion across requires that effective December 31, safety standards,’’ and § 6.20(a)(1) the entire width of the sample be 2018, all conveyor belts used in concerning applications for determined. Determining the underground coal mines must be equivalency, are both amended by undamaged portion across the entire approved under Part 14. adding Part 14 (Conveyor Belts in width of the sample is necessary for Commenters were opposed to Underground Coal Mines). These are specifying acceptable performance of permitting the purchase of either Part 18 administrative and conforming the conveyor belt. Blistering without or Part 14 belt for a period of one year provisions. charring does not constitute damage because mine operators could stockpile because blistering could result from heat Part 18 belt, and use that belt Part 18—Electric Motor-Driven Mine exposure rather than the presence of underground for an extended period of Equipment and Accessories flame. MSHA received no comments on time. They stated that Part 14 belt Part 18 is amended by removing the the proposal. should be required to be purchased and term ‘‘conveyor belt’’ from existing
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§§ 18.1, 18.2, 18.6(a), 18.6(i), 18.9(a) and • Recommendation 7—Belt air designated under existing § 75.1501 is 18.65. The revised sections of Part 18 approval recommendation; required to take charge during a mine would only relate to acceptance of • Recommendation 8—Discontinuing emergency. That person must be trained hoses, and existing § 18.6(c) would be point-type heat sensors; annually in a course of instruction in removed and reserved. MSHA is making • Recommendation 9—Smoke mine emergency response. these conforming amendments to Part sensors; Another commenter stated that this 18 because applications for approval of • Recommendation 10—Use of diesel- task training duplicates the annual conveyor belts will be considered only discriminating sensors; training already required for AMS under Part 14. • Recommendation 12—AMS operators and qualified persons. Under operator training certification; the final rule, the initial task training B. Fire Prevention and Detection and • Recommendation 13—Minimum and annual retraining are separate Approval of the Use of Air From the Belt and maximum air velocities; requirements. The initial task training is Entry To Ventilate Working Sections • Recommendation 14—Escapeways designed to assure that the AMS 1. General and leakage; operator has the necessary skills to • Recommendation 15—Lifelines; operate the AMS prior to assuming This final rule enhances miner safety • Recommendation 16—Point- responsibility for that task. The annual and health by including improved feeding; and retraining in § 75.351(q) is designed to requirements for the use of air from the • Recommendation 17—Respirable reinforce existing skills and to assure belt entry, belt entry and conveyor dust. that the AMS operator remains capable maintenance, and fire prevention and of doing the task, with an understanding detection. This final rule includes 2. Discussion of the Final Rule of current mining operations. requirements on: Approval of using air Part 48—Training and Retraining of from the belt entry to ventilate working Part 75—Mandatory Safety Standards— Miners Subpart B—Training and sections; replacement of point-type heat Underground Coal Mines Retraining of Miners Working at Surface sensors with carbon monoxide sensors Mines and Surface Areas of Subpart B—Qualified and Certified in all coal mines; training of AMS Underground Mines Persons operators; requirements for escapeways; limits on respirable dust in the belt Final § 48.27(a), like the proposal, Section 75.156—AMS Operator, entry; maximum and minimum air revises the existing rule to require that Qualifications velocities in the belt entry; standardized miners assigned to new work tasks as Final § 75.156(a), like the proposal, is tactile signals for lifelines; use of smoke AMS operators be trained before they new and requires that to be qualified as sensors in mines using air from the belt perform these duties. This requirement an AMS operator, a person shall be entry; and improved belt entry is consistent with Panel provided with task training on duties maintenance. recommendation 12, that MSHA require and responsibilities at each mine where Consistent with the Panel’s the qualification and certification of an AMS operator is employed in recommendations this final rule, like AMS operators. This requirement accordance with the mine operator’s the proposal, includes requirements applies to AMS operators that are approved Part 48 training plan. This applicable to mines that use air from the monitoring methane or carbon requirement is consistent with Panel belt entry to ventilate a working section, monoxide sensors used to meet the recommendation 12, that MSHA require and requirements applicable to all requirements of: §§ 75.323(d)(1)(ii)— the qualification and certification of underground coal mines. The Actions for excessive methane; AMS operators. requirements applicable to all 75.340(a)(1)(ii) and 75.340(a)(2)(ii)— MSHA recognizes that a significant underground coal mines include: Electrical installations; 75.350(b) and portion of the knowledge necessary for Airlocks along escapeways; minimum 75.350(d)—Use of air from a belt entry an AMS operator is mine-specific and belt entry air velocity; standardized to ventilate working sections; or must be tailored to conditions at each tactile signals for lifelines; maintaining 75.362—On-shift examinations. MSHA mine. This task training must be higher ventilating pressures in the believes that AMS operators must have provided at each mine where the AMS primary escapeway; replacing point- the background, experience, and operator performs these duties due to type heat sensors with carbon monoxide training to assure that proper actions are different AMS designs, variations in sensors for fire detection in belt entries; taken in response to AMS signals, ventilation plans and systems, and belt entry maintenance. including alerts, alarms, and complexities of evacuation plan In addition, this final rule, like the malfunctions, to provide the highest requirements, and uniqueness of the proposal, revises existing requirements degree of safety to all affected miners. mine configurations. MSHA has related to the use of carbon monoxide Existing § 48.23 requires that a developed a training guide to assist sensors for fire detection along belt lines training plan be approved by MSHA for mine operators in identifying essential in all mines. These include sensor specific tasks, and that the training be elements to be included in the training spacing, establishing a warning level, provided prior to the miner performing plan. responses to warning and malfunction those tasks. The Agency has added AMS A commenter stated that this training signals, testing and calibration operators to the list of tasks covered by should not be included with the Part 48 requirements, and minimum air velocity this provision. annual retraining. This commenter was to incorporate the use of carbon A commenter stated that AMS concerned about diluting the Part 48 monoxide sensors. operators should participate in a training and wanted the AMS operator This section of the final rule simulated mine emergency as part of the training to be separate. addresses the following Panel initial training. While mine operators A commenter asked if MSHA would recommendations: may elect to include a simulated mine develop an initial training program for • Recommendation 5—Belt entry and emergency in the initial task training for AMS operators. A commenter also conveyor belt maintenance; AMS operators, the final rule does not stated that a copy of the initial training • Recommendation 6—Special require simulated mine emergency plan should be furnished to miners or requirements for the use of belt air; training. The responsible person a representative of miners two weeks
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before its submission to the district state that methane levels should be between two air courses, which form a manager. reduced to the lowest possible level. pressure equalizing chamber. A miner The new initial task training for AMS Several commenters were opposed to would open the first door, enter the operators does not impact other existing a new standard stating that existing airlock, and close the door. After training requirements in Part 48. MSHA standards, combined with methane equalizing the pressure, the miner can has developed a model training program limits and tests already in place for the then open the second door and move that mine operators can tailor to fit working section, provide adequate into the adjacent entry. The need for specific mining conditions and protection. Commenters also stated that safe access is critical during a mine equipment at their mines. Consistent any attempt to reduce methane emergency evacuation when miners with existing § 48.23(d), mine operators concentrations in the belt entry below must move between adjacent air must furnish a copy of the training plan 1.0 percent could create undesired courses. to a miner’s representative two weeks pressure differentials from the belt entry The Panel recommended a standard prior to its submission to the district to the intake air course. MSHA agrees based upon the force on the personnel manager. that this may be true for blowing door of 125 pounds. This force on any Final § 75.156(b), like the proposal, ventilation systems, but not for specific door is dependent upon the requires that an AMS operator must be exhausting ventilation systems. pressure differential across the able to demonstrate to an authorized Further, according to commenters, ventilation control, and the surface area representative of the Secretary that he/ adjustments to reduce the methane of the personnel door. For the same she is qualified to perform the assigned concentration in the belt entry to a range pressure differential, the force required tasks. The inspector will make a below 0.5 to 1.0 percent may not be to open a personnel door increases determination about the AMS operator’s possible because intake methane levels proportionately with surface area. qualifications during regular up to 1.0 percent are permitted. MSHA In order to calculate the force exerted inspections. In making this notes that existing standards require by a pressure differential, the pressure determination, the inspector will ask the that when 1.0 percent or more methane differential and door dimensions must AMS operator questions regarding: The is present in the belt entry, changes or first be determined. As reflected in the responses to AMS signals; notification adjustments must be made to reduce the Panel’s example, a 125-pound force requirements; approved mine plans; concentration to less than 1.0 percent. limitation on a 3-foot by 4-foot door recordkeeping requirements; and AMS Consistent with the Panel’s would be created by a pressure operating requirements. This assures recommendation, MSHA is not differential of 2.0 inches of water. A 3- including a new standard in the final foot by 4-foot personnel door has an that the AMS operator fully understands ′ × ′ how to operate and respond to the AMS. rule, but intends to change the Agency’s area of 1,728 square inches (3 4 = 12 inspection procedures to require that square feet × 144 in2 /ft2 = 1,728 square Subpart D—Ventilation inspectors measure methane in the belt inches). For a force of 125 pounds, the Actions for Excessive Methane entry at a point 200 feet outby the distribution is 0.0725 pounds per square section tail piece. This will allow the inch (125 lb ÷ 1,728 in2 = 0.0725 psi). During the rulemaking process and at Agency to determine the effect of the Using the conversion factor, 1 psi = each of the public hearings, MSHA use of air from the belt entry on 27.68 inches of water, the equivalent solicited comments on whether the methane levels in the working section. pressure differential can be calculated to Agency should establish a new The Agency recognizes that moving be 2.0 inches of water (0.0725 psi × provision to require that changes or air from the intake to the belt may 27.68 in. H2O/psi = 2.0 inches of water). adjustments be made to reduce the reduce the methane concentration 200 A commenter supported the proposal concentration of methane when a range feet outby the section loading point, but to require airlocks, but suggested between 0.5 and 1.0 percent methane is may not result in reduced methane spacing the airlocks at intervals not to present in the belt entry as measured concentrations on the working section exceed 1,000 feet for the entire length of 200 feet outby the section loading point. because the total air quantity delivered the escapeway from the section to the In addition, MSHA specifically to the section will not be increased. surface. Consistent with the Panel requested comments on the level at recommendation, MSHA believes that which changes or adjustments should be Section 75.333(c)(4)—Ventilation airlocks should only be required when made. MSHA received no comments Controls the force on a personnel door between regarding a specific level at which Final § 75.333(c)(4), like the proposal, air courses along escapeways could changes or adjustments should be made. is a new provision requiring that an result in injury to miners when opening The Agency’s request for comments airlock be established where the air or closing the door. If the force is less was based on Panel Recommendation pressure differential between air courses than 125 pounds, miners should not 18, which stated that the district creates a static force exceeding 125 experience difficulty opening or closing manager should regularly evaluate any pounds on closed personnel doors along the door. Requiring airlocks on doors working section that has methane escapeways. with lower pressures would readings at or above 0.5% methane, The final rule is responsive to Panel unnecessarily delay miners in moving measured 200 feet outby the tailpiece of Recommendation 14 that personnel between escapeways. the belt. This recommendation applied doors along escapeways should be Some commenters suggested the only to mines that use air from the belt installed to establish an airlock when proposal be modified to allow the use of entry to ventilate working sections. the static force created by the pressure alternative measures such as flaps and A commenter agreed with the Panel’s differential exceeds 125 pounds. High sliders to comply with the proposed recommendation and supported a new pressure differentials on doors can lead requirement for airlocks. Another standard to require that corrective to serious injuries to miners opening suggested that airlocks only be required actions be made when methane levels and closing these doors. Providing an when alternatives such as hinged or range between 0.5 and 1.0 percent, airlock between entries provides a safe sliding doors or flaps do not reduce the measured 200 feet outby the section means for miners to travel between two force on the door to less than 125 loading point. This commenter did not air courses. An airlock consists of a pair pounds. In the preamble to the proposal, recommend a specific level, but did of doors installed in ventilation controls MSHA stated mine operators may have
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alternatives to establishing airlocks, This minimum velocity has been Panel further stated that the district including reducing the size of a required for over two decades in mines manager must take special care to personnel door, providing a flap, or using carbon monoxide sensors for fire evaluate whether the air from the belt sliding door, which may reduce the detection, and has been shown to entry can be routed to the working face static pressure to below 125 pounds. provide effective early warning. in a manner that is safe for all miners Under the final rule, the Agency will The final rule, like the proposal, involved. allow alternatives to reduce the force on allows mine operators to request lower The final rule has been changed from a door. Airlocks are only required when velocities in the ventilation plan in the proposal to reduce to two months the force exceeds 125 pounds. Mine areas where the minimum velocity the time allowed for mine operators operators have the option to use cannot be maintained. Where the currently using air from the belt entry to alternatives to reduce the force on a district manager approves such a plan, submit a revised ventilation plan to the door. carbon monoxide sensor spacing would district manager. This change was made A commenter suggested that the final have to be reduced to no greater than in response to commenters and to rule should state that airlocks only be 350 feet. NIOSH research and Agency clarify MSHA’s intent that mine required between adjacent escapeways experience show that the reduced operators submit their revised when the force on the door exceeds 125 spacing is necessary to assure carbon ventilation plans as soon as feasible pounds. However, such a change would monoxide resulting from a fire more after the final rule becomes effective. not be consistent with the Panel’s quickly reaches downwind sensors. MSHA believes that the two-month recommendation. In the final rule, Commenters questioned where and period allows adequate time. MSHA intends that airlocks be how MSHA would make air velocity The Agency will approve ventilation established where the air pressure measurements under the proposal. plans and revisions that assure that the differential between air courses along Consistent with existing inspection use of air from the belt entry to ventilate escapeways creates a static force procedures, MSHA uses representative working sections affords at least the exceeding 125 pounds on closed cross-sectional areas when determining same measure of protection as where personnel doors. air velocities. Large areas (such as belt belt haulage entries are not used to During the rulemaking process and at channels, boom holes, and fall areas) ventilate working places. The district the public hearings, the Agency and restricted areas (such as overcasts) manager will notify the operator in solicited comments on other suitable are not representative and would not be writing of the approval or denial of pressures. No comments were provided. used to determine air velocities. approval of a proposed ventilation plan MSHA also solicited comments on the Another commenter supported the or proposed revision. The district number of airlocks that would be proposal but stated that the district manager will send a copy of this required under the proposal and the manager should conduct an notification to the miners’ associated cost. One commenter investigation, including a ventilation representative. If the district manager provided data from 14 mines, which survey, prior to approving a lower denies approval of a proposed plan or identify the number of airlocks required velocity in the ventilation plan. Prior to revision, the district manager will notify in each mine based upon the proposed approving changes in the ventilation the operator, in writing, of the rule. MSHA has considered this plan, the district manager receives deficiencies and the deadline for comment in the regulatory economic recommendations from inspectors, submitting the required information. analysis. supervisors and specialists who are If the operator does not respond by familiar with specific conditions in the the deadline, or if issues can not be Section 75.350—Belt Air Course mine. The district manager can also resolved, the district manager will send Ventilation direct that further investigation or a second letter notifying the operator: Final § 75.350(a)(2), like the proposal, review be made at the mine which (1) That the plan has not been approved; revises the existing standard. It requires could include an underground (2) of the deadline for submitting any that one year after the publication of the ventilation survey. However, the required information; and (3) that after final rule, the air velocity in the belt Agency does not believe it is necessary that deadline, if the operator does not entry must be at least 50 feet per to conduct an underground submit the required information, the minute. It also requires that air investigation in all cases and has not plan will be revoked. If the operator velocities be compatible with all fire included such a requirement in the final does not submit the required detection systems and fire suppression rule. information in response to the second systems used in the belt entry. Final § 75.350(b), like the proposal, letter, the district manager will send a MSHA has revised the existing revises the existing standard. It provides letter notifying the operator that the standard because of changes to final that the use of air from a belt air course plan is revoked. § 75.1103–4 (fire detection systems), to ventilate a working section be Operating after the revocation date is which replaces point-type heat sensors permitted only when evaluated and a violation of the existing standard for early-warning and detection of approved by the district manager in the requiring an approved ventilation plan. conveyor belt fires with carbon ventilation plan. It requires the mine A citation would be issued for failure to monoxide fire sensor systems in all belt operator to provide justification in the have an approved plan, as required by entries. When point-type heat sensor plan that the use of air from the belt the existing ventilation standard. systems are used for fire detection, no entry affords at least the same measure During the rulemaking process and at minimum velocity in the belt entry is of protection as where belt haulage the public hearings, MSHA solicited needed because the sensors are heat- entries are not used to ventilate working comments on this proposal. The Agency activated. When carbon monoxide places. was particularly interested in comments sensors are used, a minimum air This final rule addresses Panel related to circumstances in which the velocity of 50 feet per minute is Recommendation 7, which states that district manager does not approve the necessary to assure that carbon MSHA should evaluate, as part of the continued use of air from the belt entry monoxide gas produced by a fire will be approval of the mine ventilation plan, to ventilate working sections. carried by the air current to the the safety of the use of air from the belt A commenter stated that the use of air downwind sensors in a timely manner. entry to ventilate working sections. The from the belt entry should not be
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allowed. However, the commenter In the preamble to the proposal, the is below 1.0 mg/m3, the average suggested that for consistency, the Agency indicated that when the district concentration of respirable dust in the Assistant Secretary should review all manager makes a determination that the belt entry must be at or below the lowest plan revisions proposing the use of air use of air from the belt entry would no applicable respirable dust standard on from the belt entry. If the district longer be permitted in the mine that section. Paragraph (b)(3)(iii), like manager makes the decision, the ventilation plan, continued use of that the proposal, requires that a permanent commenter recommended that MSHA air would be permitted until completion designated area (DA) for dust develop criteria for plan approval that of current mining. MSHA recognizes measurements must be established at a would hold mine operators to a higher that a transition period may be point no greater than 50 feet upwind standard. The commenter further stated necessary, and that some mines can from the section loading point in the that when the use of air from the belt implement the change more readily than belt entry when the belt air flows over entry is disapproved, its use should be others. In response to commenters, the the loading point or no greater than 50 discontinued immediately. district manager, as part of the plan feet upwind from the point where belt Other commenters supported the use approval process, will make a air is mixed with air from another intake of air from the belt entry to reduce determination on the duration of this air course near the loading point. The methane levels, and stated that mines transition period based on the specific DA must be specified and approved in currently using that air to ventilate conditions at each mine. the ventilation plan. working sections should be allowed to Commenters also stated that the Final § 75.350(b)(3) is consistent with continue. Some of these commenters Agency should not allow the use of air Panel Recommendation 17. The Panel also indicated that if the district from the belt entry to ventilate working stated that respirable coal mine dust manager decides to disapprove the use sections until MSHA establishes concentrations in the air coursed of air from the belt entry, a reasonable standards, as part of the conveyor belt through a belt conveyor entry, and used transition period should be allowed for approval process, for smoke density and to ventilate working sections, should be the mine operator to make the necessary toxicity. The Agency recognizes that as low as feasible and must not exceed ventilation changes. smoke density and toxicity can impact the existing standard of 1.0 mg/m3. The Mine ventilation plans are designed to escape during a mine fire. To address Panel also stated that district managers reflect the specific conditions at each these areas, MSHA issued a Request for should have the authority to require operation. The MSHA personnel most Information to solicit input from the improvements in dust control in the belt familiar with those mines—local mine mining community and other interested entry if the dust concentration exceeds inspectors, specialists and supervisors— parties (73 FR 35057). MSHA believes an 8-hour time-weighted average of 1.0 possess the technical expertise and are that the use of air from the belt entry to mg/m3 or raises the concentration in in the best position to make ventilate working sections can be made that section above the exposure limit. recommendations concerning plan as safe as not using such air. As noted Reduced standards are frequently approvals. Consistent with the Panel’s by the Panel, conditions such as high established on working sections due to recommendation, MSHA believes that methane levels and deep ground cover presence of respirable quartz. The the district manager is the appropriate can present serious safety concerns to existing exposure limit for respirable senior official to make plan approval miners. The use of air from the belt coal mine dust is 2.0 mg/m3 when determinations including whether air entry in these circumstances may result quartz levels are five percent or less. from the belt entry should be used to in a safer mine environment. This standard is reduced when ventilate working sections. To facilitate In 2006, a fatal fire occurred at the respirable dust in the mine atmosphere consistency with respect to Agency Aracoma Alma Mine No. 1 in West contains more than five percent quartz. policy, MSHA will develop criteria for Virginia. Public comments made during Reduced standards are computed by district managers to use when granting this rulemaking implied that dividing the percent of quartz measured approval for the use of belt air. deficiencies in the ventilation methods in the mine atmosphere into the number There are potential sources of fire in and safety measures in place at Aracoma ten. For example, if the mine belt conveyor entries, and the use of air at the time of the fire were approved by atmosphere contains 20 percent quartz, from the belt entry to ventilate working MSHA in the ventilation plan. the reduced standard would be 0.5 mg/ sections can result in contaminants from However, the accident investigation m3 (10/20 = 0.5 mg/m3). The purpose of a fire being carried to the working revealed that the Aracoma mine was not a reduced standard is to limit miner section. However, the Agency ventilated as specified and required in exposure to respirable quartz. recognizes that there may be compelling the approved ventilation plan. In the The final rule, like the proposal, reasons to use air from the belt entry as accident report, MSHA identified 25 assures that the respirable coal mine an intake air source for the section. violations of safety standards as dust exposure of miners on the working These reasons may include the need for contributing to the accident. The section would not be increased by the additional ventilation to dilute methane, Agency concluded that the two fatalities use of air from the belt entry. For or the need for fewer entries to reduce would have been prevented had the example, if the standard for the ground control hazards. mine operator fully complied with continuous miner operator (the The district manager may approve the MSHA standards. designated occupation) is 2.0 mg/m3 use of air from the belt entry to ventilate Final § 75.350(b)(3), revises the and the reduced standard for the roof the working section only in sections existing standard. Paragraph (b)(3)(i), bolter on the same working section (a developed with three or more entries. like the proposal, requires that the designated area) is 0.8 mg/m3, the Under existing standards, a petition for average concentration of respirable dust average concentration of respirable dust modification will be required for two- in the belt air course, when used as a in the belt entry used to ventilate that entry mine development to use air from section intake air course, must be working section must not exceed 0.8 the belt entry to ventilate the working maintained at or below 1.0 mg/m3. mg/m3. This is because 0.8 mg/m3 is the section, and to operate the belt in the Paragraph (b)(3)(ii), like the proposal, lowest applicable respirable dust return air course. The final rule does not requires that where miners on the standard on the section. affect existing granted petitions for working section are on a reduced If a mine operator is unable to modification at two entry mines. respirable coal mine dust standard that effectively reduce the respirable dust
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levels in the belt entry to meet this the Panel’s recommendation, the final exceptions to the minimum and requirement, the district manager will rule is necessary to assure that air from maximum velocities in the mine have the authority to revoke the the belt entry does not increase miners’ ventilation plan based on specific mine ventilation plan which allowed the use exposure to respirable coal mine dust. conditions. These exceptions can be of air from the belt entry to ventilate the Final §§ 75.350(b)(7) and (b)(8), like approved where reductions to sensor working section. the proposal, are new provisions. Final spacing or alert and alarm levels are MSHA believes that technology is § 75.350(b)(7) requires that the air made to assure the fire detection available to effectively lower respirable velocity in the belt entry must be at least capabilities of the AMS are maintained. dust levels in the belt entry. Because a 100 feet per minute where this air is In developing their ventilation plans, principal source of respirable dust is at used to ventilate working sections. It mine operators should use the criteria in belt transfer points, technologies such as provides that when requested by the NIOSH research (RI 9380, 1991) to improved water sprays may reduce dust mine operator, the district manager may determine appropriate alert and alarm concentrations. If a mine operator approve lower velocities in the levels. reduces the air velocity in the belt entry, ventilation plan based on specific mine A commenter supported the proposal this could result in less scouring and conditions. Final § 75.350(b)(8) requires but suggested that exceptions to the lower respirable dust concentrations. As that the air velocity in the belt entry minimum and maximum velocities be the Panel indicated, the operator should must not exceed 1,000 feet per minute. approved at MSHA headquarters. For implement improved engineering It provides that when requested by the the reasons outlined above, MSHA controls whenever possible, or use air mine operator, the district manager may believes that the district manager is in from another intake air course. approve higher velocities in the the most appropriate position to make a During the rulemaking process and at ventilation plan based on specific mine judgment on this issue. each of the public hearings, the Agency conditions. Another commenter objected to any solicited comments on the proposal. A These requirements address Panel limits on the velocity of air in the belt commenter supported the proposal. Recommendation 13. The Panel entry. That commenter stated that Another commenter agreed with recommended minimum and maximum velocities greater than 1,000 feet per reducing dust concentrations, and stated air velocities in belt entries for mines minute may be necessary in gassy that the dust concentration should be as using air from belt entries to ventilate mines. However, the commenter did low as feasible. working sections. The Panel recognize that the proposal allowed the Another commenter requested that recommended a minimum velocity of district manager to approve higher MSHA not include this proposal in the 100 feet per minute, and a maximum of velocities in specific situations. final rule because there is no scientific 1,000 feet per minute in the belt entry, justification for reducing the intake but acknowledged that there are Consistent with the Panel content of air that does not contain situations where these velocities may be recommendation, MSHA believes quartz in excess of five percent. The difficult to maintain. For this reason, the establishing limits on velocity in the commenter stated that there is no Panel recommended allowing the final rule, with the district manager connection between the designated area district manager to approve exceptions being able to approve exceptions to the in the belt area and areas on the working to the minimum and maximum limits, is justified for mines using air section where there would be a reduced velocities. from the belt entry to ventilate working standard. The Panel provided three reasons for sections. Another commenter stated that the requiring a minimum velocity of 100 Final § 75.350(d)(1), like the proposal, proposal was unnecessary because feet per minute: Improve the response revises the existing standard. It requires respirable dust samples must still be time for fire detection; reduce the that the air current that will pass collected at the affected designated possibility of methane layering; and through the point-feed regulator must be areas or designated occupations. This mitigate underground fog formation. monitored for carbon monoxide or commenter stated that additional The Panel recommended limiting the smoke at a point within 50 feet upwind reduction of dust concentrations to less maximum velocity to 1,000 feet per of the point-feed regulator. It also than 1.0 mg/m3 should not be required minute to address physical discomfort requires that a second point must be unless sample results from the to workers when air from the belt entry monitored 1,000 feet upwind of the designated area or occupations indicate is used to ventilate working sections. point-feed regulator, unless the mine non-compliance with the existing Also, according to the Panel, when air operator requests a lesser distance to be standard. from the belt entry is used to ventilate approved by the district manager in the The mine ventilation system must working sections, increased velocity mine ventilation plan based on mine- provide the necessary air quantity and will result in a greater entrainment of specific conditions. velocity to dilute and disperse the dust particles, resulting in a need to The final rule addresses Panel airborne dust generated in the working limit the velocity. Recommendation 16. The Panel section. This requires the intake air The Panel noted that it may be recommended that mines using air from ventilating working sections to be difficult to achieve minimum air the belt entry to ventilate working sufficiently uncontaminated to maintain velocities in locations outby point-feed sections install, where possible, a compliance with applicable dust regulators, and where the air meets a second carbon monoxide sensor in the standards. MSHA recognizes that partial obstruction like an airway primary escapeway 1,000 feet upwind of permitting air from the belt entry to constriction at an overcast or undercast. the sensor required by the existing ventilate working sections increases the MSHA believes that additional areas standard. MSHA believes that this final quantity of air at the working place. The where minimum air velocities may be rule will expedite escape in the case of Agency also recognizes that conveyor hard to achieve include those areas a fire or other emergency, since a fire in belt entries represent a constant and where entry height is exceptionally the primary escapeway may be detected potentially significant dust generating high. before contaminants inundate the source that can contribute to the Consistent with the Panel’s alternate escapeway. This early-warning respirable dust exposure of all miners recommendation, the final rule provides will provide the AMS operator and on the working section. Consistent with that the district manager may approve responsible person with additional time
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to assess potential hazards and regulator after consulting with the duties as long as the alert, alarm and determine necessary corrective actions. responsible person designated by the malfunction signals can be seen or MSHA is aware that point-feeding air mine operator to take charge during heard, and a timely response can be from the primary escapeway to the belt mine emergencies. initiated. The final rule will assure that entry designated as the alternate Several commenters indicated that the AMS operator’s other duties do not escapeway can present significant closure of a point-feed regulator would adversely affect the primary problems for miners who must evacuate be a major ventilation change. The responsibility of responding to AMS the mine due to a fire in the primary commenters noted that the change can signals. escapeway. The second sensor would reduce the intake air quantity on a Commenters supported this provision, monitor the primary escapeway for fire. working section and create hazardous but were concerned that AMS operators Agency experience suggests this is conditions. These commenters were may have other duties not directly possible in most cases since point-feed opposed to requiring a means to related to safety and health. These regulators are typically near the mouth remotely close or re-open point-feed commenters also stated that AMS of development panels or deep into the regulators due to the possibility of operators should not have other mains of the mine. However, the final inadvertent closure, which could create responsibilities during an emergency. rule allows operators to request that a explosive atmospheres in working In response to these comments, the lesser distance be approved by the places. A commenter stated that these final rule adds a requirement clarifying district manager in the mine ventilation types of air changes should be that, in the event of an emergency, the plan based on mine-specific conditions, performed only by trained mine rescue sole responsibility of the AMS operator for example, near intake shafts where personnel with MSHA approval, and shall be to respond to the emergency. the distance from the point-feed only after the mine was evacuated. This will assure that an AMS operator regulator to the bottom of the shaft may MSHA agrees that closure of a is performing those duties essential to be less than 1,000 feet. regulator can reduce the intake air the safety and health of miners during A commenter suggested that similar quantity on a working section, and may an emergency. protection should be required for cause sudden and rapid increases in Section 75.351(e)—Location of locations where air is introduced from methane concentrations on the working Sensors—Belt Air Course a shaft or slope into the belt air course sections. Closing regulators without (injection point). MSHA does not properly notifying sections may lead to Final § 75.351(e)(1), like the proposal, consider these locations to be point-feed an ignition in the face area, fires and revises and renumbers existing regulators. This commenter’s suggestion explosions. § 75.351(e). Under final § 75.351(e)(1), is beyond the scope of the Panel’s After a review of the comments, the the term ‘‘approved’’ has been added to recommendation and this rulemaking. Agency has determined, based on its clarify that all sensors used for fire Other commenters stated a sensor experience with making ventilation detection must be approved under installed 1,000 feet out by a point-feed changes during emergencies that the existing § 75.1103–2. In addition, the regulator did not provide additional existing requirement that point-feed term ‘‘smoke sensors’’ has been deleted. protection and was not necessary. In its regulators be provided with a means to The requirements for smoke sensors are report, the Panel recommended close the regulator from the intake and addressed in final § 75.351(e)(2). installation of this sensor to provide belt air courses within the mine is the Final §§ 75.351(e)(1)(i) and (ii), like earlier warning of a fire in the intake, most appropriate method for making the proposal, renumber existing and to eliminate possible false alarms. this ventilation change during a mine §§ 75.351(e)(1) and (2). Final MSHA agrees that these sensors can emergency. This allows an on-site § 75.351(e)(ii) makes nonsubstantive provide early detection of a fire in the evaluation of the circumstances changes for clarity and ease of reading. intake, and enhance miner safety. surrounding the emergency, and No other changes have been made to Proposed § 75.350(d)(7) is not prevents an inadvertent or unauthorized these provisions. included in the final rule. The proposal closure from the surface. Final § 75.351(e)(1)(iii), like the would have required that where point- proposal, renumbers and revises feeding air from a primary escapeway to Section 75.351(b)—Designated Surface existing § 75.351(e)(3). It requires a belt entry designated as an alternate Location and AMS Operator approved sensors at intervals not to escapeway, point-feed regulators be Final § 75.351(b)(2), like the proposal, exceed 1,000-feet along each belt entry; equipped with a means to remotely revises the existing standard. It requires however, in areas along each belt entry close the regulator. It would have also that the AMS operator must have as a where air velocities are between 50 and required that the AMS operator, after primary duty the responsibility to 100 feet per minute, spacing of sensors consultation with the responsible monitor the malfunction, alert and must not exceed 500 feet. It also retains person and section foreman, be capable alarm signals of the AMS, and to notify the existing requirement that in areas of performing this function from the appropriate personnel of these signals. along each belt entry where air designated surface location. The final In response to comments and to clarify velocities are less than 50 feet per rule does not include a requirement for the Agency’s intent, the final rule is minute, the sensor spacing must not providing a means for closing or re- changed from the proposal to include a exceed 350 feet. opening the regulator from the requirement that, in the event of an The requirement for a minimum designated surface location. emergency, the sole responsibility of the velocity in the belt entry is based on the The proposed rule addressed Panel AMS operator shall be to respond to the time it would take for carbon monoxide Recommendation 16. The Panel emergency. or smoke to travel from a fire to the recommended that, when carbon The final rule addresses Panel sensors. When the air velocity is monoxide sensors detect alert or alarm Recommendation 12. The Panel reduced, the time required to carry levels of carbon monoxide and the mine indicated that the highest priority of the carbon monoxide gas or smoke to a has designated the belt entry as the AMS operator should be monitoring and sensor is increased. Therefore, the alternate escapeway, the AMS operator responding to system signals. Under the distance between sensors needs to be should have the ability and authority to final rule, the AMS operator is not reduced to maintain the same level of remotely close or open the point-feed prohibited from performing additional early-warning fire detection.
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The 500-foot spacing interval for Final § 75.351(e)(1)(v), like the installed at intervals not to exceed 3,000 velocities between 50 and 100 fpm, like proposal, renumbers existing feet along each belt entry. The Agency the proposal, is a new requirement. § 75.351(e)(5). No other changes have is not requiring a smoke sensor to be MSHA calculated the spacing been made. installed near the midpoint of the belt requirement, which provides a 10- Final § 75.351(e)(2), like the proposal, line as recommended by the Panel. The minute maximum travel time for gases is a new provision. It requires smoke midpoint of the belt line will change as between sensors. The 500-foot spacing sensors to be installed to monitor the the section advances or retreats, which requirement with a velocity between 50 belt entry under final § 75.350(b). The would require splicing of the data line and 100 fpm is equivalent to the 1,000- final rule addresses Panel when relocating the smoke sensor. The foot sensor spacing with 100 fpm air Recommendation 9 that MSHA require frequent splicing of the data lines could velocity. The time for carbon monoxide the use of smoke sensors in addition to allow moisture and dust to enter the gas or smoke to travel from a fire to a carbon monoxide sensors in mines line and may result in communication downwind sensor is no greater than 10 using air from a belt entry to ventilate failures. Miners have indicated that minutes. working sections at three specific frequent splicing of the cable containing A commenter supported the locations. the AMS data line can adversely affect provision, but stated that the When smoke sensors become the reliability of a system. effectiveness of the reduced sensor available, mine operators must comply MSHA believes the requirement for spacing should be demonstrated in the with the requirements for installing both smoke sensors along the belt entry is mine. The Agency has extensive smoke and carbon monoxide sensors in responsive to the Panel’s goal for more experience and data on the air flow those mines that use air from the belt effective and reliable early detection of characteristics in belt conveyor entries, entry to ventilate the working section. conveyor belt fires. The final rule would including tracer gas tests and ventilation Final § 75.351(e)(2)(i), like the avoid problems associated with frequent surveys. That experience and data show proposal, requires a smoke sensor to be relocation of the smoke sensor. The that reduced sensor spacing installed at or near the working section 3,000-foot spacing requirement provides requirements are effective for detecting belt tailpiece in the air stream longer belts to be monitored at carbon monoxide produced by a fire. ventilating the belt entry. In addition, in additional locations. MSHA believes further testing at each longwall mining systems, the sensor Final § 75.351(e)(2)(iv), like the mine site is not necessary. must be located upwind in the belt proposal, provides that the smoke Final § 75.351(e)(1)(iv), like the entry at a distance no greater than 150 sensor requirements of this final rule are proposal, renumbers and revises feet from the mixing point where intake effective one year after the Secretary has existing § 75.351(e)(4). It requires air is mixed with the belt air at or near determined that a smoke sensor is approved sensors not to be more than the tailpiece. available to reliably detect fire in 100 feet downwind of each belt drive A smoke sensor at or near the section underground coal mines. This final rule unit, each tailpiece transfer point, and tailpiece will warn miners of smoke is consistent with the Panel’s suggested each belt take-up. In addition, if the belt prior to it contaminating the working delayed effective date for the smoke drive, tailpiece, and/or take-up for a section. This allows more time for sensor requirement, to permit in-mine single transfer point are installed miners to evacuate the section with less evaluation of the sensors. The Panel together in the same air course, and the exposure to potentially toxic fumes. noted reliability and maintenance issues distance between the units is less than Final § 75.351(e)(2)(ii), like the with the use of smoke sensors in 100 feet, they may be monitored with proposal, requires a smoke sensor to be underground coal mines, especially one sensor downwind of the last installed not more than 100 feet along conveyor belt entries. component. Also, if the distance downwind of each belt drive unit, each NIOSH is currently testing smoke between the units exceeds 100 feet, tailpiece, transfer point, and each belt sensors used in other harsh industrial additional sensors are required take-up. In addition, if the belt drive, environments for their potential use in downwind of each belt drive unit, each tailpiece, and take-up for a single underground mines. NIOSH is tailpiece transfer point, and each belt transfer point are installed together in evaluating these sensors to assess take-up. the same air course, and the distance reliability and service life. A commenter supported the proposal, between the units is less than 100 feet, To allow for further in-mine and added that the sensors should also they may be monitored with one sensor evaluation and approval of smoke be visually examined during the preshift located downwind of the last sensors, the Secretary’s determination examination. Existing standards require component. Also, if the distance will be made after a nationally these sensors to be visually examined at between the units exceeds 100 feet, recognized testing laboratory formally least once each shift because they are additional sensors are required lists a smoke sensor specifically tested installed to comply with § 75.350(b). downwind of each belt drive unit, each for use in underground coal mines. In The examination can be made during tailpiece, transfer point, and each belt making the determination regarding the either the preshift or on-shift take-up. These components are potential availability of smoke sensors, the examination. fire sources. The additional sensors will Secretary will also consider whether Another commenter suggested the assure earlier detection of a fire. additional rulemaking is appropriate. provision should apply only to mines Based upon the Panel’s report and MSHA will notify mine operators of the using air from the belt entry to ventilate Agency experience and data, MSHA availability of smoke sensors by the working section. While the final rule believes that smoke sensors provide publishing a notice in the Federal applies only to mines using air from the additional protection at the belt drive, Register. belt entry, the same requirement is which can be a major source of The final rule is based on the included in final § 75.1103–4(a)(1)(i) frictional heating from belt slippage. Secretary’s authority under existing and applies to all mines using belt This can often produce significant § 75.1103–2 to approve nationally haulage. Belt drives, tail pieces, transfer smoke with little carbon monoxide, and recognized testing laboratories. The points and take-up units are potential can result in a belt fire. Secretary has approved two such fire sources. The additional sensors will Final § 75.351(e)(2)(iii), like the laboratories for listing or approving assure earlier detection of a fire. proposal, requires smoke sensors to be components of automatic fire sensors.
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They are Underwriters Laboratories (UL) sensors, and for mine operators to must travel to all working sections. The and Factory Mutual (FM). These purchase and install them. Panel stated that some AMS operators laboratories establish standards for A commenter supported the locations do not travel underground, and manufacturers of components of of smoke sensors but wanted sensors to recommended that they be required to automatic fire sensors used in be placed at intervals not to exceed spend at least a day underground on a underground coal mines. 1,500 feet and to have smoke sensors semi-annual basis. MSHA has recommended a change to placed at every transfer point along each a commercial standard for smoke belt line. Consistent with the Panel Several commenters objected to the detectors to be applied to address sensor recommendation, the Agency believes a proposal, stating that some AMS reliability in underground coal mines. 3,000-foot interval achieves the operators are disabled and may not be In December 2002, the Agency asked UL objective for placing a sensor near the able to travel underground safely. In to add a category for smoke sensors for midpoint of each belt flight. MSHA support of their objection, they stated underground coal mines to their recognizes that once a smoke sensor has that some of these AMS operators are commercial performance standard for been approved for use in underground miners with substantial underground smoke sensors (UL268). In MSHA’s coal mines, adjustments to spacing experience and, under the proposal, request to UL, the Agency asked that the requirements may be necessary based on would be precluded from operating the performance standard for smoke sensors in-mine testing. AMS. Another commenter stated that include tests for sensitivity to Section 75.351(q)—Training accommodations can be made for smoldering and flaming coal. UL has disabled AMS operators to travel formed a new working group, which Final § 75.351(q)(1), like the proposal, underground. includes an MSHA representative, to revises existing § 75.351(q). It requires study false alarms caused by coal mine that all AMS operators must be trained Other commenters supported the dust and other airborne particulates. annually in the proper operation of the proposal because they recognize the MSHA’s Program Policy Manual AMS. It requires that training include value of the AMS operator being (Manual) provides additional guidance the following subjects under final familiar with underground workings. In on the requirements of § 75.1103–2. The paragraphs (q)(1)(i) through (vii): their view, this familiarity gives AMS Manual states that fire sensors used in Familiarity with underground mining operators a greater sense of what needs belt entries must be listed or approved systems; basic AMS requirements; the to be done during an emergency. These by UL or FM. New or unique devices to mine emergency evacuation and commenters also stated that a greater be used as fire sensors that are not yet firefighting program of instruction; the frequency than every six months may be listed by UL or FM and which may meet mine ventilation system including needed. the requirements of these standards can planned air directions; appropriate Consistent with the Panel be submitted to MSHA’s Office of responses to alert, alarm and recommendation, MSHA believes it is Technical Support for a determination malfunction signals; use of mine important for AMS operators to travel of whether they are acceptable to use. communication systems including underground to retain familiarity with Once a laboratory has formally listed emergency notification procedures; and a smoke sensor for use in underground AMS recordkeeping requirements. underground mining systems including coal mines, the Secretary will evaluate The final rule is consistent with Panel haulage, ventilation, communication, the sensor to determine if it will reliably Recommendation 12 which specifies the and escapeways. MSHA appreciates detect a fire in the underground content of required annual training for commenters’ concerns for disabled environment. MSHA believes that, once AMS operators. miners, but the Agency believes that the smoke sensors for underground coal Under the final rule, training should accommodations can be made to allow mines are available, one year will allow address the specific conditions and disabled AMS operators to meet this mine operators using air from the belt practices at the mine where the AMS requirement. MSHA also believes that entry to ventilate working sections operator is employed. Based on Agency the six-month frequency recommended sufficient time to purchase and install experience, MSHA believes an by the Panel is appropriate to provide the sensors. The Agency intends to keep understanding of these subjects is AMS operators with current information the mining community informed of essential to properly perform the duties on the underground operation. ongoing activities with respect to the of an AMS operator. development of smoke sensors for A commenter supported the specified Final § 75.351(q)(3) is changed from underground coal mines. content of the proposed training but the proposal to be consistent with the Some commenters supported the stated that the training under the existing requirement to keep training proposal, but stated that smoke sensors proposal should not be part of the records for one year. It requires a record are currently available. They added that annual Part 48 training. This commenter of the content training, the person upon approval, installation should be also stated that AMS operators should conducting the training, and the date immediate and not be delayed by receive training on system maintenance the training was conducted to be allowing one year for compliance. Other and calibration in order to better judge maintained at the mine for at least one commenters stated that smoke detectors when the system may need year by the mine operator. The final rule should not be required until they are maintenance. allows MSHA to verify the training in reliable and commercially available. The training required in the final rule the previous year has been conducted. NIOSH has not found smoke sensors is separate from annual refresher Several commenters objected to the to be reliable for fire detection in the training in Part 48. AMS operators will proposed requirement to maintain the mine environment. Research continues receive training on those aspects of training records for two years, stating to identify technology that can be maintenance and calibration that are that it was inconsistent with other adapted to the mine environment, and directly related to alert, alarm, and existing record retention requirements. MSHA intends to require smoke sensors malfunction signals. when available. The Agency believes Final § 75.351(q)(2), like the proposal, One commenter supported the proposal. that one year is an appropriate time is new and requires that, at least once For consistency, the final rule includes period for manufacturers to produce the every six months, all AMS operators a one year record retention period.
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Section 75.352—Actions in Response to as the alternate escapeway. This would belt entry to ventilate working sections AMS Malfunction, Alert, or Alarm include any entries designated as the to evaluate the number of occurrences of Signals escapeway common with the belt. This false alarms due to diesel exhaust. In Final § 75.352(f), like the proposal, signal must be given when sensors those instances where such false alarms makes a conforming reference and monitoring the primary escapeway are excessive, the Panel recommended organizational changes to the existing indicate a potential fire. The signal, MSHA should require the use of diesel- standard. It deletes the term ‘‘50-foot per which is in addition to the signals discriminating sensors. Based on Agency experience and data, minute’’ and replaces the reference to provided to affected sections, will provide miners in the area with early diesel exhaust contains carbon § 75.351(e)(3) with § 75.350(b)(7). monoxide, and can activate alerts and Final § 75.352(g), like the proposal, is notification that there is a potential fire alarms. Under these circumstances, new. It requires that the AMS in the primary intake, and that the alternate escapeway could become these signals may not be the result of a automatically provide both a visual and contaminated. The signal would allow fire, but the result of diesel equipment audible signal in the belt entry at the those miners to take early and operating in the area. An excessive point-feed regulator location, at affected appropriate action. number of these alert and alarm signals sections, and at the designated surface can cause miners to become complacent location when carbon monoxide Section 75.371—Mine Ventilation Plan; and routinely ignore them as false concentrations reach (1) the alert level Contents alarms. The benefit of diesel- at both point-feed intake monitoring Final § 75.371(jj), like the proposal, discriminating sensors is that the sensors, or (2) the alarm level at either revises the existing standard. It requires frequency of signals caused by diesel point-feed intake monitoring sensor. that the mine ventilation plan contain engines is reduced. The final rule addresses Panel the locations and approved velocities at The final rule provides that the Recommendation 16 that when both of those locations where air velocities in district manager may require the use of the sensors installed in the primary the belt entry are above or below the diesel-discriminating sensors in the escapeway monitoring the point feed limits set forth in final § 75.350(a)(2) or approved mine ventilation plan. It reach the carbon monoxide alert level, final §§ 75.350(b)(7) and 75.350(b)(8). requires that the operator include in the or if one sensor reaches the alarm level, The final rule addresses Panel ventilation plan the locations of any a warning signal be given at the Recommendation 13 regarding the diesel-discriminating sensors. The regulator location. The Panel’s approval of air velocities in the belt district manager decision to require the recommendation addresses point-feed entry. Although the Panel recommended use of these sensors will be based on regulators where air is introduced to a minimum and maximum velocities in mine conditions where diesel-powered belt entry and used to ventilate the the belt entry, they recognized that in equipment is used and excessive alert working section. The Panel specifically certain areas of underground coal mines and alarm signals are caused by diesel limited this recommendation to point- it may be difficult to achieve these exhaust. Since the final rule is feed regulators feeding the belt entries velocities. The Panel specifically noted applicable to all mines using belt designated as alternate escapeways. that this may occur in the outby air split haulage, the reference to existing The final rule provides that visual and near a point-feed regulator, or where the § 75.351(e)(5), that relates to mines audible signals be automatically air meets a partial obstruction like an using air from the belt entry to ventilate activated at all three locations when airway constriction at an overcast or the working section, is deleted. concentrations of carbon monoxide at undercast. Where the recommended MSHA conducts periodic reviews of both of the sensors in the intake velocities cannot be achieved, the Panel AMS records during regular inspections escapeway reach the alert level or when recommended that the district manager of the mine. MSHA re-emphasized one sensor reaches the alarm level. may approve exceptions in the mine procedures for inspecting an AMS in a The signal at the regulator would ventilation plan, dependent upon recently revised Agency handbook, provide notice to miners nearby that a specific mine conditions. which specifically provides inspectors fire may have occurred in the primary MSHA believes that requiring with guidance on evaluating the escapeway. This information will assist approval in the mine ventilation plan frequency of diesel-related alert and miners in evacuating the mine. will allow the district manager to fully alarm signals (Carbon Monoxide and The Panel did not specify in which evaluate the conditions in the mine Atmospheric Monitoring Systems escapeway the signal is to be located. including all aspects of the mine Inspection Procedures MSHA Handbook The final rule specifies that the signal be ventilation system. In making a PH–08–V–2, February, 2008). located in the belt entry (alternate determination on whether to approve Final § 75.371(nn), like the proposal, escapeway). Since the purpose of the requested velocities, the district revises the existing standard. It requires signal is to warn of a potential fire in the manager would evaluate the need for that the mine ventilation plan contain primary escapeway, MSHA believes that increasing fire detection sensitivity by the length of the time delay or any other it is more appropriate to locate the adjusting alert and alarm levels for high method used to reduce the number of signal on the belt side of the regulator. velocities or reducing sensor spacing for non-fire related alert and alarm signals A commenter stated that since the low velocities. from carbon monoxide sensors. signal is in an area that is normally Final § 75.371(mm), like the proposal, This final rule addresses Panel unmanned, it would not be useful. That revises the existing standard. It requires Recommendation 8 on discontinuing commenter further stated that if a signal that the mine ventilation plan contain the use of point-type heat sensors, and is required, it should only alarm when the location of any diesel-discriminating replacing them with carbon monoxide the point feed regulator has been closed, sensor, and additional carbon monoxide sensors for early fire detection in all and the signal should only be required or smoke sensors installed in the belt air mines using belt haulage. Existing if the belt entry is designated as the course. § 75.351(m) requires that the use and alternate escapeway. The final rule addresses length of any time delays be approved Consistent with the Panel Recommendation 10 that MSHA by the district manager in the mine recommendation, the signal is required perform regular, periodic reviews of the ventilation plan for mines using air from only where the belt entry is designated AMS records at mines using air from a the belt entry to ventilate the working
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section. Time delays may also be These protections would include feedback distinguishable from other necessary in some mines that do not use enhanced stopping construction and markings to indicate the location of air from the belt entry to ventilate design, or changes to the ventilation physical impediments in the working sections to aid in the reduction system. escapeways, are not included in the final rule. of false alarms. Like the proposal, final Sections 75.380—Escapeways; § 75.1103–4 requires the use of carbon Bituminous and Lignite Mines, and The final rules address Panel monoxide sensors. Therefore, time 75.381—Escapeways; Anthracite Mines Recommendation 15. The Panel made delays for these mines must also be recommendations on tactile signals approved in the mine ventilation plan. Final §§ 75.380(d)(7)(v) and attached to lifelines and signal Accordingly, the final rule deletes the 75.381(c)(5)(v), like the proposal, revise standardization. reference to existing § 75.351(m) the existing standards. They require that each lifeline be equipped with one Several commenters supported the because this final rule applies to all proposed standardization of tactile mines using belt haulage. directional indicator cone securely attached to the lifeline, signifying the signals, but believed the proposed rule Proposed § 75.371(yy) would have created a system of cones that was too required that the mine ventilation plan route of escape, placed at intervals not exceeding 100 feet. In addition, cones complicated. These commenters wanted contain the locations where airlock a simpler system that would be easier to doors are installed between air courses. must be installed so that the tapered section points inby. The final rule adds remember during a mine emergency. Several commenters suggested that Several of these commenters also including the locations in the the phrase ‘‘securely attached to the lifeline’’ to clarify the Agency’s intent stressed the need for adequate training ventilation plan is unnecessary since for miners. those locations are already required on under the proposal. Final §§ 75.380(d)(7)(vi) and Another commenter believed the mine ventilation map. Commenters 75.381(c)(5)(vi), are renumbered and standardization was not necessary, and also stated that no approval to install an changed from proposed that mines should be permitted to airlock should be required in the §§ 75.380(d)(7)(vii) and 75.381(c)(5)(vii). continue to use signals they have ventilation plan. MSHA concurs that the They require each lifeline to be developed, which have been used for an mine ventilation map is the appropriate equipped with one sphere (such as a extended period of time. This place to identify airlock locations. tennis ball) securely attached to the commenter believed changing the tactile Therefore, proposed § 75.371(yy) is not lifeline at each intersection where signals may create confusion. This included in the final rule. personnel doors are installed in adjacent commenter also stated the proposal Proposed § 75.371(zz) is renumbered crosscuts. would require replacing miles of lifeline to § 75.371(yy). It requires that the mine Final §§ 75.380(d)(7)(vii) and in their mine and retraining hundreds of ventilation plan contain the locations 75.381(c)(5)(vii), are new. The final rule miners for little benefit. where the pressure differential cannot responds to comments by simplifying During the rulemaking process and at be maintained from the primary the proposal. The final rule requires that escapeway to the belt entry. the beginning of each public hearing, each lifeline be equipped with two the Agency specifically solicited The final rule addresses Panel securely attached cones, installed in Recommendation 14 that primary comments on alternate tactile signal succession with the tapered section markings. The Agency received no escapeways be ventilated with intake air pointing inby, to signify an attached preferably, and to the extent possible, specific comments suggesting branch line is immediately ahead. alternatives to its proposal. the primary escapeway should have a Final §§ 75.380(d)(7)(vii)(A) and higher pressure than the belt entry. The 75.381(c)(5)(vii)(A) are renumbered and In response to comments, the final final rule allows the district manager to changed from proposed rule requires a simpler system of tactile evaluate specific mine conditions and §§ 75.380(d)(7)(vi) and 75.381(c)(5)(vi). signals. The Agency continues to require additional actions or They require a branch line leading from believe that a standardized system will precautions to be taken to protect the the lifeline to an SCSR cache to be reduce the possibility of confusion in an integrity of the primary escapeway, as marked with four cones with the base emergency, and will provide an appropriate. sections in contact to form two diamond additional safety benefit to miners who A commenter suggested that requiring shapes. The cones must be placed transfer to different mines, because they approval in the ventilation plan of within reach of the lifeline. would not have to become familiar with locations where pressure differentials Final §§ 75.380(d)(7)(vii)(B) and new signal systems. cannot be maintained would require 75.381(c)(5)(vii)(B) are renumbered and The final rule requires only three frequent and unnecessary changes. changed from proposed signals to be attached to the lifeline. MSHA believes these areas must be §§ 75.380(d)(7)(ix) and 75.381(c)(5)(ix). These are for direction of travel, identified in the plan to allow an They require a branch line leading from location of personnel doors, and to alert evaluation of the methods used to limit the lifeline to a refuge alternative to be miners that a branch line is ahead that air leakage into the primary escapeway. marked with a rigid spiraled coil at least would lead to either an SCSR storage The Agency expects that in areas where eight inches in length. The spiraled coil cache or a refuge alternative. Additional the pressure differentials cannot be must be placed within reach of the signals are required on the branch lines maintained from the primary escapeway lifeline. to identify whether it leads to an SCSR to the belt, mine operators will provide Proposed §§ 75.380(d)(7)(viii) and storage cache or a refuge alternative. additional protection to maintain the 75.381(c)(5)(viii), which required each Illustration 1 shows how these signals integrity of the primary escapeway. lifeline be marked to provide tactile should be installed.
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The final rule does not include a provided with lifelines or an equivalent escapeway to the belt air course. A tactile signal to indicate the location of device. The new requirements for tactile higher pressure in the primary physical impediments in the escapeway. signals are applicable to any device escapeway would assure that air leakage By not including this signal, the Agency used to comply with these sections. would move from the escapeway to the has simplified the signals on the Final §§ 75.380(f) and 75.381(e), like belt entry. In case of a fire in the belt lifeline. The Agency believes that the the proposal, revise the existing entry, the primary escapeway would not locations of physical impediments can standards on the primary escapeway. become contaminated. Under the final be addressed during evacuation They provide that one escapeway, rule, an operator may submit an training. ventilated with intake air, shall be alternative in the mine ventilation plan, In another rulemaking, MSHA is designated as the primary escapeway. based on mine specific conditions, to establishing new requirements for The final rules require that the primary protect the integrity of the primary refuge alternatives in underground coal escapeway shall have a higher escapeway. The alternative must be mines. Because tactile signals on ventilation pressure than the belt entry approved by the district manager. lifelines are addressed in this final rule, unless the mine operator submits an to provide a comprehensive and alternative in the mine ventilation plan There are two components to air integrated approach for these to protect the integrity of the primary leakage. First, the flow from one entry requirements, the Agency is including escapeway, based on mine specific to the other is caused by the pressure the requirement for tactile signals conditions, which must be approved by differential. Air will tend to flow from leading to refuge alternatives in this the district manager. high to low pressure. The other rulemaking. In the proposal, the Agency The final rules address Panel component is the resistance to flow. A would have required a two-foot rigid Recommendation 14. The Panel high resistance will not allow high air coil as a tactile signal for refuge recommended that primary escapeways flow rates even when the pressure alternatives. The proposed requirement should be designed, constructed, and differentials are considerable. A key to has been changed to a rigid spiraled coil maintained in accordance with the limiting air leakage through a at least eight inches in length. provisions of existing §§ 75.333(b) ventilation control is to increase the These signals, when integrated with through (d) to minimize the air leakage. resistance by sealing the control and its the comprehensive escape and The Panel also recommended that perimeter. Historically, MSHA has evacuation plan, including escapeway primary escapeways be ventilated with identified damaged and improperly drills and expectation training, will help intake air and, to the extent possible, the installed doors as sources of high air miners understand the differences in, primary escapeway should have a leakage. Openings in stoppings to and significance of, tactile signals and higher pressure than the belt entry. provide routing of air and water lines, aid in evacuating the mine. Based on Agency experience, MSHA electrical conductors and other conduits Existing §§ 75.380(d)(7) and recognizes the need to maintain the must also be sealed to minimize air 75.381(c)(5) require escapeways to be pressure differential from the primary leakage. When these conduits are
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removed, ventilation controls must be The final rule eliminates the existing As stated in the proposal, this properly repaired. requirement to identify the belt flight on requirement is intended to provide early The Agency does not support the use which the system detects fire. When fire detection at the belt drive where of check curtains or other temporary point-type heat sensors are used for fire there are multiple belt components, ventilation controls such as parachute detection, they are designed to identify which are potential fire sources, and the stoppings to increase the resistance in the belt flight on which the fire occurs. distance between these components the primary escapeway in order to Carbon monoxide sensors provide a exceeds 100 feet. The final rule allows pressurize the air course during normal more precise identification of the one sensor to monitor the drive, take-up, mining. The use of such controls on a location, to within 1,000 feet. and tailpiece if the distance is less than regular basis diminishes the efficiency The final rule supersedes granted 100 feet. When sensors need to be of the ventilation system. petitions for modification that allowed installed in high places, the mine Commenters stated that mine mine operators to use carbon monoxide operator can use mechanisms that allow operators should be required to sensors equivalent to point-type heat sensors to be temporarily lowered to a maintain the pressure differential from sensors. Mines operating under these location where they can be safely the primary escapeway to the belt entry petitions must comply with the accessed for maintenance purposes. at all times, and that alternatives should requirements in the final rule. Mines Final § 75.1103–4(a)(1)(ii), like the not be approved in the mine ventilation that have installed carbon monoxide proposal, requires a sensor to be plan, but only in petitions for sensors in lieu of point-type heat installed in the belt entry not more than modification. A commenter also stated sensors must comply with the final rule. 100 feet downwind of each section the pressure in the primary escapeway Commenters supported the proposal. loading point. This sensor monitors the should at all times be at least 50 percent A commenter stated that carbon section loading point, and provides higher than that in the belt entry. monoxide sensors provide for a safer miners on the section with warning of Other commenters indicated that method of detecting fires than point- fire in the belt entry. A commenter maintaining the pressure differential as type heat sensors. supported the proposal. Final § 75.1103–4(a)(1)(iii), like the proposed may not be feasible in all areas Final § 75.1103–4(a)(1), like the proposal, requires that sensors be of the mine. proposal, requires carbon monoxide located along the belt entry so that the Consistent with the Panel sensors to be installed at specific spacing between sensors does not recommendation, MSHA believes that to locations along belt conveyors. These exceed 1,000 feet. Where air velocities the extent possible, the primary locations maximize the potential of are less than 50 feet per minute, spacing escapeway should have a higher early warning of a fire in the belt entry, pressure than the belt entry. The must not exceed 350 feet. and are based on Agency experience The 350-foot spacing requirement has Agency’s action in the final rule reflects with the use of carbon monoxide the Agency’s opinion that it is not been shown in NIOSH research to sensors in underground coal mines. provide effective early warning of a fire possible to maintain the primary Final § 75.1103–4(a)(1)(i), like the escapeway at a pressure 50 percent in the belt entry when the air velocity proposal, requires a sensor to be placed is 50 feet per minute or less. The higher than the belt entry in all areas of not more than 100 feet downwind of the mine, as suggested by commenters. combination of sensor spacing and air each belt drive unit, each tailpiece velocity is required to assure that carbon This is especially so on development transfer point, and each belt take-up. If sections where pressures equalize near monoxide produced by a belt fire is the belt drive, tailpiece, and/or take-up transported to the sensor to provide for the section loading point. Due to unique are installed together in the same air conditions in mines, the district an effective warning. course, they may be monitored with one A commenter stated that the spacing manager is the appropriate official to sensor located not more than 100 feet requirement should be modified so that make determinations regarding downwind of the last component. sensors are placed every 500 feet to alternatives to maintaining the pressure However, if the distance between the allow the location of a fire to be differential based upon a review of the belt drive unit, tailpiece transfer point, detected with greater accuracy. Another mine operator’s proposed revision to the and belt take-up units exceeds 100 feet, commenter stated that 2,000 feet mine ventilation plan. additional sensors are required to spacing of sensors is effective. Subpart L—Fire Protection monitor each of these belt conveyor Another commenter stated that 500 components. feet would be more appropriate spacing Section 75.1103–4—Automatic Fire A commenter supported the proposal. for carbon monoxide sensors where the Sensor and Warning Device Systems; Other commenters objected to the velocity along the belt is less than 50 Installation; Minimum Requirements proposal, stating that additional sensors feet per minute. Final § 75.1103–4, like the proposal, would be unnecessary, require NIOSH research on sensor spacing has requires the use of carbon monoxide additional maintenance, and could be shown that 1,000 feet is the appropriate sensors for fire detection along belt the source of false alarms. Another distance for air velocities of least 50 conveyors in all underground coal commenter stated that one sensor fpm. Additional NIOSH research has mines. In addition, the final rule should be allowed to monitor a belt demonstrated that reduced sensor includes installation, maintenance, transfer consisting of a drive, take-up, spacing of 350 feet is necessary when air operating and training requirements and a tailpiece if all are in the same velocities are less than 50 fpm to related to the use of carbon monoxide ventilation stream. maintain early fire detection sensors. A commenter was concerned that capabilities. Final § 75.1103–4(a), like the installation of the sensor at an existing As discussed earlier, MSHA uses proposal, requires that on December 31, belt drive could expose miners to risks representative cross-sectional areas 2009 automatic fire sensor and warning when working at heights. To avoid these when determining air velocities. MSHA device systems that use carbon risks, the commenter stated that these would not use large areas (such as belt monoxide sensors shall provide sensors should not be installed at channels, boom holes, and fall areas) identification of fire along all belt existing belt drives but only at belt and restricted areas (such as overcasts) conveyors. drives installed in the future. to determine air velocities.
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Proposed § 75.1103–4(a)(1)(iv) has not requirements for carbon monoxide In making its recommendation, the been included in the final rule. It would sensor spacing. Because point-type heat Panel examined research comparing the have required sensors to be located sensors are no longer permitted, spacing fire detection capabilities of carbon upwind, a distance of no greater than 50 for the devices is no longer applicable. monoxide sensors and point-type heat feet from the point where the belt air Carbon monoxide sensors must be sensors. The Panel concluded that there course is combined with another air added when the distance from the are inherent inadequacies with point- course or splits into multiple air section loading point to the first outby type heat sensors for reliable early- courses. sensor reaches 1,000 feet when air warning belt fire detection. According to A commenter stated that the sensor velocity is at least 50 feet per minute, the Panel’s report, carbon monoxide required under the proposal is and 350 feet if the velocity is less than sensors can detect fires at an earlier unnecessary because it provides little 50 feet per minute. A commenter stage of fire development than point- additional information and should be supported the proposal. type heat sensors. The Panel found the addressed in the ventilation plan if Final § 75.1103–4(b), like the time it took for point-type heat sensors needed. MSHA concurs that this sensor proposal, requires that sensors be to alarm during a fire was much longer is not necessary. The Agency expects installed to minimize the possibility of than the time it took carbon monoxide the location of the sensors required in damage from roof falls and the moving sensors to alarm. The Panel also found the final rule will provide precise belt and its load. The sensors must be that the location and spacing of point- information on the location of a fire in installed near the center in the upper type heat sensors relative to fire location the belt entry. third of the entry, in a manner that does could result in fires not being detected Final § 75.1103–4(a)(1)(iv) is new, not expose personnel working on the in a timely manner. clarifies MSHA’s intent under the fire detection system to unsafe Research and accident investigation proposal, and requires that the location conditions. The final rule requires that reports on fires have consistently shown and identification of all carbon sensors not be located in abnormally that carbon monoxide sensors are monoxide sensors be included on the high areas or in other locations where superior to point-type heat sensors. mine maps required under existing air flow patterns do not permit products MSHA’s accident investigation report of §§ 75.1200 and 75.1505. MSHA has of combustion to be carried to the the Dilworth mine fire (MSHA, 1992 included this clarification in response to sensors. Greene County, PA), revealed that a comment that the location of sensors MSHA based this requirement on the carbon monoxide sensors were superior be on a mine map that is available to to point-type heat sensors, where both results of NIOSH research and Agency miners. This is consistent with the sensors were installed in the same belt experience with carbon monoxide existing standard related to identifying entry. The ignition source of the fire was sensors. Data has shown that during the location of stored SCSRs. located nearly midway between two both smoldering and open combustion Final § 75.1103–4(a)(2), like the heat sensors spaced at 50 feet. The fire fires, the products of combustion proposal, requires that where used, was detected by the carbon monoxide stratify, leaving higher concentrations of sensors responding to radiation, smoke, sensor located 1,400 feet downwind of smoke and carbon monoxide near the gases, or other indications of fire, shall the fire. The fire was extinguished by mine roof. Based on this, NIOSH be spaced at regular intervals to provide miners without injury and with only recommended installing sensors near protection equivalent to carbon little damage in the belt entry. The heat the roof of the entry to take advantage monoxide sensors, and installed within sensors installed along the belt did not of stratification. MSHA’s experience is the time specified in this final rule. detect the fire. The final rule removes the reference that when operators do not properly to point-type heat sensors and replaces install sensors, fire detection can be Section 75.1103–5—Automatic Fire it with carbon monoxide sensors. As hindered or delayed. For example, Warning Devices; Actions and stated earlier, point-type heat sensors sensors that are installed behind Response. cannot be used for fire detection along equipment or other obstructions may Final § 75.1103–5, like the proposal, belt conveyors. not be exposed to the products of has been retitled. It adds requirements A commenter supported this proposal combustion contained in the air stream, for initiating warning signals and and stated that point-type heat sensors thereby impairing their ability to responses for automating fire warning should only be used to activate fire provide for effective fire detection. devices. suppression systems. The final rule requires sensors to be Final § 75.1103–5(a), like the Final § 75.1103–4(a)(3), like the installed near the center, and in the proposal, requires that when the carbon proposal, requires that when the upper third, of the belt entry. In most monoxide level reaches 10 parts per distance from the tailpiece at loading cases, the safest location for installing a million (ppm) above the established points to the first outby sensor reaches sensor is from a roof bolt plate or belt ambient level at any sensor location, an the spacing requirements in § 75.1103– hanger located beside the belt along the effective warning signal must be 4(a)(1)(iii), an additional sensor shall be walkway. This prevents miners from provided at specific locations. installed and put in operation within 24 being exposed to hazards such as a Consistent with MSHA’s existing production shift hours. When sensors of moving belt when calibrating or standards for a warning signal to be the kind described in paragraph (a)(2) of examining sensors. A commenter effective, they must be located where this section are used, they shall be supported the proposal. they can be seen or heard. MSHA installed and put in operation within 24 The final rules, and those in experience also shows that an action production shift hours after the §§ 75.1103–5, 75.1103–6, and 75.1103–8 level at 10 parts per million above the equivalent distance that has been discussed below, address Panel ambient level provides an effective established for the sensor from the Recommendation 8. The Panel warning of a fire and allows miners the tailpiece at loading points to the first recommended that MSHA initiate opportunity to safely evacuate the outby sensor is first reached. rulemaking to discontinue the use of affected area. The final rule removes the 125-foot point-type heat sensors for early- The Agency solicited comments on spacing requirement for point-type heat warning and detection of conveyor belt the proposal. A commenter supported it. sensors and replaces it with conforming fires in all underground coal mines. Another commenter stated that at mines
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not using air from the belt entry to sensors and the intended air flow The term immediately in the final rule ventilate working sections, a warning direction at these locations to be posted means that the required actions must be level should be given at 10 ppm and an at the manned surface location. This promptly initiated after a malfunction or alarm at 15 ppm. The final rule is based map or schematic must be updated warning signal is received. The amount on a NIOSH research recommendation within 24 hours of any change in of time it takes to resolve the issue that a carbon monoxide fire warning information. depends on the occurrence. MSHA does and withdrawal of miners be initiated at The final rule is necessary to assure not intend that the use of the term 10 ppm above the ambient level. that the location of a potential fire can immediate in the final rule be defined Final § 75.1103–5(a)(1), like the be identified in a timely manner. With by the 15-minute immediate accident proposal, requires effective warning the use of carbon monoxide sensors, a notification requirement in existing signals to be provided to working fire location is identified by specific § 50.10. sections and other work locations where sensors. The sensor locations are most Final § 75.1103–5(f), like the proposal, miners may be endangered from a fire easily identifiable by using a map or requires specific procedures to be in the belt entry. schematic. The air directions are needed followed if any sensor indicates a Locations where miners may be to facilitate fire fighting activities and warning, unless the mine operator endangered would include working evacuation in the event of a fire, determines that the signal does not sections, areas where mechanized explosion or other emergency. present a hazard to miners. mining equipment is being installed or A commenter stated that this For example, if the operator knows removed, permanent work locations, information should also be on the mine that the warning signal is caused by and other locations specified in the bulletin board so that it is available to cutting and welding or calibration of a Mine Emergency Evacuation and miners. The final rule has been changed sensor, actions would not have to be Firefighting Program of Instruction to specify that the location of all carbon taken. MSHA believes that actions in required under existing § 75.1502. A monoxide sensors be included on the response to carbon monoxide commenter supported the proposal. mine maps required under §§ 75.1200 malfunction or warning signals are Final § 75.1103–5(a)(2), like the and 75.1505. These maps are available needed to assure that the protective proposal, requires that the warning early-warning capabilities of the carbon to miners. signal be provided at a manned surface monoxide sensor result in timely action Final § 75.1103–5(a)(3), like the location where personnel have an and rapid evacuation in case of proposal, is derived from the existing assigned post of duty. emergency. MSHA believes that providing the standard, and has not been changed, Final § 75.1103–5(f)(1), like the warning at a manned surface location except for the numbering. proposal, requires appropriate will facilitate timely and effective Final §§ 75.1103–5(d) through (h), like personnel to notify miners in affected evacuation of miners and improve the proposal, are new provisions which working sections, in affected areas communication with mine management. specify responses required to signals where mechanized mining equipment is This will also facilitate more effective from the automatic fire warning devices. being installed or removed, and at other decision-making in a mine emergency They are consistent with requirements locations specified in the existing and allow for required communication for responses to AMS signals in existing approved mine emergency evacuation with local emergency response § 75.352 and apply to all mines using and firefighting program of instruction personnel, appropriate state agencies, belt haulage. when a warning signal is received. and MSHA. This is consistent with the Final §§ 75.1103–5(d), like the Commenters questioned the need for Emergency Response Plan requirement proposal, requires that when a appropriate personnel to notify miners in Section 2 of the MINER Act for local malfunction or warning signal is in addition to providing the automatic communication. received at the surface location, the signal. Another commenter supported Commenters requested clarification sensor must be identified and the proposal. on the term ‘‘assigned post of duty’’. appropriate personnel be immediately It is necessary for appropriate Another commenter supported the notified. Depending upon the personnel to notify miners, in addition proposal. The term ‘‘assigned post of circumstances at the mine, appropriate to the automatic signal, to assure that duty’’ is not new and was in a personnel may include the mine miners receive the warning and requirement for mines using point-type foreman, mine electrician, or other withdrawal is initiated. Notification heat sensors. It refers to the location persons responsible for maintaining the under this final standard facilitates two- where miners are regularly assigned to sensors. way communication among those work and are able to see or hear the Final § 75.1103–5(e), like the involved and those responsible for warning signal. proposal, requires that upon notification addressing the emergency, and thus Final § 75.1103–5(a)(2)(i), like the of a malfunction or warning signal, enhances successful decision-making. proposal, retains the existing appropriate personnel must Final § 75.1103–5(f)(2), like the requirement for having a telephone or immediately initiate an investigation to proposal, requires all miners in the equivalent communication with all determine the cause of the malfunction affected areas to be immediately miners who may be endangered. or warning signal and take the required withdrawn to a safe location identified A commenter stated that the final rule action set forth in § 75.1103–5(f). The in the mine emergency evacuation and should also recognize a PED (personal final rule requires immediate corrective firefighting program of instruction upon emergency device) as an equivalent actions to assure that the appropriate notification of a warning signal. Under communication. A PED is not responses are taken in case of an the final rule, miners who are assigned equivalent to a telephone because it emergency. emergency response duties do not have does not provide two way Commenters requested clarification to be withdrawn. communications, which is essential on the term immediately as used in the Commenters stated that immediate during a mine emergency. proposal because the responses required withdrawal of all miners in affected Final § 75.1103–5(a)(2)(ii), like the may take longer than 15 minutes to areas upon notification of a warning proposal, is new. It requires a mine map accomplish. Another commenter signal without investigation would be a or schematic that shows the location of supported the proposal. problem when there are false alarms.
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Another commenter supported the sensors is patrolled so the area is Section 75.1103–8—Automatic Fire proposal. traveled each hour in its entirety. Sensor and Warning Device Systems; Once a warning signal is received, Alternatively, a trained person must be Examination and Test Requirements there is a significant likelihood that a stationed at each inoperative sensor to Final § 75.1103–8(a), like the fire has occurred and, in the confined monitor for carbon monoxide. proposal, requires that automatic fire area of an underground mine, miners Final § 75.1103–5(h)(3), like the sensor and warning device systems be must be immediately withdrawn. proposal, requires that if the complete examined at least once each shift when Waiting for the results of an fire detection system becomes belts are operated as part of a investigation could put miners at risk of inoperative continued operation of the production shift, and a functional test of being trapped by the fire. If false alarms belt is permitted if the area monitored the warning signals be made at least are occurring, the mine operator should by these sensors is patrolled so the area once every seven days. The final rule take action to reduce those alarms, such is traveled each hour in its entirety. does not include the term inspection as installing diesel-discriminating or Final § 75.1103–5(h)(4), like the that was in the proposal to clarify that hydrogen-insensitive sensors, or proposal, requires the trained persons programming time delays. examination and maintenance of the who conduct monitoring under the final system must be made by a qualified Final § 75.1103–5(g), like the rule to have two-way voice proposal, requires that, if the warning person. communication capability at intervals Increased frequency of examinations signal will be activated during not to exceed 2,000 feet. The final rule calibration of sensors, personnel and functional tests of the system better requires that persons conducting assures that the system will effectively manning the surface location must be monitoring must report carbon notified prior to and upon completion of maintain its fire warning capability so monoxide levels to the surface at that it can provide adequate warning to calibration. The final rule is changed to intervals not to exceed one hour. require that the notification be provided miners in the event of a fire. The Final § 75.1103–5(h)(5), like the to affected working sections and other increased examinations will also alert proposal, requires that trained persons areas where miners may be endangered. the mine operator to any damaged or who conduct monitoring under the final This requirement is necessary so that missing sensors and alarm units. rule to immediately report to the surface miners know that a warning signal is Under the final rule, the functional any concentration of carbon monoxide not a fire. This will apply only at mines test must be completed at intervals not that reaches 10 parts per million above where calibration of sensors would to exceed 7 days. MSHA expects the the established ambient level, unless the cause activation of warning signals; functional test to verify that warning mine operator knows that the source of many sensors have a calibration mode, signals are effective at all locations the carbon monoxide does not present a where warning signals are blocked where these signals are provided. hazard to miners. during calibration. Consistent with existing practice, A commenter stated that the proposal Final § 75.1103–5(h)(6), like the MSHA expects that functional tests will could be read to require that notice be proposal, requires that handheld include application of carbon monoxide provided to each miner before detectors used to monitor the belt entry gas to the sensors necessary to activate calibration of sensors can begin. under the final rule have a detection each warning signal. These functional Another commenter supported the level equivalent to that of the carbon tests are needed to assure that the proposal. monoxide sensors. system retains its fire warning capability Under the proposal, MSHA did not These requirements assure that so that it will provide the proper intend that the mine operator directly repairs are made in a timely manner so warning signal in case of emergency. notify each miner on the section before that the fire detection system will The Agency believes that the calibration of sensors can begin. The remain capable of warning miners of a examination requirements can be mine operator must assure that fire in the belt entry. Otherwise, the belt integrated into required preshift and on- appropriate personnel on the section are must be taken out of service until shift examinations under existing notified, who will then be responsible necessary repairs are made. A §§ 75.360 and 75.362. The examinations for informing other miners of warning commenter supported the proposal. should identify any problems with sensors such as improper installation, signals caused by calibration. Section 75.1103–6—Automatic Fire damaged or missing sensors, cables and Final § 75.1103–5(h), like the Sensors; Actuation of Fire Suppression alarm units. proposal, requires that if any fire Systems detection component becomes A commenter objected to the weekly inoperative, immediate action must be Final § 75.1103–6, like the proposal, testing requirement in the proposal. taken to repair the component. While specifies that point-type heat sensors or Other commenters stated that presently repairs are being made, the belt may automatic fire sensor and warning carbon monoxide sensors are tested and continue to operate if the requirements device systems may be used to activate calibrated monthly and that increasing in final §§ 75.1103–5(h)(1) through fire suppression systems. the frequency of testing will increase (h)(6) are met. Although the Panel recommended maintenance costs and reduce the life of Final § 75.1103–5(h)(1), like the discontinuing the use of point-type heat carbon monoxide sensors. These proposal, requires that when only one sensors for fire detection, it recognized commenters also requested clarification sensor is inoperative, continued a benefit in allowing them to be used for on whether the functional testing could operation of the belt is permitted when activating fire suppression systems. be performed monthly. a trained person is stationed at the Consistent with the Panel’s Commenters also requested that the sensor and monitors the air for carbon recommendation, point-type heat Agency clarify the terms inspection and monoxide using a hand-held detector. sensors may continue to be used to examination, which are used Final § 75.1103–5(h)(2), like the actuate deluge-type water systems, foam interchangeably in the proposal. These proposal, requires that when two or generator systems, multipurpose dry- commenters also requested clarification more adjacent sensors are inoperative, powder systems, or other equivalent on whether a functional test must be continued operation of the belt is automatic fire suppression systems. A performed on each sensor every seven permitted if the area monitored by these commenter supported the proposal. days and whether gas must be applied
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as part of the testing procedure. They time period to assure that carbon maintenance (MSHA Fatal Accident stated that weekly testing would be monoxide sensors respond effectively Report, Aracoma, Logan County, WV, burdensome for large mines and that and reliably in the event of a fire. The 2007). MSHA identified deficiencies in monthly functional testing and record will provide the mine operator belt maintenance and examinations as calibration would be sufficient. with information to make necessary root causes of the fire. Another commenter supported the repairs and maintain the system, and MSHA believes prevention of belt proposal, stating that it provided the will allow MSHA to verify that these fires is a critical element in improving upkeep needed for the carbon monoxide corrective actions were taken in a timely miners’ safety, and proper maintenance sensors to maintain their accuracy. manner. Comments supported the and examinations will reduce the Under the final rule, the weekly proposal. likelihood of fires. Improper belt functional test does not require carbon The final rule also makes conforming examinations can lead to uncorrected monoxide to be applied to every sensor. changes to existing § 75.1103–10. The hazards. This can result in frictional The purpose of the test is to determine final rule removes the reference to belt heating of combustibles in the belt if the alarm units are working properly. that is not fire resistant and to the entry, which could cause a fire. These Carbon monoxide only needs to be maximum distance between point-type requirements will assure that mine applied to a sufficient number of heat sensors. No substantive changes operators will implement proper mine sensors to activate every alarm. For were made to the existing standard. examination and maintenance example, to satisfy this requirement, procedures and that belt examiners will carbon monoxide could be applied to Subpart R—Miscellaneous identify and correct hazardous only one sensor on each section to Section 75.1731—Maintenance of Belt conditions in the conveyor belt entry to activate the alarm. Alternatively, a Conveyors and Belt Conveyor Entries improve safety of miners. single sensor could be installed on the Existing § 75.400 addresses surface or underground that is Final § 75.1731(a) modifies the accumulation of combustible materials, programmed to activate all alarms in the proposal, and requires that damaged but it does not address materials in the mine. rollers, or other damaged belt conveyor belt entry that may contribute to a The functional test must be conducted components, which pose a fire hazard frictional heating hazard. These at least once every seven days. The must be immediately repaired or materials may include rock, trash, seven-day frequency is consistent with replaced. Under the final rule, all other discarded conveyor belt parts, posts, the Agency’s existing testing procedures damaged rollers, or other damaged belt and cribs. These materials may become for carbon monoxide sensors for all conveyor components, must be repaired potential frictional ignition sources and mines using these sensors in lieu of or replaced. result in a belt fire. MSHA does not point-type heat sensors. The functional Final § 75.1731(b), like the proposal, intend that these materials include rock tests are currently being performed, requires that conveyor belts be properly dust used in the belt entry. either as part of an approved mine aligned to prevent the moving belt from It is essential that any splices in the ventilation plan or a granted petition for rubbing against the support structure or belt maintain the fire resistant modification. components. properties of the belt so that the belt Final § 75.1103–8(b), like the Final § 75.1731(c) modifies the will continue to perform as intended in proposal, requires that the mine proposal, and prohibits materials in the the approval and it will not easily ignite operator maintain a record of the belt conveyor entry where the material or be a source of fuel for a fire. MSHA functional tests and keep the records for may contribute to a frictional heating recognizes the need to address splicing a period of one year. hazard. of the belt so that the materials and Maintaining records for one year is Final § 75.1731(d), like the proposal, processes used in splicing do not consistent with other recordkeeping requires that splicing of any approved compromise the flame resistant requirements, and would indicate to conveyor belt must maintain flame- properties of the belt. Because splicing MSHA how warning signals operate resistant properties of the belt. is a belt maintenance issue, it is over the course of a year. Like the These requirements address Panel included in this final rule. proposal, the final rule deletes the Recommendations 1, 5, 6 and 14 A commenter stated that damaged existing requirement that a record card regarding belt entry and conveyor belt rollers and other malfunctioning belt of the weekly inspection of point-type maintenance. They apply to all components can result in the frictional heat sensors be kept at each belt drive underground coal mines using belt heating of combustibles. This since the final rule requires carbon haulage. commenter also stated that damaged monoxide sensors. In its report, the Panel recommended rollers can be identified during the Commenters requested that the final that MSHA rigorously enforce existing preshift examination and repaired or rule specify where the records of standards on underground conveyor belt replaced at the beginning of the next functional tests are to be located and maintenance and fire protection, and shift. maintained. Under the final rule, mine improve inspection procedures. The Commenters requested clarification of operators can determine how and where Panel also stated that MSHA should the proposed terms damaged, records would be maintained so long as focus on required examinations of the malfunctioning, and immediately. they are kept for a period of one year. belt lines by mine examiners to assure Commenters also objected to the Final § 75.1103–8(c), like the each belt is kept in good working order. proposed term immediately because the proposal, requires that carbon monoxide The Panel identified the following areas proposal did not connect the sensors be calibrated according to for increased attention by belt requirement for immediate replacement manufacturer’s instructions at intervals examiners: belts rubbing stands; of the damaged belt roller or not to exceed 31 days. In addition, the damaged rollers; inadequate rock malfunctioning component with a final rule requires a record of sensor dusting; and accumulations of materials. hazardous condition. A commenter also calibrations to be kept for a period of In its report, the Panel cited the noted that immediate replacement of one year. findings of MSHA’s investigation into damaged belt rollers or malfunctioning MSHA experience and data have the Aracoma Alma Mine No. 1 belt fire components is not always feasible or shown this interval to be an appropriate as evidence of inadequate belt practical, and that it may be more
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appropriate for replacement to occur on was considering implementing a C. Benefits a maintenance shift. These commenters program to evaluate splice kits. MSHA has evaluated the safety also stated that existing regulations In response to these comments, benefits of the final rule on improved adequately address this concern. MSHA will, at the request of approval flame-resistant conveyor belts, fire In response to comments, the final holders or mine operators, make a prevention and detection, and approval rule does not include the reference to suitability evaluation to determine if a of the use of air from the belt entry to malfunctioning belt conveyor splice kit maintains flame-resistant ventilate the working sections in components, and clarifies that properties of the belt. This approach underground coal mines. The final rule immediate repair or replacement is only will be similar to the evaluations MSHA will implement Section 11 of the required when damaged rollers, or other makes for stoppings and sealants. MINER Act and the recommendations of damaged belt conveyor components, MSHA will place a list of suitable splice the Technical Study Panel (Panel) on pose a fire hazard. All other damaged kits on the Agency’s Web site and the Utilization of Belt Air and The rollers, or other damaged belt conveyor provide the list to interested Composition and Fire Retardant components, must be repaired. stakeholders. Under the final rule, Properties of Belt Materials in A commenter stated that where the splice kits which have been evaluated Underground Coal Mining. accumulation of noncombustible by MSHA must be used when splicing The final rule on improved flame- materials does not create an immediate Part 14 belts after December 31, 2009. resistant conveyor belts will reduce belt fire hazard, miners should correct the IV. Regulatory Economic Analysis entry fires in underground coal mines condition on the next shift. and will prevent related fatalities and Another commenter stated that the A. Executive Order 12866 injuries. From 1980 to 2007, there were proposal was unnecessary and vague. 65 reportable belt entry fires. Almost all Commenters wanted the terms Executive Order (E.O.) 12866 requires involved the conveyor belt itself. These noncombustible and accumulation that regulatory agencies assess both the fires caused over two dozen injuries and clarified, and the final rule to address costs and benefits of regulations. To three deaths—one in 1986 at the frictional heating or ignition. These comply with E.O. 12866, MSHA has Florence No. 1 Mine, and two in 2006 commenters wanted clarification of prepared a Regulatory Economic at the Aracoma Alma No. 1 Mine. The whether the accumulation of waste rock, Analysis (REA) for the final rule. The Technical Study Panel noted that the rock dust, gob materials, or other REA contains supporting data and number of belt fires had decreased over noncombustible materials would be explanation for the summary economic the past decade, but that the rate (i.e., prohibited. Commenters also wanted to materials presented in this preamble, number of fires per thousand mines) has know whether an accumulation of including data on the mining industry, remained constant. The Panel also noted noncombustible materials in a crosscut costs and benefits, feasibility, small that during this same period, although would be prohibited. Other commenters business impacts, and paperwork. The underground coal production increased stated that existing regulations REA is located on MSHA’s Web site at so that the number of belt fires per 100 adequately address the proposal. http://www.msha.gov/REGSINFO.HTM. million tons decreased, there was high After reviewing all comments, the A copy of the REA can be obtained from variability from year to year. The final final rule is changed from the proposal MSHA’s Office of Standards, rule will prevent conveyor belt fires to require that materials not be allowed Regulations and Variances at the and, in turn, reduce accidents, injuries, in the belt conveyor entry if the material address in the ADDRESSES section of the and deaths caused by conveyor belt may contribute to a frictional heating preamble. fires. hazard. Under the final rule, materials Under E.O. 12866, a significant The final rule on fire prevention and may be stored in crosscuts or other regulatory action is one meeting any of detection and approval of the use of air locations if they do not contribute to a a number of specified conditions, from the belt entry in underground coal hazard. including the following: Having an mines will improve miner safety. The Existing § 75.1725(a) contains annual effect on the economy of $100 requirements addressing maintenance of inspection and maintenance million or more, creating a serious the belt conveyor and belt conveyor requirements applicable to mobile and inconsistency or interfering with an entry will improve safety of miners by stationary machinery and equipment, action of another agency, materially requiring related hazards to be including conveyor belts. Based on its altering the budgetary impact of corrected. These hazards, known to be experience, MSHA does not believe that entitlements or the rights of entitlement sources of belt fire ignitions, include this standard or other existing standards recipients, or raising novel legal or damaged and missing rollers and belt appropriately address the Panel’s policy issues. Based on the REA, MSHA misalignment. For example, the MSHA concerns regarding potential hazards has determined that the final rule will Investigation Report of the Aracoma resulting from inadequate examinations not have an annual effect of $100 Alma Mine No.1 fire determined that by belt examiners and inadequate million or more on the economy and the fire occurred as a result of the maintenance. These hazards are caused that, therefore, it is not an economically frictional heating due to a misaligned by misalignment of the belt, damaged significant regulatory action. MSHA has belt. The final rule will also require that rollers and other belt components, and concluded that the final rule is damaged components be repaired or materials that may contribute to a otherwise significant because it raises replaced and that materials contributing frictional heating hazard. novel legal or policy issues. to a frictional heating hazard not be Several commenters asked how B. Population at Risk allowed in the belt entry. MSHA would determine that splices The requirement to replace point-type maintain the flame-resistant properties The final rule will apply to all heat sensors with carbon monoxide of the belt. During the rulemaking underground coal mines in the United sensors for fire detection along belt process, and at the public hearings, States. As of 2007, MSHA data reveal conveyors in all underground coal MSHA specifically raised the issue of that there were 624 underground coal mines will enhance miner safety how the Agency should determine flame mines, employing 42,207 miners, because carbon monoxide sensors resistance and indicated that the Agency operating in the United States. provide earlier fire detection. Earlier fire
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detection allows miners to better escapeway to the belt entry. If a fire including approximately $44 million for address the problem and/or evacuate the were to occur in the belt entry, the the improved flame-resistant belts, and area. MSHA’s research and accident primary escapeway will not become approximately $21 million for the investigation reports indicate that contaminated with smoke and carbon remaining requirements. carbon monoxide sensors are superior to monoxide, thus maintaining the MSHA estimates that the final rule point-type heat sensors. For example, in integrity of the escapeway and will result in total yearly costs of the 1992 Dilworth Mine fire, the point- providing a safe means of egress for approximately $52 million, including type heat sensors were no more than 27 miners. approximately $100,000 in yearly costs The requirement for lifelines to be feet away, but the carbon monoxide to manufacturers of conveyor belts. marked with standardized tactile signals sensor that actually detected the fire Yearly costs will be approximately $5 will aid miners evacuating the mine was 1,400 feet downwind of the fire. million for mine operators with fewer where visibility is obscured by smoke. Based on MSHA’s research and than 20 employees, approximately New standardized signals will be experience, replacing point-type heat $21,000 per mine for the 223 mines in required to: Identify the location of sensors with carbon monoxide sensors this size category. Yearly costs will be personnel doors in adjacent crosscuts is an improvement in early fire warning approximately $43 million for mine detection. connected to adjacent escapeways; and identify the location of refuge operators with 20–500 employees, Inadequate Atmospheric Monitoring approximately $110,000 per mine for System (AMS) operator training was alternatives. Existing signals for direction of travel and SCSR storage the 391 mines in this size category. identified as a contributing factor in the Yearly costs will be approximately $4 two fatalities in the Aracoma fire. locations will also be standardized. Standardization will allow for uniform million for mine operators with more Accident investigators found all miners than 500 employees, approximately assigned the duties of an AMS operator understanding of the signals so that miners who transfer between mines will $410,000 per mine for the 10 mines in at this mine needed additional training this size category. to properly respond to alert, alarm, and not need to learn new signal systems, The $52 million in yearly costs malfunction signals generated by the and will reduce the possibility of confusion, delay, or injury during an consist of approximately: $40.4 million AMS. The requirement for AMS emergency. for improved flame-resistant conveyor operator training will improve safety for belt; $6.3 million for installation and miners by assuring that AMS operators D. Compliance Costs 1 maintenance of carbon monoxide will have the knowledge to respond MSHA estimated the first year costs sensors in all underground coal mines; properly to AMS signals. The training of and the yearly costs of the final rule. $3.5 million for improved maintenance miners as AMS operators will assure MSHA estimated costs to mine of conveyor belts and conveyor belt that MSHA has oversight in the operators for the following entries; $1 million for AMS operator development and approval of the task requirements: Improved flame-resistant duties; $150,000 for standardized training, and annual retraining conveyor belt; installation and lifeline signals; and $73,000 for other requirements will assure that AMS maintenance of carbon monoxide provisions mentioned above. operators retain knowledge and training sensors in all underground coal mines; needed to perform specific duties and improved maintenance of conveyor MSHA estimates the yearly cost for responsibilities. These training belts and conveyor belt entries; AMS smoke sensors to be approximately requirements will also assure that AMS operator duties; standardized lifeline $460,000; however, this amount is based operators are familiar with underground signals; installation of airlocks along on the cost of existing smoke sensors mining systems such as coal haulage, escapeways; maintaining higher and may not reflect their actual cost transportation, ventilation, and escape pressure in the escapeway than the belt when approved for underground mine facilities. entry; and an additional sensor and use. Therefore, this cost is not included The requirement for a higher alarm unit on point-feed regulators in in the yearly costs of the final rule. ventilating pressure in the primary mines using air from the belt entry. Table 1 is a summary of the escapeway than the belt entry will MSHA estimates total first year costs approximate yearly costs of the final assure that air leakage moves from this will be approximately $65 million, rule by mine size and requirement.
TABLE 1
Final provisions 1–19 employees 20–500 employees 501+ employees Total
Improved Flame Resistant Belt ...... $3.3 million ...... $33.4 million ...... $3.8 million ...... $40.4 million. Improved Flame Resistant Belt (Manufacturers) n/a ...... n/a ...... n/a ...... $100,000. CO Sensors ...... $660,000 ...... $5.5 million ...... $180,000 ...... $6.3 million. Maintenance of belts and belt entries ...... $750,000 ...... $2.6 million ...... $130,000 ...... $3.5 million. AMS Operator duties ...... $57,000 ...... $960,000 ...... $29,000 ...... $1 million. Lifeline signals ...... $16,000 ...... $130,000 ...... $7,300 ...... $150,000. Other provisions ...... $1,500 ...... $64,000 ...... $7,800 ...... $73,000.
Total ...... $5 million ...... $43 million ...... $4 million ...... $52 million.
1 All costs have been rounded; therefore, some total costs may deviate slightly from the sum of individual costs.
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V. Feasibility publishing that definition in the Federal tons for mines with fewer than 20 MSHA has concluded that the Register for notice and comment. MSHA employees. Using the 2007 price of requirements of the final rule will be has not established an alternative underground coal of $40.29 per ton, both technologically and economically definition and is required to use the MSHA estimates that underground coal feasible. SBA definition. The SBA defines a revenue was approximately $310 small entity in the mining industry as million for mines with fewer than 20 A. Technological Feasibility an establishment with 500 or fewer employees. The yearly cost of the final The final rule does not involve employees. rule for mines with fewer than 20 activities on the frontiers of scientific MSHA has also examined the impact employees is estimated to be $4.7 knowledge. Aside from final of the final rule on underground coal million, or approximately $22,000 per § 75.351(e)(2), compliance with the mines with fewer than 20 employees, mine. This is equal to approximately provisions of the final rule is which MSHA has traditionally referred 1.53 percent of annual revenue. to as ‘‘small mines.’’ These small mines technologically feasible because the The Agency has provided, in the REA differ from larger mines not only in the materials, equipment, and methods for accompanying the final rule, a complete number of employees, but also in implementing these requirements analysis of the cost impact on this economies of scale in material currently exist. category of mines. MSHA estimates that produced, in the type and amount of Final section 75.351(e)(2) will require some mines might experience costs production equipment, and in supply mines that use air from the belt entry to somewhat higher than the average per inventory. Therefore, the cost of ventilate working sections to install mine in its size category while others complying with MSHA’s final rule and smoke sensors one year after approval might experience lower costs. Even the impact of the final rule on small for use in underground coal mines. At though the analysis reflects a range of the current time, smoke sensors are not mines will also be different. This analysis complies with the legal impacts for different mine sizes, from technologically feasible because these 0.42 to 1.53 percent of annual revenue, sensors are not reliable for use in requirements of the RFA for an analysis of the impact on ‘‘small entities’’ while as noted above, MSHA has certified that underground coal mining. MSHA will the final rule will not have a significant notify the public when smoke sensors continuing MSHA’s traditional concern for ‘‘small mines.’’ impact on a substantial number of small are approved for use in underground mining entities, as defined by SBA. coal mining and become available. B. Factual Basis for Certification VII. Paperwork Reduction Act B. Economic Feasibility MSHA initially evaluates the impact The yearly compliance cost of the on small entities by comparing the A. Summary estimated compliance cost of a rule for final rule will be approximately $51.5 The information collection package million for underground coal mines, small entities in the sector affected by the rule to the estimated revenue of the for the final rule has been assigned OMB which is 0.37 percent of annual revenue Control Number 1219–0145. The final of $14.0 billion for all underground coal affected sector. When the estimated compliance cost is less than one percent rule contains information collection mines. MSHA concludes that the final requirements (ICR) that will affect rule will be economically feasible for of the estimated revenue, the Agency believes it is generally appropriate to requirements in existing paperwork these mines because the total yearly packages with OMB Control Numbers compliance cost is below one percent of conclude that the rule will not have a significant economic impact on a 1219–0009, 1219–0054, 1219–0066, the estimated annual revenue for all 1219–0073, and 1219–0088. The underground coal mines. substantial number of small entities. When the estimated compliance cost requirement for AMS operator training VI. Regulatory Flexibility Act and exceeds one percent of revenue, MSHA will modify ICR 1219–0009. The Small Business Regulatory Enforcement investigates whether further analysis is requirements for fire protection will Fairness Act required. modify ICR 1219–0054. The requirements that affect the information Under the Regulatory Flexibility Act Total underground coal production in collected for approval of flame-resistant (RFA) of 1980, as amended by the Small 2007 was approximately 278 million conveyor belts will modify ICR 1219– Business Regulatory Enforcement tons for mines with 500 or fewer 0066. The requirements to amend the Fairness Act (SBREFA), MSHA has employees. Using the 2007 price of mine map will modify ICR 1219–0073. analyzed the impact of the final rule on underground coal of $40.29 per ton, The requirements that affect the small entities. Based on that analysis, MSHA estimates that underground coal information contained in the ventilation MSHA has notified the Chief Counsel revenue was approximately $11.2 plan for underground coal mines will for Advocacy, Small Business billion for mines with 500 or fewer modify ICR 1219–0088. Administration (SBA), and made the employees. The yearly cost of the final certification under the RFA at 5 U.S.C. rule for mines with 500 or fewer In the first year that the final rule is 605(b) that the final rule will not have employees is estimated to be in effect, mine operators will incur a significant economic impact on a approximately $47.4 million, or 3,344 burden hours with related costs of substantial number of small entities. approximately $77,000 per mine. This is approximately $240,000. Annually, The factual basis for this certification is equal to approximately 0.42 percent of starting in the second year that the final in the REA and summarized below. annual revenue. Since the yearly cost of rule is in effect, mine operators will the final rule is less than one percent of incur 2,350 burden hours with related A. Definition of a Small Mine annual revenues for small underground costs of approximately $180,000. In Under the RFA, in analyzing the coal mines, as defined by SBA, MSHA addition, conveyor belt manufacturers impact of the final rule on small has certified that the final rule will not will incur 540 burden hours and related entities, MSHA must use the SBA have a significant impact on a costs of $27,000 in the first year that the definition for a small entity, or after substantial number of small mining final rule is in effect; 270 burden hours consultation with the SBA Office of entities, as defined by SBA. and related costs of $13,500 in the Advocacy, establish an alternative Total underground coal production in second year that the final rule is in definition for the mining industry by 2007 was approximately 7.7 million effect; and 170 burden hours and related
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costs of $8,500 in the third year that the Unfunded Mandates Reform Act of 1995 Indian tribes, or on the distribution of final rule is in effect. requires no further agency action or power and responsibilities between the Final § 14.7, which requires approval analysis. Federal government and Indian tribes.’’ holders to retain initial sales records of Accordingly, Executive Order 13175 B. Treasury and General Government conveyor belts, is considered by MSHA requires no further agency action or Appropriations Act of 1999: Assessment to be an information collection analysis. of Federal Regulations and Policies on requirement that does not result in a Families H. Executive Order 13211: Actions paperwork burden because it is Concerning Regulations That considered a part of normal business The final rule will have no effect on Significantly Affect Energy Supply, practices. family well-being or stability, marital Distribution, or Use For a summary of the burden hours commitment, parental rights or and related costs by final provision, see authority, or income or poverty of The final rule has been reviewed for the REA accompanying the final rule. families and children. Accordingly, its impact on the supply, distribution, The REA is posted on MSHA’s Web site § 654 of the Treasury and General and use of energy because it applies to at http://www.msha.gov/ Government Appropriations Act of 1999 the coal mining industry. Because the REGSINFO.HTM. A copy of the REA can (5 U.S.C. 601 note) requires no further final rule will result in yearly costs of be obtained from MSHA’s Office of agency action, analysis, or assessment. approximately $51.5 million to the Standards, Regulations, and Variances C. Executive Order 12630: Government underground coal mining industry, at the address provided in the Actions and Interference With relative to annual revenues of $14.0 ADDRESSES section of this preamble. Constitutionally Protected Property billion in 2007, the final rule is not a B. Procedural Details Rights ‘‘significant energy action’’ because it is not ‘‘likely to have a significant adverse The final rule will not implement a The information collection package, effect on the supply, distribution, or use policy with takings implications. OMB Control Number 1219–0145, has of energy * * * (including a shortfall in Accordingly, Executive Order 12630 been submitted to OMB for review supply, price increases, and increased requires no further agency action or under 44 U.S.C. 3504, paragraph (h) of use of foreign supplies).’’ Accordingly, analysis. the Paperwork Reduction Act of 1995, Executive Order 13211 requires no as amended. A copy of the information D. Executive Order 12988: Civil Justice further Agency action or analysis. collection package can be obtained from Reform the Department of Labor by electronic I. Executive Order 13272: Proper mail request to [email protected] or The final rule was written to provide Consideration of Small Entities in by phone request to 202–693–4129. a clear legal standard for affected Agency Rulemaking Paperwork requirements contained in conduct and was carefully reviewed to MSHA has reviewed the final rule to proposed §§ 14.4(b) and 75.350(b) eliminate drafting errors and assess and take appropriate account of received comments. A commenter stated ambiguities, so as to minimize litigation its potential impact on small businesses, that the actual formulation data required and undue burden on the Federal court small governmental jurisdictions, and to be submitted to MSHA under system. Accordingly, the final rule small organizations. MSHA has proposed § 14.4(b) is more extensive meets the applicable standards provided determined and certified that the final than currently required and is not in § 3 of Executive Order 12988. rule will not have a significant needed since approval is based solely E. Executive Order 13045: Protection of economic impact on a substantial on the BELT results. Another Children From Environmental Health number of small entities. commenter stated that proposed Risks and Safety Risks § 14.4(b)(4) was confusing. Other IX. Final Rule commenters also were concerned with The final rule will have no adverse List of Subjects proposed provision § 75.350(b) that set impact on children. Accordingly, out additional requirements to be Executive Order 13045 requires no 30 CFR Part 6 included in the mine ventilation plan. further agency action or analysis. These comments are addressed in F. Executive Order 13132: Federalism Testing and evaluation by earlier sections of this preamble and in independent laboratories and non- The final rule will not have the information collection package MSHA product safety standards, Mine ‘‘federalism implications’’ because it supporting this final rule (OMB control safety and health. will not ‘‘have substantial direct effects number 1219–0145). on the States, on the relationship 30 CFR Part 14 VIII. Other Regulatory Considerations between the national government and Approval of equipment, Mine safety the States, or on the distribution of A. The Unfunded Mandates Reform Act and health, Underground mining. power and responsibilities among the of 1995 various levels of government.’’ 30 CFR Part 18 MSHA has reviewed the final rule Accordingly, Executive Order 13132 Electric motor-driven mine equipment under the Unfunded Mandates Reform requires no further agency action or and accessories, Mine safety and health. Act of 1995 (2 U.S.C. 1501 et seq.). analysis. MSHA has determined that the final 30 CFR Part 48 rule will not include any Federal G. Executive Order 13175: Consultation mandate that may result in increased and Coordination With Indian Tribal Training and retraining of miners, expenditures by State, local, or tribal Governments Mine safety and health. governments; and it will not increase The final rule will not have ‘‘tribal 30 CFR Part 75 private sector expenditures by more implications’’ because it will not ‘‘have than $100 million in any one year or substantial direct effects on one or more Mandatory safety standards— significantly or uniquely affect small Indian tribes, on the relationship Underground coal mines, Mine safety governments. Accordingly, the between the Federal government and and health, Recordkeeping.
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Dated: November 18, 2008. 14.8 Quality assurance. tests and evaluations conducted under Richard E. Stickler, 14.9 Disclosure of information. this Part. However, if MSHA receives a Acting Assistant Secretary for Mine Safety 14.10 Post-approval product audit. request from others to observe tests, the and Health. 14.11 Revocation. Agency will consider it. ■ Subpart B—Technical Requirements For the reasons set out in the § 14.4 Application procedures and preamble, and under the authority of the 14.20 Flame resistance. requirements. Federal Mine Safety and Health Act of 14.21 Laboratory-scale flame test apparatus. (a) Application address. Applications 1977 as amended by the Mine 14.22 Test for flame resistance of conveyor for approvals or extensions of approval Improvement and New Emergency belts. under this Part may be sent to: U.S. Response Act of 2006, MSHA is 14.23 New technology. Department of Labor, Mine Safety and amending chapter I of title 30 of the Authority: 30 U.S.C. 957. Code of Federal Regulations as follows: Health Administration, Chief, Approval Subpart A—General Provisions and Certification Center, 765 PART 6—TESTING AND EVALUATION Technology Drive, Triadelphia, West BY INDEPENDENT LABORATORIES § 14.1 Purpose, effective date for approval Virginia 26059. Alternatively, AND NON-MSHA PRODUCT SAFETY holders. applications for approval or extensions STANDARDS This Part establishes the flame of approval may be filed online at resistance requirements for MSHA http://www.msha.gov or faxed to: Chief, ■ 1. The authority citation for part 6 approval of conveyor belts for use in Mine Safety and Health Administration continues to read as follows: underground coal mines. Applications Approval and Certification Center at Authority: 30 U.S.C. 957. for approval or extensions of approval 304–547–2044. submitted after December 31, 2008, (b) Approval application. Each ■ 2. Amend § 6.2 by revising the must meet the requirements of this Part. application for approval of a conveyor definition of ‘‘Equivalent non-MSHA belt for use in underground coal mines product safety standards’’ to read as § 14.2 Definitions. must include the information below, follows: The following definitions apply in except any information submitted in a § 6.2 Definitions. this part: prior approval application need not be Applicant. An individual or * * * * * re-submitted, but must be noted in the Equivalent non-MSHA product safety organization that manufactures or application. standards. A non-MSHA product safety controls the production of a conveyor (1) A technical description of the standard, or group of standards, belt and applies to MSHA for approval conveyor belt, which includes: determined by MSHA to provide at least of conveyor belt for use in underground (i) Trade name or identification the same degree of protection as the coal mines. number; applicable MSHA product approval Approval. A document issued by (ii) Cover compound type and requirements in parts 14, 18, 19, 20, 22, MSHA, which states that a conveyor designation number; 23, 27, 33, 35, and 36, or which in belt has met the requirements of this (iii) Belt thickness and thickness of modified form provide at least the same Part and which authorizes an approval top and bottom covers; degree of protection. marking identifying the conveyor belt as (iv) Presence and type of skim coat; approved. (v) Presence and type of friction coat; * * * * * Extension of approval. A document (vi) Carcass construction (number of ■ 3. Amend § 6.20 to revise paragraph issued by MSHA, which states that a plies, solid woven); (a)(1) to read as follows: change to a product previously (vii) Carcass fabric by textile type and § 6.20 MSHA acceptance of equivalent approved by MSHA meets the weight (ounces per square yard); non-MSHA product safety standards. requirements of this Part and which (viii) Presence and type of breaker or (a) * * * authorizes the continued use of the floated ply; and (1) Provide at least the same degree of approval marking after the appropriate (ix) The number, type, and size of protection as MSHA’s product approval extension number has been added. cords and fabric for metal cord belts. requirements in parts 14, 18, 19, 20, 33, Flame-retardant ingredient. A (2) The name, address, and telephone 35 and 36 of this chapter; or material that inhibits ignition or flame number of the applicant’s representative * * * * * propagation. responsible for answering any questions Flammable ingredient. A material that regarding the application. ■ 4. Add new Part 14 to subchapter B is capable of combustion. (c) Similar belts and extensions of chapter I, title 30 of Code of Federal Inert ingredient. A material that does approval may be evaluated for approval Regulations to read as follows: not contribute to combustion. without testing using the BELT method PART 14—REQUIREMENTS FOR THE Post-approval product audit. An if the following information is provided APPROVAL OF FLAME-RESISTANT examination, testing, or both, by MSHA in the application: CONVEYOR BELTS of an approved conveyor belt selected (1) Formulation information on the by MSHA to determine if it meets the compounds in the conveyor belt Subpart A—General Provisions technical requirements and has been indicated by either: Sec. manufactured as approved. (i) Specifying each ingredient by its 14.1 Purpose and effective date for approval Similar conveyor belt. A conveyor belt chemical name along with its holders. that shares the same cover compound, percentage (weight) and tolerance or 14.2 Definitions. general carcass construction, and fabric percentage range; or 14.3 Observers at tests and evaluations. type as another approved conveyor belt. (ii) Specifying each flame-retardant 14.4 Application procedures and ingredient by its chemical or generic requirements. § 14.3 Observers at tests and evaluations. 14.5 Test samples. name with its percentage and tolerance 14.6 Issuance of approval. Representatives of the applicant and or percentage range or its minimum 14.7 Approval marking and distribution other persons agreed upon by MSHA percent. List each flammable ingredient records. and the applicant may be present during and inert ingredient by chemical,
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generic, or trade name along with the § 14.7 Approval marking and distribution § 14.9 Disclosure of information. total percentage of all flammable and records. (a) All proprietary information inert ingredients. (a) An approved conveyor belt must concerning product specifications and (2) Identification of any similar be marketed only under the name performance submitted to MSHA by the approved conveyor belt for which the specified in the approval. applicant will be protected. applicant already holds an approval, (b) Approved conveyor belt must be (b) MSHA will notify the applicant or and the formulation specifications for legibly and permanently marked with approval holder of requests for that belt if it has not previously been the assigned MSHA approval number disclosure of information concerning its submitted to the Agency. for the service life of the product. The conveyor belts, and provide an approval marking must be at least 1⁄2 opportunity to present its position prior (i) The MSHA assigned approval inch (1.27 cm) high, placed at intervals to any decision on disclosure. number of the conveyor belt that most not to exceed 60 feet (18.3 m) and closely resembles the new one; and § 14.10 Post-approval product audit. repeated at least once every foot (0.3 m) (ii) An explanation of any changes across the width of the belt. (a) Approved conveyor belts will be from the existing approval. (c) Where the construction of a subject to periodic audits by MSHA to (d) Extension of approval. Any change conveyor belt does not permit marking determine conformity with the technical in an approved conveyor belt from the as prescribed above, other permanent requirements upon which the approval documentation on file at MSHA that marking may be accepted by MSHA. was based. MSHA will select an affects the technical requirements of this (d) Applicants granted approval must approved conveyor belt to be audited; Part must be submitted for approval maintain records of the initial sale of the selected belt will be representative prior to implementing the change. Each each belt having an approval marking. of that distributed for use in mines. application for an extension of approval The records must be retained for at least Upon request to MSHA, the approval must include: 5 years following the initial sale. holder may obtain any final report resulting from the audit. (1) The MSHA-assigned approval § 14.8 Quality assurance. (b) No more than once a year, except number for the conveyor belt for which for cause, the approval holder, at the extension is sought; Applicants granted an approval or an extension of approval under this Part MSHA’s request, must make 3 samples (2) A description of the proposed must: of an approved conveyor belt of the size change to the conveyor belt; and (a) In order to assure that the finished specified in § 14.5 available at no cost (3) The name, address, and telephone conveyor belt will meet the flame- to MSHA for an audit. If a product is not number of the applicant’s representative resistance test— available because it is not currently in responsible for answering any questions (1) Flame test a sample of each batch, production, the manufacturer will notify regarding the application. lot, or slab of conveyor belts; or MSHA when it is available. Representatives of the applicant and (e) MSHA will determine if testing, (2) Flame test or inspect a sample of other persons agreed upon by MSHA additional information, samples, or each batch or lot of the materials that and the applicant may be present during material is required to evaluate an contribute to the flame-resistance audit tests and evaluations. MSHA will application. If the applicant believes characteristic. also consider requests by others to that flame testing is not required, a (b) Calibrate instruments used for the observe tests. statement explaining the rationale must inspection and testing in paragraph (a) (c) A conveyor belt will be subject to be included in the application. of this section according to the instrument manufacturer’s audit for cause at any time MSHA (f) Equivalent non-MSHA product believes the approval holder product is safety standard. An applicant may specifications. Instruments must be calibrated using standards set by the not in compliance with the technical request an equivalency determination to requirements of the approval. this part under § 6.20 of this chapter, for National Institute of Standards and a non-MSHA product safety standard. Technology, U.S. Department of § 14.11 Revocation. Commerce or other nationally or (a) MSHA may revoke for cause an (g) Fees. Fees calculated in internationally recognized standards. accordance with Part 5 of this chapter approval issued under this Part if the The instruments used must be accurate conveyor belt— must be submitted in accordance with to at least one significant figure beyond § 5.40. (1) Fails to meet the technical the desired accuracy. requirements; or § 14.5 Test samples. (c) Control production so that the (2) Creates a danger or hazard when conveyor belt is manufactured in used in a mine. Upon request by MSHA, the applicant accordance with the approval (b) Prior to revoking an approval, the must submit 3 precut, unrolled, flat document. If a third party is assembling approval holder will be informed in conveyor belt samples for flame testing. or manufacturing all or part of an ± 1 writing of MSHA’s intention to revoke. Each sample must be 60 ⁄4 inches approved belt, the approval holder shall ± ± 1 The notice will— long (152.4 0.6 cm) by 9 ⁄8 inches assure that the product is manufactured ± (1) Explain the reasons for the (22.9 0.3 cm) wide. as approved. proposed revocation; and § 14.6 Issuance of approval. (d) Immediately notify the MSHA (2) Provide the approval holder an Approval and Certification Center of opportunity to demonstrate or achieve (a) MSHA will issue an approval or any information that a conveyor belt has compliance with the product approval notice of the reasons for denying been distributed that does not meet the requirements. approval after completing the evaluation specifications of the approval. This (c) Upon request to MSHA, the and testing provided in this part. notification must include a description approval holder will be given the (b) An applicant must not advertise or of the nature and extent of the problem, opportunity for a hearing. otherwise represent a conveyor belt as the locations where the conveyor belt (d) If a conveyor belt poses an approved until MSHA has issued an has been distributed, and the approval imminent danger to the safety or health approval. holder’s plans for corrective action. of miners, an approval may be
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immediately suspended without written § 14.22 Test for flame resistance of (8) With the burner lowered away notice of the Agency’s intention to conveyor belts. from the sample, set the gas flow at 1.2 revoke. (a) Test procedures. The test must be ± 0.1 standard cubic feet per minute conducted in the following sequence (SCFM) (34 ± 2.8 liters per minute) and Subpart B—Technical Requirements using a flame test apparatus meeting the then ignite the gas burner. Maintain the § 14.20 Flame resistance. specifications of § 14.21: gas flow to the burner throughout the 5 (1) Lay three samples of the belt, 60 to 5.1 minute ignition period; Conveyor belts for use in ± 1 ± ⁄4 inches (152.4 0.6 cm) long by 9 (9) After applying the burner flame to underground coal mines must be flame- ± 1 ± ⁄8 inches (22.9 0.3 cm) wide, flat at the front edge of the sample for a 5 to resistant and: ± ° a temperature of 70 10 Fahrenheit (21 5.1 minute ignition period, lower the (a) Tested in accordance with § 14.22 ± 5° Centigrade) for at least 24 hours of this part; or burner away from the sample and prior to the test; extinguish the burner flame; (b) Tested in accordance with an (2) For each of three tests, place one alternate test determined by MSHA to (10) After completion of each test, belt sample with the load-carrying determine the undamaged portion be equivalent under 30 CFR §§ 6.20 and surface facing up on the rails of the rack 14.4(e). across the entire width of the sample. so that the sample extends 1 ± 1⁄8 inch Blistering without charring does not (2.5 ± 0.3 cm) beyond the front of the § 14.21 Laboratory-scale flame test constitute damage. apparatus. rails and 1 ± 1⁄8 inch (2.5 ± 0.3 cm) from (b) Acceptable performance. Each the outer lengthwise edge of each rail; The principal parts of the apparatus tested sample must exhibit an used to test for flame resistance of (3) Fasten the sample to the rails of the rack with steel washers and cotter undamaged portion across its entire conveyor belts are as follows— width. (a) A horizontal test chamber 66 pins. The cotter pins shall extend at 3 (c) MSHA may modify the procedures inches (167.6 cm) long by 18 inches least ⁄4 inch (1.9 cm) below the rails. Equivalent fasteners may be used. Make of the flammability test for belts (45.7 cm) square (inside dimensions) 3 9 constructed of thicknesses more than ⁄4 constructed from 1 inch (2.5 cm) thick a series of 5 holes approximately ⁄32 inch (1.9 cm). Marinite I®, or equivalent insulating inch (0.7 cm) in diameter along both material. edges of the belt sample, starting at the § 14.23 New technology. (b) A 16-gauge (0.16 cm) stainless first rail hole within 2 inches (5.1 cm) MSHA may approve a conveyor belt steel duct section which tapers over a from the front edge of the sample. Make that incorporates technology for which length of at least 24 inches (61 cm) from the next hole 5 ± 1⁄4 inches (12.7 ± 0.6 the requirements of this part are not a 20 inch (51 cm) square cross-sectional cm) from the first, the third hole 5 ± 1⁄4 applicable if the Agency determines that area at the test chamber connection to inches (12.7 ± 0.6 cm) from the second, the conveyor belt is as safe as those a 12 inch (30.5 cm) diameter exhaust the fourth hole approximately midway which meet the requirements of this duct, or equivalent. The interior surface along the length of the sample, and the part. of the tapered duct section must be fifth hole near the end of the sample. lined with 1⁄2 inch (1.27 cm) thick After placing a washer over each sample PART 18—ELECTRIC MOTOR-DRIVEN ceramic blanket insulation, or hole, insert a cotter pin through the hole MINE EQUIPMENT AND equivalent insulating material. The and spread it apart to secure the sample ACCESSORIES tapered duct must be tightly connected to the rail; to the test chamber. (4) Center the rack and sample in the ■ 5. The authority citation for Part 18 (c) A U-shaped gas-fueled impinged test chamber with the front end of the continues to read as follows: jet burner ignition source, measuring 12 sample 6 ± 1⁄2 inches (15.2 ± 1.27 cm) inches (30.5 cm) long and 4 inches (10.2 from the entrance; Authority: 30 U.S.C. 957, 961. cm) wide, with two parallel rows of 6 (5) Measure the airflow with a 4-inch § 18.1 [Amended] jets each. Each jet is spaced alternately (10.2 cm) diameter vane anemometer, or ■ along the U-shaped burner tube. The 2 an equivalent device, placed on the 6. Section 18.1 is amended by revising 1 the phrase ‘‘hoses and conveyor belts’’ rows of jets are slanted so that they centerline of the belt sample 12 ± ⁄2 point toward each other and the flame inches (30.5 ± 1.27 cm) from the to read ‘‘hoses’’. from each jet impinges upon each other chamber entrance. Adjust the airflow § 18.2 [Amended] in pairs. The burner fuel must be at least passing through the chamber to 200 ± 20 ■ 98 percent methane (technical grade) or ft/min (61 ± 6 m/min); 7. Section 18.2 is amended by revising natural gas containing at least 96 (6) Before starting the test on each the phrase ‘‘hose or conveyor belt’’ to percent combustible gases, which sample, the inner surface temperature of read ‘‘hose’’ in the definitions of includes not less than 93 percent the chamber roof measured at points 6 ‘‘Acceptance’’, ‘‘Acceptance Marking’’, methane. ± 1⁄2, 30 ± 1⁄2, and 60 ± 1⁄2 inches (15.2 and ‘‘Applicant’’ and removing the (d) A removable steel rack, consisting ± 1.27, 76.2 ± 1.27, and 152.4 ± 1.27 cm) definition for ‘‘Fire-resistant’’. of 2 parallel rails and supports that form from the front entrance of the chamber § 18.6 [Amended] a 7 ± 1⁄8 inches (17.8 ± 0.3 cm) wide by must not exceed 95° Fahrenheit (35° ■ 60 ± 1⁄8 inches (152.4 ± 0.3 cm) long Centigrade) at any of these points with 8. Section 18.6(a)(1) is amended by assembly to hold a belt sample. the specified airflow passing through revising the phrase ‘‘hose or conveyor (1) The 2 parallel rails, with a 5 ± 1⁄8 the chamber. The temperature of the air belt’’ to read ‘‘hose’’. inches (12.7 ± 0.3 cm) space between entering the chamber during the test on ■ 9. Section 18.6(c) is removed and them, comprise the top of the rack. The each sample must not be less than 50° reserved. rails and supports must be constructed Fahrenheit (10° Centigrade); ■ 10. Section 18.6(i) is amended by of slotted angle iron with holes along (7) Center the burner in front of the revising the phrase ‘‘hose or conveyor the top surface. sample’s leading edge with the plane, belt’’ to read ‘‘hose’’ and removing the (2) The top surface of the rack must defined by the tips of the burner jets, 3⁄4 words ‘‘conveyor belt—a sample of each be 8 ± 1⁄8 inches (20.3 ± 0.3 cm) from ± 1⁄8 inch (1.9 ± 0.3 cm) from the front type 8 inches long cut across the entire the inside roof of the test chamber. edge of the belt; width of the belt’’.
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§ 18.9 [Amended] he/she is qualified to perform in the point where belt air is mixed with air ■ 11. Section 18.9(a) is amended by assigned position. from another intake air course near the loading point. The DA must be specified revising the phrase ‘‘hose or conveyor Subpart D—Ventilation belt’’ to read ‘‘hose’’. and approved in the ventilation plan. ■ * * * * * § 18.65 [Amended] 17. In § 75.333, paragraph (c)(4) is added to read as follows: (7) The air velocity in the belt entry ■ 12. Section 18.65 is amended by must be at least 100 feet per minute. revising the section heading to read § 75.333 Ventilation controls. When requested by the mine operator, ‘‘Flame test of hose’’ and by removing * * * * * the district manager may approve lower and reserving paragraph (a)(1) and (c) * * * velocities in the ventilation plan based removing and reserving paragraph (f)(1). (4) An airlock shall be established on specific mine conditions. where the air pressure differential (8) The air velocity in the belt entry PART 48—TRAINING AND between air courses creates a static force must not exceed 1,000 feet per minute. RETRAINING OF MINERS exceeding 125 pounds on closed When requested by the mine operator, personnel doors along escapeways. the district manager may approve higher ■ 13. The authority citation for Part 48 * * * * * velocities in the ventilation plan based continues to read as follows: on specific mine conditions. ■ 18. In § 75.350, paragraphs (a)(2), (b) Authority: 30 U.S.C. 811, 825. introductory text, (b)(3), and (d)(1) are * * * * * revised, and (b)(7) and (b)(8) are added (d) * * * Subpart B—Training and Retraining of to read as follows: (1) The air current that will pass Miners Working at Surface Mines and through the point-feed regulator must be Surface Areas of Underground Mines § 75.350 Belt air course ventilation. monitored for carbon monoxide or (a) * * * smoke at a point within 50 feet upwind ■ 14. Amend § 48.27 to revise the first (1) * * * of the point-feed regulator. A second sentence in paragraph (a) introductory (2) Effective December 31, 2009, the point must be monitored 1,000 feet text to read as follows: air velocity in the belt entry must be at upwind of the point-feed regulator least 50 feet per minute. When unless the mine operator requests that a § 48.27 Training of miners assigned to a task in which they have had no previous requested by the mine operator, the lesser distance be approved by the experience; minimum courses of district manager may approve lower district manager in the mine ventilation instruction. velocities in the ventilation plan based plan based on mine specific conditions; on specific mine conditions. Air (a) Miners assigned to new work tasks * * * * * velocities must be compatible with all as mobile equipment operators, drilling ■ 19. Paragraph (b)(2), (e), and (q) of fire detection systems and fire machine operators, haulage and § 75.351 are revised to read as follows: suppression systems used in the belt conveyor systems operators, ground entry. § 75.351 Atmospheric monitoring systems. control machine operators, AMS (b) The use of air from a belt air operators, and those in blasting * * * * * course to ventilate a working section, or operations shall not perform new work (b) * * * an area where mechanized mining tasks in these categories until training (2) The mine operator must designate equipment is being installed or prescribed in this paragraph and an AMS operator to monitor and removed, shall be permitted only when paragraph (b) of this section has been promptly respond to all AMS signals. evaluated and approved by the district completed.* * * The AMS operator must have as a manager in the mine ventilation plan. primary duty the responsibility to * * * * * The mine operator must provide monitor the malfunction, alert and justification in the plan that the use of PART 75—MANDATORY SAFETY alarm signals of the AMS, and to notify air from a belt entry would afford at STANDARDS—UNDERGROUND COAL appropriate personnel of these signals. least the same measure of protection as MINES In the event of an emergency, the sole where belt haulage entries are not used responsibility of the AMS operator shall Subpart B—Qualified and Certified to ventilate working places. In addition, be to respond to the emergency. Persons the following requirements must be met: * * * * * * * * * * (e) Location of sensors-belt air course. ■ 15. The authority citation for Part 75 (3)(i) The average concentration of (1) In addition to the requirements of continues to read as follows: respirable dust in the belt air course, paragraph (d) of this section, any AMS Authority: 30 U.S.C. 811. when used as a section intake air used to monitor belt air courses under course, must be maintained at or below § 75.350(b) must have approved sensors ■ 16. Section 75.156 is added to read as 1.0 mg/m3. to monitor for carbon monoxide at the follows: (ii) Where miners on the working following locations: section are on a reduced standard below (i) At or near the working section belt § 75.156 AMS operator, qualifications. 1.0 mg/m3, the average concentration of tailpiece in the air stream ventilating the (a) To be qualified as an AMS respirable dust in the belt entry must be belt entry. In longwall mining systems operator, a person shall be provided at or below the lowest applicable the sensor must be located upwind in with task training on duties and respirable dust standard on that section. the belt entry at a distance no greater responsibilities at each mine where an (iii) A permanent designated area than 150 feet from the mixing point AMS operator is employed in (DA) for dust measurements must be where intake air is mixed with the belt accordance with the mine operator’s established at a point no greater than 50 air at or near the tailpiece; approved Part 48 training plan. feet upwind from the section loading (ii) No more than 50 feet upwind from (b) An AMS operator must be able to point in the belt entry when the belt air the point where the belt air course is demonstrate to an authorized flows over the loading point or no combined with another air course or representative of the Secretary that greater than 50 feet upwind from the splits into multiple air courses;
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(iii) At intervals not to exceed 1,000 (1) All AMS operators must be trained § 75.371 Mine ventilation plan; contents. feet along each belt entry. However, in annually in the proper operation of the * * * * * areas along each belt entry where air AMS. This training must include the (jj) The locations and approved velocities are between 50 and 100 feet following subjects: velocities at those locations where air per minute, spacing of sensors must not (i) Familiarity with underground velocities in the belt entry are above or exceed 500 feet. In areas along each belt mining systems; below the limits set forth in (ii) Basic atmospheric monitoring entry where air velocities are less than § 75.350(a)(2) or §§ 75.350(b)(7) and system requirements; 50 feet per minute, the sensor spacing 75.350(b)(8). must not exceed 350 feet; (iii) The mine emergency evacuation * * * * * (iv) Not more than 100 feet downwind and firefighting program of instruction; of each belt drive unit, each tailpiece, (iv) The mine ventilation system (mm) The location of any diesel- including planned air directions; transfer point, and each belt take-up. If discriminating sensor, and additional (v) Appropriate response to alert, the belt drive, tailpiece, and/or take-up carbon monoxide or smoke sensors alarm and malfunction signals; installed in the belt air course. for a single transfer point are installed (vi) Use of mine communication together in the same air course, and the (nn) The length of the time delay or systems including emergency any other method used to reduce the distance between the units is less than notification procedures; and number of non-fire related alert and 100 feet, they may be monitored with (vii) AMS recordkeeping alarm signals from carbon monoxide one sensor downwind of the last requirements. component. If the distance between the (2) At least once every six months, all sensors. units exceeds 100 feet, additional AMS operators must travel to all * * * * * sensors are required downwind of each working sections. (yy) The locations where the pressure belt drive unit, each tailpiece, transfer (3) A record of the content of training, differential cannot be maintained from point, and each belt take-up; and the person conducting the training, and the primary escapeway to the belt entry. (v) At other locations in any entry that the date the training was conducted, ■ 22. Section 75.380 is amended by is part of the belt air course as required must be maintained at the mine for at revising paragraphs (d)(7)(v) and (vi) and specified in the mine ventilation least one year by the mine operator. and (f)(1) and adding paragraph plan. * * * * * (d)(7)(vii) to read as follows: (2) Smoke sensors must be installed to ■ 20. Section 75.352 is amended by monitor the belt entry under § 75.350(b) revising paragraph (f) and by adding § 75.380 Escapeways; bituminous and at the following locations: paragraph (g) to read as follows: lignite mines. (i) At or near the working section belt * * * * * § 75.352 Actions in response to AMS tailpiece in the air stream ventilating the (d) * * * belt entry. In longwall mining systems malfunction, alert, or alarm signals. (7) * * * the sensor must be located upwind in * * * * * the belt entry at a distance no greater (f) If the minimum air velocity is not (v) Equipped with one directional than 150 feet from the mixing point maintained when required under indicator cone securely attached to the where intake air is mixed with the belt § 75.350(b)(7), immediate action must be lifeline, signifying the route of escape, air at or near the tailpiece; taken to return the ventilation system to placed at intervals not exceeding 100 (ii) Not more than 100 feet downwind proper operation. While the ventilation feet. Cones shall be installed so that the of each belt drive unit, each tailpiece system is being corrected, operation of tapered section points inby; transfer point, and each belt take-up. If the belt may continue only while a (vi) Equipped with one sphere the belt drive, tailpiece, and/or take-up trained person(s) patrols and securely attached to the lifeline at each for a single transfer point are installed continuously monitors for carbon intersection where personnel doors are together in the same air course, and the monoxide or smoke as set forth in installed in adjacent crosscuts; distance between the units is less than §§ 75.352(e)(3) through (7), so that the (vii) Equipped with two securely 100 feet, they may be monitored with affected areas will be traveled each hour attached cones, installed consecutively one sensor downwind of the last in their entirety. with the tapered section pointing inby, (g) The AMS shall automatically component. If the distance between the to signify an attached branch line is provide both a visual and audible signal units exceeds 100 feet, additional immediately ahead. in the belt entry at the point-feed sensors are required downwind of each regulator location, at affected sections, (A) A branch line leading from the belt drive unit, each tailpiece, transfer and at the designated surface location lifeline to an SCSR cache will be point, and each belt take-up; and when carbon monoxide concentrations marked with four cones with the base (iii) At intervals not to exceed 3,000 reach: sections in contact to form two diamond feet along each belt entry. (1) The alert level at both point-feed shapes. The cones must be placed (iv) This provision shall be effective intake monitoring sensors; or within reach of the lifeline. one year after the Secretary has (2) The alarm level at either point- (B) A branch line leading from the determined that a smoke sensor is feed intake monitoring sensor. lifeline to a refuge alternative will be available to reliably detect fire in ■ 21. Section 75.371 is amended by marked with a rigid spiraled coil at least underground coal mines. revising paragraphs (jj), (mm), (nn), and eight inches in length. The spiraled coil * * * * * by adding paragraph (yy) to read as must be placed within reach of the (q) Training. follows: lifeline (see Illustration 1 below).
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* * * * * intersection where personnel doors are Subpart L—Fire Protection (f) * * * installed in adjacent crosscuts; ■ 24. Section 75.1103–4 is amended by (1) One escapeway that is ventilated (vii) Equipped with two securely revising paragraphs (a) and (b) to read with intake air shall be designated as attached cones, installed consecutively as follows: the primary escapeway. The primary with the tapered section pointing inby, escapeway shall have a higher to signify an attached branch line is § 75.1103–4 Automatic fire sensor and ventilation pressure than the belt entry immediately ahead. warning device systems; installation; unless the mine operator submits an (A) A branch line leading from the minimum requirements. alternative in the mine ventilation plan lifeline to an SCSR cache will be (a) Effective December 31, 2009, to protect the integrity of the primary marked with four cones with the base automatic fire sensor and warning escapeway, based on mine specific sections in contact to form two diamond device systems that use carbon conditions, which is approved by the shapes. The cones must be placed monoxide sensors shall provide district manager. within reach of the lifeline. identification of fire along all belt * * * * * (B) A branch line leading from the conveyors. ■ 23. Section 75.381 is amended by lifeline to a refuge alternative will be (1) Carbon monoxide sensors shall be revising paragraphs (c)(5)(v) and (vi) marked with a rigid spiraled coil at least installed at the following locations: and (e), and adding paragraph (c)(5)(vii) eight inches in length. The spiraled coil (i) Not more than 100 feet downwind to read as follows: must be placed within reach of the of each belt drive unit, each tailpiece lifeline. transfer point, and each belt take-up. If § 75.381 Escapeways; anthracite mines. the belt drive, tailpiece, and/or take-up * * * * * * * * * * for a single transfer point are installed (e) Primary escapeway. One (c) * * * together in the same air course, and the escapeway that shall be ventilated with distance between the units is less than * * * * * intake air shall be designated as the 100 feet, they may be monitored with (5) * * * primary escapeway. The primary one sensor downwind of the last * * * * * escapeway shall have a higher component. If the distance between the (v) Equipped with one directional ventilation pressure than the belt entry units exceeds 100 feet, additional indicator cone securely attached to the unless the mine operator submits an sensors are required downwind of each lifeline, signifying the route of escape, alternative in the mine ventilation plan belt drive unit, each tailpiece transfer placed at intervals not exceeding 100 to protect the integrity of the primary point, and each belt take-up; feet. Cones shall be installed so that the escapeway, based on mine specific (ii) Not more than 100 feet downwind tapered section points inby; conditions, which is approved by the of each section loading point; (vi) Equipped with one sphere district manager. (iii) Along the belt entry so that the securely attached to the lifeline at each * * * * * spacing between sensors does not
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exceed 1,000 feet. Where air velocities intended air flow direction at these the affected areas for carbon monoxide are less than 50 feet per minute, spacing locations. This map or schematic must so that they will be traveled each hour must not exceed 350 feet; and be updated within 24 hours of any in their entirety. Alternatively, a trained (iv) The mine operator shall indicate change in this information. person must be stationed at each the locations of all carbon monoxide (3) The automatic fire sensor and inoperative sensor to monitor for carbon sensors on the mine maps required by warning device system shall be monoxide; §§ 75.1200 and 75.1505 of this part. monitored for a period of 4 hours after (3) If the complete fire detection (2) Where used, sensors responding to the belt is stopped, unless an system becomes inoperative, trained radiation, smoke, gases, or other examination for hot rollers and fire is persons must patrol and continuously indications of fire, shall be spaced at made as prescribed in § 75.1103–4(e). monitor the affected areas for carbon regular intervals to provide protection * * * * * monoxide so that they will be traveled equivalent to carbon monoxide sensors, (d) When a malfunction or warning each hour in their entirety; and installed within the time specified signal is received at the manned surface (4) Trained persons who conduct in paragraph (a)(3) of this section. location, the sensors that are activated monitoring under this section must have (3) When the distance from the must be identified and appropriate two-way voice communication tailpiece at loading points to the first personnel immediately notified. capability, at intervals not to exceed outby sensor reaches the spacing (e) Upon notification of a malfunction 2,000 feet, and must report carbon requirements in § 75.1103–4(a)(1)(iii), or warning signal, appropriate monoxide concentrations to the surface an additional sensor shall be installed personnel must immediately initiate an at intervals not to exceed one hour; and put in operation within 24 investigation to determine the cause of (5) Trained persons who conduct production shift hours. When sensors of the malfunction or warning signal and monitoring under this section must the kind described in paragraph (a)(2) of take the required actions set forth in immediately report to the surface any this section are used, they shall be paragraph (f) of this section. concentration of carbon monoxide that installed and put in operation within 24 (f) If any sensor indicates a warning, reaches 10 parts per million above the production shift hours after the the following actions must be taken established ambient level, unless the equivalent distance which has been unless the mine operator determines mine operator knows that the source of established for the sensor from the that the signal does not present a hazard the carbon monoxide does not present a tailpiece at loading points to the first to miners: hazard to miners; and outby sensor is first reached. (6) Handheld detectors used to (b) Automatic fire sensor and warning (1) Appropriate personnel must notify miners in affected working sections, in monitor the belt entry under this section device systems shall be installed so as must have a detection level equivalent to minimize the possibility of damage affected areas where mechanized mining equipment is being installed or to that of the system’s carbon monoxide from roof falls and the moving belt and sensors. its load. Sensors must be installed near removed, and at other locations specified in the approved mine ■ 26. Section 75.1103–6 is revised to the center in the upper third of the read as follows: entry, in a manner that does not expose emergency evacuation and firefighting personnel working on the system to program of instruction; and § 75.1103–6 Automatic fire sensors; unsafe conditions. Sensors must not be (2) All miners in the affected areas, actuation of fire suppression systems. located in abnormally high areas or in unless assigned emergency response Point-type heat sensors or automatic other locations where air flow patterns duties, must be immediately withdrawn fire sensor and warning device systems do not permit products of combustion to to a safe location identified in the mine may be used to actuate deluge-type be carried to the sensors. emergency evacuation and firefighting water systems, foam generator systems, program of instruction. * * * * * multipurpose dry-powder systems, or (g) If the warning signal will be other equivalent automatic fire ■ 25. The section heading and activated during calibration of sensors, paragraph (a) of § 75.1103–5 are revised suppression systems. personnel manning the surface location ■ and paragraphs (d), (e), (f), (g) and (h) must be notified prior to and upon 27. Section 75.1103–8 is revised to are added to read as follows: completion of calibration. Affected read as follows: § 75.1103–5 Automatic fire warning working sections, areas where § 75.1103–8 Automatic fire sensor and devices; actions and response. mechanized mining equipment is being warning device systems; examination and (a) When the carbon monoxide level installed or removed, or other areas test requirements. reaches 10 parts per million above the designated in the approved emergency (a) Automatic fire sensor and warning established ambient level at any sensor evacuation and firefighting program of device systems shall be examined at location, automatic fire sensor and instruction must be notified at the least once each shift when belts are warning device systems shall provide an beginning and completion of operated as part of a production shift. A effective warning signal at the following calibration. functional test of the warning signals locations: (h) If any fire detection component shall be made at least once every seven (1) At working sections and other becomes inoperative, immediate action days. Examination and maintenance of work locations where miners may be must be taken to repair the component. such systems shall be by a qualified endangered from a fire in the belt entry. While repairs are being made, operation person. (2) At a manned surface location of the belt may continue if the following (b) A record of the functional test where personnel have an assigned post requirements are met: conducted in accordance with of duty. The manned surface location (1) If one sensor becomes inoperative, paragraph (a) of this section shall be must have: a trained person must continuously maintained by the operator and kept for (i) A telephone or equivalent monitor for carbon monoxide at the a period of one year. communication with all miners who inoperative sensor; (c) Sensors shall be calibrated in may be endangered and (2) If two or more adjacent sensors accordance with the manufacturer’s (ii) A map or schematic that shows become inoperative, trained persons calibration instructions at intervals not the locations of sensors, and the must patrol and continuously monitor to exceed 31 days. A record of the
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sensor calibrations shall be maintained § 75.1108 Approved conveyor belts. § 75.1731 Maintenance of belt conveyors by the operator and kept for a period of (a) Until December 31, 2009 conveyor and belt conveyor entries. one year. belts placed in service in underground (a) Damaged rollers, or other damaged ■ coal mines shall be: belt conveyor components, which pose 28. Section 75.1103–10 is revised to (1) Approved under Part 14; or a fire hazard must be immediately read as follows: (2) Accepted under Part 18. repaired or replaced. All other damaged § 75.1103–10 Fire suppression systems; (b) Effective December 31, 2009 rollers, or other damaged belt conveyor additional requirements. conveyor belts placed in service in components, must be repaired or underground coal mines shall be replaced. For each conveyor belt flight approved under Part 14. If MSHA (b) Conveyor belts must be properly exceeding 2,000 feet in length, where determines that Part 14 approved belt is aligned to prevent the moving belt from the average air velocity along the belt not available, the Agency will consider rubbing against the structure or haulage entry exceeds 100 feet per an extension of the effective date. components. minute, an additional cache of the (c) Effective December 31, 2018 all (c) Materials shall not be allowed in materials specified in § 75.1103–9(a)(1), conveyor belts used in underground the belt conveyor entry where the (2), and (3) shall be provided. The coal mines shall be approved under Part material may contribute to a frictional additional cache may be stored at the 14. heating hazard. locations specified in § 75.1103–9(a), or ■ 30. Remove § 75.1108–1. (d) Splicing of any approved conveyor at some other strategic location readily belt must maintain flame-resistant accessible to the conveyor belt flight. Subpart R—Miscellaneous properties of the belt. ■ 29. Section 75.1108 is revised to read ■ 31. Section 75.1731 is added to read [FR Doc. E8–30639 Filed 12–30–08; 8:45 am] as follows: as follows: BILLING CODE 4510–43–P
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Part IV
Department of Homeland Security Coast Guard 33 CFR Part 155 Salvage and Marine Firefighting Requirements; Vessel Response Plans for Oil; Final Rule
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DEPARTMENT OF HOMELAND Manager, Docket Operations, telephone Abbreviations Explanation SECURITY 202–366–9826. SUPPLEMENTARY INFORMATION: FOSC ...... Federal On-Scene Coordi- Coast Guard nator. Table of Contents FWPCA ...... Federal Water Pollution Con- 33 CFR Part 155 I. Abbreviations trol Act. II. Regulatory History ICS ...... Incident Command System. [Docket No. USCG–1998–3417] III. Background and Purpose IMO ...... International Maritime Orga- IV. Summary of Changes from NPRM nization. RIN 1625–AA19 (Formerly RIN 2115–AF60) V. Discussion of Comments and Changes LOI ...... Letter of Intent. A. Introduction MARAD ...... Maritime Administration. Salvage and Marine Firefighting B. General MFSA ...... Maritime Fire and Safety As- Requirements; Vessel Response Plans C. Twenty-four-hour response time sociation. for Oil D. Need for the regulation NARA ...... National Archives and E. Applicability Records Administration. AGENCY: Coast Guard, DHS. F. Incorporation by reference NEPA ...... National Environmental Pol- icy Act. ACTION: Final rule. G. Compliance dates H. Definitions NFPA ...... National Fire Protection As- SUMMARY: The Coast Guard is amending I. Response times sociation. NIMS ...... National Incident Manage- the vessel response plan salvage and 1. General 2. Timeframe too short ment System. marine firefighting requirements for 3. Timeframe too long NPRM ...... Notice of Proposed Rule- tank vessels carrying oil. These 4. Planning or performance standards making. revisions clarify the salvage and marine J. Use of resource providers during actual NPV ...... Net Present Value. firefighting services that must be incident NTTAA ...... National Technology Trans- identified in vessel response plans and K. Required services fer and Advancement Act. set new response time requirements for 1. Salvage NVIC ...... Navigation and Vessel In- each of the required salvage and marine 2. Firefighting spection Circular. firefighting services. The changes ensure 3. Other OCIMF ...... Oil Companies International L. Funding agreements Marine Forum. that the appropriate salvage and marine M. Considerations for choosing resource OCONUS ...... Outside the Continental firefighting resources are identified and providers United States. available for responding to incidents up 1. General OPA 90 ...... Oil Pollution Act of 1990. to and including the worst case 2. Coast Guard or third-party vetting OSHA ...... Occupational Safety and discharge scenario. 3. Use of public resources Health Administration. DATES: This final rule is effective N. Integration of the VRP into the Unified OSRO ...... Oil Spill Removal Organiza- January 30, 2009, except for the Command System/ICS tion. O. Worker health and safety P&I ...... Protection and Indemnity. amendment to § 155.1050, which is P. Waiver provisions PRA ...... Programmatic Regulatory effective February 12, 2009. The Q. Economic comments Assessment. incorporation by reference of certain R. Environment comments QI ...... Qualified Individual. publications listed in the rule is S. Tribal Consultation SERT ...... Salvage Engineering Re- approved by the Director of the Federal T. Miscellaneous sponse Team. Register on January 30, 2009. U. Beyond the scope SOLAS ...... International Convention for VI. Incorporation by Reference ADDRESSES: Comments and material the Safety of Life at Sea, VII. Regulatory Analyses 1974. received from the public, as well as A. Regulatory Planning and Review (E.O. STCW ...... International Convention on documents mentioned in this preamble 12866) Standards of Training, as being available in the docket, are part B. Small Entities Certification and of docket USCG–1998–3417 and are C. Assistance for Small Entities Watchkeeping, 1978. available for inspection or copying at D. Collection of Information UCS ...... Unified Command System. the Docket Management Facility (M–30), E. Federalism (E.O. 13132) VRP ...... Vessel Response Plan. U.S. Department of Transportation, F. Unfunded Mandates Reform Act VTS ...... Vessel Traffic Service. West Building Ground Floor, Room G. Taking of Private Property W12–140, 1200 New Jersey Avenue, SE., H. Civil Justice Reform II. Regulatory History I. Protection of Children Washington, DC 20590, between 9 a.m. J. Indian Tribal Governments On June 24, 1997, a notice of meeting and 5 p.m., Monday through Friday, K. Energy Effects was published in the Federal Register except Federal holidays. You may also L. Technical Standards (62 FR 34105) announcing a workshop find this docket on the Internet at http:// M. Environment to solicit comments from the public on www.regulations.gov, selecting the I. Abbreviations potential changes to the salvage and Advanced Docket Search option on the marine firefighting requirements found right side of the screen, inserting USCG– Abbreviations Explanation in 33 CFR part 155. 1998–3417 in the Docket ID box, The public workshop was held on pressing Enter, and then clicking on the ACP ...... Area Contingency Plan. August 5, 1997, to address issues related item in the Docket ID column. ANSI ...... American National Stand- to salvage and marine firefighting FOR FURTHER INFORMATION CONTACT: If ards Institute. response capabilities, including the 24- you have questions on this rule, or for ASTM ...... American Society for Testing hour response time requirement, found and Materials. at 33 CFR 155.1050(k), which was then questions regarding the Vessel Response BOA ...... Basic Ordering Agreement. Plan Program, contact Lieutenant CONUS ...... Continental United States. scheduled to become effective on Commander Ryan Allain at 202–372– COTP ...... Captain of the Port. February 18, 1998. The participants 1226 or [email protected]. If you EA ...... Environmental Assessment. uniformly identified the following three have questions on viewing the docket, FONSI ...... Finding of No Significant Im- issues that they felt the Coast Guard call Ms. Renee V. Wright, Program pact. needed to address:
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(1) Defining the salvage and marine proposed rule. The majority of these vessel operates within 24 hours of firefighting capability that is necessary letters contained multiple comments. notification by the planholder of an oil for the plans; During the comment period, we held spill. The Coast Guard did not originally (2) Establishing how quickly these four public meetings. On June 12, 2002, develop specific requirements because resources must be on scene; and a notice of public meetings was salvage and marine firefighting response (3) Determining what constitutes published in the Federal Register (67 resource requirements were considered adequate salvage and marine firefighting FR 40254) announcing the dates and unique for each vessel. The Coast resources. location for the first three public Guard’s intent was to rely on the A copy of the summary report meetings: planholders to prudently identify generated from this meeting is included • Texas City, TX, on July 9, 2002; contractor resources to meet their needs. in the project docket where indicated • Philadelphia, PA, on July 17, 2002; The Coast Guard expected that the under ADDRESSES. • Seattle, WA, on July 25, 2002. significant benefits of a quick and Based on comments received during On August 7, 2002, a notice was effective salvage and marine firefighting the workshop, the Coast Guard published in the Federal Register (67 response would be sufficient incentive determined that it should better define FR 51159) announcing the extension of for industry to develop salvage and the key elements within the the comment period until October 18, marine firefighting capabilities, similar requirements. Regulatory language such 2002, and the date and location for a 4th to the development of oil spill removal as ‘‘a salvage company with expertise public meeting: organizations that was seen in the early • and equipment’’ or ‘‘firefighting Louisville, KY, on September 26, 1990s. capability’’ needed to be further 2002. Early in 1997, it became apparent that specified before the Coast Guard could On January 23, 2004, a third notice of the expected salvage and marine expect vessel owners or operators to suspension was published in the firefighting capability development was comply with any related time Federal Register, continuing the 24- not occurring. There was disagreement requirements. Therefore, the Coast hour requirement suspension until among planholders, salvage and marine Guard determined that it should February 12, 2007 (69 FR 3236) because firefighting contractors, maritime suspend the 24-hour response time during the preceding three years, the associations, public agencies, and other requirement that stated: ‘‘identified Coast Guard had to redirect the majority stakeholders as to what constituted salvage and firefighting resources must of its regulatory resources to issue adequate salvage and marine firefighting be capable of being deployed to the port security-related regulations as required resources. There was also concern over nearest to the area in which the vessel by the Maritime Transportation Security whether these resources could be operates within 24 hours of Act of 2002. As a result, we were unable deployed to the port nearest the vessel’s notification’’ for plans that are to complete our review of the comments operating area within 24 hours, even submitted (or resubmitted) for approval we received in response to the May 10, though the maritime industry had after that time. (33 CFR 155.1050(k)) 2002 NPRM. Once NPRM comment several years to develop these resources. On February 12, 1998, a notice of review was done, we found that Thus, this salvage and marine suspension was published in the numerous public comments addressed firefighting rulemaking was initiated. Federal Register suspending the 24- environmental issues and we agreed hour requirement scheduled to become that these comments had merit. As a IV. Summary of Changes From NPRM effective on February 18, 1998, until result, a new Programmatic Each change made between the NPRM February 12, 2001 (63 FR 7069) so that Environmental Assessment (PEA) was and the final rule is summarized and the Coast Guard could address issues drafted, solely for these salvage and described below. The vast majority of identified at the public workshop marine firefighting revisions, to address changes were made in response to through a rulemaking that would revise these comments. public comment and are discussed in the existing salvage and marine On January 3, 2006, a notice was more detail in the ‘‘Discussion of firefighting requirements. published in the Federal Register (71 Comments and Changes’’ section of this On January 17, 2001, a second notice FR 125) requesting comment on a draft preamble. of suspension was published in the PEA. • We revised the incorporation by Federal Register suspending the 24- On February 9, 2007, a fourth notice reference section (§ 155.140) by hour requirement scheduled to become of suspension was published in the referencing the most recently available effective on February 12, 2001, until Federal Register (72 FR 6168) NFPA Standard or Guide for each of the February 12, 2004 (63 FR 7069) because continuing the 24-hour requirement four NFPA documents listed in the the potential impact on small businesses suspension until February 12, 2009, to NPRM. Additionally, based on public from this new rulemaking required the permit the Coast Guard to complete its comment, we added a fifth NFPA preparation of an initial regulatory work on the regulatory and Standard (1005) to the list of documents flexibility analysis under the Small environmental assessments. incorporated by reference. Business Regulatory Enforcement • We revised the Purpose of this Fairness Act of 1996. This was not III. Background and Purpose subpart section (§ 155.4010) to address determined until a draft regulatory Requirements for salvage and marine public comment by adding a new assessment was completed in November firefighting resources in vessel response paragraph (b) to clarify that the response 2000. plans (VRPs) for vessels carrying group criteria specified in the regulations are On May 10, 2002, the Coast Guard I–IV oils have been in place since planning criteria, not performance published a notice of proposed February 5, 1993 (58 FR 7376). The standards, and are based on rulemaking (NPRM) entitled Salvage existing requirements found at 33 CFR assumptions that may not exist during and Marine Firefighting Requirements; 155.1050 are general and only require an actual incident, as stated in 33 CFR Vessel Response Plans for Oil [USCG– that a planholder identify salvage and 155.1010. 1998–3417] in the Federal Register (67 marine firefighting resources. • We revised the Who must follow FR 31868). The 90-day comment period Additionally, they require that these this subpart? section (§ 155.4015) to was to close on August 8, 2002. We resources are capable of being deployed read ‘‘You must follow this subpart if received 104 letters commenting on the to the port nearest the area in which the your vessel carries group I–IV oils, and
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is required by § 155.1015 to have a (ACPs) and the National Oil and V. Discussion of Comments and vessel response plan.’’ to address public Hazardous Substances Pollution Changes comment requests for clarity. Contingency Plan as found in A. Introduction • We revised the When must my plan § 155.1030(h). comply with this subpart? section • We revised the Ensuring firefighting We received 104 letters commenting (§ 155.4020) to address public comment equipment is compatible with your on the proposed rule. The majority of requests to change the compliance date vessel paragraph (§ 155.4030(g)) to these letters contained multiple from 6 months to 18 months after address public comment by adding text comments. During the comment period, publication of the final rule. requiring a 20-minute minimum time we held four public meetings— • We revised the definitions section criteria for the extinguishing agent. • Texas City, TX, on July 9, 2002; • (§ 155.4025) to address public comment We added a new Other resource • Philadelphia, PA, on July 17, 2002; by adding additional language to eight provider considerations section • Seattle, WA, on July 25, 2002; and definitions: ‘‘Assessment of structural (§ 155.4032) to address public comment • Louisville, KY, on September 26, stability’’; ‘‘Contract or other approved that includes language in paragraph (a) 2002. means’’; ‘‘Funding agreements’’; regarding the use of service providers The following is a summary of the ‘‘Marine firefighting’’; ‘‘On-site fire not listed in the plan. comments received, both by letter and at assessment’’; ‘‘On-site salvage • We moved the Worker health and the public meetings, and the changes assessment’’; ‘‘Remote assessment and safety section (old § 155.4030(i)) to made to the regulatory text since the consultation’’; and ‘‘Resource provider’’. § 155.4032(b) and added reference cites. NPRM was published. The items that Additionally, we added four new • We revised the Required pre- address a general issue are grouped first, definitions for ‘‘Boundary lines’’; incident information and arrangements then by those that relate to a specific ‘‘Captain of the Port (COTP) city’’; for the salvage and marine firefighting topic or provision in the regulatory text. ‘‘Marine firefighting pre-fire plan’’; and resource providers listed in response ‘‘Primary resource provider’’. plans section (§ 155.4035) to address B. General • We revised the required pre- public comment by adding text to incident information and arrangements paragraph (b)(1) indicating that if the In support of the proposed rule, seven for the salvage and marine firefighting planholder’s vessel pre-fire plan is one comments were received that generally resource providers listed in response that meets international standards, a supported the rulemaking. One plans section (§ 155.4035) by deleting copy of that specific fire plan must also commenter stated that both salvage and the referenced cite § 155.1045(c) from be given to the resource provider. firefighting responses are significantly the text in § 155.4035(a). Section Additionally, we added a new improved by timely reaction at the very 155.1045 applies to ‘‘Response plan paragraph (b)(3) regarding who must early stages of an emergency. Three requirements for vessels carrying oil as receive copies of the planholder’s vessel commenters pointed out that some ports a secondary cargo’’ and does not require pre-fire plan. have limited capability to conduct a salvage and marine firefighting • We revised the Response Time End marine firefighting, and that the component. Points requirements (Table 155.4040(c)) increase in capability these regulations • We changed the section titles to address public comment for ‘‘heavy would bring is especially important in (§ 155.4010 to § 155.4055) from the lift’’ service from ‘‘resources on scene’’ the current port security climate due to question format to a declarative to ‘‘estimated,’’ to align with the possible acts of terrorism. One statement format. response timeframe requirement in commenter stated that the current U.S. • We revised the Specialized Salvage Table 155.4030(b)(1)(iii)(C). salvage structure, if not given the Operations response timeframe • We revised the Ensuring that the support of a regulatory framework, such requirement (Table salvage and marine firefighters are as these regulations, will fail in the long 155.4030(b)(1)(iii)(C)) for ‘‘heavy lift’’ adequate section (§ 155.4050) to address term. One commenter stated the rule service from 72/84 hours to a response public comment by revising will reduce confusion by helping ship time of ‘‘estimated.’’ Based on public introductory language in paragraph (b) owners understand what salvage comment, we determined that heavy lift to emphasize the importance of the services are truly required to be listed in services are not required to have selection criteria, amending paragraph their vessel response plans (VRPs). definite hours for a response time. The (b)(6) with updated NFPA Guide/ In opposition to the proposed rule, we planholder must still contract for heavy Standards, revised paragraph (b)(13) to also received several comments that lift services, provide a description of the include ‘‘in arduous sea states and disagreed generally. Twelve heavy lift response and an estimated conditions’’ to ensure that all expected commenters stated that this rulemaking response time when these services are weather conditions are addressed when amounted to bad public policy. The required; however, none of the selecting a resource provider for Coast Guard disagrees and maintains timeframes listed in the table in contract, adding paragraph (b)(14) on that the regulation provides an § 155.4030(b) will apply to these worker health and safety, and adding appropriate level of needed salvage and services. paragraph (b)(15) regarding a resource marine firefighting capability to mitigate • We corrected the Integration into provider having familiarity with the or reduce pollution in the marine the response organization paragraph marine firefighting and salvage environment. (§ 155.4030(c)) by listing the appropriate operations contained in the local Area One commenter asked the Coast cross reference cites §§ 155.1035(d), Contingency Plans for each COTP area Guard to make substantial revisions to 155.1040(d) and 155.1045(d). for which they are being contracted. any proposed salvage and firefighting • We revised the Coordination with • We added a Drills and exercises requirements it may impose. The Coast other response resource providers, section (§ 155.4052) to highlight that Guard acknowledges this request, but as response organizations and OSROs Salvage and Marine firefighting the comment included no specific paragraph (§ 155.4030(d)) by adding text components are part of the existing changes the commenter would find requiring that the information contained exercise requirements for vessels acceptable, the Coast Guard did not in the response plan must be consistent holding VRPs, as found in §§ 155.1060 make changes in response to this with applicable Area Contingency Plans and 155.1065. comment. Where changes have been
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made based on other comments, they 1997, public workshop that was held to had in-depth discussions with salvage are explained throughout this preamble. formulate the basis for the NPRM. That and marine firefighting industry leaders One commenter stated that there is no workshop was structured to identify over various periods regarding the reason to tie vessel salvage to pollution major issues concerning salvage and current salvage and marine firefighting response. The Coast Guard disagrees in marine firefighting in the VRP context. capabilities and what would be the part. This rulemaking is based on steps To accomplish this, the 35 workshop anticipated increase in salvage re- that are necessary to mitigate the release attendees, invited from a cross section capitalization once the final rule was of oil into the marine environment, thus of the affected industries, were asked to issued. This rule is intended to increase avoiding the need for pollution list their top three issues concerning resource providers’ capabilities to the response. One way to reduce the need marine salvage and firefighting on an level necessary to handle emergency for pollution response is to ensure informal workshop survey form. A Coast incidents prior to deterioration into proper salvage procedures can be Guard officer and a maritime law worst case discharge scenarios; it will followed by ensuring (through contract) attorney, representing the Maritime also increase the response capabilities that service providers will be place in Association of the Ports of New York necessary to keep ports and waterways the wake of a marine casualty. In other and New Jersey, facilitated the open in a worst case discharge scenario, words, this is a proactive rulemaking. workshop. The Coast Guard announced which might include a national security One commenter expressed the deep this workshop in the Federal Register incident. The current capabilities, and concern of the tank vessel industry over on June 24, 1997, and invited all factors that have or have not produced the direction the Coast Guard took in interested parties, including those capabilities, were sufficiently the NPRM, and urged the Coast Guard planholders, to participate. In addition, studied. to give this issue special attention and four public meetings were held after One commenter strongly urged the ensure that the final result meets the issuance of the NPRM, and a lengthy Coast Guard to use the tools that it has tests of value-added, cost-effective, and public comment period was used to created and employ its superior common-sense rulemaking. The Coast ensure all interested parties had a understanding of the maritime system to Guard developed the NPRM and this chance to contribute to the process of make informed, well-reasoned, and risk- final rule after considering numerous issuing a final rule. based decisions in the context of this statutes and executive orders related to One commenter considered it rule. We thank the commenter, and have rulemaking. At the time of the NPRM, inaccurate for the Coast Guard to determined that the extensive the Coast Guard did consider common- describe the workshop (referenced groundwork done in conceiving and sence rulemaking practice and assessed above) as reflecting a ‘‘uniform’’ drafting this regulation has led to a fair, the cost-effectiveness of the industry request to the Coast Guard to beneficial, and effective regulation. requirements using reasonable promulgate detailed performance, interpretation of available industry and instead of planning, standards Two commenters suggested a ‘‘placing spill data. We have also provided a governing salvage operations. The Coast the right people in the right place at the similar assessment for the final rule. Guard disagrees that the workshop right time’’ approach instead of a new Assessments for the NPRM and this addressed performance standards; it did regulation. They noted this will allow final rule are available in the docket as not. We were unable to locate the point plans to develop quickly and allow ship indicated under ADDRESSES. in the NPRM where the Coast Guard owners to take advantage of the best Ten commenters suggest that the made a statement such as that suggested available assets as quickly as possible. Coast Guard and the tank vessel by the comment. The response criteria The Coast Guard disagrees. This type of industry get together and discuss the specified in the regulations (e.g., approach has had the opportunity to proposed rule in order to come up with quantities of response resources and develop without new regulations ever livable alternatives. The Coast Guard their arrival times) are planning criteria, since the Oil Pollution Act of 1990 agrees with the intent of this comment. not performance standards, and are (OPA 90) (Pub. L. 101–380, 33 U.S.C. After publication of the NPRM, the based on assumptions that may not exist 2701 et seq.; 104 Stat. 484) was enacted. Coast Guard held four public meetings, during an actual incident, as stated in However, based upon resource and accepted public comments to 33 CFR 155.1010. Failure to meet providers’ past performance from 1990 ensure that all parties had the specified criteria during an actual spill to 2002, it is unlikely that such an opportunity to comment on the NPRM. response does not necessarily mean that approach has been, or would be We considered all comments received, the planning requirements of the successful. Therefore, this regulation is and this final rule is a result of that Federal Water Pollution Control Act necessary to ensure resources are effort. (FWPCA), OPA 90 and regulations were available when needed. However, this One commenter stated that while the not met. The Coast Guard will exercise regulation allows for deviations from Coast Guard can meet with whomever it its enforcement discretion in light of all the VRP if required and approved by the wants, the very carefully worded facts and circumstances. Nothing in this Federal On-Scene Coordinator (FOSC). description of the meeting in the rulemaking introduces performance C. Twenty-Four-Hour Response Time proposed rule sounded very much like standards. the meetings should have been open to One commenter stated that any One commenter stated that the Coast the public. The commenter added that discussion of government action Guard should permanently revoke the the ‘‘Purpose’’ section lacks any designed to create additional salvage 24-hour response time currently indication that the Coast Guard actively and marine firefighting capacity in the provided for in 33 CFR 155.1050(k)(3), sought out the views of owners and United States must include some which has been suspended since operators, noting that additional analysis of the factors that affect the February 12, 1998. Five commenters consultation with the affected current capabilities of salvors. The Coast stated that the 24-hour response times planholders prior to publication of the Guard agrees in part. In addition to are wholly unacceptable and inadequate NPRM would have produced a sounder including salvage representatives in the for marine firefighting. The Coast Guard proposal and, most likely, a shorter public workshop and asking salvage agrees with the commenters and we regulatory process. The Coast Guard industry leaders to complete workshop removed the 24-hour response time disagrees, and points to the August 5, surveys regarding their capabilities, we requirement in this final rule.
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One commenter asked the Coast was not the overriding reason for this public meetings, and consultations with Guard to withdraw this proposed rule rulemaking. Rather, consistent with various representatives of industry were and permanently revoke the 24-hour OPA 90, the overriding reason for this used to formulate this rulemaking. response time currently provided for in rulemaking is to define the salvage and One commenter stated that the Marine 33 CFR 155.1050(k)(3), which is under marine firefighting capability that is Board’s Committee on Marine Salvage temporary suspension. The Coast Guard necessary in the VRP (Table Issues (cited above), particularly its disagrees; such an action would remove 155.4030(b)), establish how quickly assessment of the salvage industry, all planning standards for salvage and these resources must be on-scene, and appears to have been a principal firefighting from the regulation. The determine what constitutes adequate motivating factor behind the NPRM. planning standard timeframes included salvage and marine firefighting Two commenters stated that the Marine in this final rule were determined to be resources as found in § 155.4050. Board Report was heavily relied on by realistic standards for planholders and Two commenters stated that there the drafters of this rule. The Coast resource providers to use in developing were no obvious instances where the Guard disagrees. As stated above, this their contractual arrangements, and the timeliness or lack of salvage or report was taken into consideration, as timeframes will ensure a proper firefighting capabilities reduced the were numerous other sources, including response will be available to avoid a effectiveness or the outcome of an oil workshops, research, public meetings, worst case discharge scenario. spill response, and they recommended and consultations with various One commenter stated that they delaying action on the rule until they representatives of industry were used to understood the Coast Guard was have had an opportunity to assess formulate this rulemaking. concerned about a lack of specificity in whether tank vessel casualty history Three commenters expressed concern the suspended 33 CFR 155.1050(k)(3), warrants a change in the current tank that the Coast Guard is forging ahead which requires 24-hour response times vessel salvage and marine firefighting without having gathered and thoroughly for an emergency incident. However, the requirements. The Coast Guard assessed all available relevant data. commenter argued that the NPRM’s understands the issues raised by these They also stated that either we missed identification of the expertise a commenters, but this regulation is some very crucial data, or our planholder should be prepared to have written to ensure response capabilities assumptions are seriously flawed. The on scene largely resolves that issue. The are identified and available for Coast Guard disagrees. The data used to commenter added that, with the responding to incidents up to and develop this regulation has come from exception of heavy lift and sub-surface including a worst case discharge extensive research, studies, a public product removal, the salvage scenario as specifically required in OPA workshop, review of published works, capabilities could fall within the 24- 90: and numerous reference materials hour requirement. The Coast Guard including National Fire Protection disagrees. The required timeframes for Section 4202 * * * (5) TANK VESSEL Association (NFPA) documents and AND FACILITY RESPONSE PLANS., (A) The salvage are reasonable and necessary to President shall issue regulations which salvage and marine firefighting case ensure any incident emergency resource require an owner or operator of a tank vessel histories. In total, the Coast Guard has provider is contracted for and able to or facility described in subparagraph (B) to been studying this salvage and marine arrive on scene at the earliest possible prepare and submit to the President a plan firefighting issue since 1992, long before opportunity. These timeframe for responding, to the maximum extent the issuance of the NPRM. Since the requirements will improve the chances practicable, to a worst case discharge, and to NPRM was published, we have held that the vessel crew, planholders, and a substantial threat of such a discharge, of oil four additional public meetings that resource providers will keep an incident or a hazardous substance. [See 33 U.S.C. were very well attended by members 1321(j)(5)] from deteriorating into a worst case representing all sides of the issues discharge over the initial 24 hours. In essence, while the number of under discussion. After the public incidents and amount of oil spilled into comment period closed, we received D. Need for the Regulation the water has decreased over the years and reviewed over 1,000 comments on Six commenters stated that the since OPA 90 was enacted, the law still the NPRM. This regulation meets the existing regulations satisfy the need for requires identifying and employing needs of the public and maritime salvage and firefighting resources. They prevention methods for a worst case industry. stated there is no casualty evidence to discharge scenario. One commenter stated that the indicate that the present regulations fail One commenter stated that if one present salvage capacities accurately to satisfy the need for timely salvage takes the National Research Council’s reflect the need and scope of those and/or firefighting resources, and that 1994 Marine Board Report, ‘‘A services and a rule intended to sustain these regulations are unjustified and Reassessment of the Marine Salvage salvage capacity at a level above or demonstrably unfair to the entire tanker Posture of the United States’’ in its different than that justified by casualty industry serving the United States. One entirety, it provides ample evidence for data and economics is costly and ill commenter stated that they felt that the not implementing this rule. The Coast conceived. The Coast Guard disagrees. Coast Guard’s regulatory assessment, as Guard disagrees. The information Section 4202(a) of OPA 90 and amended written in the NPRM, will only have a presented in the report could be used to § 311(j) of the FWPCA (33 U.S.C. 1251– five-percent impact over current both support and counter arguments for 1376) outline the requirement to prepare performance measures. The Coast Guard this regulation. The Coast Guard and submit a written response plan for disagrees. The requirements within this considers the requirements in this a worst case discharge scenario of oil, regulation are reasonable and valid for regulation reasonable and valid for and this regulation was designed to ensuring the identification and ensuring response capabilities are satisfy those requirements. While this availability of response capabilities for identified and available to respond to regulation might have the effect of responding to incidents up to and incidents up to and including a worst sustaining or raising the level of salvage including a worst case scenario as case discharge scenario, as required by and marine firefighting resources in required by OPA 90. The amount of oil OPA 90. While this report was taken place, it was not written for, or intended spilled in past years, while an important into consideration, numerous other to, have that effect beyond the statutory factor in developing these regulations, sources including workshops, research, requirements.
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One commenter noted that the Coast E. Applicability when they fall under the applicability as found in 33 CFR 155.1015(a). Guard has acknowledged that crew One commenter stated that careful actions and salvage response efforts We received 65 comments criticizing consideration should be given to the fact that this regulation was written have resulted in substantial prevention bareboat-charter operators, because such of oil spillage, even in the most severe to apply only to oil-carrying vessels. At owners should not have to pay for the the time this NPRM was issued, the accidents. Another commenter stated negligence of individuals renting vessels that the highly prescriptive approach in Coast Guard did not have legislative under those types of agreements. The authority to require VRPs for nontank the NPRM contradicts the tank vessel Coast Guard disagrees. Part 155 of 33 industry’s improved incident record. vessels. In the Coast Guard and CFR requires that the ‘‘owner or Maritime Transportation Act of 2004 The Coast Guard agrees that oil-spill operator’’ prepare and submit a VRP to volume has decreased significantly (Pub. L. 108–293), Congress gave us the the Coast Guard. The matter of who authority to do so by stating: since the implementation of oil-spill submits the VRP is a contractual regulations and innovative measures agreement to be determined by the The President shall also issue regulations taken by the tank vessel industry to which require an owner or operator of a owner or operator—he or she is free to nontank vessel to prepare and submit to the reduce spills. However, this regulation include preparation of this VRP as part President a plan for responding, to the was written to fulfill OPA 90 of the terms of the bareboat charter. maximum extent practicable, to a worst case requirements of adequate salvage and Additionally, in § 155.1020, the discharge, and to a substantial threat of such marine firefighting response capabilities definition for ‘‘contract or other a discharge, of oil. (Section 701 of Pub. L. for up to and including worst case approved means’’ states, in part, that it 108–293). discharge scenario incidents, including is: ‘‘a written contractual agreement Since then, we have issued NVIC #01– a discharge resulting from fire or between a vessel owner or operator and 05, Change One, ‘‘Interim Guidance for explosion; it was not written in an oil spill removal organization’’ and the Development and Review of response to the amount of oil spilled in also defines ‘‘operator’’ as a: Response Plans for Nontank Vessels.’’ U.S. waters since 1990. Person who is an owner, a demise This circular provides guidance to Two commenters stated that OPA 90 charterer, or other contractor, who conducts owners and operators of nontank vessels did not grant the Coast Guard authority the operation of, or who is responsible for the for preparing and submitting VRPs for in this area, and requested that the Coast operation of a vessel. responding to a discharge or threat of a discharge of oil from their vessels. A Guard carefully review the Act and It is not the Coast Guard’s intent to nontank vessel is defined as a self- specify where the authority to dictate the exact contractual propelled vessel of 400 gross tons or promulgate the proposed revision is arrangement to meet the intent of this greater, other than a tank vessel, which located. The commenters stated that the regulation, only to ensure the carries oil of any kind as fuel for main Coast Guard should not promulgate requirement is met to enhance safety. propulsion and is a vessel of the United these regulations if it is lacking One commenter stated that the States or operates on the navigable authority to take such action. The Coast applicability of 33 CFR 155.1015 should waters of the United States. For more Guard strongly disagrees that we have remain exactly as written, because the information, the applicable Coast Guard no authority to promulgate these exemptions written into the subpart Navigation and Inspection Circular regulations. The Coast Guard was were done as part of a lengthy and open (NVIC) #01–05, Change One, ‘‘Interim delegated authority pursuant to period of public discussion, and that Guidance for the Development and Executive Order 11735, as outlined in any changes would circumvent the Review of Response Plans for Nontank the authorities section of the regulation. normal public discussion process. The Vessels’’ is available on the World Wide Executive Order 11735 states: Coast Guard agrees and has not revised Web at http://www.uscg.mil/hq/g-m/ the tank vessel response plan The Secretary of the Department in which nvic/. applicability section of § 155.1015. the Coast Guard is operating is hereby F. Incorporation by Reference designated and empowered to exercise, One commenter stated that vessels, without the approval, ratification, or other such as shale barges and liquid-mud One commenter stated that the action of the President, the following: * * * barges, should not be part of the current standard found in the International (2) the authority of the President under proposed rulemaking. The Coast Guard Convention for the Safety of Life at Sea subsection (j)(1)(C) of section 311 of the act, agrees as these vessels, while required treaty (SOLAS), 1974, Chapter II–2, relating to the establishment of procedures, to have VRPs under the applicability Regulation 16, should be required for methods, and equipment and other regulations found in 33 CFR 155.1015 § 155.4030(g). The Coast Guard requirements for equipment to prevent and 155.1045 as vessels carrying oil as disagrees. SOLAS chapter II–2, discharges of oil and hazardous substances a secondary cargo, are exempted by regulation 16 (2000 Amendments) from vessels and transportation-related § 155.1045 to list a salvage and marine addresses ‘‘Fire Safety Operational onshore and offshore facilities, and to firefighting resource provider in the Booklets’’ and procedures for cargo tank contain such discharges. VRP. purging. In the ‘‘Fire Safety Booklet,’’ Two commenters urged the Coast section 16.2, there is no mention of In addition, the requirements of Guard to coordinate with the Canadian types and amounts of extinguishing § 4202(a) of OPA 90 and amended Coast Guard on this rulemaking. The agents needed on board the vessel. The § 311(j) of FWPCA, outline the Coast Guard agrees. There are, and will SOLAS regulation doesn’t include requirement to prepare and submit a be, continuing efforts of coordination extinguishing agent requirements written response plan for a worst case and cooperation between the U.S. and essential to adequate planning for discharge of oil. See 33 U.S.C. Canada on maritime issues of interest to marine firefighting, therefore 1321(j)(5). Part of such a worst case both countries, and the vessel traffic § 155.4030(g) remains unchanged in this discharge scenario would include service (VTS) agreement in the Juan de final rule. firefighting and salvage operations; Fuca region will remain in place. Any Three commenters stated that therefore it is necessary, under the law, vessels, regardless of their country of application rates for foam should at that the VRPs include these elements. origin, are subject to this rulemaking least be consistent with NFPA 11 and
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11A or other recognized standards. The rule, and the newly issued NFPA 1005 Three commenters did not feel that Coast Guard disagrees. Section (Standard on Professional Qualifications requiring some plan holders to list 155.4030(g) was written to meet the for Marine Fire Fighting for Land-Based multiple providers for their entire area quantity of foam requirements in the Fire Fighters) has also been of operations is unreasonable and a existing 46 CFR 34.20–5 and Coast incorporated by reference in reason to delay these regulations. The Guard NVIC #6–72, ‘‘Guide to Fixed §§ 155.4035 or 155.4050. Coast Guard agrees because planholders Fire-Fighting Equipment Aboard In addition, more information on the will have 18 months from the date of Merchant Vessels’’. These requirements Incident Management System may be issuance of this final rule to comply, are for the vessel’s internal firefighting found by going to the Coast Guard’s which is an adequate time period for systems and external resource ‘‘Homeport’’ Web page, http:// planholders to list all of their resource requirements should be compatible with homeport.uscg.mil/mycg/portal/ep/ providers. the existing system capacities required home.do, and search for ‘‘NIMS/ICS’’. H. Definitions on the vessels. Three commenters stated that One commenter stated that the One commenter stated that the firefighting personnel protective proposed definition of ‘‘contract or requirement to develop the fire plan in equipment should meet NFPA 1971, other approved means’’ is unnecessary, accordance with the NFPA standard is 1972, 1973, 1974, 1976, 1981, or a inappropriate, and extremely confusing not practical and offers little benefit. recognized equivalent. While standards to planholders, and that the salvage and They suggested that all vessels (SOLAS for protective equipment are important, firefighting requirements are a part of as well as non-SOLAS) be required to it is beyond the scope of this regulation the tank VRP regulations. They feel the carry a SOLAS fire plan. The Coast to require using specific equipment in existing definition of ‘‘contract or other Guard disagrees. Another commenter response operations. Therefore, the stated that if a vessel meets the approved means’’ (found in 33 CFR suggested standards were not 155.1020) has worked well and should guidelines of NFPA 1405 for a pre-fire incorporated. plan by means of another document, be applied throughout the regulations. In addition to the changes stated such as a SOLAS fire plan, a The Coast Guard disagrees. The above, the Coast Guard is amending requirement to attach it to the VRP is definition found in 33 CFR 155.1020 is needed. The Coast Guard agrees that the § 155.140 by incorporating by reference written specifically, and has numerous NFPA pre-fire plan standards align with the most recent edition of each relevant references to, oil spill removal the SOLAS fire plan requirements to a NFPA document. Since marine organizations. The definition in degree that meets the intent of these firefighting is a dangerous and complex § 155.4025, written specifically for the regulations. We added wording to allow activity, this revision will help ensure salvage and marine firefighting portion SOLAS vessels to use their SOLAS fire that the most current methods and of part 155, is sufficient and we have plans in lieu of a fire plan developed practices are employed for planning and not made any changes to it. As noted under NFPA 1405 to § 155.4035(b)(1). responding to a marine fire. below, however, the definition in Three commenters stated that NFPA G. Compliance Dates § 155.4025 does not substantially differ is currently working on a Professional from § 155.1020. Qualification Standard for Marine Three commenters stated that if the Two commenters stated that the Firefighters that should be noted as regulations are enacted, planholders proposed § 155.4025 creates a definition incorporated by reference when will be hard-pressed to identify and of ‘‘contract or other approved means’’, published, as it would eliminate the qualify resource providers, negotiate which is substantially different from the need to rewrite the regulation when it with resource providers, get contracts in existing definition of this term in 33 is promulgated. The Coast Guard agrees place, prepare the various plans, and CFR 155.1020. They noted that the that the new qualification standard, submit the VRP to the Coast Guard. The creation of dual definitions and dual issued in July of 2007, will be beneficial commenters added that the Coast Guard regulatory standards is bad rulemaking, under § 155.4050, and it has been does not have the resources to review particularly when the conflicting incorporated by reference into this the VRPs in a timely manner. They definitions are in the same set of regulation. suggested that, if the NPRM is not regulations. They expressed a Five commenters stated that NFPA withdrawn, the Coast Guard should preference for the definition appearing 1405 is a guide for marine firefighting modify the regulation so that VRP in § 155.1020, stating that it has proven training and not a standard. The Coast elements are submitted in stages. They to be appropriate and effective. The Guard agrees and has amended the further suggested that planholders be Coast Guard agrees in part. While there wording in §§ 155.4035(b)(1) and permitted to submit completed VRPs are two separate definitions, the 155.4050(b)(6) to reflect this. However, with named resource providers with a definition in § 155.4025 does not incorporating NFPA 1405 into the letter of commitment only, no contract, substantially differ from § 155.1020. regulation is still considered essential and without regard to response times. Therefore, this definition suffices as by the Coast Guard. The Coast Guard agrees in part and has written. We have, however, added text One commenter asked that the amended § 155.4020 to extend the into the written definition to clarify that following NFPA documents be adopted deadline for submitting the VRP to 18 if the vessel owner or operator has in the proposed rulemaking: NFPA 1001 months after publication of this final personnel, equipment, and capabilities (Fire Fighter Professional rule. The Coast Guard does not agree under their direct control, they need not Qualifications), NFPA 1021 (Fire Officer with having the planholders submit contract for those items with a resource Professional Qualifications), NFPA 1405 VRPs in stages or without contracts with provider. (Land-Based Fire Fighters Who Respond resource providers in place. We Ten commenters requested that we to Marine Vessel Fires), and NFPA 1561 determined that 18 months is adequate clearly define ‘‘COTP city’’, as the (Emergency Services Incident to have these required contractual current use in the regulation is Management System). The Coast Guard arrangements in place. Additionally, the confusing and may not be effective for agrees. Those materials, which were Coast Guard has already begun to take determining requirements. The Coast proposed for incorporation by reference the influx of VRPs into consideration for Guard agrees and has added a definition in the NPRM, are retained in the final internal staffing needs. of ‘‘COTP city’’ in § 155.4025.
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One commenter stated that the However, we have removed the word and will retain the definition as written. definition of ‘‘emergency lightering’’ ‘‘danger’’ from the definition for clarity The timeframe required in Table should be included in § 155.1020. The and to match the wording in 155.4030(b) is for the salvage plan to be commenter also suggested greater use of § 155.4035(b)(2). approved and for having the resources cross-referencing. The commenter Two commenters stated that there required for refloating on board, not a references a subpart that is not covered needs to be a definition for ‘‘marine timeframe for the vessel to be refloated. by this rulemaking. However, the Coast firefighting plan.’’ They recommended One commenter stated that Guard will keep this suggestion under that the VRP be consistent with the § 155.4030(a) requires the identification advisement should rewriting the National Incident Management System of a ‘‘primary resource provider’’ for applicable subparts in a future (NIMS)/Incident Command System each Captain of the Port (COTP) zone in rulemaking become necessary. (ICS) incident plan content and formats. which the vessel operates, but that the One commenter stated that the The Coast Guard believes the term is not defined. The commenter definition of ‘‘emergency lightering’’ commenters meant the marine recommended adding the word should not include portable barges or firefighting pre-fire plan as required by ‘‘primary’’ to the definition for shore-based portable tanks. The Coast § 155.4035(b) and agrees. We have ‘‘resource providers’’ or clearly defining Guard disagrees. These methods of added the definition of a marine the distinction between the ‘‘primary emergency lightering are two of many firefighting pre-fire plan into § 155.4025. resource provider’’ and the ‘‘resource different techniques that may be used in The Coast Guard does not agree, provider’’. The Coast Guard agrees and an emergency lightering response. The however, that the VRP needs to be has clarified this issue by adding a definition includes the phrase ‘‘or other consistent with the NIMS/ICS incident definition for ‘‘primary resource equipment that circumstances may plan. We determined that the Unified provider’’ to § 155.4025. dictate’’ to allow the planholder and Command has the responsibility of Three commenters stated that the resource provider to use the best drafting the incident plan during the definition for ‘‘remote assessment and methods for each particular incident. actual incident dependent on actual consultation’’ needs to be more specific Three commenters recommended circumstances, not on pre-incident on who can be contacted, as the current rewording the definition for ‘‘external planning. definition could be construed to include vessel firefighting systems,’’ while One commenter asked that the terms administrative or support personnel that giving no suggestions on how it should ‘‘marine firefighting team’’, ‘‘marine would be unable to make effective be defined. The definition as written is firefighting provider’’, and ‘‘marine determinations on the appropriate sufficient; therefore, no revision has firefighting training’’ be better defined. course of action and initiation of a been made. However, the commenter did not response plan. The Coast Guard agrees One commenter stated that in the explain why or how or provide any and has amended the definition in definition of ‘‘external vessel suggestions. As a result, the Coast Guard § 155.4025 to read: firefighting system,’’ airplanes and has determined that the definitions and helicopters should be deleted because The person contacted must be competent references in the text, as written, suffice to consult on a determination of the they are not applicable to shipboard for this rulemaking. appropriate course of action and initiation of firefighting. The Coast Guard disagrees. One commenter recommends deleting a response plan. We feel air assets can be integral to the ‘‘offshore area’’ definition from One commenter pointed out that the shipboard-firefighting operations in subpart I, § 155.4025, because it is delivery of needed firefighting supplies definition of ‘‘resource providers’’ already included in subpart D, includes the phrase ‘‘as long as they are and equipment. However, these § 155.1020. The Coast Guard disagrees regulations do not require them to be able and willing to provide the service because readers of subpart I will find needed’’ in the second sentence, and provided. That is a decision left to the this definition more conveniently in planholder and resource provider to that it should be removed. The Coast that subpart than in a preceding one. address. Therefore, we did not revise Guard agrees in part and has amended One commenter stated that the the definition to refer to the limitations the definition. definition for ‘‘on-site fire assessment’’ One commenter stated that the for public marine firefighters as listed in requires a marine firefighting definition of ‘‘funding agreement’’ is not § 155.4045(d). professional to also consider the vessel necessary. The Coast Guard disagrees; Seven commenters asked that the stability and structural integrity, and the definition is necessary to ensure definition for ‘‘resource provider’’ be since vessel stability and, in particular, resources are available and dispatched rewritten to include reference to the structural integrity is a separate in a timely manner. This agreement training and qualification criteria in profession from firefighting, it is must be part of the contract or other § 155.4050. The Coast Guard agrees and unreasonable to expect a professional approved means that ensures response has amended the definition. firefighter to have much knowledge of resources will support the vessel’s VRP. One commenter considers the these subjects. The Coast Guard agrees While the funding agreement might not definition of ‘‘salvage’’ incorrect, and has amended the text in § 155.4025 be part of the VRP, all such agreements because the National Academy of to: that support a particular VRP must be Science/Marine Board ‘‘Reassessment of reviewed by the USCG prior to Control and extinguish a marine fire in the Marine Salvage Posture of the approval. accordance with a vessel’s stability and United States’’ (1994) defines salvage as: One commenter suggested that the structural integrity assessment if necessary. a commercial effort [that] traditionally has definition of ‘‘marine firefighting’’ be One commenter stated that the focused on the saving of property ships and reworded to eliminate ‘‘actual’’ and definition for ‘‘other refloating cargo. ‘‘potential’’ from the text. The Coast methods’’ should be deleted or The commenter suggested that perhaps Guard disagrees in part, recognizing that redefined, because most refloating the definition should be for ‘‘salvage there might be scenarios where response efforts will be assisted by the tide and services’’ instead of ‘‘salvage.’’ The to a potential fire (volatile oil spilled on the specific time requirements listed in Coast Guard disagrees. In the book deck but not yet ignited, for example) Table 155.4030(b) are not really ‘‘Modern Marine Salvage’’ by William I. might differ from an actual fire event. applicable. The Coast Guard disagrees Milwee (1996, Cornell Maritime Press,
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Inc.), which is authoritative and widely disagrees. This rulemaking was written qualified individual should plan to accepted in the industry, salvage is to provide uniform response timeframes make voice contact via cell phone or defined as: for all the shorelines and port cities of radio within the one-hour response Saving property at risk at sea and reducing the U.S., emphasizing protection of timeframe. environmental damage, and that salvage is all vessels during underway transits where One commenter stated that placing the actions taken aboard and ashore to most salvage and/or marine firefighting the proposed time constraint of 16 hours resolve a marine casualty and to save incident response efforts would be on the salvage team to produce a written property at risk. needed. It differs from the salvage plan is not necessary and may be counterproductive. The commenter The definition as written reflects this abovementioned standards that were feels that this time constraint, combined and therefore no change has been made. written to address the recovery of oil with factors such as the time of day the One commenter requested changing already released, which most often incident occurs and travel time, could the existing definition of ‘‘salvage’’ in happens in or around port facilities unnecessarily result in poor decisions § 155.4025 to read: during transfer operations at dockside in high-volume ports. made as a result of being rushed or To assist a vessel who has suffered damage Two commenters questioned the having insufficient time to gather or is in danger of suffering damage to prevent justification for specifying whether information. The Coast Guard disagrees, or reduce loss. particular equipment and expertise but also reiterates that the timeframes For the reasons described above, the must be on scene in say, 12 hours, as listed in Table 155.4030(b) are planning Coast Guard disagrees and will leave the opposed to 18 hours, given that every standards and not performance definition as written. salvage operation is different depending standards. We understand that the first on the circumstances of the casualty. submittal of a salvage plan to the I. Response Times The Coast Guard disagrees in part. We Incident Commander might not be the 1. General acknowledge that each incident will final plan after all factors are considered differ in circumstances, and that is why and that, as in any incident response, There were four comments asking this rulemaking incorporates planning circumstances will dictate the what triggers the activation of the standards in lieu of performance development and execution of daily response plan. The response plan is standards. The timeframes were incident action plans. It is entirely activated once the master of the vessel determined to be realistic standards for feasible that with proper pre-planning has determined that the resources and planholders and resource providers to and consultation between all parties personnel available on board cannot meet when developing their contractual involved, a suitable salvage plan can be meet the needs of an actual or potential arrangements. developed in the published times. incident. The response timeframes One commenter stated that the Two commenters stated that the listed in Table 155.4030(b) start when proposed regulations generally do a attempt to control the on-site salvage anyone in the response organization good job of identifying the services assessment, as found in Table receives notification as stated in necessary, but there are significant 155.4030(b), and succeeding portions of § 155.4040(b). sequencing and timing issues that the salvage effort by placing set time One commenter stated that the compromise the proposed regulations to limits on the initiation of the various generic response times in the ‘‘Table of the point that compliance will be stages may be counterproductive to the salvage and marine firefighting impossible. The Coast Guard disagrees overall effort. The commenters also services’’ are not always appropriate to because compliance with the planning asserted that the accuracy and local situations, such as those on the standards as listed will be achievable, if timeliness of the ongoing assessments of west coast, Alaska, and Hawaii. They not within the compliance date of this structural integrity and stability will not recommended the Coast Guard evaluate rulemaking, certainly within the waiver be aided by having a set time limit the entire U.S. coastline, including periods as outlined in § 155.4055(g). imposed. The Coast Guard disagrees. It Alaska and Hawaii, to determine One commenter stated that imposing is imperative that the planholder have whether the offshore areas, as required strict response times will force a contractual arrangements in place to by this rulemaking, provide adequate significant expansion of the resource ensure a minimum level of salvage coverage. The Coast Guard agrees in base of dedicated professional salvors, expertise, above that of the master and part. Table 155.4030(b) was developed and that as this resource base expands, crew, will be on board the stricken to target COTP cities that cover the it will not sit idle in warehouses or at vessel in a minimum amount of time. major high-traffic ports outside the dockside, but will enter the marketplace We understand that after this first continental U.S. (OCONUS). Our to compete for all available business to response by the contracted salvor, a analysis for the proposed rule showed which it is suited. The Coast Guard more specialized area of expertise may that it would be cost prohibitive to neither agrees nor disagrees with this be needed and, if so, the planholder can cover all offshore areas for the OCONUS comment. We note, however, that what arrange for such specialized expertise. locations. All continental U.S. (CONUS) resource providers do with their The burden of providing capable salvor coastlines are covered by this final rule resources when not responding to an expertise in the required timeframe is and this rule does not impose any incident is beyond the scope of this on both the planholder and the resource additional capital requirements on rulemaking. provider. It is both parties’ industry. Table 155.4030(b) shows the responsibility to jointly plan for and timeframe requirements for CONUS and 2. Timeframe Too Short anticipate likely scenarios in which the OCONUS response activity both within Three commenters stated that the one- salvor’s services would be needed. 12 miles of a COTP city, and from 12 to hour timeframe for remote assessment Two commenters stated that the 50 miles of a COTP city. and consultation should be four hours. proposed six-hour response timeframe One commenter recommended The Coast Guard disagrees. The criteria (for incidents up to 12 miles from the different planning response times for for remote assessment and consultation COTP city) and the 12-hour response high-volume ports and non-high-volume are that the salvor is in voice contact timeframe (for incidents up to 50 miles ports similar to the spill response with the qualified individual, operator, from the COTP city) for on-site planning standards. The Coast Guard or the master of the vessel. This firefighting assessment and fire-
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suppression services presumably would Two commenters stated that We recognize that it is not possible to apply in situations where local fire emergency lightering differs from an foresee every single material or tool that personnel are not available and the external transfer operation in that the might be needed to make a temporary firefighting representatives must travel cargo or bunkers are transferred to repair. However, we determined that a from the service provider’s headquarters another vessel or to a land-based reasonableness standard can be applied to the vessel. Under these receiver (rather than to another location to this provision, and it is absolutely circumstances, the commenters believe on the damaged vessel). The major possible to determine the materials and the proposed timeframes for this to take component of offshore lightering, tools that are most likely to be needed place are not reasonable or likely assuming that the portable pumps have for planning purposes. achievable. The Coast Guard disagrees. arrived on scene, is the receiving vessel, Two commenters stated the response The timeframes listed for on-site fire and the use of that equipment must be for ‘‘Diving services support’’ as found assessment are achievable either by guided by the approved salvage or in Table 155.4030(b) may be a using local fire personnel or by lightering plan. The Coast Guard agrees progressive operation with the initial contracting with resource providers that in part, but as this comment was not dive team arriving with necessary initial can meet the planning criteria. Should specific in its opposition to the gear augmented by truckloads of there not be a resource provider that can timeframe requirement the Coast Guard additional equipment such as meet the criteria in that specific cannot respond further. However, we underwater welding, larger geographical area, § 155.4055 provides note that the requirement for emergency compressors, and decompression for a temporary waiver request to allow lightering, having the equipment on chambers; therefore, some unique time to address those shortfalls. scene and alongside the stricken vessel constraints are placed on the travel One commenter stated that in (§ 155.4030(f)), is written such that it methods for the dive team. The Coast operating areas where firefighting tugs follows the requirement for a salvage Guard agrees that dive operations can be may not be available, the ability to meet plan by six hours specifically so that the a lengthy process. However, the the proposed timeframe for ‘‘External emergency lightering can be response time ends when required firefighting systems’’, as found in Table accomplished in accordance with the support equipment and personnel are 155.4030(b), will be limited by the salvage plan’s direction. on scene in accordance with Table amount of foam that can be stockpiled Two commenters asserted that the 155.4040(c)(1)(xii), and not when the and the availability of nearby air cargo assumption that re-floating methods diving support services operations start, such as pontoons or airbags could be so we have not amended the response facilities. The Coast Guard disagrees in assembled and delivered to the casualty time. part. We understand that meeting the in the proposed timeframe as found in One commenter stated that getting the requirements will take a concerted effort Table 155.4030(b) is not reasonable as Salvage Master on-site is the key to the by planholders and resource providers such an assumption makes no commencement and/or completion of to ensure an adequate supply of foam is allowance for the planning and many of the other services. The on hand, but it can be achieved within engineering effort that must accompany commenter stated it is possible to begin the timeframes listed. Resource any prudent attempt to apply external the on-site assessment, at the furthest providers and planholders will have to buoyancy to a damaged vessel. The extent of their operating area, if there take a proactive stance in regards to commenters argued that the capability were eight hours instead of six. The ensuring adequate amounts of marine- to provide these types of services should commenter recommends the firefighting extinguishing agents are be included in an assessment of a requirement for this service be extended available and should consult with port salvage service provider, but that having to at least eight hours. The Coast Guard partners to ensure that appropriate it mandated within a certain timeframe agrees that getting the person firefighting responses will occur. takes it out of the context of the salvage conducting the salvage assessment on Two commenters stated that the plan. The Coast Guard disagrees in part. board is critical, hence our six- or 12- timeframes for remote assessment and The response time ends when the hour timeframe, depending on whether consultation, assessment of structural salvage plan is approved by the FOSC the incident occurs within 12 miles or stability, external emergency transfer and the needed resources are on the 50 miles offshore. Due to the company- operations, and completing a salvage vessel, not when an attempt is made to specific nature of this comment we are plan ignore numerous other demands, refloat the vessel. This allows for the not expanding the planning standard in and that applying arbitrary time limits discretion the commenter calls for when this rulemaking. We acknowledge that to inherently variable situations does actually attempting to refloat the vessel. some geographic areas will have a not achieve the goal of the rulemaking. Two commenters stated that there is harder time meeting certain timeframes The Coast Guard disagrees. We have no way of knowing prior to the incident than others, and that in cases where it written Table 155.4040(c) specifically to what materials might be required to is actually or nearly impossible to meet allow flexibility for these services. For meet ‘‘Making temporary repairs’’ as the timeframes, we will consider example, Table 155.4040(c) lists the found in Table 155.4030(b) and, waivers as allowed in Table 155.4055(g). ending for response time assessment of therefore, it is not reasonable to impose structural stability when the ‘‘Initial a set timeframe for having the materials 3. Timeframe Too Long analysis is complete.’’ We understand available. The capability to provide this Two commenters stated that it is and have taken into consideration that service should be included in an unacceptable to leave large sections of these services will be progressive. The assessment of a salvage service provider, coastline along the western coast of specific response times are planning but having it mandated within a certain Washington State and the Strait of Juan standards based on a set of assumptions timeframe takes it out of the context of de Fuca exposed, asserting that they are made during the development of this the salvage plan. The Coast Guard not covered by requirements for timed regulation. We understand that these disagrees in part. We determined that responses, and that the Federal assumptions may not exist during an having repair equipment ready and Government has a responsibility to actual incident, but the use of these deployed on board a vessel in an protect the treaty rights of Puget Sound timeframes as planning standards is emergency incident is important enough tribes in their usual and accustomed valid and will remain unchanged. to merit its own timeframe for response. fishing areas. The Coast Guard
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disagrees. Sections 155.4030(b) and 4. Planning or Performance Standards to respond to the worst case discharge 155.4040 describe the geographical One commenter stated that the scenarios. The development of a limits of vessel transits that the response description of services that the response plan prepares the vessel owner activity timeframes apply to using the planholder must contract for in advance or operator and the vessel’s crew to same geographical area descriptions as is excellent, but because each incident respond to an emergency incident. The the original VRP regulation, found in 33 is different the planholder should be specific criteria for response resources CFR 155.1050(k). Additionally, 46 CFR able to respond as appropriate instead of and their arrival times are not 7.5(c) reads: taking a ‘‘by-the-numbers’’ approach. performance standards. They are planning criteria based on a set of Except as otherwise described in this part, The commenter was concerned that the Coast Guard will ‘‘grade’’ the response assumptions that may not exist during Boundary Lines are lines drawn following an actual incident. the general trend of the seaward, highwater not on whether it was timely and shorelines and lines continuing the general appropriate, but by whether the J. Use of Resource Providers During trend of the seaward, highwater shorelines planholder met the arbitrary timeframes Actual Incident across entrances to small bays, inlets and proposed. The Coast Guard agrees that Twelve commenters expressed rivers. the response activity timeframes concern that the emphasis on contracts required by this subchapter should be may set a precedent that would prohibit Therefore, all the coastal waters of the used in developing the required VRPs. U.S. are covered under this rulemaking. a company from using the best service The specific response times are available at the time instead of the Regarding specific response activity planning standards based on a set of contracted service. The Coast Guard timeframes for the Strait of Juan De assumptions made during the disagrees in part. The purpose of Fuca, it is unnecessary to change the development of this regulation. These requiring contracts is to ensure a timely timeframes for one area. Again, these assumptions may not exist during an response for an incident. Planholders timeframes are maximum planning incident up to and including a worst may list multiple-contracted resource standards and as such there will be case discharge scenario as required by providers and choose which resource resource providers that can bring OPA 90. Therefore, Table 155.4030(b) provider is best in a particular situation. resources to bear well within the will be used as a planning standard and While this regulation cannot eliminate published timeframes in the Strait of not a performance standard to ensure the possibility that there may be closer, Juan de Fuca. that the resources are capable of arriving non-contracted resources, it ensures that One commenter stated that the at the vessel in the required response prompt action can be taken immediately response times allotted for the times when formulating the contract to dispatch needed resources to emergency lightering resources in the between the planholder and the respond. While the preferred means of NPRM are very generous and believes resource providers. obtaining response resources is by pre- that more stringent response times for Twenty-seven commenters asked the approved contracts, the Coast Guard lightering resources would definitely be Coast Guard to continue emphasizing recognizes that the planholder/FOSC/ achievable. The Coast Guard disagrees; that the response-time criteria in the Unified Command must have flexibility we feel the timeframe is appropriate for rule are a planning standard, not a under exceptional circumstances to the need because these times must performance standard. The Coast Guard deviate from the service provider(s) include the movement of both agrees and has used § 155.1010 as a listed in the approved VRP. This specialized equipment and the guideline in developing specific deviation from the response plan must appropriate technical personnel. planning criteria. The response activity be conducted in accordance with the Therefore, the 18- and 24-hour timeframes required by Table Jones Act (Title 46, United States Code timeframes for the resources to arrive on 155.4030(b) are intended for use in Appendix 316(d)) unless a waiver is scene and alongside the vessel are developing the required VRPs. The requested. suitable for this service. specific response times are planning One commenter stated that the Coast standards based on a set of assumptions Guard’s interpretation of § 1144 of the One commenter stated that the time made during the development of this Coast Guard Authorization Act of 1996, requirements in Table regulation. These assumptions may not Public Law 104–324, is inappropriate, 155.4030(b)(1)(i)(E), specifically the line exist during an incident up to and because the NPRM’s version of FOSC item calling for 12 hours for hull and including a worst case discharge authority to deviate from the VRP does bottom survey, are discouraging for two scenario as stated in OPA 90. Therefore, not track the language of the FWPCA. reasons: (1) A vessel on fire will need Table 155.4030(b) should be used as a The Coast Guard disagrees. Section 1144 this analysis faster than 12 hours for planning standard and not a of the Coast Guard Authorization Act of effective firefighting response; and (2) performance standard, to ensure that the 1996 (Pub. L. 104–324), otherwise the commenter has been providing the resources are capable of reaching the known as the ‘‘Chaffee Amendment’’ damage stability analysis within two vessel in the required response times, amended the FWPCA regarding the use hours for groundings, allisions, when formulating the contract between of spill response plans. Specifically, it collisions, explosions, fires, and other the planholder and the resource states: structural failures. The Coast Guard providers. That the owner or operator may deviate agrees in part and understands the need One commenter stated that the from the applicable response plan if the for critical information to be available as salvage and marine firefighting service President or the Federal On-Scene soon as possible. The response activity response times are planning times in the Coordinator determines that deviation from timeframes are provided as a maximum same manner as oil spill removal the response plan would provide for a more planning limit. It is in the interest of the organization (OSRO) equipment expeditious or effective response to the spill planholder to minimize response times response times are planning times. The or mitigation of its environmental effects. for the salvage and firefighting Coast Guard agrees. The planning The Coast Guard interprets this requirements, and we anticipate the criteria in this subpart are intended for amendment as applicable to the use of prudent planholder will work to ensure use in response plan development and contracted resources, qualified that they are minimized. the identification of resources necessary individuals, and other ‘‘significant’’
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deviations from the VRP. This deviation part. The resource provider, by entering available to cover up to a worst case from the response plan must be into a contractual agreement to provide discharge scenario. conducted in accordance with the Jones the services necessary to meet the One commenter stated that the rule Act (Title 46, United States Code requirements of this regulation, has attempts to address components such as Appendix 316(d)) unless a waiver is agreed to respond under the obligations equipment and capability, training of requested. The Coast Guard will give identified in that contract. Due to experienced personnel, contracting precedence to the Incident Action Plan extenuating circumstances, where local options, effective communication and as developed by a unified command resources might be engaged in separate fair compensation but it does not, during an actual response. Wording has emergency response activities, the FOSC however, fully address any of them. The been added in section § 155.4032(a) to may determine that a deviation from the commenter elaborated that the elements cover this possibility. response plan would provide for a more remain largely untouched, and stated One commenter urged the Coast expeditious or effective response. the rule does not go far enough in any Guard to encourage conformity with area. The Coast Guard disagrees. The international practices and standards K. Required Services regulation was written in a non- wherever possible and also encourage 1. Salvage prescriptive manner to allow both the planholders to move quickly to engage planholders and resource providers to the nearest best available assets. The One commenter stated that there is no work together to provide the equipment Coast Guard agrees in part. Nothing in need to provide the information in and services necessary to meet the this regulation discourages planholders § 155.1035(c): intent of the regulation under a from conforming to international Shipboard spill mitigation procedures for contractual arrangement. A great deal of standards, and it has been a policy of manned vessels carrying oil as a primary flexibility was allowed specifically to the Coast Guard to encourage cargo, address the varying availability of conformity with any international response equipment and expertise in standards that are above the level of or § 155.1040(c): different geographical locations, and the required federal regulations. As far as Shipboard spill mitigation procedures for types of transport services and operating encouraging a planholder to engage the unmanned tank barges carrying oil as a environments. ‘‘nearest best’’ available assets, § 1144 of primary cargo, One commenter stated that the the Coast Guard Authorization Act of in advance of an incident, because the response resources, which are created 1996 (Pub. L. 104–324; October 19, information can always be sent via fax by this rulemaking, are unlike pollution 1996; 110 STAT. 3901), otherwise or e-mail and arrive well before the response resources that have little or no known as the ‘‘Chaffee Amendment’’, salvage professional arrives on scene, practical uses outside of their design provides the Incident Commander/ adding that even if it was sent in parameters. These new salvage COTP authorization to deviate from the advance, the odds are the salvage resources, acquired and subsidized with VRP in instances where that would best professional would ask for it again to lucrative retainer fees from the tanker effect a more successful response. This ensure they have the latest copy. The industry, almost certainly will be used deviation from the response plan must Coast Guard disagrees. This information to compete for any and all additional be conducted in accordance with the is a valuable asset for resource providers maritime business for which they might Jones Act (Title 46, United States Code and must be available to them at all be suited, and that this will be to the Appendix 316(d)) unless a waiver is times. We don’t consider this an financial detriment of the many general requested. additional burden as this information marine contractors who currently One commenter stated that must already be included in a VRP. provide many of the services and firefighting technology and resources Maintaining current information as resources utilized for salvage operation. are not in place. The Coast Guard agrees The Coast Guard disagrees in part. We in part. We acknowledge that there are required by §§ 155.1035(c) and 155.1040(c) is an issue to be resolved recognize that response resources will areas of the U.S. where adequate be created by this regulation that will firefighting resources may not be between the vessel owner/operator and the resource provider. most probably be put to other uses when available. This is part of the reason we not in use per these regulations. are issuing this rule. In order to allow One commenter stated that the NPRM However, the owner of these resources time for these resources to develop, we does not adequately consider the will be under contractual arrangement have included the ability to request a diversity of situations lumped into the to ensure these services and equipment waiver for fire-suppression services for term ‘‘salvage.’’ The expertise and are available to respond in the required those planholders who are unable to equipment that could be involved in a timeframes. It is also probable that local contract for this service in the 18-month particular incident are as variable as the general marine contractors will be compliance period. However, we events themselves, therefore they feel contracted for use of their services and determined that remote firefighting that the rule is too prescriptive, and the equipment by the primary resource assessment and consultation is easily placement of strict time requirements is provider. achieved by external communications counterproductive. The Coast Guard One commenter asked what and, therefore, no waiver period is agrees in part. This regulation was constitutes a salvor today, particularly if allowed for that service. We expect that written specifically to allow planholders it can no longer be viewed as a this regulation will help the industry and resource providers to determine specialist in many key salvage-related develop new firefighting resources and those equipment and services for which activities. This question was asked in technologies. they need to enter into a contract. We the context of the 1994 Marine Board One commenter stated that the Coast considered more prescriptive report, which states: Guard should be realistic when they say contractual requirements for specific a resource provider is capable of salvage and marine-firefighting Even the professional salvor, once almost self contained, relies more and more on providing a service. A service provider equipment and instead decided to allow outside specialists for salvage engineering, is capable subject to the availability of the contractual partners flexibility to firefighting, lightering, naval architecture and its resources, and the Coast Guard ought determine what was necessary to ensure the provision of the salvage working platform to say so. The Coast Guard disagrees in effective incident response services are itself. (Reassessment of the Marine Salvage
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Posture of the United States, p. 36; Copyright and its position in Table 155.4030(b) is specific, FOSC request for a Jones Act 1994, available through the National in error. They feel that it should be part waiver is a separate and different issue Academy Press, 800–624–6242) of the ‘‘Assessment & Survey’’ section of than the waiver discussed in This final rule, while including Table 155.4030(b), and that divers § 155.4055(c). There, we explain that the dedicated salvors in the area of resource should not enter the water without the emergency lightering requirements for providers, does not limit the ability of support on scene. The Coast Guard the vessel response plan may not be anyone to enter into contractual disagrees regarding moving the diving waived due to a planholder being agreements with the planholder. In fact, services support into the ‘‘Assessment & unable to contract a resource provider to we recognize in § 155.4030(a) that Survey’’ section. We consider it be listed in the VRP. multiple resource providers may be unreasonable to expect diving services One comment stated that the term needed to meet the intent of these providers to meet the shorter timeframes ‘‘special salvage operations’’ may be requirements. We recognize that it is as listed in the ‘‘Assessment & Survey’’ misleading because every case is unlikely any single salvage contractor section of the table. We agree that divers different, and there is currently no such would be able to perform all of the should not enter the water without entity as a ‘‘special salvage operations elements (services) of salvage and proper support, but point out that the plan,’’ only the ‘‘salvage plan.’’ The marine firefighting in every region of the diving services support listed in Table Coast Guard disagrees. Salvage efforts United States. Thus, more than one 155.4030(b) refers to diving services may be divided into three areas: contractor may be necessary to perform supporting the salvage operation, not assessment and survey, stabilization, all the services needed. The planholder support for the divers themselves. and special salvage operations (e.g., re- would be required to list each service Section 155.4032(b) addresses floating and post-refloating). For the and the resource provider to perform it, implementing the safety support purposes of this regulation, special in their VRP’s geographic-specific systems necessary when providing salvage operations include heavy lift appendix for each COTP zone the vessel salvage and marine firefighting services. and/or subsurface product removal as transits. The primary resource provider One commenter stated that for detailed in Table 155.4030(b)(1)(iii). will act as the primary point of contact emergency lightering of special cargoes, One commenter suggested revising when multiple resource providers are specialized lightering equipment may be the ‘‘heavy lift’’ definition to identify a listed for the same service. needed and may take longer to arrive on minimum-rated lift capacity, i.e., 100 One commenter disagreed with the scene than is required by this short tons. The Coast Guard disagrees. definition of ‘‘on-site salvage.’’ They rulemaking. The Coast Guard Requirements for salvage capabilities let stated that the on-scene person does not understands that special circumstances the planholder and resource providers need to be someone who has the ability could arise in any situation and has decide, for each particular vessel, what to assess the vessel’s stability and crafted the response timeframes as sufficient ‘‘heavy lift’’ capabilities are. structural integrity. He or she needs to planning standards. Should Again, the Coast Guard is writing these be someone who can assess the visual circumstances arise that would delay regulations to be planning based rather condition of the vessel and report the emergency lightering equipment from than prescriptive. required information (phone or radio) to arriving as planned for in the VRP, there The same commenter also stated that the person who will determine the are a number of alternatives. There is a heavy lift equipment is only useful for vessel stability and structural integrity. provision in the Chaffee Amendment vessels of limited size, and that heavy The Coast Guard disagrees. To that allows the FOSC to deviate from the lift is not useful for ship salvage, but accurately assess the vessel’s stability VRP if it would provide for a more could be used in the salvage of barges. and structural integrity, and even to expeditious or effective response to the The Coast Guard agrees in part. Heavy- accurately report significant facts back incident or mitigation of its lift capabilities are still required as to the resource provider conducting the environmental effects. In addition, the stated in Table 155.4030(b). Heavy lift stability calculation, the person on requirements of the Jones Act: equipment is only useful for vessels of scene must have the training and limited size, and not for the majority of Prohibits the engagement of a foreign tankers carrying oil. Because of this experience to meet the requirements of vessel in salvaging operations on the Atlantic § 155.4050. Determining how quickly or Pacific coast of the United States, or in limited applicability and the major costs resources must arrive and the expertise territorial waters of the United States on the of capital construction associated with needed on-scene were discussed in Gulf of Mexico, except when authorized by building heavy lift capabilities, it is detail during the 1997 public workshop treaty or when the Commissioner of Customs, economically and/or physically (referenced earlier in this discussion) after investigation, authorizes the use of a impractical to require these resources to and in subsequent meetings with foreign vessel or vessels in the salvaging be on scene in a given time period. interested parties, therefore we feel that operations. [Title 46, United States Code Therefore, the Coast Guard revised the Appendix 316(d)], the six- and 12-hour timeframes are regulation in Table 155.4030(b) to allow adequate for the resource provider’s Therefore, the FOSC may act to obtain the planholders to contract with existing representative to arrive on-scene. a waiver when suitable U.S.-flag vessels resource providers where they are One commenter noted that many or barges cannot be located or obligated currently located, and provide an vessels have on board internal to assist and support the removal and estimated time of arrival on scene for emergency transfer equipment and salvage operations to mitigate pollution planning purposes. therefore should not have to contract for or the threat of pollution. Every waiver Should a planholder not be able to portable emergency-transfer equipment request has to go to the Commissioner contract a resource provider that can for lightering. The Coast Guard of Customs for authorization. The provide heavy lift capability for the area disagrees. While some ships have this waiver may be granted, after the U.S. in which the vessel is operating, equipment on board, it may not be Maritime Administration (MARAD) has § 155.4055(g) offers a five-year waiver capable of working in an emergency. been consulted on the availability of period for specialized salvage Therefore, it is prudent to also have this U.S. vessels, on a case-by-case basis, to operations, of which heavy lift is part. equipment available by contract. support removal/salvage operations to In addition, should a planholder feel One commenter stated that the mitigate pollution or the threat of that contracting for heavy-lift definition of ‘‘diving services support’’ pollution. This on-scene, incident capabilities is not feasible based on
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special circumstances of their vessel(s), pull to tow the vessel(s), as well as person on scene needs to be able to 33 CFR 155.130(a)(2)(i) allows for a vessels that are capable of operating in assess the vessel’s stability and planholder to request the Coast Guard to environments where the winds are up to structural integrity to accurately report grant an exemption from the regulation 40 knots will essentially require large, significant facts back to the person when compliance with a specific stand-by towing and salvage vessels in conducting the stability calculation. We requirement is economically or every COTP zone in the United States. determined that the timeframes are physically impractical. In addition, the commenter wrote that necessary for this action to ensure an One commenter recommended listing the proposal provides explicit accurate, professional evaluation of the the resources and requirements for equipment requirements for firefighting vessel’s actual state. emergency lightering and/or external and subsurface product removal Another commenter stated that emergency-transfer operations under a capability, and that no legitimate, requiring a planholder to list a primary separate heading in the NPRM. The verifiable rationale for these service provider serves no useful Coast Guard disagrees and has written requirements is provided. The Coast purpose and that the logic for doing this Table 155.4030(b) to reflect a logical Guard acknowledges that this final rule is not included in the rule. The progression during an emerging salvage may result in the existence of sufficient commenter asked for clarification on the operation. towing vessels in areas where there are status of the primary service provider One commenter asked if the required none now, and we feel it is beneficial to compared to other service providers, salvage and marine firefighting services the planholders, the environment, and referencing the 19 different elements in will be listed in a geographic-specific to the local communities that this Table 155.4030(b), and stated that the appendix for each COTP zone. If so, the happen. With regards to the equipment combinations when more than one commenter stated that the existing requirements found in § 155.4030(f) service provider exists are regulations should be updated to reflect through (h), these are minimum overwhelming and impractical. The this change, and be listed as set forth in requirements, written to ensure that a Coast Guard disagrees in part. We §§ 155.1035(i)(9) and 155.1040(j)(9), basic level of response capabilities is recognize that it is unlikely any single which state: available. Determining what constitutes salvage and marine firefighting adequate salvage and marine firefighting contractor would be able to perform all The appendix must also separately list the of the elements (services) of salvage and companies identified to provide the salvage, resources supports the requirement in vessel firefighting, lightering, and, if OPA 90 to ensure capabilities exist to marine firefighting in every region of the applicable, dispersant capabilities required respond to a worst case discharge United States. Thus, more than one in this subpart. scenario. contractor may be necessary to perform all the services needed. The planholder As these sections already require these Two commenters stated that the term would need to list each service and the specific services to be listed, ‘‘structural stability,’’ as defined in resource provider who will perform it §§ 155.1035(i)(9) and 155.1040(j)(9) will § 155.4025, includes two distinct for each COTP zone the vessel transits. not be updated. Resource providers that activities. As defined, it includes The primary resource provider will act will be contracted for services in an area assessment of both ‘‘vessel stability’’ as the primary point of contact when must be listed in the VRP geographical- and ‘‘structural integrity.’’ In actuality, multiple resource providers are listed specific appendix as found in these are two distinct types of for the same service. For example, if a §§ 155.1035(i)(9) and 155.1040(j)(9). assessments that will be going on at the planholder lists three separate towing Additional resources may be listed, but same time. The salvage engineer and companies for emergency towing if they are not under a contract or other naval architect will be looking at the services, one must be listed as the approved means for response they must remaining strength of the damaged hull primary resource provider, but all must be clearly listed as an additional (‘‘structural integrity’’); simultaneously be under a contract or other approved resource and not as a primary or they will be assessing the stability of the means as stated in § 155.4030(a). To secondary responder. vessel as the various spaces are emptied clarify this, we have added a definition Two commenters stated that if or flooded and how the contents of for ‘‘primary resource provider’’ to additional equipment is needed to various spaces will affect the remaining § 155.4025. support operations or to transport hull strength. The engineers will be One commenter wrote that the firefighting resources to a vessel away working closely together, both on board execution of a valid salvage strategy, from a pier, then these resources should and ashore, to provide updated including other, more appropriate be identified in the VRP. The Coast information to the Salvage Master and actions, could be hindered by a Guard agrees in part. This regulation others in the team. The assessment requirement to perform a hull and/or outlines what services are required to be process will begin with the initial call bottom survey within a set timeframe, planned for in accordance with the to the salvage resource provider and and that this is best left to the judgment response activity timeframes listed in will be continuous and on-going from of the experienced salvor. The Coast Table 155.4030(b). If additional that point and may not be final until the Guard agrees in part. This rulemaking equipment or delivery platforms are salvage is completed. The commenters requires planholders to have, under necessary for a planholder’s specific stated the accuracy and timeliness of the contract, resource providers that have situations, then that should be a matter assessments of hull strength and vessel the capability to provide a hull and of contractual arrangement between the stability will not benefit by having a set bottom survey within the response planholder and the resource provider. It time limit imposed by regulation. The activity timeframes. It does not require is important that this regulation not be Coast Guard agrees in part and that a hull and bottom survey actually so specific as to restrict viable understands that the assessment and be completed, as there might be operational decision-making during an salvage survey components of the instances when a survey would be actual incident. response are ongoing evolutions, being unnecessary or inappropriate. One commenter stated that the continually updated as time and One commenter stated that computer proposal to require VRPs to identify environmental factors work on the models using industry standard towing vessels with the proper vessel. Planning standard timeframes software should be required and in the characteristics, horsepower, and bollard are beneficial for these actions. The possession of contracted naval
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architects/salvage engineers in the event 2. Firefighting for a marine-firefighting plan that can be of casualties (33 CFR 155.4030(d)). The One commenter stated that locking approved by the Incident Commander/ Coast Guard agrees in part that particular pieces of equipment into one Unified Command. The Coast Guard advancements in technology should be location is very expensive and places disagrees. While the regulation calls for leveraged to provide optimal execution the greatest financial burden on owners. the salvage plans to be submitted to the of incident management, but this The Coast Guard agrees in part. While Incident Commander/Unified rulemaking does not require the use of pre-staging response equipment may Command, marine firefighting is too any specific technologies. require additional gear, it is necessary to time critical to wait for an approved plan before conducting firefighting One commenter stated that the Coast have this equipment available for meeting the required planning standard operations. Guard should reduce or remove the One commenter noted the standard timeframes. This final rule has equipment requirements concerning only contains the application rate for purposely avoided mandating specific towing vessels and firefighting firefighting foam, and does not include equipment listed in §§ 155.4030(e) and equipment requirements (with a couple a time limit for application. The 155.4030(g) and move to a people-based of exceptions for cargo pumping commenter added that 46 CFR 34.20–5 approach similar to the firefighting capacity and firefighting foam). The includes a foam application time limit approach. The Coast Guard disagrees. reason we wrote the rule in this manner of 20 minutes in conjunction with a While recognizing the prime importance was to allow planholders and resource foam application rate of 0.16 gallons per of people-based operations, we consider providers an opportunity to assess minute per square foot but, without the equipment requirements found in response equipment needs for each reference to this time limit in proposed § 155.4030 minimal requirements, listed geographical area and type of vessels § 155.4030, it is impossible to determine to ensure an adequate level of necessary calling in specific ports. This will be a recommended quantity of foam for response equipment. Section more cost effective than Federal marine-firefighting vessels to carry or 155.4030(e) requires a towing vessel requirements for specific equipment shore-side resource providers to plan capable of operating in 40-knot winds. supplies staged in every port and for. In addition, three commenters The Marine Board’s ‘‘A Reassessment of waterway covered by this rule. stated that the Coast Guard and SOLAS One commenter stated that the the Marine Salvage Posture of the rates and duration for foam are not firefighting requirements contained in United States’’ (National Academy adequate since they are based upon an the NPRM are burdensome, and Press, 1004; Appendix I, page 123) incipient-stage fire with a less than 15 recommended folding the firefighting references the Det Norske Veritas minute pre-burn. One commenter asked requirements into the salvage publication Towing Operations that the Coast Guard provide guidelines requirements and renaming them Guidelines and Recommendations for for determining the amount of an agent ‘‘Marine Casualty Responders.’’ The so that all planholders are calculating Barge Transportation. This document is commenter further suggested that the intended to provide guidance to the the same baseline. The Coast Guard firefighting requirements be broader and agrees with these comments and has offshore industry on how large a tug left to the salvor’s discretion. The Coast would be required to be in order to added a 20-minute time limit to Guard disagrees. It is entirely feasible § 155.4030(g). transport major equipment offshore. that the planholder could contract with These guidelines recommended using a Three commenters stated that in resource providers for salvage response addition to minimum agent application tug capable of towing in 16.5-foot (5- that are different than the providers for meter) seas with 39-knot winds and up rates for extinguishment, adequate water firefighting response. We consider it flow for protection of exposures must be to a 2-knot current. This correlates with important to make a distinction between the conditions in which we would provided for. The Coast Guard agrees. the two services even though a marine The relevant text of the section reads: expect a 7,000-horsepower tug to be able firefighting response could well turn to hold a large tanker. The commenter’s If your primary extinguishing agent is foam into a salvage response, or one resource or water, you must identify resources in your reference to § 155.4030(g) is specific to provider could provide all the the section requiring the identified plan that are able to pump, at a minimum, equipment and services required for 0.16 gallons per minute per square foot of the resource providers to have the ability to both aspects of an emergency incident. deck area of your vessel, or an appropriate pump 0.16 gallons per minute per One commenter stated that the rate for spaces that this rate is not suitable square foot of deck area of the vessel. damage and stability models of the for and if needed, an adequate source of This is in line with, and based on, vessel must be available to the foam. existing regulations, specifically 46 CFR firefighter for use during operations, in We determined that the requirement as 34–20.5, and NVIC #6–72, ‘‘Guide to real time and, in many instances, on written already addresses this issue and, Fixed Fire-Fighting Equipment Aboard site. The Coast Guard agrees that the therefore, the requirement remains Merchant Vessels.’’ The volume of water information from the damage and unchanged. Water flow for protection of required to extinguish a fire like the one stability models is useful for firefighters exposures is an issue that should be on the T/V MEGA BORG (roughly on scene. However, we find it addressed by the vessel’s and resource 30,000 square feet of deck area) requires impractical to require this information provider’s firefighting teams. Requiring a pumping capability of roughly 4,500 to always be available on scene, prior to a specific amount of water flow deviates GPM. For this rate, portable pumps of any firefighting operations being started. from our intent to have this regulation 2,000 GPM are effective. A sufficient We do not want to restrict the vessel’s require services to be provided vice supply of such pumps is available crew and resource provider while they prescriptive details of how those around the country, and they are are awaiting the assessment and services must be conducted on-scene. efficient to transport from storage to structural stability, understanding that One commenter stated that foam on casualty sites. (The Marine Board’s ‘‘A structural stability and firefighting board the vessel should not be included Reassessment of the Marine Salvage evolutions will be addressed mutually in the resources listed in § 155.4030(g). Posture of the United States.’’ National by the parties on scene. The Coast Guard agrees and has added Academy Press, 1004; Chapter 3, page Two commenters stated that there text to § 155.4030(g) to clarify that the 41) needs to be a requirement in the table ‘‘resources’’ that must be identified in
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the VRPs are defined as resources stabilizations are constant operations, Three commenters stated that it is not provided by the resource provider, and and that they will be continually necessary to identify ‘‘towing vessels’’ not part of the vessel’s own firefighting updated as the operation proceeds. The in the VRP, and that only the system. Coast Guard agrees. The commenter also contracting parties, which will provide One commenter stated that certain recommended that all hull and bottom the resources (i.e., the towing firefighting agents, in existing inventory, surveys be done in the presence of the companies) should be identified. The contain components that are no longer applicable classification society commenters stated that the ability to made. The Coast Guard neither agrees surveyors. The Coast Guard disagrees, as maintain accurate lists of towing vessels nor disagrees with this comment. While the initial hull and bottom survey is simply not possible, and would take some resource providers will use should not be delayed for any reason extraordinary costs and efforts in existing inventories to fulfill their unless there are extreme circumstances. keeping the numerous copies of the contractual obligations, we anticipate an Two commenters recommended that VRPs updated. They added that increase in the required inventories of specific emergency-response operation ensuring the proper emergency towing extinguishing agents to meet the needs details, such as tonnage to horsepower vessels are listed in VRPs is of this regulation. bollard pull capacity, type of firefighting meaningless. The Coast Guard disagrees. One commenter recommended that foam, chemical, or inert gas usage, and It is imperative that the VRPs include an the formula to determine the required a responder-provided emergency cargo accurate listing of compatible towing fire-suppression resources be reduced pump capacity to vessel cargo tank vessels in a specific geographic area that from the proposed regulations, capacity matrix be developed and the resource provider can bring to bear explaining that the fire-suppression included in the regulation. We disagree in an emergency situation. We requirement, along with the response with this prescriptive approach and understand the writers’ concerns about timelines contained elsewhere in the have written this rulemaking to leave predicting whether a compatible vessel proposed regulation, has a very real the responsibility for determining the will be in the area to respond, but we potential of impeding commerce, and adequacy of the specific plan details to also determined that this contingency significantly changing the way industry the planholder and contracted resource should be worked out between the does business. The Coast Guard provider. This was done to ensure contracting parties prior to having that disagrees. Title 46 CFR 34.20–5 already specific services are readily available resource provider contracted and listed includes a foam application time limit while still maintaining flexibility for the in the VRP. of 20 minutes in conjunction with a amounts and type of equipment each One commenter noted that there are foam application rate of 0.16 gallons per individual vessel might need. not enough towing assets to meet the minute per square foot. Thus, the Twelve commenters stated that the suggested requirements of § 155.4030(e) standards we used in this requirement requirements of 33 CFR 155.240 must be and that the requirements should be are in line with existing regulations. integrated into, and specifically modified to be realistic. The Coast One commenter stated that pre-fire referenced in, the rule. There is Guard agrees that currently there may be plans are unnecessary for barges or significant value in developing a insufficient towing vessel capacity to small tankers and should not be computer model to calculate the meet the regulations; however, we feel required. The Coast Guard disagrees. damaged vessel’s structural and stability that the towing capabilities required by Pre-fire plans are an integral part of analysis for very little expense. They this rule are prudent to ensure the safety contingency planning regardless of the also stated that 33 CFR 155.240 should of U.S. ports and waterways and to size or type of vessel. Therefore, the be extended to inland and nontank prevent or minimize environmental Coast Guard feels there is great benefit vessels. The Coast Guard agrees in part damage. As stated earlier, the final rule in these pre-fire plans. and has amended the definition of was not specifically written to increase ‘‘assessment of structural stability’’ in towing capacities in the U.S., but we 3. Other § 155.4025. The comment that 33 CFR recognize any increase as an added One commenter stated that the Coast 155.240 should be extended to inland benefit to the marine industry. Guard does not include a verified and nontank vessels is beyond the scope One commenter stated that ensuring accounting or assessment of general of this regulation, however the Coast the proper type and amount of transfer marine contractor resources currently Guard intends to consider it in future equipment is listed in VRPs is available for vessel emergency response. rulemaking endeavors. impossible or impracticable. The Coast This is true, but the public workshop One commenter suggested that the Guard disagrees. The Coast Guard held in 1997 and feedback from existing owners and the public make use of the encourages the development and salvage and marine firefighting resource large number of tugs that are generally submission of ‘‘Fleet Plans’’ which providers showed a lack of resource available on short notice, but not make allows a planholder to develop one VRP providers needed to fulfill the OPA 90 any commitments, which result in large for all the vessels in an owner/operator’s requirement that there be VRPs in place, expenditures that do not provide any fleet. and resource providers able to meet the real assurances that tugs will be on One commenter stated that oil transfer needs of those planholders to avoid a scene quickly, and be in a position equipment fulfilling the requirements worst case discharge scenario. This where they can significantly reduce the may already be on board the ship, and rulemaking does not require specific outcome of a marine emergency. The in such cases it may not have to be types and amounts of equipment. It was Coast Guard disagrees. Section provided by a salvage resource provider. deemed to be more practical for the 155.4030(e) requires towing vessels that The Coast Guard disagrees. The intent of planholder that this rule require are contractually obligated and able to this rulemaking is to ensure that the services and service providers, since the meet the minimum requirements in stricken vessel’s largest cargo tank can amount and type of equipment will vary terms of characteristics, horsepower, be offloaded in 24 hours, independent depending on the vessel’s bollard pull, and operating in 40-knot of any damage that might be done to the characteristics and operating winds. It is necessary to have specific vessel’s internal systems. In light of that environment. vessels listed in the VRPs because these requirement, it is imperative that One commenter pointed out that towing vessels are essential to any equipment can be brought on board that structural assessments, surveys and incident response. is totally unaffected by whatever caused
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the emergency incident in the first subject to a waiver due to a planholder attempts to re-float the barge over a place. Therefore, the requirement of being unable to contract a resource three-month period before it was § 155.4030(f) that the salvage resource provider to be listed in the VRP. We also ultimately re-floated. If a reputable provider be able to deliver the required strongly recommend that these salvor had been pre-contracted as on-scene pumping capability remains capabilities be considered in a required by this rulemaking, the vessel unchanged. planholder’s assessment of adequacy of could have been removed within a two- One commenter stated that prospective, contracted resource to-three week period. § 155.4030(h) is confusing to a Western providers. Conversely, an example of the benefit River barge operator, where navigation of the VRP planholder having a pre- control depths are advertised as nine L. Funding Agreements arranged contract with a reputable feet and very few waterway depths Four commenters said that the salvor can also be found in the salvage exceed 40 feet in isolated locations. The concept of a pre-agreement, in regard to response to the T/V WHITE SEA, a 243- Coast Guard disagrees. Where a vessel funding agreements, makes sense in meter motor tanker, which ran aground does not operate in waters of 40 feet or order to eliminate time lost to contract near Ambrose Light, off Coney Island, more, the cited provision would not negotiations. The Coast Guard agrees. In New York on July 12, 2007. The tanker apply. However, should a planholder’s order to mount a timely response, was outbound fully loaded with 548,000 vessel operate in any waters of 40 feet contractual agreements must be in place barrels of Low Sulfur Fuel Oil (LSFO) or more, they are required to ensure prior to an incident. Hesitation in when she had a steering malfunction subsurface product capabilities are awarding a salvage contract can have and ran aground. Immediately upon contracted for and included in the VRP extremely negative effects on the notification, the COTP asked owners to for those waters. outcome of response operations. By follow their VRP and activate their Two commenters stated that in ensuring that a funding agreement is in salvor. The vessel’s response providers addition to suitable pumps and hot tap place, this regulation will eliminate the mobilized a team of salvage experts, equipment, the following equipment need for any on-scene decision making which arrived on site within hours of must also be on site and ready to work: regarding which resource provider to the casualty. A stable, independently moored, hire for the incident response. We have The response providers’ salvage working platform; storage tanks or added text to the definition of Funding engineers, along with the Salvage lightering vessel; and the means to agreement (§ 155.4025) to ensure the Engineering Response Team from the displace the product removed with funding agreement is included in the U.S. Coast Guard, worked through the water to avoid implosion or other VRP prior to the plan’s approval by the day to develop an incident salvage plan damage to the hull. They elaborated that Coast Guard. and lightering plan. Once approval was these needs, when added to the deep- One commenter suggested that the use obtained from the Coast Guard, the water diving support or sophisticated, of non-dedicated resources is a viable salvage team worked through the night remotely operated vehicle needed to and commercially acceptable, cost- to remove 120,000 barrels of product make the necessary connections and the effective way of conducting emergency- from the grounded tanker. Although extensive engineering that would be response business, and therefore should there was no penetration of the cargo required before this type of effort could be utilized to establish appropriate tanks, the vessel did suffer two breaches be initiated, make it highly unlikely that salvage and firefighting standards. The to the ballast tanks. Upon completion of this type of operation could be Coast Guard disagrees. This rulemaking the lightering and deballasting assembled in 72 hours. They concluded has been designed to mirror the success operations, the vessel was safely that the capability to provide this that the OSROs and planholders have refloated during the high tide on Friday, service should be included in an had with pre-arranged contracts as July 13th, utilizing four local tugs. assessment of a salvage service provider required in 33 CFR part 155. This will The response provider immediately as described in the general comments. ensure that both industry and resource commenced an underwater inspection The Coast Guard disagrees. We providers are clearly aware of who will of the ship’s hull in conjunction with determined that having subsurface respond on scene, and in what local authorities and the vessel’s product removal equipment ready and timeframe they are capable of arriving classification society, American Bureau available for deployment on board a based on the vessel’s location, prior to of Shipping (ABS). Further planning vessel in an emergency incident is any incident. An example of the need was undertaken to prepare and obtain important enough to merit its own for pre-arranged contracts can be found approval from the Coast Guard for the timeframe for response. However, the in casualty case histories. For example, full discharge of cargo from the casualty. specific response times are planning a casualty involving an explosion and Under the direct supervision of standards based on a set of assumptions grounding occurred on a 20,000 barrel company personnel, all 548,000 barrels made during the development of this inland petroleum tank barge operating of cargo were transferred on to another regulation. We understand that these in the Chicago Canal system. The vessel vessel to enable the WHITE SEA to assumptions may not exist during an lost its deck, but maintained some safely transit light ship to a repair incident. We also realize that, at this buoyancy in its intact bow tanks. The facility. time, the specialized equipment owner was the named salvor in the One commenter stated that there are necessary to conduct these operations existing VRP. The owner had no very capable salvors, marine salvage and might not be located in geographical legitimate, actual salvage operations survey engineers, and certified marine areas that would facilitate a response experience. Because the vessel posed a firefighters, etc. who prefer to provide within 72 hours. Therefore, we have minor pollution concern, the primary independent, nonexclusive, remote, and allowed a five-year maximum waiver concern of the FOSC was that the on-site assessment and consultation provision as found in § 155.4055(g)(7). vessel’s location prohibited delivery/ services, which should minimize the This request for a specialized salvage pick up of fuel from a number of increase in cost to the industry. The operations waiver is a separate and facilities up river from the wreck. While commenter added that this will allow different issue than found in trucking of fuel was an option, the cost the owners, as part of the unified § 155.4055(c), which states the to do this was reported to be significant. command, to select the most suitable emergency lightering requirement is not In short, the owner made multiple salvage and firefighting resources for
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each individual emergency and thereby regulation is to have personnel and Firefighting Services. The specific improve the response beyond that resources under contract that are response times are planning standards available via individual entities heavily capable and contractually obligated to based on a set of assumptions made reliant on dedicated resources. The respond, not simply consultants. during the development of this Coast Guard agrees that there are very Section 155.4050(b)(3) asks planholders regulation. These assumptions may not capable resource providers who may to consider whether the resource exist during an actual incident. prefer to provide independent, provider owns or has contracts for Therefore, Table 155.4030(b) will be nonexclusive services. However, we feel equipment needed to perform the used as a planning standard instead of that there is a need to ensure that an response services as a criterion for a performance standard to ensure that incident be responded to quickly and selection of a resource provider. under ordinary circumstances the without the need for contract One commenter asked how practical resources are capable of arriving at the negotiations during an actual it is to expect planholders and resource vessel in the required response times. emergency. In order to ensure this providers to develop pre-negotiated For example: If resource provider A happens, contracts must be in place as pricing for services for all of the myriad agrees to and/or contracts to perform a part of the vessel’s response plan. In circumstances and geographic locations specific service, they must have the regards to the ability of the unified of casualties. While the Coast Guard required equipment and/or personnel to command to select other than agrees that there will be many different complete the service in the times listed contracted resource providers, and as variables in the level and detail of in § 155.4030(b) under ordinary noted earlier in this discussion, the U.S. responses to an incident, it is possible circumstances. If the resource provider Coast Guard agrees that there may be a for the planholders and resources needs to have its resources on scene in need for flexibility to use other than providers to work out funding four hours, the equipment and/or contracted resources, under exceptional agreements during the contractual personnel should not be located 10 circumstances, during an incident if it is negotiations. One such method has been hours away. in the best interest of the response. We for contracting parties to use a Basic One commenter would like drill and have added this authorization into Ordering Agreement (BOA) prior to any exercise requirements added as a § 155.4032(a) of the final rule. actual response. Regardless, the Coast requirement for resource providers. The One commenter wants the Guard feels that contracts between the Coast Guard agrees. The selection requirement for a funding agreement planholder and the resource provider criteria under § 155.4050 lists a between the resource provider and the are best left to their discretion, and will successful record of participation in planholder, specifically with reference not be specifically addressed in this drills and exercises as a consideration as to who will have access to that regulation. criterion. The requirement for a resource agreement, be deleted. The Coast Guard One commenter stated that it is provider to participate in drills and disagrees. We require access to that unrealistic to include a written funding exercises after a contract has been agreement only to verify that it is in agreement as part of the ‘‘contract or agreed upon is already included in 33 place, agreed to by both parties, and other approved means.’’ The commenter CFR 155.1060. This requirement covers ensures the adequacy of the response noted that the assumptions that the all vessels that are required to carry plan itself. This agreement must be part absence of a funding agreement will VRPs. However, we have added of the contract or other approved means delay a response because of negotiations § 155.4052 to address specific exercise that ensures response resources will or that the presence of one will not requirements. support the vessel’s plan. While the delay a response may be equally One commenter stated that all funding agreement might not be part of specious. The Coast Guard disagrees. A resource providers should own or have your VRP, all agreements that support a funding agreement is of primary contracts for the equipment needed to particular VRP must be reviewed by the importance in ensuring there are no perform response services. The Coast USCG prior to approval. delays in a response due to contract Guard disagrees. While direct Two commenters stated that a letter of negotiations. ownership or contracts for resource intent (LOI) should meet the ‘‘other providers are beneficial and addressed approved means’’ definition as long as M. Considerations for Choosing as a minimum for consideration by the there is a provision for a funding Resource Providers planholder in choosing a resource agreement. The Coast Guard disagrees. provider in § 155.4050(b)(3), the Coast 1. General An LOI is a letter from one company to Guard does not intend to place another acknowledging a willingness One commenter asked what it means ownership requirements upon resource and ability to do business and cannot be to be ‘‘capable to respond’’ or ‘‘capable providers as the resource provider may enforced, as it is just a document stating of providing service,’’ and if that means choose to subcontract certain aspects of serious intent to carry out certain capable subject to availability. The their VRP responsibilities. As stated business activities. This rulemaking definition of ‘‘capable’’ is ‘‘having earlier, the intent of this regulation is to requires a contract, which is an attributes required for performance or ensure proper response services are enforceable written agreement between accomplishment’’ (Webster’s Ninth New available and not to dictate the details a vessel owner or operator and resource Collegiate Dictionary, 1991). As used in of those services. provider. This agreement must the regulation this means that the One commenter stated that this expressly provide that the resource planholders will only list in their VRP regulation would render obsolete the provider is capable of, and committed resource providers who have provided firefighting vessels supplied by the oil to, meeting the VRP requirements. written consent to be included. This transport industry in some west coast One commenter recommended using written consent would include a ports. The Coast Guard understands the named consultants, instead of statement from the resource provider concern that this could happen. Section companies, to reduce owner cost and that they are capable of providing the 155.4030(g) addresses firefighting create flexibility to bring in any salvage and/or marine firefighting equipment and VRP compatibility. The firefighting assets rather than using a services they contracted to provide pumping capabilities of these private company named in the contract. The within the response times in Table sector vessels need to be scaled to the Coast Guard disagrees. The intent of the 155.4030(b), Salvage and Marine size of the vessels for which they are
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providing coverage. The existing governs operations in many ports. that they accept and agree to implement firefighting vessels in question may not Section 155.4030(e) states that the the VRP is a very difficult issue. The be appropriate for the largest tankship, planholder must ensure the proper only alternative may be to create but they could be used for smaller towing vessels are listed in the VRP. It multiple individual ‘‘marine-firefighting tankships and tank barges. If the is the planholder’s responsibility, when pre-fire plans’’ for each vessel, which referenced vessels meet the determining adequacy of the contracted adds possible confusion to the response. requirements of § 155.4030(g), the resource providers, to hire resource The Coast Guard disagrees. Firefighting existing vessels may be listed as providers that have towing vessels resource providers will need to certify resource providers. which meet the listed criteria, and to list in writing that they agree to be listed in One commenter stated that the those vessels in the VRP. Part 168 the VRP as part of a contractual proposed rule does not recognize a ship ‘‘Escort requirements for certain agreement. They can choose whether or owner’s ability to assess structural tankers,’’ applies only to laden, single- not to do so. The Coast Guard stability using in-house or classification hull tankers of 5,000 gross tons or more, determined that the commenter might society resources. Section 155.4050 transiting Prince William Sound and have misunderstood the requirement for states that the planholder is responsible Puget Sound. In addition, the a pre-fire plan as stated in for determining the adequacy of the performance and operational § 155.4035(b)(2). There will not have to resource providers they intend to requirements required by § 168.50 are be multiple pre-fire plans for each include in their VRPs, and sets forth 13 more stringent that what is required in vessel. There is a distinct difference criteria, which must be considered in § 155.4030(e). However, if a towing between the VRP and the pre-fire plan. that selection. Nothing in this vessel meets the requirements of 33 CFR The VRP will have a listing of multiple rulemaking precludes a planholder from 168 it would also suffice for this resource providers. However, there listing either in-house resources or rulemaking. Therefore, the NPRM and needs to be only one pre-fire plan per classification societies as long as they the final rule contain these minimum vessel as it deals with the character, have addressed the criteria listed in requirements to meet the stated purpose construction, cargo, and safety systems § 155.4050, have certified in the VRP of this regulation. of the vessel itself. that the criteria was considered, and the One commenter stated that involving One commenter stated that the rule potential resource providers agree to be firefighters in vessel response plan has no requirements related directly to listed in the VRPs. development is not a reasonable the adequacy of the resource provider. One commenter stated that the rule as requirement because it only makes the written would encourage the VRP development and approval process The commenter asked what process is in development of private and public longer and more costly. The Coast place to assure the public that the firefighting capabilities at each port Guard disagrees. Section 155.4045(b) resource providers are not committed where the transfer of oil takes place, and requires the resource provider to certify beyond their capabilities, suggesting that tank vessel owners and operators in writing that they find the VRP that there be limitations on how many would be forced to enter into multiple acceptable. It does not require them to times a resource provider may be listed contracts for firefighting services in the be involved in drafting the VRP; in vessel VRPs. The commenter asked geographical areas served. The Coast however, if they find it unacceptable, what mitigating factors will be in place Guard agrees in part and understands we anticipate the planholder and should the resource provider be unable multiple contracts in a geographical area resource provider will work together to to respond within the time allotted by may occur. Planholders must submit formulate a VRP that all parties agree to the proposed regulations. While there their VRPs in accordance with the and that meets the requirements of this are no direct requirements stating geographic-specific appendices as found regulation. adequacy of resource providers, there is in § 155.1035(i)(9) and § 155.1040(j)(9). One commenter stated that an extensive section, § 155.4050, In doing so, planholders must list each § 155.4035(b)(2) requires the planholder detailing the importance of the selection required resource provider that is under to present a copy of the marine criteria for planholders to consider in a contract or other approved means to firefighting pre-fire plan to the resource selecting a resource provider. It is in the respond within that specific area. This provider. The resource provider must planholder’s best interest to approach rule does not require planholders to then certify, in writing, that they find the selection process in a vigorous and enter into multiple firefighting contracts the VRP acceptable and agree to exacting manner. Limiting the number within a specific area. Based on implement the VRP. The commenter of VRPs in which a resource provider industry information, national recommended that, as an alternative, can be listed will not be addressed as firefighting companies are currently this certification be included as part of any limit on the number of a resource available and offer a variety of response the ‘‘written consent’’ document provider’s clients would necessarily be solutions for firefighting packages of provided to the planholder certifying arbitrary because of the wide variation equipment, materials, and personnel in that they can meet the services listed in resource provider size and capability. various geographical areas. Industry also under §§ 155.4030(a) through (g). The The availability of services to meet a indicated that they would respond to Coast Guard disagrees. The marine planholder’s needs is a planholder’s large fires involving cargo by contacting firefighting pre-fire plan is vessel responsibility and is a factor a one of these major national firefighting specific; therefore, it is imperative that planholder should consider when companies rather than rely on local the resource provider have in their contracting with the resource provider. resources. possession an exact copy, for each In the event of a spill, the Coast Guard One commenter asked how the Coast vessel that they have been contracted for will expect the planholder to respond in Guard will determine if contracted responding to a casualty for pre-fire accordance with its VRPs (unless towing vessels have the adequate incident planning and training specific circumstances warrant horsepower and/or bollard pull required purposes. deviations, as already discussed), by § 155.4030(e). The commenter One commenter stated that for ships regardless of other spill events that may requested that we bear in mind the traveling to multiple ports, the be occurring at the time of the response. requirements of 33 CFR part 168 ‘‘Escort requirement to have marine-firefighting Therefore, in its planning process, the requirements for certain tankers,’’ which resources providers certify, in writing, planholder should discuss with its
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service providers their capabilities to selection of a resource provider, and selection of a resource provider prior to handle multiple incidents and the insurance is one of them, it is only entering into a contractual arrangement. number of other planholders the service required to be considered by the Classification of resource providers is an provider is already committed to. planholder for selection. In other words, issue that the Coast Guard can take Also, if a planholder’s capabilities are in certain situations where state or local under advisement, should the need arise diminished because service-provider laws permit, it may be completely in the future. resources are committed elsewhere for a acceptable for a planholder to select an Three commenters recommended that response, that planholder is obligated to uninsured resource provider. the Coast Guard develop response- notify the COTP for the zone in which One commenter stated that capability testing and proofing the planholder operates of: (1) The qualifications through experience are methodology for service providers and a planholder’s reduced capability; and, (2) not an adequate measure to judge a marine-firefighting certification program the planholder’s plans for overcoming person’s or organization’s ability to including training standards. They the shortfall. This will enable the COTP respond in a marine firefighting suggested adding requirements to to determine whether any operating incident. The Coast Guard agrees; ensure that the resource provider is restrictions should be imposed on the § 155.4050 lists 13 separate selection familiar with the local area plan planholder until such shortfalls are criteria, of which qualifications through pertaining to marine firefighting and overcome. The Coast Guard recently experience is only one part. salvage operations. The Coast Guard published guidance to the public Five commenters stated that a disagrees in part. We determined that addressing this issue. See Navigation, ‘‘successful record of participation in the standards and guides incorporated Vessel and Inspection Circular (NVIC) drills and exercises’’ (§ 155.4050(b)(7)) by reference in this regulation 01–07, ‘‘Guidance On Vessel And and ‘‘membership in organizations’’ sufficiently provide, as a basis, an Facility Response Plans In Relation To (§ 155.4050(b)(9)) are not valid criteria adequacy determination for planholders Oil Spill Removal Organization (OSRO) for selection, and that they should be to use in their selection process. As to Resource Movements During Significant deleted. The Coast Guard disagrees. the suggestion that resource providers Pollution Events.’’ If the planned This section states that: be familiar with the local area plans, response resources are not available, or this is beneficial and has been included have traveled beyond the required When determining adequacy of the resource provider, you must consider as a in § 155.4050(b)(15) as a consideration response times, secondary or cascading minimum the following selection criteria. when determining the adequacy of resources may be relied upon if resource providers. approved by the Coast Guard. This may Both of these issues are marks of One comment stated that the Coast mean compliance with any one of the professionalism and lend credibility for Guard should require professional alternatives provided within the a planholder’s selection process. The standards for marine firefighters to definition of contract or other approved definition of ‘‘successful’’ in this ensure all responders have similar means (33 CFR 155.4025). The planning context will have to be determined by training and backgrounds. The Coast requirement may be met through a the contracting planholder to satisfy its number of means as referenced above, standards for hire. Guard disagrees. We have addressed and the Coast Guard will exercise One commenter stated that formal standardized training for marine discretion in implementation and approval of a salvage plan firefighters by stating they be trained in enforcement of the requirements (§ 155.4050(b)(8)), such as a stamp or accordance with § 155.4050(b)(6). While commensurate with the circumstances letter, is not a verifiable practice. The professional standards for firefighters (as it did following Hurricanes Katrina experience of the resource provider or would be beneficial for all parties and Rita). In addition, the FOSC has the other planholder is most important. The concerned, it is beyond the scope of this authority to allow a deviation from the Coast Guard agrees in part. We agree rulemaking. VRP if it would provide for a more that experience is vitally important, but Four commenters stated that having expeditious or effective response to the we consider being able to produce each individual planholder attempt to incident in the case of a resource salvage plans that were approved and interpret these criteria and apply them provider’s inability to perform their used by incident commands helps will be inefficient, cause confusion, and required services. If a resource provider address the resource providers’ reduce consistency. They recommended is found to be non-responsive or experience level. that this salvage and marine firefighting vetting be administered by classification deficient through field verifications or 2. Coast Guard or Third-party Vetting the results of Preparation for Response societies, through the ISO 9000/14000 Exercise Program (PREP) drills or Spill One commenter agreed that the programs, American Waterway of National Significance (SONS) regulations for salvage and lightering Operators, or some other approved third exercises, then the Coast Guard would should require analytical systems and a party, based on the criteria in the table not approve response plans that list contractual relationship with a salvage provided by the Coast Guard. The Coast them as a provider. Therefore, if a company. Such arrangements are the Guard agrees that this is a reasonable resource provider is found deficient on industry standard and represent a goal. Initially the Coast Guard will rely a continuing basis, the planholder reasonable and achievable requirement. on the established VRP review process would be required to change resource However, the commenter also stated augmented by surveys and reports by providers or risk not being able to that a process similar to the OSRO Coast Guard COTP field personnel done, operate their vessel in U.S. waters until classification system should assess the if necessary, in conjunction with their VRP is in compliance with the capability of these service providers. discussions with local port partners. regulations. The Coast Guard disagrees that a After reviewing the effectiveness of this One commenter stated that insurance classification system for salvors is final rule, the Coast Guard will retain may be very difficult, or cost needed at this time. This rule addresses the option of having it administered by prohibitive, for salvage and marine the capabilities of the resource a third-party organization. However, firefighters to obtain for the type of work providers with the 13 point selection this final rule relies on due diligence proposed. Although § 155.4050(b) criteria, found in § 155.4050, that from both the planholders and the requires consideration of 13 items for planholders will consider in the resource providers to ensure an
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acceptable level of quality in meeting protection. (‘‘USCG Marine Safety Manual’’, When consenting to be a listed resource the criteria is achieved. Vol. VI, chapter 8, section B.) provider, that provider agrees to have all the personnel and equipment needed to 3. Use of Public Resources This principle is also embodied in this rulemaking and it ensures the provide the services for which they have One commenter asked if private planholder has contracted for adequate contracted. If local public responders responders can ever really be the response services, regardless of whether are depended upon to provide primary responders, if public the resource provider is a public or resources, they must agree in advance to responders can be contracted, and if private entity. We agree that all parties be listed in the VRP. The planholder planholders will have the ability to involved will rely on ACPs to plan for must ensure any resource provider is evaluate public resources. Private emergencies, and all port partners capable of providing the services responders can be primary responders involved in developing ACPs should needed, as found in § 155.4045(a). and may need additional equipment to take this rulemaking into account. To One commenter stated that it is the meet a planholder’s needs in all this end we have revised § 155.4030(d) legal responsibility for fire departments required geographical areas. However, by adding text requiring that the to respond to fires in vessels within this final rule does not mandate information contained in the response their jurisdiction. The Coast Guard additional equipment for private plan must be consistent with applicable agrees in part. However, since OPA 90 responders. Public responders can be ACPs and the National Oil and emphasizes the use of private over contracted up to the restraints listed in Hazardous Substances Pollution public resources, public marine- § 155.4045(d). It must be understood Contingency Plan as found in firefighting resource providers should that because public marine-firefighting only be listed when the planholder has services have jurisdictional boundaries, § 155.1030(h). One commenter said that the determined that no private resources it may not be appropriate to select one (which can meet the response times) are public marine-firefighting service to regulations should encourage and permit utilization of local resources available, and that the public resource cover a whole COTP zone. Since OPA has responsibility to respond to 90 emphasizes the use of private over where practical, jurisdictional, and cooperative issues are worked out, as incidents in the area specified in the public resources, public marine- VRP. In other words, this regulation firefighting resource providers should this will provide the lowest cost to the maritime community and encourage requires that planholders have under only be listed when the planholder has contract or other approved means, determined no private resources are their participation in local cooperatives. The Coast Guard agrees and this final private resource providers capable of, available that can meet the response and intending to commit to, meeting the times and the public resource has a rule allows for such cooperatives. Two commenters stated that the VRP requirements whenever possible. responsibility to respond to incidents in Nothing in this regulation precludes the area specified in the VRP. Also, the requirements for external firefighting capability require further discussion as public emergency responders from public resource must agree, in writing, executing their duties. Consistent with to be included in the VRP. Planholders to the appropriate role of public and the requirements of § 155.1010, we will be able to evaluate public resources private resources and the correct reiterate that these are planning and not in much the same way as is required for approach to ensuring their operation. performance requirements. private resource providers, as stated in The Coast Guard disagrees. The entities involved, both public and private, will Three commenters stated that public § 155.4050. In addition, the COTP and marine-firefighting resources are often the FOSC will have a critical review and work with the planholders to ensure a prohibited from responding outside oversight role in agreements that local timely and effective emergency their own jurisdiction, with the municipalities may consent to for response. All parties are encouraged to exception of mutual-aid agreements, marine-firefighting support. The Coast use the ACP process to create workable and that this would preclude the direct Guard will separately publish additional processes and VRPs for responding to a use of these resources by commercial guidance in this area. marine-firefighting incident. Examples One commenter stated that volume of ACPs are on the Internet at the Coast contract where port areas often VI, chapter 8 of the ‘‘USCG Marine Guard’s Homeport Web site: http:// encompass numerous jurisdictions Safety Manual’’ anticipates that local homeport.uscg.mil. The ACP between a vessel’s initial entry into a fire departments will be the lead agency information is under the ‘‘missions’’ tab COTP zone and its arrival at a terminal in case of a vessel fire. The commenter in the ‘‘environmental’’ section. The or facility unless they are part of a local added that guidance in this chapter Coast Guard plans to issue policy to marine-firefighting cooperative. The requires the Coast Guard to develop area Area Committees, who produce and Coast Guard agrees and addresses this contingency plans (ACPs) and include maintain Area Contingency Plans issue in § 155.4045(d) by stating that: local resources for firefighting, but does (ACPs), on how the Salvage and Marine- Public Firefighters may only be listed out not address private firefighting Firefighting sections of the ACP can to the maximum extent of the public resources. The commenter concluded ensure planholders are supported in resource’s jurisdiction, unless other that first response to a vessel should their planning efforts. ACPs describe the agreements are in place. rely on the ACPs; therefore, times in strategy for a coordinated Federal, state, Should the public marine firefighters Table 155.4030(b) for at-pier firefighting and local response to a discharge of oil and the planholder come to an response should be deleted. The Coast or a release of a hazardous substance acceptable agreement regarding when Guard disagrees in part. The commenter within a Captain of the Port Zone. and where the public resource can be is correct in quoting the Coast Guard’s Two commenters stated that it is used, then that agreement must be stance as found in the ‘‘USCG Marine unacceptable that some commercial included in the VRP. Safety Manual’’; however it also states marine-firefighting providers can rely Three commenters stated that the that: on the Coast Guard or local responders regulation ignores public firefighters as [A] vessel/facility’s owner and/or operator to provide critical support personnel responders, because the rule implies is ultimately responsible for the overall safety and equipment once they arrive with that public firefighters only be used as of vessels/facilities under their control, limited, specialized equipment and a last resort, and that the regulation including ensuring adequate fire fighting personnel. The Coast Guard disagrees. should not state that the Coast Guard
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considers it unreasonable to expect ACP, which in turn would enable Guard agrees in part. It is not mandated marine-firefighting resources to respond communications between the resource that public agencies will have to be a outside their jurisdictional boundaries. provider and the local public part of a response plan; however we The commenters added that the firefighters. That type of communication envision that they will be included for regulation should recognize that public and mutual cooperation is not required most in-port pier locations in a VRP. resources may be listed for response if by regulation; however, it is part of a Regarding the comment that any it has agreed to do so where a mutual professional involvement in the contract provider (resource provider) aid system has been implemented that emergency response operations must integrate his or her organization will permit response regardless of community and will be fostered by into the ICS systems, this is already individual agency boundaries. participation of all parties in the addressed by § 155.4030(c) and (d). Accordingly, the second clause in the required drills and exercises. last sentence of § 155.4045(d), ‘‘but the Two commenters stated that public N. Integration of the VRP Into the Coast Guard considers it unreasonable firefighting resources represent a Unified Command System/ICS to expect marine-firefighting resources significant portion of available One commenter recommended that to do this’’ should be deleted. The Coast firefighting equipment and personnel the Coast Guard mandate the use of the Guard disagrees. Section 155.4050(d) around the country, and as such, there Unified Command System (UCS)/ICS to clearly states that public marine- is a need to integrate these resources facilitate public and private cooperation firefighters may be listed as resource into the overall response picture, and in a structured system. The Coast Guard providers. However, public resources cooperation between public and private disagrees in part. Homeland Security must agree in writing to be included in entities should be encouraged by the Presidential Directive 5, ‘‘Management the VRP. We have added a restriction regulations. The Coast Guard agrees, of Domestic Incidents’’, found online at that they may only be listed to respond and envisions the formation of mutual- http://www.nimsonline.com/ out to the limits of their jurisdiction, aid agreements and coordination presidential_directives/hspd_5.htm, unless other agreements are in place. between marine-firefighting entities as a creates a single, comprehensive Other agreements could reflect the result of this regulation. We urge all National Incident Management System public firefighter’s commitment to interested parties to pursue this. In (NIMS) using the national NIMS/ICS for respond beyond their jurisdictional addition, we anticipate local ACPs will all emergency incidents. The National limits. We also do not agree that Federal reflect these changes as well. Response Plan, Regional Response Plans law, or this rulemaking, should support One commenter is not opposed to the and ACPs all do the same. We anticipate or encourage public firefighting agencies use of public firefighters, but added that that any incident, which would be to respond outside of their jurisdictions, if they are part of a response plan there managed by a unified command, would as that would be an attempt to preempt must be requirements to provide fall under this family of plans and local laws and authorities. There are guidelines for interaction between the therefore we do not consider it cases where a local agency will be a resource provider and the public necessary to mandate the use of NIMS/ member of a mutual-aid association, in firefighters to ensure cohesion when ICS. which an agency has agreed, as a working together. These requirements One commenter stated that member of the association, to respond should include, but not be limited to, § 155.4030(c), the ‘‘Integration into outside their jurisdictional boundaries. drill planning and participation, response organization’’ summation, In this case, the public agency can agree training, and a clear understanding of should read: in writing to do so as a planholder’s each participant’s role prior to resource provider, as allowed in responding to an incident. The Coast The response organization must be Guard agrees that there should be strong consistent with the requirements set forth in § 155.4045(d). §§ 155.1035(d) and 155.1040(d) and One commenter stated that it is vital coordination and communication 155.1045(d). that any contract provider be required to between the private and public integrate qualified public agencies into firefighting resource providers. The The Coast Guard agrees in part. Section their VRPs. The Coast Guard disagrees. intent of this rulemaking is to issue 155.1030(d) does not address integration If the public marine-firefighting agency broad requirements regarding into response organizations and was agrees to be listed in the planholder’s contractual arrangements that must be listed in the NPRM in error. Section VRP, then that is acceptable. However, in place and listed in a planholder’s 155.1035(d) addresses Shore Based it is beyond the scope of this rulemaking VRP. We do not intend to dictate how Response Activities and is the correct to require that public agencies be listed the parties involved conduct their cite. The text in § 155.4030(c) has been under contract or other approved means business after those arrangements are in amended to reflect the correct reference. in the planholder’s VRP. place. Participation in the required ‘‘Integrated into the response Five commenters stated that a local drills, exercises and training, and a clear organization’’ means that the resource firefighting entity in command of an understanding of each participant’s role providers operate as part of the incident incident would not necessarily are all vital aspects of proper planning command or the unified command as recognize the contents, strategies, and and preparedness for emergency organized by the FOSC. The Coast service providers included in the VRP. response, and we expect that the Guard disagrees with the commenter’s This scenario would place the vessel interests of all concerned will lead to stating § 155.1045(d) should be listed, owner in the unenviable position of the planholders and resource providers because that particular cite is not diverting from the VRP since local participating in proactive roles. applicable to the requirements of this regulations give command authority to One commenter stated that, based on regulation. Vessels that are covered by the local firefighting entity. The Coast the proposed response times, it appears § 155.1045 are not required to list Guard agrees in part. Each planholder that local public fire agencies will have salvage and marine firefighting resource and resource provider will have to to be a part of any response plan. With providers. ensure these problems are addressed, that in mind, they added that it is vital Nine commenters stated that the Coast and should be actively involved in the that any contract provider be required to Guard needs to provide clear guidance port partners program. In doing so, they integrate into the ICS systems that have regarding where salvage and firefighting would have input into their location’s already been established. The Coast fit in the ICS, as the Salvage Master is
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often the most knowledgeable person in incident occurs and during all phases of resource provider will be the Incident the response organization. They stated the incident response. Commander required by § 155.4035, but that the proposed language does not One commenter asked if the Coast noted that this may not be the case in adequately address coordination and Guard was planning a revision to the many incidents. The Coast Guard response organization dynamics, adding ‘‘ICS Field Operations Guide’’ or the disagrees and can find no reference in that if the Coast Guard’s intent is to ‘‘Incident Management Handbook.’’ In § 155.4035 to the resource provider utilize unified command with salvage August of 2006, we revised the ‘‘U.S. being an Incident Commander. Section and firefighting efforts appropriately Coast Guard Incident Management 155.4030 requires integrating the incorporated along with existing FOSC Handbook,’’ COMDTPUB P3120.17A, resource provider into the response authority then the intent and and it is for sale from the Government organization, but includes no specific implementation specifics should be Printing Office. The document is also requirement that they have to be the clearly articulated. The Coast Guard available on the Internet at the Coast Incident Commander. Guard’s Web site: http:// agrees that Salvage Masters are very O. Worker Health and Safety knowledgeable, and that there is a need homeport.uscg.mil. It can be found by to be clear where they fit into the selecting the ‘library’ tab on the top of One commenter stated that response organization. Historically, the the page, then by selecting the ‘Incident § 155.4030(i), ‘‘Worker health and salvors and marine firefighters have Command System (ICS)’ tab on the left safety,’’ is listed in the wrong section. been placed in the Operations Branch. side, then selecting the ‘Incident The Coast Guard agrees in part. This However, it is the prerogative of the Management Handbook (IMH)’ tab issue is as vital to emergency response Incident Commander/Unified Command under the Job Aids section. as the other services listed in this to structure the ICS organization to best One commenter stated that it is section, and must be addressed in the fit the incident’s needs. Thus, this final critical that these regulations leverage contractual arrangement between the rule requires only that the response plan public agencies specializing in marine planholders and resource providers includes provisions on how the salvage firefighting and encourage prior to an incident occurring. However, and marine firefighting resource specialization by those that do not. The we acknowledge that the exact location providers will coordinate with other commenter added that the regulations of this section may create confusion and response resources, response should support the development and have redesignated § 155.4030(i) in the organizations, and OSROs, not the enhancement of existing marine- NPRM to § 155.4032(b) in the final rule. One commenter stated that worker specific roles the providers will fill in firefighting units within an agency or health and safety is imposed on salvors, the ICS structure. region, thereby providing the opportunity for a cost-effective public/ but not on the OSROs, even though Four commenters stated that it is private partnership, which would make consistency between the two critical that marine-firefighting resource the public fire agency a first responder requirements is important. The Coast providers are integrated into any local and lay the foundation for the private Guard agrees that consistency is UCS/ICS and not operating firefighting resource providers. The important among regulations and will independently. The Coast Guard agrees Coast Guard agrees that strengthening take this comment under advisement and included this provision in both the existing public firefighting agencies should we revise the OSRO regulation NPRM and this final rule as found in benefits everyone, and we anticipate in 33 CFR 155.1010. However, it is § 155.4030(c). that this will happen through strong beyond the scope of this regulation. Two commenters recommend deleting port partnerships and involvement in One commenter stated that they do § 155.4030(d), ‘‘Coordination with other the ACP planning and exercises. not feel that the Coast Guard can response resource providers, response However, we consider it more important mandate that planholders bear any organizations and OSROs,’’ because it to ensure that the contracted resource responsibility for the health and safety shows a lack of understanding of the provider is able to adequately provide of independent contractors subject to ICS structure and the command the services that they have agreed in Occupational Safety and Health structure that is required. They stated writing to provide at the time the VRP Administration (OSHA) requirements. that salvage and marine firefighting is submitted. If a public agency can The commenter recommended deleting resources will not normally coordinate meet this requirement and agrees to do this provision. The Coast Guard with other response resources, response so, then they are welcome to be listed disagrees as the existing § 155.1055(e) organizations, and OSROs, as it is the as a resource provider in a VRP. states: responsibility of the ICS structure to However, it is beyond the scope of this Nothing in this section relieves the vessel coordinate their activities. The Coast regulation to require that it be done, or owner or operator from the responsibility to Guard disagrees. This section is to require that the public agency meet ensure that all private shore-based response intended to address the coordination the criteria for contracting. If they can personnel are trained to meet the OSHA between the differing response not be listed based on their current standards for emergency response operations organizations before an incident occurs. capabilities, we require contracting with in 29 CFR 1910.120. It will entail inter-organizational a private resource provider instead. As this is already mandatory for outreach, participation in the ACP One commenter suggested that applicable planholders, we consider process, and communication between response plans should integrate with, § 155.4032(b) valid and necessary. We the planholders, resource providers, and and make specific reference to, salvage have, however, revised the text of other affected port partners. We and marine-firefighting sections detailed § 155.4032(b) to refer to the existing consider it important to ensure that all in each ACP associated with vessel requirements. the pre-incident coordination is in place transits. The Coast Guard agrees. One commenter stated that the health prior to an emergency situation, and According to 33 CFR 155.1030(h), a and safety requirement is already therefore have not changed the language planholder is already required to align addressed by 29 CFR 1910.120, as noted of this section. We acknowledge, the vessel response plan with in the National Contingency Plan (40 however, that the Incident Commander/ appropriate ACPs. CFR 300.150). The commenter Unified Command will be responsible One commenter stated that there is an recommends this be changed to for coordination activities after an assumption that the salvage/firefighting reference 29 CFR 1910.120 as the
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standard. The Coast Guard agrees and unable to obtain a salvage and marine equipment. The Coast Guard agrees that has revised the text of § 155.4032(b) to firefighting resource provider, because any money spent on training and reflect this. all affected entities have had ample time modernization is money well spent; to prepare for this requirement. The however that would not address the P. Waiver Provisions Coast Guard disagrees. We recognize need to have planned for, and already Six commenters dealt with the need that this regulation is a major change in contractually obligated, appropriate for a process and mechanism for the planholders’ VRPs and that the ability to salvage and marine-firefighting Coast Guard COTP to address concerns acquire these services is dependent on equipment for responding to a worst- that a VRP does not meet the whether or not such required services case-scenario incident. requirements of this section for a are available. We understand that there One commenter stated that there are specific COTP zone. Capabilities may be a period of time where upcoming opportunities offered by nationwide vary greatly, making it personnel, equipment, and service pending port security legislation, which critical the COTP have the ability to contracts are being acquired and/or would allow the cost of these services rapidly address deficiencies that could relocated to areas to meet the to be spread among the entire port place a vessel and port at risk. The Coast planholders’ needs. For this reason we community. The writer is referring to Guard agrees and, using § 155.4020(c) as feel that the proposed waiver times are the Coast Guard and Maritime authority, a COTP can stop a vessel from reasonable, and have left them Transportation Act of 2004 (Pub. L. conducting oil transport or transfer unchanged in this final rule. 108–293), which was signed into law operations unless the requirements of Five commenters stated that any after the comment period on the NPRM this regulation are met. If proper temporary waiver of these requirements closed. The Coast Guard recognizes that resource providers may not be available by a COTP should be coordinated with that law authorizes the Coast Guard to to meet the required response times by state officials and harbor safety reach beyond tank vessels with its VRP the date this regulation is in effect. committees, and asked if the local COTP regulations. We considered withdrawing Therefore, § 155.4055 allows for a has the resources and/or expertise to this regulation until regulations pulling temporary waiver request. The local evaluate and approve the waiver. The nontank vessels into the VRP regime COTP must review and comment on this Coast Guard disagrees; this is a Federal were promulgated. We decided that waiver request before forwarding it to regulation, and for that reason the such a delay would not be acceptable the Coast Guard Commandant, Director waiver authority lies solely in the Coast because it would postpone the time of Prevention Policy (CG–54) for final Guard’s discretion. Any waiver request savings and efficiency benefit of listing approval. The Coast Guard intends to is first evaluated and commented on by resource providers for current publish guidance to field units the local COTP, who may consider planholders. regarding consideration of waiver input from other entities including state One commenter stated that marine requests. In addition, the COTP and agencies, the local area committee, and firefighting is one of the poorer or least local port partners will be active in the harbor safety committees prior to publicly funded services, thus reviewing the Salvage Annex of the forwarding the request to the Coast amounting to an unfunded mandate. ACP, which will describe in detail local Guard Commandant, Director of Section 155.4045(a) states that salvage and marine-firefighting Prevention Policy (CG–54), who will planholders may only list resource resources. make the final determination. The providers that have been arranged by One commenter did not agree with COTPs have the resources to evaluate contract or other approved means. This the proposed waiver periods, which it and recommend approval or means that a public marine-firefighting states seem to be selective yet disapproval of waiver requests in an department would have to agree, in unsupported by logic. The Coast Guard appropriate manner. advance, to be listed in the VRP. This disagrees. The waiver periods were One commenter stated that the Coast regulation imposes no new developed after analyzing information Guard should track waiver requests requirements on public marine gathered during the 1997 public made pursuant to § 155.4055, and firefighters, and therefore is not an workshop, and from information consider funding resources if many unfunded mandate. gathered from the salvage and marine requests are from the same area. The One commenter wanted to make it firefighting industry for the 2002 Coast Guard disagrees with this known that the tank barge industry is Regulatory Assessment. We are not comment, in part. While we do intend different than the tank vessel industry, mandating additional equipment to track waiver requests to identify those and responders and service providers requirements under the final rule. areas of the country where resource will take into consideration all aspects Two commenters stated that the providers are lacking, we do not have of costs, adequacy and fairness of the salvage and firefighting capability funds to provide to those areas. proposed rules. The Coast Guard should be built up over time, much like anticipates that differences in the buildup of OSRO inventories has Q. Economic Comments circumstances will be discussed prior to been accomplished in five-year cap One commenter stated that an any contractual arrangement. increments. We agree in part. Our appropriate retainer to cover costs can One commenter explicitly stated that analysis indicates that no new be sustained by the industry if the shippers (particularly those who operate planholder capital expenditures will be savings from a prompt, successful in smaller or remote ports) will be necessary. Before the promulgation of response complements them. The Coast forced to consider other, more cost- this rule, industry began its capital Guard does not agree or disagree. effective modes of transportation, and buildup of equipment as part of its Because this commenter suggested no that the net effect will be a loss of liquid business model for the salvage and changes to the NPRM, the Coast Guard tonnage traveling on the inland firefighting services it provides on a did not consider any changes as a result waterway system as this traffic moves to daily basis, not as a result of the of this comment. other transportation modes. The Coast requirements of this rule. One commenter stated that the money Guard disagrees. Our economic analysis One commenter suggested limiting spent for this rule would be better spent for the final rule shows that VRP temporary waivers to a one-year through prevention, such as crew holders would not incur additional maximum for planholders who are training and modernization of capital costs as a result of the final rule,
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but would still incur paperwork costs of S. Tribal Consultation States. As found in the public docket, about $1.2 million annually. As to the In regards to protecting the rights of document number USCG–1998–3417– net loss of liquid tonnage traveling on the Puget Sound tribes, the Coast Guard 0008, the Coast Guard had requested an the inland waterways, the absence of has entered into the required extension of the implementation date of significant additional costs should consultation and coordination with California’s Salvage Equipment and result in little or no net loss due to this affected Indian tribal governments, and Service requirements (found in section regulation. all State, local, and tribal governments 8 18.02(m) of California’s Oil Spill One commenter questioned why five have had an opportunity to comment on Contingency Plan regulations (Title 14, Division 1, Subdivision 4, Chapter 3, percent of the planholder’s revenue will the NPRM during the public comment Subchapter 3, Sections 81 5–819)) be applied to fund this proposition period, and have those comments beyond September 30, 2000. We felt that instead of using that money to eliminate addressed prior to issuance of a final such an extension would give us time to single-hulled barges. The Coast Guard rule. We have summarized our share and discuss our own proposed assumes this comment stems from the consultation with Indian tribal requirements with them. The Coast analysis found on page 55 of the 2002 governments in Section VII, entitled Guard is not approving California’s Regulatory Assessment, which discusses Rulemaking Analysis and Notices, requirements; however we are required the 5% impact on only a few small Subsection J of this final rule. businesses. under Executive Order 13132 to consult The intent of this final rule is T. Miscellaneous with the States prior to proposing certainly not to divert monies needed to Two commenters stated that regulations that might affect them. We fund the change over to double-hulled firefighting and salvage do not work on consulted with California on an barges; rather, it is to ensure that the same operational principles, and agreement on the best approach for ensuring a salvage and firefighting adequate resources are in place to avoid that they should be addressed capability that both serves the interests a costly response to an oil spill if differently in the rulemaking. The Coast of that State and the United States, and possible. From our final small business Guard understands this position, but also to lessen the burden of meeting two analysis, we found that the final rule does not feel it is necessary to change separate regulatory requirements on will not impose additional capital or the regulation. While there are industry. States have an inherent right infrastructure costs on small businesses. differences in these two types of to set vessel response planning We estimate businesses will still incur emergency responses, we recognize that requirements for their own waters, as paperwork costs of about $1.2 million in some instances both firefighting and long as they do not preclude compliance annually or about $1,500 per business. salvage services will be provided by one with Federal requirements. Since this Eight commenters stated that the resource provider. Also, marine comment came into the docket, NPRM cited the M/V NEW CARISSA as firefighting and salvage are closely California issued Salvage Equipment an example of the need for the enhanced linked as a response progression, and Service requirements as part of their salvage capacity it proposes, even therefore we feel that a single regulation Oil Spill Contingency Plan regulations though the M/V NEW CARISSA was a serves best to inform the industry and on October 12, 2007. For a detailed freighter that would not be covered by resource providers of the planning discussion of this topic, see the the rulemaking. The commenters are requirements. However, as there are ‘‘Federalism’’ section below. referring to the mention of the M/V different aspects of each response, One comment recommended that the NEW CARISSA in the May 2002 separate response timetables are Coast Guard should establish Basic regulatory assessment, ‘‘Salvage and provided for salvage versus firefighting Ordering Agreement (BOA) or contracts Marine-Firefighting Requirements for planning purposes. with salvors and marine firefighters, and Vessel Response Plans’’ (USCG–1998– One commenter stated that the NPRM other resource providers in the same 3417). In this regulatory assessment, the was not very well written, adding that fashion it has done with spill cleanup Coast Guard referenced the M/V NEW it essentially proposed amending contractors. They suggested that the CARISSA as background information in existing VRP regulations, yet included Coast Guard apply the same criteria the context of a recommendation the them in a separate section. The Coast when evaluating contract services that Marine Board made in its 1992 report Guard disagrees and has determined are being required of the tank vessel that: that these regulations are necessary and industry, and that the Coast Guard All commercial vessels, not just tank vessels, fit appropriately into the current VRP perform the evaluation and contracting demonstrate planning for salvage response. regulations provided in 33 CFR part within the same time periods given the 155. tank vessel industry in the proposed The regulatory assessment goes on to One commenter stated that the State note that the: revision. The Coast Guard disagrees. In of California should not dictate U.S. 1982 Congress directed the Coast Guard Discussion of salvage planning by non-oil salvage and marine-firefighting response Commandant to: carriers has only recently started, since the planning requirements. The commenter M/V NEW CARISSA accident and salvage in noted that the Coast Guard has no Review Coast Guard policies and procedures for towing and salvage of 1999 and other general cargo salvage business imposing the same incidents. disabled vessels in order to further minimize unreasonable requirements on those the possibility of Coast Guard competition or However, the Coast Guard did not cite who elected to avoid them by not interference with commercial enterprise. the M/V NEW CARISSA incident conducting business in California. The (Pub. L. 97–322, title I, Sec. 113, Oct. 15, specifically as an example for the need Coast Guard disagrees that these 1982, 96 Stat. 1585, as amended by Pub. L. for this rulemaking. regulations, which implement 100–448, Sec. 30(b), Sept. 28, 1988, 102 Stat. requirements contained in OPA 90, are 1850) R. Environment Comments unreasonable. Further, the Coast Guard Congress mandated the review because In Section VII, entitled Rulemaking has not, at any time during this of concern that the Coast Guard was Analysis and Notices, Subsection M rulemaking project, set out to impose unnecessarily using its resources to there is a discussion of the unreasonable requirements, either on provide non-emergency assistance for environmental comments. our own or at the behest of one of the disabled vessels, which could be
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adequately performed by the private Six commenters stated the rule Guard disagrees and will keep the new sector. In addition, a key aspect of OPA presents an incomplete and minimal salvage and marine firefighting 90 emphasizes the use of private over approach to providing effective salvage requirements in separate regulations. public emergency response resources. and firefighting capability for ships in We cross referenced the existing Therefore, this regulation was written to U.S. waters, that the U.S. needs a port regulations in Part 155 where necessary. ensure that private industry have the system of maritime-firefighting capacity One commenter stated that the first chance at the available contracts if for the general good, and that such a technical expertise to effectively deploy possible. national system should be developed assets in the earliest stages of a One commenter stated that since under Federal oversight using general shipboard fire is missing from the Congress removed Federal agencies as treasury funding. One commenter stated rulemaking, and that the best firefighting resources with the Federal that the Coast Guard continues to reject improvements in OPA 90 response Fire Prevention and Control Act of 1974, a dedicated salvage fleet as a viable effectiveness can be made by ensuring the burden has fallen squarely on the option to address this pressing need. that capable and trusted marine- shoulders of local fire departments. The The creation of a dedicated salvage fleet firefighting experts merge into the joint Coast Guard agrees in part and hopes using Federal resources would have to command as quickly as possible. The this regulation will relieve that burden come from Congress and be funded in Coast Guard agrees in part. There may by helping to bolster firefighting the Federal budget. The Coast Guard has well be instances where the resource resources with private resource not actively rejected or endorsed a providers contracted for assessment and providers that establish new dedicated salvage fleet. planning are also the resource providers partnerships between the public and One commenter stated that the for the firefighting teams and private sectors. absence in the NPRM of a proposal to equipment, and the Coast Guard One commenter stated that these create a nationally coordinated system encourages both planholders and regulations will impose upon the fails to recognize the jurisdictional resource providers to ensure this is done industry the same burdens that were issues inherent in a casualty on a major when possible. Regarding the imposed for oil-spill response in regards waterway of the United States. The integration into the joint commands, to cost, multiple contracts, and Coast Guard disagrees, and points to the prudence dictates that both planholders enhanced port capabilities, and that the importance of pre-planning using and resource providers participate in Coast Guard should ensure that these cooperation of the local and the Federal, state, and local area issues are clearly addressed in these surrounding port partners and creating contingency planning prior to an regulations and that the Coast Guard has adequate ACPs to anticipate situations incident. the tools and capability to adequately where an incident might cross One commenter stated that the new ensure that resources listed in a VRP are jurisdictional lines. fire-detection systems, rules, and adequate for local ports. VRP approval One commenter recommended that training are paying off and should be is done according to certain criteria the Coast Guard eliminate the last given a chance to work before the used by the Coast Guard in reviewing sentence in § 155.4010, which reads: proposed firefighting rules are enacted. the submitted VRPs. Should the review The Coast Guard disagrees in part. It is process uncover deficiencies, or if a Salvage and marine firefighting actions can true that there have been some positive historical pattern of deficiencies are save lives, property and prevent the developments in the past regarding on found in the resources listed in VRPs, escalation of potential oil spills to worst case board marine firefighting regulations events, the Coast Guard will take administrative and standards, most notably the 1995 action in accordance with as it is propaganda, and because the first amendments to the International §§ 155.1025(d)(1) and 155.1070(e). sentence accurately describes the Convention on Standards of Training, However, the responsibility of ensuring purpose of the new subpart. The Coast Certification and Watchkeeping for the adequacy of the response provider is Guard disagrees. We consider the Seafarers (STCW). However, this on the planholder, based on the sentence in question to be factually rulemaking addresses a worst case selection criteria found in § 155.4050. correct and an accurate statement of the discharge scenario situation, which One commenter stated that the basis and intent of this regulation. could easily overwhelm the vessel comments found in the FOSC’s report Three commenters stated there is a crew’s firefighting capabilities and on the M/V NEW CARISSA, ‘‘Crisis on definite need for regulations giving the require external response resources. For the Coast,’’ proves that a response must COTP direct oversight of VRPs. The these reasons, the firefighting rules are be centrally coordinated to be effective. Coast Guard disagrees. The volume of necessary. The commenter added that such review and oversight for the VRPs will One commenter was unsure regarding coordination could not be achieved be time and labor intensive, and would compliance with the requirement in within the context of the proposals create too much of an administrative § 155.4040(d)(2) to ‘‘list the pier location contained in the NPRM. The Coast burden on local COTP offices. The by facility name and city.’’ They asked Guard disagrees. Section 155.4030(c) review and oversight will be maintained if that meant listing all potential addresses integration into the response at the Commandant level in Coast Guard locations that their entire fleet might organization prior to an incident Headquarters, as is the existing VRP someday visit, over the 13 COTP zones happening. It is the responsibility of the program. This will allow for a more that the company operates in, in order planholder and resource provider to consistent review process and to determine if the resource provider ensure this is done by working with application of the regulation. can reach the location in the designated local port partners and contributing to, One commenter suggested not listing timeframe. They stated that this and exercising under, the ACP. Table the requirements contained in the rules provision would be extremely difficult 155.4040(c) references VRP submittal to separately, but rather integrating them to accomplish. The Coast Guard agrees the Incident Commander/Unified with the existing VRP rules found reporting this level of detail will be Command. Both of these items show elsewhere in 33 CFR part 155. In cases difficult, but necessary nevertheless to there is a clear intent for central where this is not possible, then both the verify that resources will be available. coordination and pre-planning of the existing rules and the new rules should VRPs and the accompanying response. cross reference each other. The Coast geographic-specific annexes are already
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required to list specific information as also asked how the Coast Guard will would be significantly greater than that found in § 155.1035(i). We are requiring gain the confidence of resource proposed in these regulations, as has that these annexes be updated to show providers, and if there will be any been documented in some of the the pier or city locations, and which directive to the COTPs to insure that maritime regulations of some western firefighting resource providers will be those who invest will get the work and States. One commenter stated that contracted for responding to incidents at those who do not will fall outside the §§ 155.1035(e)(6)(ii), ‘‘Response plan those locations. Section 155.1070(c)(5) definition of resource provider. The requirements for manned vessels has provisions for updating VRPs when Coast Guard agrees and is developing carrying oil as a primary cargo’’, and necessary. guidance to the field units detailing the § 155.1040(e)(5)(ii), ‘‘Response plan One commenter stated that unlike application and enforcement of this requirements for unmanned tank barges most areas of our nation, the lower regulation. carrying oil as a primary cargo’’, need to Columbia River, which is approximately be updated. While this comment is U. Beyond the Scope 110 miles, is protected by Mutual Aid outside the scope of this regulatory Agreements in which all 10 of the Two commenters addressed the fact project, we have passed it on to the Maritime Fire and Safety Association that the NPRM failed to discuss the appropriate office within the Coast (MFSA) public fire agencies participate. issue of liability for salvors, and Guard to consider as part of a separate The commenter stated that there are a suggested including immunity language, regulatory project. One commenter number of organizations similar to which states salvage and marine stated that the conditions in 33 CFR 155 MFSA throughout the country, and that firefighting resources will, for the are often not met and the local, public the hard work and dedication these purpose of 33 U.S.C. 1321(c)(4)(a), be fire departments are unaware of their organizations have put forth must not be considered as rendering such service role in the facility response plan. overlooked in the finalizing stage of consistent with the National One commenter stated that the Coast these regulations. The Coast Guard Contingency Plan. While we appreciate Guard should focus on ensuring agrees, and is very appreciative of the the points raised concerning potential adequate participation in the casualty various mutual aid organizations that liability, the issue of liability is beyond response by the financial stakeholders, exist throughout the United States. We the scope of this final rule. No provision which are often the insurers of the anticipate that many of these of this final rule addresses liability, responsible parties. The FOSC should organizations will enter contractual either to expressly limit liability or to require that all marine insurers, agreements with planholders, and that address immunity from liability. Among including hull, protection and more of them will be formed in other things, determinations of liability indemnity (P&I), and pollution insurers, additional locations to address the require a fact-laden inquiry on a case- have an individual available to discuss requirements of this regulation. by-case basis. If an incident response is coverage with the FOSC on an as One commenter stated that there must covered by the National Contingency needed basis. Another commenter stated be a mechanism in place to ensure that Plan, then any liability coverages that the FOSC should require that some the VRP, and all copies of the VRP, are previously authorized by 33 U.S.C. representative of the resource provider’s kept up-to-date as changes are made. 1312, and subsequent exemptions, various marine insurers, such as a The Coast Guard agrees and directs the would remain in effect. surveyor, be on scene to participate in commenter’s attention to the existing We received many other comments the financial decisions made in the requirements for any revisions to be concerning issues that are outside the context of the ICS. These comments are submitted to the Coast Guard 30 days in scope of the NPRM, and as such require beyond the scope of this rulemaking, as advance of a vessel’s operation in 33 little or no response. they would introduce a new aspect to CFR 155.1070(d). More information One commenter stated that much of the overarching incident command regarding this issue can be found on the the existing dedicated pollution structure. Internet at the following Web site: response equipment is suited only for One commenter recommended that http://www.uscg.mil/vrp/news/ spill response and is not used except for the Coast Guard take the lead to ensure submission_reminder.shtml. drills and actual spills. One commenter that the firefighting sections of each One commenter stated that if a asserted that a national system with ACP have been developed and tested so marine-firefighting resource provider regional/local planning requirements that initial at-pier response by public subcontracts to other qualified would resolve jurisdictional issues resources is assured. We will take this organizations, each subcontracted through the use of the existing incident comment into consideration as we organization should also receive a copy command structure, where one Federal conduct regular reviews of ACPs. of the VRP. The Coast Guard agrees and authority (presumably the Coast Guard One commenter stated that the U.S. has added text in § 155.4035(b)(3) to COTP) could coordinate the local and Coast Guard’s Crisis Management reflect this change. regional response organizations under School should increase the time spent One commenter stated that the rules one unified command system. One training the attendees in the distinctions require drill participation by all of the commenter stated that the Coast Guard among a resource provider’s various salvage and firefighting contractors in should treat identified resource insurance carriers because casualties the vessel oil contingency plans. The shortfalls as local issues and resolve usually involve multiple insurer Coast Guard agrees, and the existing them with local resources, as the state interests. One commenter stated that exercise requirements are found in of Washington has done. They they support the concept of improving § 155.1060. This requirement covers all referenced the Strait of Juan de Fuca and enhancing indigenous resources in vessels that are required to carry VRPs. rescue tug, which is in operation at each port, where possible, rather than We have also added § 155.4052 to Neah Bay, with funding for its creating a new industry. The commenter address specific exercise requirements. operations provided by the Washington added that enhancing local firefighting Three commenters stated that the State legislature. One commenter stated capabilities will create a reasonable low- Coast Guard will have to enforce the that if a direct funding mechanism, such cost alternative to developing a new regulations vigorously if resource as user fees, were established by local industry. One commenter wrote that for providers are to believe their and state authorities to meet the intent a number of years, tank vessels and tank investments will produce a return. They of these regulations, the cost and impact barges transiting the west coast of North
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America have been voluntarily vessels carrying oil or groups I through winches, or other equipment for lifting, participating in a traffic separation IV petroleum oil as cargo. These righting, or stabilizing a vessel). This scheme whereby tank vessels transit at revisions add clarifying language to the should greatly reduce the burden on least 50 miles offshore, while tank salvage and marine firefighting services industry by allowing industry to list barges transit 25 miles offshore. The that must be identified in vessel ‘‘estimated’’ response times of heavy lift commenter noted that if tank barges response plans. These revisions also set equipment rather then having to pre- could avoid the regulatory reach of new response time planning stage the equipment in geographical these proposed standards by transiting requirements for each of the required locations to meet firm planning beyond the 50-mile limit of a certain salvage and marine firefighting services. response times. Only an additional COTP zone, they would place The final rule also removes the time paperwork burden exists in the form of themselves directly in the path of the requirement for ‘‘heavy lift’’ services annual plan updates, renewals, and faster moving tank vessels, negating the and the 24-hour requirement. The deficiency letters. benefits and safety features of the traffic changes above ensure that the Initially, we believed that capital separation scheme. One commenter appropriate salvage and marine costs and other costs such as employee stated it is essential that the Coast Guard firefighting resources are identified and training and drills, employee address the status of efforts to obtain available for responding to incidents up compensation, acquisition of reciprocity with Canada, particularly for to and including the worst-case equipment, record creation and areas where we jointly share waterways. discharge scenario. Readers should refer recordkeeping, and contract One commenter submitted a comment to the ‘‘Summary of Changes from negotiations with planholders (initial designed to correct language in a report NPRM’’ section of this preamble for and annual) incurred by the salvage and that was neither referenced in nor relied more information. firefighting companies would be passed upon for the NPRM. One commenter Since 2002, several factors have led us onto vessel planholders in the form of stated that the Coast Guard should to reconsider the cost impacts of the retainer fees or increased costs for address and develop a process to resolve rule. First, the rule requirements services provided. However, based on possible jurisdictional conflicts between themselves have changed, eliminating information from industry firefighters and Federal, State, and the need for the costly staging of heavy representatives, the levying of retainer planholder responders. At the public lift equipment. In addition, the marine fees is not a common industry practice meeting in Seattle on the NPRM, it was salvage and firefighting business and is virtually nonexistent within the suggested firefighting and salvage practices have changed in response to marine salvage and firefighting industry. contractors should be certified by an market forces external to the rule. Even Marine salvage and firefighting International Association of in the absence of the Coast Guard companies recover most, if not all, of Classification Societies member. regulatory requirements, industry has their costs for equipment and other These comments were found to be made considerable capital investments capital expenditures through marine beyond the scope of the proposed in the equipment needed to fulfill other related contracted work and services. rulemaking; therefore, we have not business opportunities and provide For about 797 planholders that this responded to them. services through the normal course of rule will impact, there are additional daily business operations. As a result, paperwork burden and costs, which VI. Incorporation by Reference salvage companies have already require an adjustment to an existing The Director of the Federal Register acquired the equipment that we had collection of information. We estimate has approved the material in projected would need to be required to the total annual burden hours to §§ 155.4035 and 155.4050 for meet the revised plan requirements. increase by 19,925 hours with an incorporation by reference under 5 As a combined result of these associated cost of approximately $1.2 U.S.C. 552 and 1 CFR 51. Copies of the changes, we now estimate that the rule million (non-discounted). For more material are available from the sources will not trigger an intensive investment detail, see the ‘‘Collection of listed in those sections. in capital equipment by industry. Information’’ section of this rule. Therefore, we do not anticipate salvage This rule provides an efficiency VII. Regulatory Analyses and firefighting companies will incur benefit that will result in reduced We developed this final rule after the capital costs and associated annual response times. Current planholders considering numerous statutes and costs that we previously envisioned in will be able to make arrangements and executive orders related to rulemaking. the proposed rule based on comments contract with resource providers before Below, we summarize our analysis received from industry and on the state future events occur, therefore, reducing based on 13 of these statutes or of the business environment during the future response times. The rule ensures executive orders. past six years. Companies purchased that the appropriate salvage and marine equipment as a part of their business firefighting resources are identified and A. Regulatory Planning and Review model in order to carry out the services available for responding to incidents up (E.O. 12866) they provide clients in addition to the to and including worst case discharges. This final rule is not a ‘‘significant contract work that we estimated for the This rule will assist in restoring regulatory action’’ under section 3(f) of proposed rule. As a result, compliance maritime transportation related Executive Order 12866, Regulatory with the final rule will not require commerce after a navigation or security Planning and Review. The Office of additional capital or resources to event. The rule also provides Management and Budget (OMB) has not increase salvage and marine firefighting clarification to the existing requirements reviewed it under that Order. capability. found at 33 CFR 155.1050 which are A regulatory analysis is available in For the final rule, we added clarifying general and only require that a the docket where indicated under the language to existing requirements of the planholder identify salvage and marine ADDRESSES. A summary of the analysis NPRM. The most significant change in firefighting resources. follows: the final rule is the removal of the Ultimately, reduced response time The Coast Guard is amending the ‘‘heavy lift’’ response time requirement may result in barrels of oil not spilled vessel response plan salvage and marine (Heavy lift means the use of a salvage after an event occurs. The Coast Guard firefighting requirements for tank crane, A-frames, hydraulic jacks, examined spill incidents from casualty
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cases for tank ships and tank barges for for compliance, please consult with the provide that information to the Coast the period 2002–2006. This period Coast Guard personnel listed in the FOR Guard for its use in emergency response. appeared relevant for evaluation since FURTHER INFORMATION CONTACT section of Use of Information: The Coast Guard the Coast Guard published the original this rule. will use this information to determine VRP rule in January 1996 and since Small businesses may send comments whether a vessel meets the salvage and several years had elapsed since OPA 90, on the actions of Federal employees marine firefighting requirements. thus allowing time for OPA 90 related who enforce, or otherwise determine Description of the Respondents: The rules to have an effect on the amount of compliance with, Federal regulations to respondents are vessel response oil that was being spilled into the water the Small Business and Agriculture planholders. from tanker incidents. We found that Regulatory Enforcement Ombudsman Number of Respondents: The number spill volume had decreased during this and the Regional Small Business of respondents is 797 VRP planholders. period in contrast to the years just Regulatory Fairness Boards. The Frequency of Response: Each following OPA 90. However, the Coast Ombudsman evaluates these actions respondent will update and amend their Guard considers this rule will assist in annually and rates each agency’s respective plan accordingly and mitigating the impacts of future low- responsiveness to small business. If you typically on an annual basis. risk, high-consequence worst case wish to comment on actions by Burden of Response: For this final discharges. employees of the Coast Guard, call 1– rule, the VRP planholder hour burden is We consider the efficiency gains 888–REG–FAIR (1–888–734–3247). The 25 hours each year. For this rule, the discussed above to be the primary Coast Guard will not retaliate against total hour burden is 19,925 hours each benefit of the rule. We also present small entities that question or complain year. We also estimate that planholders additional analysis of potential about this rule or any policy or action will incur ongoing paperwork costs of scenario-based benefits in the regulatory of the Coast Guard. about $1.2 million annually. analysis available in the docket. We Estimate of Total Annual Burden: The considered large spill scenarios and D. Collection of Information existing OMB-approved total annual effectiveness factors to forecast a range This rule calls for a collection of burden is 220,559 hours. This rule will of quantified benefits. information under the Paperwork increase that number by 19,925 hours. The estimated total annual burden is B. Small Entities Reduction Act of 1995 (44 U.S.C. 3501– 3520). As defined in 5 CFR 1320.3(c), 240,484 hours. Under the Regulatory Flexibility Act ‘‘collection of information’’ comprises In addition to this rulemaking, COI (5 U.S.C. 601–612), we have considered reporting, recordkeeping, monitoring, 1625–0066 is being revised by 2 other whether this rule would have a posting, labeling, and other similar Coast Guard rules. These rules are—(1) significant economic impact on a actions. The title and description of the Vessel and Facility Response Plans for substantial number of small entities. information collections, and a Oil: 2003 Removal Equipment The term ‘‘small entities’’ comprises description of those who must collect Requirements and Alternative small businesses, not-for-profit the information follow. The estimate Technology Revisions [Docket No. organizations that are independently covers the time for reviewing USCG–2001–8661; RIN 1625–AA26]; owned and operated and are not instructions, searching existing sources and (2) Nontank Vessel Response Plans dominant in their fields, and of data, gathering and maintaining the and Other Vessel Response Plan governmental jurisdictions with data needed, and completing and Requirements [Docket No. USCG–2008– populations of less than 50,000. reviewing the collection. 1070; RIN 1625–AB27]. Once these rules The Coast Guard has reviewed this This final rule modifies one existing are finalized, the hour burden for 1625– final rule for its potential economic OMB-approved collection 1625–0066 0066 will differ from the figures noted impact on small entities. Out of the (formerly 2115–0595). A summary of the above. See the COI preamble section of estimated 797 planholders, we revised collection follows. each rule for details on how the hour identified 191 entities as being small Title: Vessel and Facility Response burden will differ. businesses. From our analysis, we Plans (Domestic and International), and As required by the Paperwork believe that small businesses will not Additional Response Requirements for Reduction Act of 1995 (44 U.S.C. incur additional capital costs to comply Prince William Sound Alaska. 3507(d)), we have submitted a copy of with the final rule. They will incur OMB Control Number: 1625–0066. this rule to OMB for its review of the small paperwork costs of about $1,500 Summary of the Collection of collection of information. annually per small business. For this Information: Vessel response You need not respond to a collection reason, the Coast Guard certifies under planholders will need to collect of information unless it displays a 5 U.S.C. 605(b) that the final rule will additional information to comply with currently valid control number from not have a significant economic impact the rule for the salvage and marine OMB. Before the requirements for this on a substantial number of small firefighting requirements. This collection of information become entities. information includes: effective, we will publish notice in the • Name and contact information for Federal Register of OMB’s decision to C. Assistance for Small Entities resource providers for each vessel with approve, modify, or disapprove the Under section 213(a) of the Small appropriate equipment and resources collection. Business Regulatory Enforcement located in each zone of operation; E. Federalism (E.O. 13132) Fairness Act of 1996 (Pub. L. 104–121), • Marine firefighting pre-fire plans; we offered to assist small entities in and A rule has implications for federalism understanding the rule so that they • Certification that the responders are under Executive Order 13132, could better evaluate its effects on them qualified and have given permission to Federalism, if it has a substantial direct and participate in the rulemaking. If you be included in the VRP. effect on State or local governments and think that this rule will affect your small Need for Information: The would either preempt State law or business, organization, or governmental information is necessary to show impose a substantial direct cost of jurisdiction and you have questions evidence that planholders have properly compliance on them. It is well settled concerning these provisions or options planned to mitigate oil outflow and to that States may not regulate in
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categories reserved for regulation by the benefits can be found in the Regulatory explain the purpose of the rulemaking Coast Guard. It is also well settled, now, Assessment for this rule, which is and to discuss what implications it that all of the categories covered in 46 available in the docket where indicated would have on their Tribal concerns. U.S.C. 3306, 3703, 7101, or 8101 under ADDRESSES. The Regulatory Meeting summaries can be found in the (design, construction, alteration, repair, Assessment also describes alternatives public docket as indicated under maintenance, operation, equipping, to this rule, which are contained in the ADDRESSES. The Coast Guard does not personnel qualification, and manning of Final Regulatory Flexibility Act foresee that this rule would compel the vessels), as well as the reporting of Analysis. tribes to significantly alter their current casualties and any other category in fishery. Furthermore, it would provide G. Taking of Private Property which Congress intended the Coast some benefits by increasing the amount Guard to be the sole source of a vessel’s This rule would not effect a taking of of salvage and marine firefighting obligations, are within the field private property or otherwise have resources in the vicinity of their foreclosed from regulation by the States. taking implications under Executive traditional tribal grounds. We do not (See the decision of the Supreme Court Order 12630, Governmental Actions and anticipate any additional economic cost in the consolidated cases of United Interference With Constitutionally to the tribe. For these reasons, we have States v. Locke and Intertanko v. Locke, Protected Property Rights. determined that this rule would not 529 U.S. 89, 120 S.Ct. 1135 (March 6, H. Civil Justice Reform have ‘‘tribal implications’’ under the 2000).) Executive Order, and does not require a This regulation covers vessel response This rule meets applicable standards tribal summary impact statement. plans for salvage and marine firefighting in sections 3(a) and 3(b)(2) of Executive resources, aimed at reducing cargo loss Order 12988, Civil Justice Reform, to K. Energy Effects should a marine casualty occur. As minimize litigation, eliminate We have analyzed this rule under discussed in the Background and ambiguity, and reduce burden. Executive Order 13211, Actions Purpose section of the NPRM published I. Protection of Children Concerning Regulations That on May 10, 2002 (67 FR 31868), the Significantly Affect Energy Supply, We have analyzed this rule under Coast Guard consulted with State Distribution, or Use. We have Executive Order 13045, Protection of agencies such as the California Office of determined that it is not a ‘‘significant Children from Environmental Health Spill Prevention and Response to ensure energy action’’ under that order because Risks and Safety Risks. This rule is not these regulations will not interfere with it is not a ‘‘significant regulatory action’’ an economically significant rule and or preempt State regulations on the under Executive Order 12866 and it is does not create an environmental risk to same subject. While several State not likely to have a significant adverse health or risk to safety that may agencies submitted comments on the effect on the supply, distribution, or use disproportionately affect children. NPRM, we have not consulted with of energy. The Administrator of the these States since the publication of the J. Indian Tribal Governments Office of Information and Regulatory NPRM. After reviewing these comments, We have reviewed this rule under Affairs has not designated it as a we have determined that these significant energy action. Therefore, it regulations will not interfere with or Executive Order 13175, Consultation and Coordination with Indian Tribal does not require a Statement of Energy preempt existing State regulations on Effects under Executive Order 13211. the same subject. Governments. Rulemakings that are determined to have ‘‘tribal L. Technical Standards F. Unfunded Mandates Reform Act implications’’ under that Order (i.e., The Unfunded Mandates Reform Act have a substantial direct effect on one or The National Technology Transfer of 1995 (2 U.S.C. 1531–1538) requires more Indian tribes, on the relationship and Advancement Act (NTTAA) (15 Federal agencies to assess the effects of between the Federal Government and U.S.C. 272 note) directs agencies to use their discretionary regulatory actions. In Indian tribes, or on the distribution of voluntary consensus standards in their particular, the Act addresses actions power and responsibilities between the regulatory activities unless the agency that may result in the expenditure by a Federal Government and Indian tribes) provides Congress, through the Office of State, local, or tribal government, in the require the preparation of a tribal Management and Budget, with an aggregate, or by the private sector of summary impact statement. As explanation of why using these $100,000,000 or more in any one year. discussed below, the Coast Guard finds standards would be inconsistent with Though this rule will not result in such that this rule would not have applicable law or otherwise impractical. an expenditure, we do discuss the implications of the kind envisioned Voluntary consensus standards are effects of this rule elsewhere in this under the Order, because it would not technical standards (e.g., specifications preamble. impose substantial direct compliance of materials, performance, design, or The legal authority for this costs on tribal governments, preempt operation; test methods; sampling rulemaking is provided by the Oil tribal law, or substantially affect lands procedures; and related management Pollution Act of 1990 (OPA 90). or rights held exclusively by, or on systems practices) that are developed or Response plans are required by the behalf of, those governments. adopted by voluntary consensus Federal Water Pollution Control Act (33 Following the publication of the standards bodies. U.S.C. 1321(j)(5), as amended by Section NPRM in May of 2002 and a subsequent This rule uses the following National 4202(a) of OPA 90). notice of availability of the draft Fire Protection Association (NFPA) This rule will not result in Programmatic Environmental voluntary consensus standards: expenditures by State, local, or tribal Assessment in January 2006, we • NFPA 1001, Standard for Fire governments because public vessels are received two comment letters from the Fighter Professional Qualifications, exempt from the requirements of this Makah Tribal Council of Neah Bay, WA. 2008 Edition rulemaking. The Assessment section To address their concerns, we met with • NFPA 1005, Standard for above provides an overview of this representatives of the Tribal Council in Professional Qualifications for Marine rulemaking and its costs and benefits. A June and November of 2006. The Fire Fighting for Land-Based Fire more detailed discussion of costs and meetings were intended to more fully Fighters, 2007 Edition
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• NFPA 1021, Standard for Fire List of Subjects for 33 CFR Part 155 (1) ANSI A10.14, Requirements for Officer Professional Qualifications, 2003 Alaska, Hazardous substances, Safety Belts, Harnesses, Lanyards and Edition Lifelines for Construction and • Incorporation by reference, Oil NFPA 1405, Guide for Land-Based pollution, Reporting and recordkeeping Demolition Use, 1991 (‘‘ANSI A10.14’’), Fire Fighters Who Respond to Marine requirements. incorporation by reference approved for Vessel Fires, 2006 Edition § 155.230. ■ For the reasons discussed in the • NFPA 1561, Standard on (2) [Reserved] Emergency Services Incident preamble, the Coast Guard amends 33 CFR part 155 as follows: (c) American Society for Testing and Management System, 2008 Edition Materials (ASTM), 100 Barr Harbor The sections that reference these PART 155—OIL OR HAZARDOUS Drive, West Conshohocken, PA 19428– standards and the locations where these MATERIAL POLLUTION PREVENTION 2959, 610–832–9585, http:// standards are available are listed in 33 REGULATIONS FOR VESSELS www.astm.org/: CFR 155.140. (1) ASTM F 631–93, Standard Guide ■ 1. The authority citation for part 155 M. Environment for Collecting Skimmer Performance continues to read as follows: Data in Controlled Environments We have analyzed this rule under Authority: 33 U.S.C. 1231, 1321(j); E.O. (‘‘ASTM F 631–93’’), incorporation by Department of Homeland Security 11735, 3 CFR, 1971–1975 Comp., p. 793. reference approved for Appendix B. Management Directive 0023.1 and Sections 155.100 through 155.130, 150.350 (2) ASTM F 715–95, Standard Test Commandant Instruction M16475.lD, through 155.400, 155.430, 155.440, 155.470, Methods for Coated Fabrics Used for Oil which guide the Coast Guard in 155.1030(j) and (k), and 155.1065(g) are also Spill Control and Storage (‘‘ASTM F complying with the National issued under 33 U.S.C. 1903(b). Sections 715–95’’), incorporation by reference Environmental Policy Act of 1969 155.480, 155.490, 155.750(e), and 155.775 are approved for in Appendix B. (NEPA) (42 U.S.C. 4321–4370f), and also issued under 46 U.S.C. 3703. Section (3) ASTM F 722–82 (1993), Standard have concluded under the Instruction 155.490 also issued under section 4110(b) of Specification for Welded Joints for that preparation of an Environmental Pub. L. 101–380. Shipboard Piping Systems (‘‘ASTM F Impact Statement is not necessary. A Note: Additional requirements for vessels 722–82’’), incorporation by reference final Programmatic Environmental carrying oil or hazardous materials are approved for Appendix A and Assessment (PEA) and a final ‘‘Finding contained in 46 CFR parts 30 through 40, Appendix B. of No Significant Impact’’ (FONSI) are 150, 151, and 153. available in the docket where indicated (d) International Maritime ■ under ADDRESSES. An overview of the 2. Add a note following § 155.130 to Organization (IMO), 4 Albert NEPA steps taken for this rule follows. read as follows: Embankment, London SE1 7SR, United Kingdom, http://www.imo.org/: The Coast Guard considered the § 155.130 Exemptions. environmental impact of vessel (1) Resolution A.535(13), response plans as a whole during an * * * * * Recommendations on Emergency April 1992 Environmental Assessment Note to § 155.130: Additional exemptions/ Towing Requirements for Tankers, (EA), and a November 1992 temporary waivers related to salvage and November 17, 1983 (‘‘Resolution Supplemental Statement, resulting in a marine firefighting requirements can be A.535(13)’’), incorporation by reference FONSI [see Vessel Response Plans found in § 155.4055. approved for § 155.235. rulemaking; CGD 91–034; 58 FR 7376; ■ 3. Revise § 155.140 to read as follows: (2) Resolution MSC.35(63), Adoption February 3, 1993]. For this rulemaking, of Guidelines for Emergency Towing we initially relied on that 1992 EA as § 155.140 Incorporation by reference. Arrangement on Tankers, May 20, 1994 the salvage and marine firefighting (a) Certain material is incorporated by (‘‘Resolution MSC.35(63)’’), requirements are two of many required reference into this part with the incorporation by reference approved for vessel response plan elements. approval of the Director of the Federal § 155.235. Following publication of the NPRM we Register under 5 U.S.C. 552(a) and 1 (e) National Fire Protection received comments on the age of the CFR part 51. To enforce any edition Association (NFPA), 1 Batterymarch original analysis, as well as the need to other than that specified in this section, Park, Quincy, MA 02269–7471, 617– address the use of different types of fire the Coast Guard must publish notice of 770–3000, http://www.nfpa.org/: fighting foam. A PEA was drafted, solely change in the Federal Register and the (1) NFPA 1001, Standard for Fire for these salvage and marine firefighting material must be available to the public. Fighter Professional Qualifications, revisions, to address these comments. A All approved material is available for 2008 Edition (‘‘NFPA 1001’’), Notice of Availability for the draft PEA inspection at the National Archives and incorporation by reference approved for was published in the Federal Register Records Administration (NARA). For § 155.4050. on January 3, 2006 [71 FR 125] and the information on the availability of this (2) NFPA 1005, Standard for public comments received in response material at NARA, call 202–741–6030 or Professional Qualifications for Marine to it are addressed in the final PEA. The go to http://www.archives.gov/ Fire Fighting for Land-Based Fire PEA only updates a small portion of the federal_register/ Fighters, 2007 Edition (‘‘NFPA 1005’’), scope of the 1992 EA; specifically, the code_of_federal_regulations/ incorporation by reference approved for salvage and marine firefighting ibr_locations.html. Also, it is available § 155.4050. identification and response time for inspection at the Coast Guard, Office (3) NFPA 1021, Standard for Fire requirements in VRPs for commercial of Vessel Activities, 2100 Second Street, Officer Professional Qualifications, 2003 tank vessels carrying groups I through SW., Washington, DC 20593–0001. Edition (‘‘NFPA 1021’’), incorporation IV petroleum oil as a primary cargo. The Approved material is available from the by reference approved for § 155.4050. 1992 EA and FONSI, the updated draft sources indicated in this section. (4) NFPA 1405, Guide for Land-Based PEA and the final 2008 PEA and FONSI (b) American National Standards Fire Fighters Who Respond to Marine are available in the docket for Institute, Inc. (ANSI), 25 West 43rd Vessel Fires, 2006 Edition (‘‘NFPA inspection or copying where indicated Street, New York, NY 10036, 212–642– 1405’’), incorporation by reference under ADDRESSES. 4980, http://www.ansi.org/: approved for §§ 155.4035 and 155.4050.
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(5) NFPA 1561, Standard on Subpart I—Salvage and Marine (2) The Coast Guard determines that Emergency Services Incident Firefighting the response resources referenced in Management System, 2008 Edition your plan do not meet the requirements (‘‘NFPA 1561’’), incorporation by § 155.4010 Purpose of this subpart. of this subpart; reference approved for § 155.4050. (a) The purpose of this subpart is to (3) The contracts or agreements cited (f) Oil Companies International establish vessel response plan salvage in your plan have lapsed or are Marine Forum (OCIMF), 29 Queen and marine firefighting requirements for otherwise no longer valid; Anne’s Gate, London, SW1H 9BU vessels, that are carrying group I–IV oils, (4) You are not operating in England, http://www.ocimf.com/: and that are required by § 155.1015 to accordance with your plan; or (1) Ship to Ship Transfer Guide have a vessel response plan. Salvage (5) The plan’s approval has expired. and marine firefighting actions can save (Petroleum), Second Edition, 1988, § 155.4025 Definitions. incorporation by reference approved for lives, property, and prevent the escalation of potential oil spills to worst For the purposes of this subpart, the § 155.1035. following definitions apply: (2) Reserved. case discharge scenarios. (b) A planholder must ensure by Assessment of structural stability ■ 4. In § 155.1020, revise the definition contract or other approved means that means completion of a vessel’s stability of ‘‘Oil Spill Removal Organization’’ to response resources are available to and structural integrity assessment read as follows: respond. However, the response criteria through the use of a salvage software program. The data used for the § 155.1020 Definitions. specified in the regulations (e.g., quantities of response resources and calculations would include information * * * * * their arrival times) are planning criteria, collected by the on-scene salvage Oil spill removal organization (OSRO) not performance standards, and are professional. The assessment is means an entity that provides oil spill based on assumptions that may not exist intended to allow sound decisions to be response resources. during an actual incident, as stated in made for subsequent salvage efforts. In * * * * * 33 CFR 155.1010. Compliance with the addition, the assessment must be ■ 5. Amend § 155.1050 by: regulations is based upon whether a consistent with the conditions set forth ■ (a) Revising paragraph (k); and covered response plan ensures that in 33 CFR 155.240 and 155.245, as ■ (b) Removing and reserving existing adequate response resources are applicable. Boundary lines are lines drawn paragraph (l): available, not on whether the actual performance of those response resources following the general trend of the § 155.1050 Response plan development after an incident meets specified arrival seaward, highwater shorelines and lines and evaluation criteria for vessels carrying times or other planning criteria. Failure continuing the general trend of the groups I through IV petroleum oil as a seaward, highwater shorelines across primary cargo. to meet specified criteria during an actual spill response does not entrances to small bays, inlets and rivers * * * * * necessarily mean that the planning as defined in 46 CFR 7.5(c). (k) Salvage (including lightering) and requirements of the Federal Water Captain of the Port (COTP) city means marine firefighting requirements are Pollution Control Act (FWPCA) (33 the city which is the geographical found in subpart I of this part. U.S.C. 1251–1376) and regulations were location of the COTP office. COTP city (l) [Reserved] not met. The Coast Guard will exercise locations are listed in 33 CFR part 3. * * * * * its enforcement discretion in light of all Continental United States (CONUS) facts and circumstances. means the contiguous 48 States and the ■ 6. Reserve subpart H and add subpart District of Columbia. I, consisting of § 155.4010 through § 155.4015 Vessel owners and operators Contract or other approved means is § 155.4055, to read as follows: who must follow this subpart. any one of the following: Subpart I—Salvage and Marine Firefighting You must follow this subpart if your (1)(i) A written contractual agreement Sec. vessel carries group I–IV oils, and is between a vessel owner or operator and 155.4010 Purpose of this subpart. required by § 155.1015 to have a vessel resource provider. This agreement must 155.4015 Vessel owners and operators response plan. expressly provide that the resource covered by this subpart. provider is capable of, and intends to 155.4020 Complying with this subpart. § 155.4020 Complying with this subpart. commit to, meeting the plan 155.4025 Definitions. (a) If you have an existing approved requirements. 155.4030 Required salvage and marine vessel response plan, you must have (ii) A written certification that the firefighting services to list in response your vessel response plan updated and personnel, equipment, and capabilities plans. submitted to the Coast Guard by June 1, required by this subpart are available 155.4032 Other resource provider considerations. 2010. and under the vessel owner or 155.4035 Required pre-incident information (b) All new or existing vessels operator’s direct control. If the and arrangements for the salvage and operating on the navigable waters of the planholder has personnel, equipment marine firefighting resource providers United States or transferring oil in a port and capabilities under their direct listed in response plans. or place subject to the jurisdiction of the control, they need not contract those 155.4040 Response times for each salvage United States, that meet the items with a resource provider. and marine firefighting service. applicability requirements of (iii) An alternative approved by the 155.4045 Required agreements or contracts § 155.1015, that do not have an Coast Guard (Commandant, Director of with the salvage and marine firefighting approved vessel response plan, must Prevention Policy (CG–54)) and resource providers. comply with § 155.1065. submitted in accordance with 33 CFR 155.4050 Ensuring that the salvors and marine firefighters are adequate. (c) Your vessel may not conduct oil 155.1065(f). 155.4052 Drills and exercises. transport or transfer operations if— (2) As part of the contract or other 155.4055 Temporary waivers from meeting (1) You have not submitted a plan to approved means you must develop and one or more of the specified response the Coast Guard in accordance with sign, with your resource provider, a times. § 155.1065 prior to June 1, 2010; written funding agreement. This
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funding agreement is to ensure that Great Lakes means Lakes Superior, the vessel’s stability and structural salvage and marine firefighting Michigan, Huron, Erie, and Ontario, integrity. The data collected during this responses are not delayed due to their connecting and tributary waters, assessment will be used in the salvage funding negotiations. The funding the Saint Lawrence River as far as Saint software calculations and to determine agreement must include a statement of Regis, and adjacent port areas. necessary steps to salve the vessel. how long the agreement remains in Heavy lift means the use of a salvage Other refloating methods means those effect, and must be provided to the crane, A-frames, hydraulic jacks, techniques for refloating a vessel aside Coast Guard for VRP approval. In winches, or other equipment for lifting, from using pumps. These services addition any written agreement with a righting, or stabilizing a vessel. include, but are not limited to, the use public resource provider must be Inland area means the area shoreward of pontoons, air bags or compressed air. included in the planholder’s Vessel of the boundary lines defined in 46 CFR Outside continental United States Response Plan (VRP). part 7, except that in the Gulf of Mexico, (OCONUS) means Alaska, Hawaii, the Diving services support means divers it means the area shoreward of the lines Commonwealth of Puerto Rico, Guam, and their equipment to support salvage of demarcation (COLREG lines) as American Samoa, the United States operations. This support may include, defined in §§ 80.740 through 80.850 of Virgin Islands, the Commonwealth of but not be limited to, underwater this chapter. The inland area does not the Northern Marianas, and any other repairs, welding, placing lifting slings, include the Great Lakes. territory or possession of the United or performing damage assessments. Making temporary repairs means States. Emergency lightering is the process of action to temporarily repair a vessel to Primary resource provider means a transferring oil between two ships or enable it to safely move to a shipyard or resource provider listed in the vessel other floating or land-based receptacles other location for permanent repairs. response plan as the principal entity in an emergency situation and may These services include, but are not contracted for providing specific salvage require pumping equipment, transfer limited to, shoring, patching, drill and/or marine firefighting services and hoses, fenders, portable barges, shore stopping, or structural reinforcement. resources, when multiple resource based portable tanks, or other Marine firefighting means any providers are listed for that service, for equipment that circumstances may firefighting related act undertaken to each of the COTP zones in which a dictate. assist a vessel with a potential or actual vessel operates. The primary resource Emergency towing, also referred to as fire, to prevent loss of life, damage or provider will be the point of contact for rescue towing, means the use of towing destruction of the vessel, or damage to the planholder, the Federal On Scene vessels that can pull, push or make-up the marine environment. alongside a vessel. This is to ensure that Marine firefighting pre-fire plan Coordinator (FOSC) and the Unified a vessel can be stabilized, controlled or means a plan that outlines the Command, in matters related to specific removed from a grounded position. responsibilities and actions during a resources and services, as required in Towing vessels must have the proper marine fire incident. The principle § 155.4030(a). horsepower or bollard pull compatible purpose is to explain the resource Remote assessment and consultation with the size and tonnage of the vessel provider’s role, and the support which means contacting the salvage and/or to be assisted. can be provided, during marine marine firefighting resource providers, External emergency transfer firefighting incidents. Policies, by phone or other means of operations means the use of external responsibilities and procedures for communications to discuss and assess pumping equipment placed on board a coordination of on-scene forces are the situation. The person contacted vessel to move oil from one tank to provided in the plan. It should be must be competent to consult on a another, when the vessel’s own transfer designed for use in conjunction with determination of the appropriate course equipment is not working. other state, regional and local of action and initiation of a response External firefighting teams means contingency and resource mobilization plan. trained firefighting personnel, aside plans. Resource provider means an entity from the crew, with the capability of Nearshore area means the area that provides personnel, equipment, boarding and combating a fire on a extending seaward 12 miles from the supplies, and other capabilities vessel. boundary lines defined in 46 CFR part necessary to perform salvage and/or External vessel firefighting systems 7, except in the Gulf of Mexico. In the marine firefighting services identified in mean firefighting resources (personnel Gulf of Mexico, a nearshore area is one the response plan, and has been and equipment) that are capable of extending seaward 12 miles from the arranged by contract or other approved combating a fire from other than on line of demarcation (COLREG lines) as means. The resource provider must be board the vessel. These resources defined in §§ 80.740 through 80.850 of selected in accordance with § 155.4050. include, but are not limited to, fire tugs, this chapter. For marine firefighting services, portable fire pumps, airplanes, Offshore area means the area up to 38 resource providers can include public helicopters, or shore side fire trucks. nautical miles seaward of the outer firefighting resources as long as they are Funding agreement is a written boundary of the nearshore area. able, in accordance with the agreement between a resource provider On-site fire assessment means that a requirements of § 155.4045(d), and and a planholder that identifies agreed marine firefighting professional is on willing to provide the services needed. upon rates for specific equipment and scene, at a safe distance from the vessel Salvage means any act undertaken to services to be made available by the or on the vessel, who can determine the assist a vessel in potential or actual resource provider under the agreement. steps needed to control and extinguish danger, to prevent loss of life, damage The funding agreement is to ensure that a marine fire in accordance with a or destruction of the vessel and release salvage and marine firefighting vessel’s stability and structural integrity of its contents into the marine responses are not delayed due to assessment if necessary. environment. funding negotiations. This agreement On-site salvage assessment means Salvage plan means a plan developed must be part of the contract or other that a salvage professional is on scene, to guide salvage operations except those approved means and must be submitted at a safe distance from the vessel or on identified as specialized salvage for review along with the VRP. the vessel, who has the ability to assess operations.
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Special salvage operations plan and type for the body of water. This Timeframes. Additionally, you must list means a salvage plan developed to carry service can be accomplished through those resource providers that you have out a specialized salvage operation, the use of equipment such as sonar, contracted to provide these services. including heavy lift and/or subsurface magnetometers, remotely operated You may list multiple resource product removal. vehicles or divers. When divers are used providers for each service, but you must Subsurface product removal means to perform these services, the time identify which one is your primary the safe removal of oil from a vessel that requirements for this service apply and resource provider for each Captain of has sunk or is partially submerged not those of diving services support. the Port (COTP) zone in which you underwater. These actions can include operate. A method of contact, consistent pumping or other means to transfer the § 155.4030 Required salvage and marine with the requirements in oil to a storage device. firefighting services to list in response §§ 155.1035(e)(6)(ii) and plans. Underwater vessel and bottom survey 155.1040(e)(5)(ii), must also be listed, in means having salvage resources on (a) You must identify, in the the geographical-specific appendices of scene that can perform examination and geographical-specific appendices of your VRP, adjacent to the name of the analysis of the vessel’s hull and your VRP, the salvage and marine resource provider. equipment below the water surface. firefighting services listed in Table (b) Table 155.4030(b) lists the These resources also include the ability 155.4030(b)—Salvage and Marine required salvage and marine firefighting to determine the bottom configuration Firefighting Services and Response services and response timeframes.
TABLE 155.4030(b)—SALVAGE AND MARINE FIREFIGHTING SERVICES AND RESPONSE TIMEFRAMES
Service Location of incident response activity timeframe
(1) Salvage ...... CONUS: nearshore CONUS: offshore area; inland waters; area; and OCONUS: Great Lakes; and < or = 50 miles from OCONUS: < or = 12 COTP city (hours) miles from COTP city (hours) (i) Assessment & Survey: (A) Remote assessment and consultation ...... 1 1 (B) Begin assessment of structural stability ...... 3 3 (C) On-site salvage assessment ...... 6 12 (D) Assessment of structural stability ...... 12 18 (E) Hull and bottom survey ...... 12 18 (ii) Stabilization: (A) Emergency towing ...... 12 18 (B) Salvage plan ...... 16 22 (C) External emergency transfer operations ...... 18 24 (D) Emergency lightering ...... 18 24 (E) Other refloating methods ...... 18 24 (F) Making temporary repairs ...... 18 24 (G) Diving services support ...... 18 24 (iii) Specialized Salvage Operations: (A) Special salvage operations plan ...... 18 24 (B) Subsurface product removal ...... 72 84 (C) Heavy lift 1 ...... Estimated Estimated
(2) Marine firefighting ...... At pier (hours) CONUS: Nearshore *COM041*CONUS: area; inland waters; Offshore area; and Great Lakes; and OCONUS: < or = 50 OCONUS: < or = 12 miles from COTP city miles from COTP city (hours) (hours) (i) Assessment & Planning: (A) Remote assessment and consultation ...... 1 1 1 (B) On-site fire assessment ...... 2 6 12 (ii) Fire Suppression: (A) External firefighting teams ...... 4 8 12 (B) External vessel firefighting systems ...... 4 12 18 1 Heavy lift services are not required to have definite hours for a response time. The planholder must still contract for heavy lift services, pro- vide a description of the heavy lift response and an estimated response time when these services are required, however, none of the timeframes listed in the table in § 155.4030(b) will apply to these services.
(c) Integration into the response be consistent with the requirements set must include provisions on how the organization. You must ensure that all forth in §§ 155.1035(d), 155.1040(d) and salvage and marine firefighting resource salvage and marine firefighting resource 155.1045(d). providers will coordinate with other providers are integrated into the (d) Coordination with other response response resources, response response organizations listed in your resource providers, response organizations, and OSROs. For example, plans. The response organization must organizations and OSROs. Your plan you will need to identify how salvage
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and marine firefighting assessment cargo and fuel from your sunken vessel acceptable and agree to implement it to personnel will coordinate response to a depth equal to the maximum your mitigate a potential or actual fire. activity with oil spill removal vessel operates in up to 150 feet. (3) If a marine firefighting resource organizations. For services that, by law, provider subcontracts to other require public assistance, there must be § 155.4032 Other resource provider considerations. organizations, each subcontracted clear guidelines on how service organization must also receive a copy of (a) Use of resource providers not listed providers will interact with those the vessel pre-fire plan. organizations. The information in the VRP. If another resource provider, contained in the response plan must be not listed in the approved plan for the § 155.4040 Response times for each consistent with applicable Area specific service required, is to be salvage and marine firefighting service. Contingency Plans (ACPs) and the contracted for a specific response, (a) You must ensure, by contract or National Oil and Hazardous Substances justification for the selection of that other approved means, that your Pollution Contingency Plan as found in resource provider needs to be provided resource provider(s) is capable of § 155.1030(h). to, and approved by, the FOSC. Only providing the services within the (e) Ensuring the proper emergency under exceptional circumstances will required timeframes. the FOSC authorize deviation from the towing vessels are listed in your VRP. (1) If your vessel is at the pier or resource provider listed in the approved Your VRP must identify towing vessels transiting a COTP zone within the vessel response plan in instances where with the proper characteristics, continental United States (CONUS), the that would best affect a more successful horsepower, and bollard pull to tow timeframes in Table 155.4030(b) apply response. your vessel(s). These towing vessels as listed. must be capable of operating in (b) Worker health and safety. Your resource providers must have the (2) If your vessel is at the pier or environments where the winds are up to transiting a COTP zone outside the 40 knots. capability to implement the necessary engineering, administrative, and continental United States (OCONUS), (f) Ensuring the proper type and the timeframes in Table 155.4030(b) amount of transfer equipment is listed personal protective equipment controls to safeguard their workers when apply as follows: in your VRP. Your salvage resource (i) Inland waters and nearshore area provider must be able to bring on scene providing salvage and marine firefighting services, as found in 33 CFR timeframes apply from the COTP city a pumping capability that can offload out to and including the 12 mile point. the vessel’s largest cargo tank in 24 155.1055(e) and 29 CFR 1910.120(q). (ii) Offshore area timeframes apply hours of continuous operation. This is § 155.4035 Required pre-incident from 12 to 50 miles outside the COTP required for both emergency transfer information and arrangements for the city. and lightering operations. salvage and marine firefighting resource (g) Ensuring firefighting equipment is providers listed in response plans. (3) If your vessel transits within an compatible with your vessel. Your plan (a) You must provide the information OCONUS COTP zone that is outside the must list the proper type and amount of listed in §§ 155.1035(c) and 155.1040(c) areas described in paragraph (a)(2) of extinguishing agent needed to combat a to your salvage and marine firefighting this section, but within the inland fire involving your vessel’s cargo, other resource providers. waters or the nearshore or offshore area, contents, and superstructure. If your (b) Marine firefighting pre-fire plan. you must submit in writing, in your primary extinguishing agent is foam or (1) You must prepare a vessel pre-fire plan, the steps you will take to address water, you must identify resources in plan in accordance with NFPA 1405, salvage and marine firefighting needs in your plan that are able to pump, for a Guide for Land-Based Firefighters Who the event these services are required. minimum of 20 minutes, at least 0.16 Respond to Marine Vessel Fires, Chapter (b) The timeframe starts when anyone gallons per minute per square foot of the 9 (Incorporation by reference, see in your response organization receives deck area of your vessel, or an § 155.140). If the planholder’s vessel notification of a potential or actual appropriate rate for spaces that this rate pre-fire plan is one that meets another incident. It ends when the service is not suitable for and if needed, an regulation or international standard reaches the ship, the outer limit of the adequate source of foam. These such as International Convention for the nearshore area, the outer limit of the resources described are to be supplied Safety of Life At Sea (SOLAS), a copy offshore area, the 12 or 50-mile point by the resource provider, external to the of that specific fire plan must also be from the COTP city, or a point identified vessel’s own firefighting system. given to the resource provider(s) and be in your response plan for areas (h) Ensuring the proper subsurface attached to the VRP. OCONUS. product removal. You must have (2) The marine firefighting resource (c) Table 155.4040(c) provides subsurface product removal capability if provider(s) you are required to identify additional amplifying information for your vessel(s) operates in waters of 40 in your plan must be given a copy of the vessels transiting within the nearshore feet or more. Your resource provider plan. Additionally, they must certify in and offshore areas of CONUS or within must have the capability of removing writing to you that they find the plan 50 miles of an OCONUS COTP city.
TABLE 155.4040(c)—RESPONSE TIMEFRAME END POINTS
Service Response timeframe ends when
(1) Salvage: (i) Remote assessment and consultation .... Salvor is in voice contact with Qualified Individual (QI)/Master/Operator. (ii) Begin assessment of structural stability A structural assessment of the vessel has been initiated. (iii) On-site salvage assessment ...... Salvor on board vessel. (iv) Assessment of structural stability ...... Initial analysis is completed. This is a continual process, but at the time specified an analysis needs to be completed. (v) Hull and bottom survey ...... Survey completed. (vi) Emergency towing ...... Towing vessel on scene. vii) Salvage plan ...... Plan completed and submitted to Incident Commander/Unified Command.
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TABLE 155.4040(c)—RESPONSE TIMEFRAME END POINTS—Continued
Service Response timeframe ends when
(viii) External emergency transfer oper- External pumps on board vessel. ations. (ix) Emergency lightering ...... Lightering equipment on scene and alongside. (x) Other refloating methods ...... Salvage plan approved & resources on vessel. (xi) Making temporary repairs ...... Repair equipment on board vessel. (xii) Diving services support ...... Required support equipment & personnel on scene. (xiii) Special salvage operations plan ...... Plan completed and submitted to Incident Commander/Unified Command. (xiv) Subsurface product removal ...... Resources on scene. (xv) Heavy lift 1 ...... Estimated. (2) Marine Firefighting: (i) Remote assessment and consultation .... Firefighter in voice contact with QI/Master/Operator. (ii) On-site fire assessment ...... Firefighter representative on site. (iii) External firefighting teams ...... Team and equipment on scene. (iv) External vessel firefighting systems ...... Personnel and equipment on scene. 1 Heavy lift services are not required to have definite hours for a response time. The planholder must still contract for heavy lift services, pro- vide a description of the heavy lift response and an estimated response time when these services are required, however, none of the timeframes listed in the table in § 155.4030(b) will apply to these services.
(d) How to apply the timeframes to however, none of the time limits listed (b) When determining adequacy of the your particular situation. To apply the in Table 155.4030(b) will apply to these resource provider, you must select a timeframes to your vessel’s situation, services. resource provider that meets the follow these procedures: following selection criteria to the (1) Identify if your vessel operates § 155.4045 Required agreements or maximum extent possible: contracts with the salvage and marine (1) Resource provider is currently CONUS or OCONUS. firefighting resource providers. (2) If your vessel is calling at any working in response service needed. CONUS pier or an OCONUS pier within (a) You may only list resource (2) Resource provider has documented 50 miles of a COTP city, you must list providers in your plan that have been history of participation in successful the pier location by facility name or city arranged by contract or other approved salvage and/or marine firefighting and ensure that the marine firefighting means. operations, including equipment (b) You must obtain written consent resource provider can reach the deployment. from the resource provider stating that locations within the specified response (3) Resource provider owns or has they agree to be listed in your plan. This times in Table 155.4030(b). contracts for equipment needed to consent must state that the resource (3) If your vessel is transiting within perform response services. provider agrees to provide the services CONUS inland waters, nearshore or (4) Resource provider has personnel that are listed in §§ 155.4030(a) through offshore areas or the Great Lakes, you with documented training certification 155.4030(h), and that these services are must ensure the listed salvage and and degree experience (Naval capable of arriving within the response marine firefighting services are capable Architecture, Fire Science, etc.). times listed in Table 155.4030(b). This (5) Resource provider has 24-hour of reaching your vessel within the consent may be included in the contract availability of personnel and equipment, appropriate response times listed in with the resource provider or in a and history of response times Table 155.4030(b). separate document. compatible with the time requirements (4) If your vessel is transiting within (c) This written consent must be in the regulation. 12 miles or less from an OCONUS COTP available to the Coast Guard for (6) Resource provider has on-going city, you must ensure the listed salvage inspection. The response plan must continuous training program. For and marine firefighting services are identify the location of this written marine firefighting providers, they meet capable of reaching a point 12 miles consent, which must be: the training guidelines in NFPA 1001, from the harbor of the COTP city within (1) On board the vessel; or 1005, 1021, 1405, and 1561 the nearshore area response times listed (2) With a qualified individual located (Incorporation by reference, see in Table 155.4030(b). in the United States. § 155.140), show equivalent training, or (5) If your vessel is transiting between (d) Public marine firefighters may demonstrate qualification through 12 and 50 miles from an OCONUS only be listed out to the maximum experience. COTP city, you must ensure the listed extent of the public resource’s (7) Resource provider has successful salvage and marine firefighting services jurisdiction, unless other agreements are record of participation in drills and are capable of reaching a point 50 miles in place. A public marine firefighting exercises. from the harbor of the COTP city within resource may agree to respond beyond (8) Resource provider has salvage or the offshore area response times listed their jurisdictional limits, but the Coast marine firefighting plans used and in Table 155.4030(b). Guard considers it unreasonable to approved during real incidents. (6) If your vessel transits inland expect public marine firefighting (9) Resource provider has membership waters or the nearshore or offshore areas resources to do this. in relevant national and/or international OCONUS, but is more than 50 miles organizations. from a COTP city, you must still § 155.4050 Ensuring that the salvors and (10) Resource provider has insurance contract for salvage and marine marine firefighters are adequate. that covers the salvage and/or marine firefighting services and provide a (a) You are responsible for firefighting services which they intend description of how you intend to determining the adequacy of the to provide. respond and an estimated response time resource providers you intend to (11) Resource provider has sufficient when these services are required, include in your plan. up front capital to support an operation.
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(12) Resource provider has equipment three years. The vessel owner or before forwarding the waiver request, and experience to work in the specific operator shall design the exercise via the District to the Commandant (CG– regional geographic environment(s) that program so that all components of the 54) for final approval. the vessel operates in (e.g., bottom type, response plan are exercised at least once (e) Your request must include the water turbidity, water depth, sea state every three years. All of the components reason why you are unable to meet the and temperature extremes). do not have to be exercised at one time; time requirements. It must also include (13) Resource provider has the they may be exercised over the 3-year how you intend to correct the shortfall, logistical and transportation support period through the required exercises or the time it will take to do so, and what capability required to sustain operations through an area exercise; and arrangements have been made to for extended periods of time in arduous (6) Annually, at least one of the provide the required response resources sea states and conditions. exercises listed in § 155.4052(b)(2) and and their estimated response times. (14) Resource provider has the (4) must be unannounced. An capability to implement the necessary unannounced exercise is one in which (f) Commandant, Director of engineering, administrative, and the personnel participating in the Prevention Policy (CG–54), will only personal protective equipment controls exercise have not been advised in approve waiver requests up to a to safeguard the health and safety of advance of the exact date, time, or specified time period, depending on the their workers when providing salvage scenario of the exercise. service addressed in the waiver request, and marine firefighting services. (7) Compliance with the National the operating environment, and other (15) Resource provider has familiarity Preparedness for Response Exercise relevant factors. These time periods are with the salvage and marine firefighting Program (PREP) Guidelines will satisfy listed in Table 155.4055(g). protocol contained in the local ACPs for the vessel response plan exercise (g) Table 155.4055(g) lists the service each COTP area for which they are requirements. These guidelines are waiver time periods. contracted. available on the Internet at https:// (c) A resource provider need not meet Homeport.uscg.mil/exercises. Once on TABLE 155.4055(g)—SERVICE WAIVER all of the selection criteria in order for that Web site, select the link for you to choose them as a provider. They TIME PERIODS ‘‘Preparedness for Response Exercise must, however, be selected on the basis Program (PREP)’’ and then select of meeting the criteria to the maximum Maximum ‘‘Preparedness for Response Exercise waiver extent possible. Program (PREP) Guidelines’’. Service time (d) You must certify in your plan that period these factors were considered when you Compliance with an alternate program (years) chose your resource provider. that meets the requirements of 33 CFR 155.1060(a), and has been approved (1) Remote salvage assessment § 155.4052 Drills and exercises. under 33 CFR 155.1065 will also satisfy & consultation ...... 0 (a) A vessel owner or operator the vessel response plan exercise (2) Remote firefighting assess- required by §§ 155.1035 and 155.1040 to requirements. ment & consultation ...... 0 have a response plan shall conduct (3) On-site salvage & firefighting § 155.4055 Temporary waivers from exercises as necessary to ensure that the assessment ...... 1 meeting one or more of the specified (4) Hull and bottom survey ...... 2 plan will function in an emergency. response times. Both announced and unannounced (5) Salvage stabilization services 3 exercises must be included. (a) You may submit a request for a (6) Fire suppression services ...... 4 (b) The following are the minimum temporary waiver of a specific response (7) Specialized salvage oper- ations ...... 5 exercise requirements for vessels time requirement, if you are unable to covered by this subpart: identify a resource provider who can (1) Remote assessment and meet the response time. (h) You must submit your waiver consultation exercises, which must be (b) Your request must be specific as to request 30 days prior to any plan conducted quarterly; the COTP zone, operating environment, submission deadlines identified in this (2) Emergency procedures exercises, salvage or marine firefighting service, or any other subpart of part 155 in order which must be conducted quarterly; and response time. for your vessel to continue oil transport (3) Shore-based salvage and shore- (c) Emergency lightering requirements or transfer operations. set forth in § 155.4030(b) will not be based marine firefighting management Dated: December 17, 2008. team tabletop exercises, which must be subject to the waiver provisions of this conducted annually; subpart. Brian M. Salerno, (4) Response provider equipment (d) You must submit your request to Rear Admiral, U.S. Coast Guard, Assistant deployment exercises, which must be the Commandant, Director of Prevention Commandant for Marine Safety, Security and conducted annually; Policy (CG–54), via the local COTP for Stewardship. (5) An exercise of the entire response final approval. The local COTP will [FR Doc. E8–30604 Filed 12–30–08; 8:45 am] plan, which must be conducted every evaluate and comment on the waiver BILLING CODE 4910–15–P
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Part V
Department of Labor Mine Safety and Health Administration 30 CFR Parts 7 and 75 Refuge Alternatives for Underground Coal Mines; Final Rule
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DEPARTMENT OF LABOR 3. § 75.1504(c)(3)—For mines with Refuge Alternatives consistent with refuge alternatives in the mine on the section 13 of the Mine Improvement and Mine Safety and Health Administration effective date of the rule March 2, 2009, New Emergency Response (MINER) Act the operator shall complete the initial of 2006. The final rule requires that 30 CFR Parts 7 and 75 annual expectations training on the mine operators include refuge refuge alternatives and components no alternatives in the Emergency Response RIN 1219–AB58 later than December 31, 2009. For mines Plan (ERP) required by section 2 of the with no refuge alternatives in the mine MINER Act. MSHA’s objective, Refuge Alternatives for Underground on the effective date of the rule March consistent with the MINER Act, is to Coal Mines 2, 2009, the operator shall complete the improve the safety of mines and mining. AGENCY: Mine Safety and Health initial annual expectations training on This final rule improves mine operators’ Administration, Labor. the refuge alternatives and components preparedness for mine emergencies and ACTION: Final rule. no later than December 31, 2009, or requires refuge alternatives within 60 days of receipt. underground to protect persons trapped SUMMARY: The final rule establishes the FOR FURTHER INFORMATION CONTACT: when a life-threatening event occurs Mine Safety and Health Patricia W. Silvey at that makes escape impossible. Refuge Administration’s (MSHA) requirements [email protected] (E-mail), 202– alternatives also can be used to assist for refuge alternatives in underground 693–9440 (Voice), or 202–693–9441 trapped miners in escaping from the coal mines and the training of miners in (Fax). mine after initial escape becomes their use. It includes testing and impossible. SUPPLEMENTARY INFORMATION: The MSHA developed this final rule based approval requirements. The final rule outline of the final rule is as follows: implements section 13 of the Mine on Agency data and experience, NIOSH Improvement and New Emergency I. Introduction recommendations, research on available Response (MINER) Act of 2006. A. Statutory and Rulemaking Background and developing technology, state Consistent with the MINER Act, it B. Discussion of the Hazard regulations, and comments and C. Timeline for Implementation of the includes MSHA’s response to the Final Rule testimony from the mining community. National Institute for Occupational II. Section-by-Section Analysis The final rule includes requirements Safety and Health (NIOSH) Report on A. Part 7 Approvals for— Refuge Alternatives. B. Part 75 Safety Standards • Testing and approval of refuge DATES: Effective Date: The final rule is III. Regulatory Economic Analysis alternatives and components of refuge effective on March 2, 2009. A. Executive Order 12866 alternatives; The incorporation by reference of B. Population at Risk • Assuring that refuge alternatives are C. Costs readily available, capable of sustaining certain publications listed in the rule is D. Benefits approved by the Director of the Federal IV. Feasibility trapped miners for 96 hours, and Register as of March 2, 2009. A. Technological Feasibility maintained in operating condition; and • Training miners to locate, deploy Compliance Dates B. Economic Feasibility V. Regulatory Flexibility Act and Small and use, maintain, and transport refuge 1. § 7.503—For any approval Business Regulatory Enforcement alternatives. consideration by MSHA in the first year, Fairness Act A. Statutory and Rulemaking an application for approval of a refuge A. Definition of a Small Mine Background alternative or component shall be B. Factual Basis for Certification submitted no later than April 30, 2009. VI. Paperwork Reduction Act of 1995 Section 2 of the MINER Act requires VII. Other Regulatory Considerations 2. § 75.1502(c)(3), (c)(4)(vi), (c)(8), and A. The Unfunded Mandates Reform Act of underground coal mine operators to (c)(10) through (12)—For mines with 1995 develop and adopt a written Emergency refuge alternatives in the mine on the B. The Treasury and General Government Response Plan (ERP), which must be effective date of the rule (60 days after Appropriations Act of 1999: Assessment approved by MSHA. The ERP provides date of publication), the operator shall of Federal Regulations and Policies on for the evacuation of all individuals submit a revised program of instruction Families endangered by an emergency and the to the appropriate District Manager for C. Executive Order 12630: Government maintenance of individuals trapped approval by April 30, 2009, and conduct Actions and Interference with underground. All ERPs must provide for initial mine emergency evacuation Constitutionally Protected Property emergency supplies of breathable air for Rights training and drills on the refuge D. Executive Order 12988: Civil Justice individuals trapped underground alternatives and components, under Reform sufficient to maintain them for a § 75.1504(b)(3)(ii), (b)(4)(ii), and (b)(6) E. Executive Order 13045: Protection of sustained period of time. through (10), within 30 days of program Children from Environmental Health MSHA issued Program Policy Letter approval. For mines with no refuge Risks and Safety Risks (PPL) No. P06–V–10 (October 24, 2006) alternatives in the mine on the effective F. Executive Order 13132: Federalism to implement section 2 of the MINER date of the rule March 2, 2009, the G. Executive Order 13175: Consultation Act. The PPL provides guidance to mine operator shall submit a revised program and Coordination with Indian Tribal operators for developing ERPs and to of instruction to the appropriate District Governments MSHA District Managers for approving H. Executive Order 13211: Actions Manager for approval within 30 days of Concerning Regulations That ERPs. MSHA issued Program receipt of the refuge alternatives or Significantly Affect Energy Supply, Information Bulletin (PIB) No. P07–03 components, and conduct initial mine Distribution, or Use (February 8, 2007) to provide additional emergency evacuation training and guidance to be used in conjunction with drills on the refuge alternatives and I. Introduction the PPL. The PIB includes options for components, under § 75.1504(b)(3)(ii), This final rule is MSHA’s response to the quantity of breathable air that would (b)(4)(ii), and (b)(6) through (9), within the National Institute for Occupational be sufficient to maintain persons for a 30 days of program approval. Safety and Health (NIOSH) Report on sustained period of time.
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Section 13 of the MINER Act provides toxic levels of carbon monoxide. The final rule, a valid, bona fide, written that NIOSH conduct research on refuge remaining 12 miners barricaded purchase order with a firm delivery date alternatives and submit a report on the themselves on the section when their for the refuge alternatives and results of the research to the Secretary attempts to evacuate were unsuccessful. components. The mine operator must of Labor. NIOSH issued its report in The barricade was constructed in an complete the initial annual expectations January 2008. area with high concentrations of carbon training on the refuge alternatives and Section 13 of the MINER Act also monoxide. Eleven miners died before components no later than December 31, provides that the Secretary of Labor— they could be rescued. One miner was 2009 or within 60 days of receipt. rescued, but was severely injured. * * * provide a response to the Committee II. Section-by-Section Analysis on Health, Education, Labor, and Pensions of The force of the explosion at the the Senate and the Committee on Education Darby Mine No. 1 killed two miners. In developing this final rule, MSHA and the Workforce of the House of Four other miners encountered thick relied on the NIOSH report on refuge Representatives containing a description of smoke and donned their SCSRs while alternatives; research studies on various the actions, if any, that the Secretary intends attempting to evacuate. The miners refuge alternatives; accident to take based upon the [NIOSH] report, eventually became separated and three investigation reports, especially those including proposed regulatory changes and died from carbon monoxide poisoning. for the 2006 Sago and Darby mine the reasons for such actions. explosions; as well as public comments, MSHA reviewed NIOSH’s report and C. Timeline for Implementation of the Final Rule hearing transcripts, and supporting determined that refuge alternatives are documentation from all segments of the practical and, when integrated into the MSHA is providing delayed mining community, including States mine’s comprehensive escape and compliance dates for some sections to that already require refuge alternatives. rescue plans, will increase the chance give mine operators and applicants the for survival for persons trapped in time needed to comply with the stated A. Part 7 Approvals underground coal mines. requirements. The approval requirements for refuge MSHA published the proposed rule 1. By April 30, 2009, an application alternatives are set out in 30 CFR Part for refuge alternatives on June 16, 2008 for approval of a refuge alternative or 7—Testing by Applicant or Third-Party. (73 FR 34140). MSHA held four public component must be submitted for first The final rule provides approval hearings on the proposed rule. The year approval consideration by MSHA criteria, allows alternatives for satisfying hearings were held on July 29 in Salt in accordance with § 7.503. MSHA the requirements, and promotes the Lake City, UT; on July 31 in Charleston, expects that first year approvals will be development of new technology. It WV; on August 5 in Lexington, KY; and completed by December 31, 2009. provides requirements for a complete on August 7 in Birmingham, AL. The 2. By April 30, 2009, mine operators self-contained refuge alternative and the comment period closed on August 18, must submit a revised program of following components: 2008. instruction to the appropriate District • Structural, which creates an Manager for approval in accordance isolated atmosphere and contains the B. Discussion of the Hazard with § 75.1502. The operator must other integrated components. In developing the final rule, MSHA conduct initial mine emergency • Breathable air, which includes the reviewed a number of underground coal evacuation training and drills on refuge means to supply safe concentrations of mine accident reports and evaluated its alternatives and components, under oxygen. accident and injury data from 1900 § 75.1504(b)(3)(ii), (b)(4)(ii), and (b)(6) • Air-monitoring, which provides through 2006. During that period, 264 through (10), within 30 days of program occupants of the refuge alternative with miners, who were alive after a mine approval. devices to measure the concentrations of accident, died later during rescue or If the refuge alternatives necessary for oxygen, carbon dioxide, carbon escape. MSHA has estimated that recent the training are not yet available, MSHA monoxide, methane, and other harmful MSHA standards could have saved the will accept, as good faith evidence of gases, as applicable; and lives of 43 of these miners. Thus, for compliance with the final rule, a valid, • Harmful gas removal, which purposes of estimating benefits, this bona fide, written purchase order with provides for removal of harmful gases final rule could potentially have saved a firm delivery date for the refuge from the refuge alternative. the lives of 221 miners over the 107 year alternatives. The mine operator must Refuge alternatives also must include period. If refuge alternatives had been submit a revised program of instruction provisions for communications, available, MSHA estimates that the to the appropriate District Manager for lighting, sanitation, food, water, and range of lives saved would have been approval in accordance with § 75.1502 first aid. These provisions must be between a low of 25 percent and a high within 30 days of receipt of the refuge approved in the ERP. of 75 percent. Using these estimates, the alternatives. The operator must conduct MSHA has a 20-year history of final rule potentially could save an initial mine emergency evacuation administering the part 7 approval average of from one to three lives every training and drills on refuge alternatives program, which has reduced product two years. and components, under testing costs and improved approval The preamble to the proposed rule § 75.1504(b)(3)(ii), (b)(4)(ii), and (b)(6) efficiency. Under the final rule, new discussed a number of accidents that through (10), within 30 days of program subpart L of part 7 requires that an reflect typical emergency conditions, approval. applicant or a third-party must test the hazards, and issues in underground coal 3. By December 31, 2009, mine refuge alternative or component mines. The explosions at the Sago Mine operators must complete the initial according to the final rule. The on January 2, 2006, and the Darby Mine annual expectations training on the applicant, usually a manufacturer, No. 1 on May 20, 2006, which are refuge alternatives and components provides the required information and especially relevant to this rulemaking, required by § 75.1504(c). However, if the test results to MSHA to demonstrate that are summarized below. refuge alternatives or components the refuge alternative or component The explosion at the Sago Mine killed necessary for the training are not yet meets the applicable technical one miner instantly and destroyed seals available, MSHA will accept, as good requirements and test criteria. MSHA and filled portions of the mine with faith evidence of compliance with the will issue an approval for a refuge
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alternative or one of its components been proven effective in an actual mine cannot under any circumstances require based on the Agency’s evaluation of the and that human subject testing is the use of a refuge alternative that has information and test results submitted necessary for proper functioning and not been approved. Moreover, it is with the approval application. The durability of the units. Some MSHA’s intent that its approval of MSHA approval under part 7 assures commenters requested that MSHA defer specifications for a refuge alternative operators and miners that the refuge promulgating a final rule until human preempts private tort litigation alternative can be used safely and subject testing is completed. questioning the propriety of those effectively in underground coal mines Commenters also questioned the use of specifications. MSHA weighed various and that the components can be used models and calculations in lieu of trade-offs in setting requirements for safely with each other. human subject testing. However, other approved refuge alternatives and The existing general provisions of commenters stated that human subject components, such as those involved in subpart A of part 7 (§§ 7.1 through 7.10) testing is not necessary nor is it the best arriving at space and volume apply to the testing and approval of proof of viability. One commenter stated requirements and strength requirements. refuge alternatives. Existing § 7.3(f) that ‘‘there is enough data available to Refuge alternatives and components addresses the certification statement properly simulate the metabolic heat cannot be altered once approved and requires that each application for and breathing of humans without without seeking potentially time- original approval, subsequent approval, necessarily subjecting humans to the consuming approval for modifications. or extension of approval of a product risks of a manned test’’ and that ‘‘[t]his Tort suits deeming approved designs shall include a certification by the is not to say that some manned testing insufficient could introduce state-by- applicant that the product meets the may not be valuable to validate portions state uncertainty to national design portion of the technical [of] the test protocol and for training manufacturers, thereby threatening the requirements, as specified in the development.’’ steady commercial supply of refuge appropriate subpart, and that the The requirements of the final rule are alternatives and components and applicant will perform the quality extrapolated from existing Federal and potentially leaving miners unprotected. State requirements and from published assurance functions specified in § 7.7. Section 7.502 Definitions Consistent with the existing reports from the U.S. Bureau of Mines requirement, the applicant must provide and NIOSH. In addition, in developing Final § 7.502, like the proposal, a certification for refuge alternatives and the final rule, MSHA consulted with establishes a number of definitions components. experts and other knowledgeable because refuge alternatives represent a relatively new technology for In addition, existing § 7.8 addresses professionals, and evaluated the underground coal mines and the post-approval product audits and comments and testimony on the terminology may not be widely requires that, on request, the approval- proposal. Based on MSHA’s knowledge understood. holder make a product available to and experience, the Agency believes that the results of human subject testing, One commenter requested that a MSHA for audit at no cost to MSHA, but definition of ‘‘component’’ and no more than once a year except for which may be appropriate at some later date, are not necessary for the final rule. ‘‘examinable’’ be included. MSHA does cause. Consistent with the existing not believe that the Agency needs to requirement, the approval-holder must Accordingly, the requirements of the final rule are not based on human define the term ‘‘component’’ because provide a refuge alternative or several sections in the final rule identify component to MSHA for audit. subject testing. MSHA continues to work with NIOSH the four types of components— Section 7.501 Purpose and Scope on new technology requirements in the structural, breathable air, air- monitoring, and harmful gas removal— Final § 7.501, like the proposal, MINER Act. MSHA is aware that NIOSH is developing a protocol and seeking and their specific requirements. The provides that subpart L establishes approval for human subject testing. If final rule also clarifies examinations requirements for MSHA approval of approved, the results of this human and inspections for structural refuge alternatives and components for subject testing will not be available components. use in underground coal mines. It states prior to the effective date of the final that the purpose of approved refuge Apparent Temperature rule. The Agency will consider the alternatives is to provide a life- results of such testing for future The final rule clarifies the proposal, sustaining environment for persons rulemaking, if warranted. and defines apparent temperature as the trapped underground when escape is MSHA has analyzed various design measure of relative discomfort due to impossible. Refuge alternatives also can specifications of manufactured refuge the combined effects of air movement, be used to facilitate escape by sustaining alternatives and has developed approval heat, and humidity on the human body. trapped miners until they receive requirements that manufacturers must The final rule clarifies MSHA’s intent communications regarding escape follow. Except as otherwise provided in that the term is used to measure relative options or until rescuers arrive. the rule, mine operators are permitted to discomfort. When no air movement is MSHA considers refuge alternatives use only refuge alternatives and present, the apparent temperature as a last resort to protect persons who components for which the design equals the heat index. As heat and are unable to escape from an specifications have been approved by humidity increase, the amount of underground coal mine in the event of MSHA. MSHA recognizes that, under evaporation of sweat from the body an emergency. NIOSH stated, in its the Mine Act, States generally may decreases. MSHA received a comment report on refuge alternatives, that— enact laws or prescribe by regulation that the Agency should specify the * * * the potential of refuge alternatives to additional refuge alternative method for determining apparent save lives will only be realized to the extent requirements to the extent they are more temperature as part of the definition. that mine operators develop comprehensive stringent than MSHA’s standards. Such The Agency has not specified the escape and rescue plans that incorporate laws and regulations are limited by method in the definition, which is refuge alternatives. principles of conflict preemption to unchanged; however, the apparent Several commenters expressed requiring specific refuge alternatives temperature is addressed in the final concern that refuge alternatives have not that have been approved by MSHA, and rule under § 7.504(b).
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Breathable Oxygen Noncombustible Material intended, and is safe for use in an The final rule, like the proposal, The final rule, like the proposal, underground coal mine. Final paragraph (a)(1), like the defines breathable oxygen as oxygen defines noncombustible material as proposal, requires that the application that is at least 99 percent pure with no material, such as concrete or steel, that contain the refuge alternative’s or harmful contaminants. Some will not ignite, burn, support component’s make and model number, commenters suggested that MSHA combustion, or release flammable if applicable. This provision assists provide performance-based approval vapors when subjected to fire or heat. MSHA in identifying specific units or criteria to promote innovative new MSHA received one comment requesting modification of the proposed parts from different companies. technology, and that the proposal was One commenter requested that the definition to include tent deployment unnecessarily restrictive. The final rule, final rule allow approval of design information. MSHA has addressed this like the proposal, includes necessary criteria rather than approval of specific comment elsewhere in this preamble parameters for oxygen purity. models. MSHA has considered the under final § 7.505(a)(6) and believes One commenter suggested that the implications of making this change, that the proposed definition is adequate. final rule include a definition of such as auditing critical characteristics The final rule is unchanged. breathable air. MSHA issued a Program and integration of components, and Information Bulletin on Breathable Air Overpressure determined that no change to the rule is (PIB P07–03), which addressed the The final rule, like the proposal, necessary. recommended standards for breathable Final paragraph (a)(2)(i), like the air as identified by the American defines overpressure as the highest pressure over the background proposal, requires that the application National Standards Institute (ANSI)/ list the refuge alternative’s or Compressed Gas Association (CGA) atmospheric pressure that could result from an explosion, which includes the component’s parts, and include the Commodity Specifications for Grade D MSHA approval number for electric- Breathable Compressed Air. impact of the pressure wave on an object. MSHA notes that explosion powered equipment. With the approval Accordingly, the final rule does not number, MSHA would be able to verify define breathable air. pressures are normally expressed as an overpressure beyond standard that electric-powered equipment is Flash Fire atmospheric pressure. Standard either approved as permissible or, with atmospheric pressure is 14.7 pounds per respect to certain equipment such as air- The final rule, like the proposal, monitoring equipment or gas detectors, defines flash fire as a fire that rapidly square inch (psi) (one atmosphere) at sea level. For example, air pressure in is approved as intrinsically safe. MSHA spreads through a diffuse fuel, such as received no comments on this airborne coal dust or methane, without a car tire is measured with a pressure gauge as 30 psi, which is an provision. producing damaging pressure. MSHA Final paragraph (a)(2)(ii), like the notes that a flash fire may occur in an overpressure. The absolute pressure of the air inside the tire is 44.7 psi. One proposal, requires that the list of a environment, such as an underground refuge alternative’s or component’s parts coal mine, where fuel and air become commenter supported and no commenters opposed the proposal. in the application include each mixed in adequate concentrations to component’s or part’s in-mine shelf life, combust. In an underground coal mine, Refuge Alternative service life, and recommended a flash fire can be a rapidly moving The final rule, like the proposal, replacement schedule. Comments flame front from a combustion defines refuge alternative as a protected, concerning shelf life, service life, and explosion. In its report, NIOSH secure space with an isolated replacement schedule are addressed recommended that the fire resistance for elsewhere in this preamble under final ° atmosphere and integrated components refuge alternatives be 300 F for 3 that create a life-sustaining environment §§ 7.508(c)(4) and 75.1506(a)(3). seconds. NIOSH based its for persons trapped in an underground Final paragraph (a)(2)(iii) clarifies the recommendation on NFPA 2113–2007, coal mine. proposal and requires that the the National Fire Protection One commenter requested that the application list the refuge alternative’s Association’s ‘‘Standard on Selection, proposed definition be modified to or component’s parts that include Care, Use, and Maintenance of Flame- emphasize the importance of protecting materials, which have a potential to Resistant Garments for Protection of persons from toxic gases entering the ignite, used in each component or part Industrial Personnel Against Flash space prior to occupancy and to allow with their MSHA approval number. The Fire,’’ but advised that additional the use of an individual breathable air proposal would have required that the investigation is warranted. supply. Under the final rule, refuge application list the materials used in A flash fire is defined by NFPA 2113 alternatives must have an isolated each component or part with their as ‘‘a fire that spreads rapidly through atmosphere and life-sustaining MSHA approval number or statement a diffuse fuel, such as dust, gas, or environment. Another commenter that the materials are noncombustible. vapors of an ignitable liquid, without requested that the term be defined with One commenter stated that not all the production of damaging pressure.’’ more clarity. MSHA believes that the materials used in refuge alternatives or NFPA 2113 also includes a longer definition as stated provides sufficient components can be noncombustible. explanation of flash fire in the Annex detail and concludes that no change to Another commenter requested A.3.3.16. This explanation addresses the final rule is necessary. clarification of noncombustible flame temperatures for diffused fuel materials and MSHA approved flash fires ranging from 1,000° to Section 7.503 Application electrical components. The final rule 1,900 °F. A commenter requested that Requirements clarifies that the MSHA approval MSHA clarify the definition of flash fire Final § 7.503(a), like the proposal, number must be included for materials by adding that a flash fire is not an requires that an application include that have a potential to ignite. This ongoing fire. MSHA has explained heat information to assure that MSHA can provision helps assure that materials are transfer and duration and believes the determine if a refuge alternative or safe for use in an underground coal definition given is adequate. The final component meets the technical mine. The hazardous nature of an rule is unchanged. requirements for approval, functions as underground coal mine requires that
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sources of ignition be eliminated. The Final § 7.503(b), like the proposal, space and the airlock and the means to confined space of an underground coal requires that the application provide control the apparent temperature. mine necessitates that materials be additional specific information. Final MSHA will use this information to designed so that they will not contribute paragraph (b)(1) requires that the evaluate the approval of the refuge to a fire or give off harmful gases when application specify a description of the alternative. MSHA did not receive exposed to heat. breathable air component, including comments on this provision. Comments Final paragraph (a)(2)(iv) was not in drawings, air-supply sources, piping, concerning the apparent temperature the proposed rule. It requires that the regulators, and controls. This inside the refuge alternative are application list the refuge alternative’s information establishes that the discussed elsewhere in this preamble or component’s parts that include a component is included and is in its under § 7.504(b)(1). statement that the component or part is proper location. MSHA received no Paragraph (b)(5) is new and provides compatible with other components; and comments on the proposed requirement. further clarification of the Agency’s upon replacement, is equivalent to the Final paragraph (b)(2) requires that intent with respect to controlling original component or part. the application specify the maximum internal apparent temperature. This Commenters expressed concern volume of the refuge alternative, provision requires that applicants regarding the reliability of refuge excluding the airlock; the dimensions of specify in the application the maximum alternatives that consist of multiple floor space and volume provided for mine air temperature under which the separate components. Some commenters each person using the refuge alternative; refuge alternative is designed to operate opposed mixing different models of and the floor space and volume of the when the unit is fully occupied. breathable air components because airlock. This information assures that This provision is added in response to miners might get confused during an there is adequate usable space for commenters’ concerns regarding the emergency and be placed at greater risk. occupants when all components, parts, effect that the mine temperature has on This new provision is responsive to equipment, and material are shown in the internal apparent temperature in the comments and clarifies MSHA’s intent drawings under paragraph (b)(6) in their refuge alternative. Commenters stated to assure that components or parts that respective place. that the temperature outside of the unit are approved must be interchangeable or One commenter stated that the phrase must be taken into consideration must integrate with the other in the preamble ‘‘in their respective because of heat transfer. This provision components or parts in the refuge place’’ implied that the rule required corresponds to the requirement in alternative so that the refuge alternative defined locations for specific items. The § 75.1507(a)(12) that the Emergency will continue to operate as intended. final rule clarifies that the application Response Plan (ERP) include the Under the final rule, if the component specify the dimensions of floor space maximum mine air temperature at each or part is a replacement, it must be and volume for each person to assure of the locations where refuge equivalent to the original component or that the space and volume provided for alternatives are to be placed. part. The component or part must be persons is usable and not reserved for Final paragraph (b)(6) is redesignated designed for the capacity of the refuge storage. from proposed paragraph (b)(5). Like the alternative for which it is intended. Another commenter questioned why proposal, it requires that each Final paragraph (a)(3) is substantively the airlock in a unit is excluded from application include drawings that show the same as the proposal. It requires that the space calculations. In response to the features of each component and the application specify the capacity and comments, final §§ 7.505(a)(1) and contain sufficient information to duration (the number of persons it is 75.1506(b)(1) clarify that the airlock document compliance with the designed to maintain and for how long) may be included in the space and technical requirements. MSHA’s intent of the refuge alternative or component. volume of the refuge alternative if waste is that the drawings of each component For example, the application must is disposed outside the unit. Therefore, should illustrate the internal include a specific length of time that the final § 7.503(b)(2) replaces the term configuration of the refuge alternative. refuge alternative or component could ‘‘interior dimensions’’ of the airlock Drawings should include the support a specified number of persons. with ‘‘floor space and volume’’ of the dimensions and layout of the refuge This information is necessary so that airlock which must be included in the alternative components, controls, and MSHA can appropriately evaluate the application. materials necessary for proper performance of the refuge alternative or Final paragraph (b)(3), like the operation. This information provides a component and determine if it meets the proposal, requires that the application basis for MSHA approval of the refuge requirement that it sustain persons for specify the maximum positive pressures alternative. MSHA did not receive 96 hours. The final rule includes a non- in the interior space and airlock and a comments on this provision. substantive change. It does not include description of the means used to limit Final paragraph (b)(7) is redesignated the ‘‘per-person per-day’’ measurement. or control the positive pressure. This from proposed paragraph (b)(6) and has Comments on capacity and duration and information allows MSHA to determine been changed from the proposal. It shift changeover are discussed whether the atmospheric pressure in the requires that the applicant provide a elsewhere in this preamble under final refuge alternative will maintain good manual rather than a training manual § 75.1506(b)(2). air, without being excessive, as persons that contains sufficient detail for each Final paragraph (a)(4), like the enter and pass through the airlock. refuge alternative or component proposal, requires that the application Excessive pressure could create adverse addressing in-mine transportation, specify the length, width, and height of physiological effects on persons. MSHA operation, and maintenance of the unit. the space required for storage of each did not receive comments on this Commenters generally supported the component. The Agency needs this provision. The final rule includes a non- proposal. However, one commenter information for components approved substantive change. MSHA deleted the expressed concern that the manuals not separately to assure that the refuge term ‘‘allowable.’’ be used as a substitute for miner alternative will have enough usable Final paragraph (b)(4), like the training because the manufacturer’s space for occupants when all proposal, requires that the application manual may be too detailed and components are stored. MSHA did not specify the maximum allowable complicated. Another commenter receive comments on this provision. apparent temperature of the interior requested that training materials include
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detailed information on turning off compatibility of refuge alternative monitoring components. The Agency devices between readings to conserve components. For example, the anticipates that refuge alternative battery life and adjusting oxygen flow. application must contain the calculation manufacturers will work with Another commenter stated the manual of the rate oxygen is delivered on a per monitoring instrument manufacturers to should be written in a manner that person basis and the results of tests, satisfy the requirements of this includes individual mine specific including calculations, of the carbon provision. The final rule is the same as information such as SCSR caches, dioxide removal (scrubbing) to the proposal, except for an editorial communication and tracking, and life demonstrate that the refuge alternative change for clarity. lines. will maintain a safe atmosphere for 96 Final paragraph (c)(3), like the MSHA recognizes that, in general, hours. Without having these proposal, requires that the application manufacturers provide information calculations readily available, the include procedures for monitoring and necessary for safe and effective use of Agency would have difficulty maintaining breathable air in the their products. Consistent with this independently verifying that the test airlock, before and after purging. general practice, the final rule requires results are satisfactory. MSHA did not Monitoring and maintaining breathable the applicant to provide a manual receive comments on this provision. air in the airlock is necessary to remove which contains detailed information on Final § 7.503(c), like the proposal, contaminants and minimize in-mine transportation, operation, and requires that the application for contamination inside the refuge maintenance of the refuge alternative. approval of the air-monitoring alternative as miners pass through the The manual would be used by MSHA to component provide specific airlock into the interior space. MSHA evaluate and approve the refuge information. This information is did not receive comments on this alternative. The final rule clarifies necessary for the applicant or third provision. MSHA’s intent that the manual be used party to make an effective evaluation of Final paragraph (c)(4), like the by operators to develop training the component and to provide a basis proposal, requires that the application material required under § 75.1502(c), for MSHA approval of the air- include instructions for determining the concerning mine emergency evacuation monitoring component. quality of the atmosphere in the airlock program of instruction; § 75.1504(b), Final paragraph (c)(1), like the and refuge alternative interior and a concerning quarterly training; proposal, requires that the application means to maintain breathable air in the § 75.1504(c), concerning annual specify the operating range, type of airlock. Determining the quality of the expectations training; and § 75.1508 sensor, gases measured, and any air and maintaining breathable air are concerning training on examinations, environmental limitations including the necessary to sustain trapped miners. maintenance, or repairs. cross-sensitivity to other gases, of each MSHA did not receive comments on Final paragraph (b)(8) is redesignated detector or device in the air-monitoring this provision. from proposed paragraph (b)(7) and has component. The Agency believes that Final § 7.503(d)(1) and (2), like the been changed from the proposal. It this information is essential for MSHA proposal, require that the application for clarifies that the applicant must provide to determine that persons inside the approval of the harmful gas removal a summary of procedures for deploying refuge alternative will be aware of the component specify the volume of refuge alternatives. MSHA will use this concentrations of carbon dioxide, breathable air available for removing information to evaluate the approval carbon monoxide, and methane, inside harmful gas both at start-up and while and the operator may use this and outside the refuge alternative, persons enter through the airlock; and information to develop instructions for including the airlock. In addition, this the maximum volume of each gas that persons in the deployment of refuge will assure that oxygen concentrations the component is designed to remove on alternatives. This provision changes the can be monitored simultaneously. a per-person per-hour basis. Information proposed requirement that the applicant MSHA did not receive comments on on harmful gas removal is essential for provide a summary of procedures for this provision. MSHA to determine the ability of the ‘‘constructing’’ refuge alternatives Final paragraph (c)(2), like the refuge alternative to sustain occupants because prefabricated units do not proposal, requires that the application for 96 hours. These final provisions also require construction, and the structural include the procedures for operation of provide information on the removal of components of units consisting of 15 psi the individual devices so that they carbon dioxide that is exhaled by the stoppings constructed prior to an event function as necessary to test gas occupants and the removal of other do not require approval under part 7. concentrations over a 96-hour period. harmful gases. Final paragraph (b)(9), redesignated Manufacturers must properly design the One commenter stated that this from proposed paragraph (b)(8) and the system to control gas concentrations provision is not practical and should be same as the proposal, requires that the inside the refuge alternative. This removed. Another commenter application include a summary of the provision will assist MSHA’s evaluation recommended that the requirement be procedures for using the refuge of the air-monitoring component. performance-based. MSHA does not alternative. This information will be One commenter stated that ‘‘few if agree since the Agency needs this used by MSHA to evaluate the approval any monitors exist that will operate for information to evaluate the adequacy of and by operators to develop instructions 96 hours continuously.’’ The commenter the harmful gas removal systems to meet for persons using refuge alternatives. stated that provisions must be made for the needs of the occupants for 96 hours. MSHA did not receive comments on recharging or changing batteries and The applicant can calculate the amount this provision. that instrument manufacturers should of purge air available or scrubbing Final paragraph (b)(10), redesignated provide ‘‘options for extending the capability for a range of expected from proposed paragraph (b)(9) and the operational life of their devices in a conditions. MSHA expects the same as the proposal, requires that the potentially explosive atmosphere.’’ In application to contain sufficient application specify the results of the proposal, MSHA did not state that information to enable the Agency to inspections, evaluations, calculations, air monitoring instruments or devices determine whether the refuge and tests conducted under this subpart. were intended to operate continuously. alternative or component meets the MSHA will use this information to This issue is discussed elsewhere in this technical and performance requirements evaluate the effectiveness and preamble under § 7.507 concerning air of this subpart.
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Proposed § 7.503(e) is not included in proof or intrinsically safe. Another Commenters supported the proposal. the final rule. It would have required commenter stated that the rule should One commenter noted that the refuge the applicant to certify that each clarify the use of approved permissible alternative can be moved safely using a component was constructed of suitable electrical equipment and approved tow bar. The final rule remains materials, was of good quality intrinsically safe equipment. unchanged from the proposal. workmanship, was based on sound The final rule clarifies MSHA’s intent Final paragraph (a)(5), like the engineering principles, was safe for its that electrical components of refuge proposal, requires that the refuge intended use, and was designed to be alternatives that are exposed to the mine alternative and components be designed compatible with other components in atmosphere must be approved as to withstand forces from collisions of the refuge alternative, within the intrinsically safe. However, because a the structure during transport and limitations specified in the approval. non-explosive atmosphere exists inside handling. This provision helps assure Several commenters objected to the a refuge alternative, electrical that the refuge alternative and Agency’s use of ‘‘subjective terms.’’ One components located inside the unit components are not damaged during commenter stated that the provision must be either approved as intrinsically transport and handling. ‘‘leaves itself open to a broad range of safe or approved as permissible. This One commenter suggested that all interpretations that will result in provision helps assure that the refuge components be subjected to shock considerable confusion on the part of alternative or component will not testing. Another commenter noted that applicants and reviewers.’’ Commenters contribute to a secondary fire or many mines have required special stated that the final rule ‘‘must have explosion. attachments or bumpers, and requested specific parameters that are measurable Final paragraph (a)(2), like the that the final rule include these and have a clear limit beyond which proposal, requires that a refuge modifications. Different mining conditions warrant they fail’’ and ‘‘stipulate what these alternative or component not produce different designs. The final rule is phrases exactly mean’’ or remove the continuous noise levels in excess of 85 performance-oriented, allowing provision. dBA in the structure’s interior. One Due to commenters concerns, MSHA operators to tailor refuge alternative and commenter stated that noise is not likely evaluated the information, design component designs to the specific to be a problem in a shelter during criteria, and testing results required to conditions in their mines. Designs can occupancy and questioned the logic for be specified in the application for incorporate bumpers, guarding, skids, the proposal. MSHA included this approval. Based on this evaluation, packing and securing devices, and requirement in the final rule because MSHA determined that the content of rigging components. In addition, continuous noise above 85 dBA can the application will be sufficient to components should be configured, interfere with communication and could allow MSHA to evaluate whether the arranged, and stored to minimize adversely affect hearing, and the Agency refuge alternative or component meets shifting, movement, or damage during is aware that noise controls, such as the requirements for approval. In handling and routine transport. MSHA dampening material, are available to addition, existing § 7.3(f) requires an has evaluated all comments, and control noise levels. applicant’s certification that the product determined that the final rule should be meets the requirements specified in the Final paragraph (a)(3), like the the same as the proposal. appropriate subpart. Also, to clarify the proposal, requires that the refuge Final paragraph § 7.504(b), like the Agency’s intent, and in response to alternative or component not liberate proposal, requires that the apparent comments, MSHA added a requirement, harmful or irritating gases or inside temperature be controlled. Body final § 7.503(a)(2)(iv), that the particulates into the structure’s interior heat and heat generated by chemical application provide a statement that the or airlock. The Agency is aware that reactions (i.e., carbon dioxide scrubbing component is compatible with other some nonmetallic materials off-gas. chemicals) are inherent heat-producing components. With this change, and with Vapors, aerosols or particulates should sources within a refuge alternative. the existing requirements, the Agency not be released into the refuge Ambient temperature in a refuge determined that it is not necessary to alternative. The provision requires that alternative also is affected by the mine include proposed § 7.503(e) in the final materials used in a refuge alternative or temperature compounded by high rule. component be tested and evaluated to humidity in the sealed environment. verify that they do not release harmful High humidity reduces a body’s ability Section 7.504 Refuge Alternatives and or irritating gases. The application to regulate temperature by sweating, Components; General Requirements would have to include the results of the which could result in a dangerously Final § 7.504, like the proposal, tests and evaluation. No commenters elevated internal body temperature. The addresses safety and health opposed the proposal. carbon dioxide absorption process also requirements that refuge alternatives Final paragraph (a)(4), like the generates heat and humidity. There is and components must meet to gain proposal, requires that the refuge currently no permissible air MSHA approval. alternative or component be designed to conditioning equipment that will Final § 7.504(a)(1) clarifies the be moved safely with the use of address heat and humidity in proposal and requires that electrical appropriate devices, such as tow bars. underground coal mines. components that are exposed to the MSHA recognizes that refuge Final paragraph (b)(1), like the mine atmosphere must be approved as alternatives could be a hazard to miners proposal, requires that when a refuge intrinsically safe for use in an during transport. Based on MSHA’s alternative is fully occupied and used in underground coal mine. Further, it experience, the Agency believes that accordance with the manufacturer’s provides that electrical components inadequate rigging and towing devices instructions and defined limitations, the located inside the refuge alternative could result in hazards to miners. The apparent temperature in the refuge must be either approved as intrinsically refuge alternative should be designed alternative must not exceed 95° safe or approved as permissible. with proper connections and devices to Fahrenheit. MSHA requested comments One commenter supported the eliminate or reduce hazards that may on the apparent temperature and proposal stating that refuge alternatives occur when chains, ropes, or slings are mitigation of heat stress and heat stroke, and components should be explosion- used. and requested that commenters address
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the generation of heat and the methods on physiological studies of evaporative for an additional communication system for measuring heat stress on persons skin cooling for various combinations of and other requirements as defined in the occupying the refuge alternative. ambient temperature and humidity. The communications portion of the Most commenters generally supported likelihood of adverse effects from heat operator’s approved Emergency the proposal. Some commenters noted may vary with a person’s age, health, Response Plan (ERP). MSHA is aware that the proposal did not include air- and body characteristics; however, that these additional systems may not conditioning to address metabolic heat apparent temperatures greater than 80 °F yet be available, but as they are buildup. One commenter stated that the are generally associated with some developed, mine operators will be proposal stifles creativity and eliminates discomfort. Core body temperatures in required to include them in their ERPs. innovative new technology, and one excess of 104 °F are considered life- The MINER Act requires, by June 15, commenter suggested using chemical threatening, with severe heat exhaustion 2009, that ERPs contain wireless cooling packs or cooling vests to or heat stroke possible after prolonged communication systems. MSHA is maintain core body temperature at a safe exposure or significant physical activity. working with NIOSH on this emerging level. MSHA believes that there could The December 2007 Foster Miller technology and will provide further be methods, including air conditioning, Report1 concluded that the apparent guidance to the mining community with for controlling temperature that would temperature within a confined space respect to the Agency’s expectations for be acceptable under the final rule. occupied by humans should not exceed ‘‘wireless communication’’ systems in Chemical cooling packs or cooling vests 95 °F. ERPs. Manufacturers may need to may be used to supplement maintaining Based on the Agency’s review of provide other accommodations for these core body temperature. However, these many standards, studies, and reports, systems. In the final rule, this provision devices have not been established as and the comments and testimony, has been revised to reflect the language reliable, and therefore, may not be used MSHA believes that applying ISO 7243 in the safety standards for as a substitute to the requirement for could result in dangerously high communications facilities in this maintaining the apparent temperature apparent temperatures in the refuge rulemaking. Comments addressing these inside the refuge alternative. alternative. This is because the limit communication systems are addressed One commenter suggested that it was specified in ISO 7243 is an 8-hour in that section. not appropriate to require an interior average, not a maximum continuous In the preamble to the proposed rule temperature without a corresponding exposure. Therefore, using the ISO 7243 and in the Agency’s opening statements ambient rock temperature. MSHA average as a maximum exposure level at the public hearings, MSHA requested reviewed NIOSH/Raytheon UTD’s would allow as much as 50% higher comments on including a requirement Report on Miner Refuge Chamber temperature than even the ISO 7243 that refuge alternatives be designed with Thermal Analysis (NIOSH/Raytheon standard allows, and for a continuous a means to signal rescuers on the report). The NIOSH/Raytheon report 96-hour period as opposed to 8 hours. surface. This was intended to be a concluded that the rock type has a This would be fatal to the occupants. means to assure that rescuers on the negligible effect on the conduction of Accordingly, the final rule is the same surface could be contacted if the heat away from a refuge alternative in as proposed. communications systems become an underground mine. In addition, the Final paragraph (b)(2) clarifies the inoperable. This signal would have been NIOSH/Raytheon report stated that the proposal and requires that tests be similar to what miners had done in the amount of heat conducted through the conducted to determine the maximum past by hammering on the roof, ribs, or floor of a refuge alternative is small apparent temperature in the refuge floor to create sounds that can be compared to the amount of heat that is alternative when used at maximum detected by seismic devices located on carried away by convection. occupancy and in conjunction with the surface. Accordingly, the final rule does not required components. In addition, the One commenter stated that the final include a provision for corresponding final rule requires that an application rule should not require the use of a ambient rock temperature. include these test results including seismic location device unless MSHA is One commenter stated that the calculations. The final rule clarifies willing to obtain significant upgrades to International Standards Organization MSHA’s intent that tests be conducted its seismic capabilities. However, most (ISO) standard, ISO 7243:1989(E), ‘‘Hot and that the test results including commenters did not respond to MSHA’s environments—Estimation of the heat calculations be reported on the request on this issue. stress on working man, based on the application. Test results could also MSHA also requested comments on WBGT-index (wet bulb globe include data, records, and other whether the final rule should include a temperature),’’ should be used to supporting documentation reported on requirement that the manufacturer evaluate heat stress. the application. MSHA received no design refuge alternatives with a means ISO 7243 specifies periods of work comments on this provision. to signal underground rescuers with a and rest based on the air temperature Final § 7.504(c), like the proposal, homing device. Such a requirement and the level of activity throughout a requires that refuge alternatives include would assure that rescuers could detect workday for working in a hot additional measures to protect the safety the trapped miners within the mine. environment daily, with breaks during and survival of miners. These Some commenters supported adding a the day and periods of relief between requirements include a means for provision for a homing device in refuge exposures. The ISO standard does not communicating with persons on the alternatives. They stated that the signal apply to the conditions addressed by the surface, lighting, sanitation, first aid, could help rescuers determine whether final rule because persons in a refuge and repairs. anyone was in the refuge alternative. alternative could be exposed for several Final paragraph (c)(1), requires a two- Several opposed such a provision, for days without an opportunity to recover. way communication facility that is a example, stating that the homing device Apparent temperature is a measure of part of the mine communication system, was unnecessary because there already relative discomfort due to the combined which can be used from inside the is a requirement to identify the locations effect of heat and humidity. The concept refuge alternative; and accommodations of the units on the escapeway maps. of apparent temperature was developed The final rule, like the proposal, does by R.G. Steadman (1979) and was based 1 Foster Miller. Phase II Report, December 2007. not contain a provision addressing
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signaling or homing devices. After that the applicant has included an mines under part 75; and that is reviewing the comments, MSHA agrees adequate means for containing waste. appropriate for fires involving the with commenters opposing such One commenter pointed out a number chemicals used for harmful gas removal; provisions and has determined that the of options for sanitation and waste and that uses a low-toxicity requirements for a signaling device that disposal that are currently available. extinguishing agent that does not would create a seismic sound to be Some commenters requested that the produce a hazardous by-product when detected by rescuers on the surface final rule require that human waste be activated. One commenter supported should not be included in the final rule. disposed of outside the refuge and no commenters opposed the Likewise, the Agency has determined alternative. Under the final rule, waste proposal. The final rule clarifies that the requirements for a homing can be disposed of from the interior of MSHA’s intent. MSHA’s intent is that device that would create an electronic the refuge alternative, as long as the the fire extinguisher must protect signal to be detected by rescuers disposal does not compromise the miners from potentially toxic chemicals underground should not be included in integrity of the refuge alternative or in the confined atmosphere of a refuge the final rule. affect its operation. The final rule is the alternative. The final rule requires that Final paragraph (c)(2), like the same as proposed. a fire extinguisher meet the Final paragraph (c)(4), like the proposal, requires that refuge requirements of MSHA’s existing proposal, requires that refuge alternatives include lighting sufficient standards for portable fire extinguishers. alternatives include first aid supplies. for persons to perform tasks. Lighting is It changes the proposed requirement This requirement assures that first aid essential to allow persons to read limited to carbon dioxide chemicals to instructions, warnings, and gauges; supplies are available for treating chemicals used for harmful gas removal, operate gas monitoring detectors; and injured miners. and non-toxic extinguishing agent to perform other activities related to the One commenter requested that the low-toxicity extinguishing agent. The operation of the refuge alternatives. Agency specify the nature and quantity In the preamble to the proposal, of required supplies. Another final rule does not include the proposed MSHA recommended a minimum of 1 commenter stated that first aid kits requirement that the fire extinguisher foot candle of lighting be provided per should contain instructions for treating not produce hazardous by-product miner per day.2 The Agency also noted injuries that could be anticipated in the when heated. that lighting should not generate aftermath of an accident and warned Final § 7.504(d)(1), (2), and (3) are significant heat, or require continual that the inclusion of ‘‘anxiety and or substantively the same as the proposal, manual power for light generation. sleep inducing drugs’’ could present and require that containers used for Several commenters recommended medical issues. storage of refuge alternative components light sticks and cap lamps. Another First aid supplies must be adequate to or provisions be airtight, waterproof, commenter stated that MSHA should be provide for the number of persons and rodent-proof; easy to open and close flexible with respect to a lighting injured in an emergency. In an without the use of tools; and requirement and that the proposal underground mine emergency, MSHA conspicuously marked with an requires technology that may not be expects that there will be a expiration date and instructions for use. currently available. One commenter proportionally higher number of injuries These requirements assure that the stated that MSHA should not require 1 related to lacerations, burns, and containers’ contents will be useable foot-candle per day per miner. Another fractures resulting from explosions and when needed. fires. The refuge alternative must commenter pointed out that there may One commenter requested be added risks of electrical hazards and contain first aid supplies to address these injuries, but the final rule does not clarification of the components that are requested that, as the provision presents covered by this provision. Another more potential problems than it solves, specify the content of the first aid kit. commenter requested that the final rule it be omitted from the final rule. The final rule is the same as the only apply to specific items, such as Although MSHA agrees that light proposal and is consistent with the sticks can be used, higher intensity safety standards for ERPs in this final food and water, which are subject to lighting may be required for certain rule. degradation. tasks. The final rule includes the same Final paragraph (c)(5), like the The final rule clarifies the proposal by performance-oriented requirement as proposal, requires that refuge including the term ‘‘or provisions.’’ the proposal. The final rule includes a alternatives be stocked with materials, Provisions include items such as non-substantive change. It includes the parts, and tools for repair of supplies, materials, systems, and food term ‘‘for persons.’’ components. Manufacturers could and water. Food and water would need Final paragraph (c)(3), like the provide a repair kit with necessary to be contained in airtight, waterproof, proposal, requires that refuge materials and appropriate tools to and rodent-proof containers because alternatives include a means to contain perform repairs. Materials and tools these provisions are subject to human waste effectively and minimize should include metal repair materials, degradation. objectionable odors. A plastic bag and fiber material, adhesives, sealants, tapes, closed receptacle could be used to and general hardware (i.e., screws, bolts, Section 7.505 Structural Components rivets, wire, zippers and clips). Powered contain waste and prevent objectionable Final § 7.505, like the proposal, tools must be approved as intrinsically odors. The final rule does not require a addresses structural component safe and permissible. One commenter specific method of waste disposal. The requirements for refuge alternatives. length, width, and height of the supported and no commenters opposed container housing the sanitation system, the proposal. The final rule is the same Final paragraph (a)(1) requires that including operating instructions, should as the proposal. refuge alternatives provide at least 15 be in the refuge alternative’s manual. Final paragraph (c)(6), is redesignated square feet of floor space per person, Information regarding sanitation assures and clarified from proposed § 7.506(i). It like the proposal, but includes changes requires a fire extinguisher that meets in the required cubic feet of volume per 2 MIL–STD–1472F, Lighting for bomb shelters, the requirements for portable fire person according to the following chart NOTICE 1, 05 December 2003. extinguishers used in underground coal for mining heights:
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Unrestricted volume would require more compressed air and must still maintain apparent Mining height (inches) (cubic feet) per per- oxygen cylinders, or may not be feasible temperature as required in this final son * in all seam heights. Others stated that rule. due to the orientation of the occupants, Some commenters expressed concern 36 or less ...... 30 regarding the statement in the preamble >36¥≤42 ...... 37.5 floor space per person is the critical >42¥≤48 ...... 45 measurement, and not volume. Some to the proposal that the space >48¥≤54 ...... 52.5 commenters stated that less space was requirements do not include the airlock. >54 ...... 60 needed because most of the time the They stated that, once everyone was maximum number of persons to be inside, the airlock was usable space and * Includes an adjustment of 12 inches for clearances. accommodated would be less than half should be included in calculating the because overlapping crews, i.e., hot- space and volume per person. To clarify In addition, the final rule clarifies that seating, occurs only during a small part the Agency’s intent with respect to the the airlock can be included in the space of the work day. proposal and in response to comments, and volume if waste is disposed outside Many commenters suggested space under the final rule, the airlock may be the refuge alternative. and volume criteria that were less than included in calculating space and The volume of the refuge alternative those in the proposal. In support of their volume provided that waste is disposed is calculated by assuming two factors: position, some of these commenters of outside the refuge alternative. (1) 6 inches is necessary to allow for relied on the South African standard for Final paragraph (a)(2), like the clearance of the refuge alternative to be spacing while others relied on various proposal, requires that refuge moved; and (2) the usable interior engineering studies or manufacturer alternatives include storage space that height of the refuge alternative is findings. Commenters suggestions secures and protects the components reduced by 6 inches for the roof and ranged from 6.4 to 10 square feet of floor during transportation and that permits floor beams. As an example, a 36-inch space and from 30 to 46.5 cubic feet of ready access to components for mine height is reduced by 6 inches for volume. Other commenters suggested a maintenance examinations. Paragraph clearance and 6 inches for inside beams performance-oriented approach, stating (a)(2) has been clarified to reflect the leaving 24 inches or 2 feet. The 24 that MSHA should not specify any Agency’s intent that this requirement inches or 2 feet multiplied by 15 square space and volume requirements. applies to maintenance examinations feet of floor space equals 30 cubic feet Finally, some commenters stated that rather than preshift visual examinations. of volume per person. Under the final the proposal omitted consideration of MSHA clarified the final rule in rule, MSHA intends for persons to have seam height. These commenters stated response to a comment asking for this space without being affected by that compliance with the proposal clarification regarding the type of other factors such as stored items. would be difficult in mines with low examinations required under this In the preamble to the proposed rule seam heights. paragraph. MSHA intends that a refuge and in the Agency’s opening statements For mining heights greater than 54 alternative must be designed to allow at the public hearings, MSHA requested inches, the final rule requires 60 cubic maintenance examinations to be comments on the proposed requirement feet of volume. However, in response to conducted. The components must be of at least 15 square feet of floor space commenters’ concerns, the final rule secured to prevent shifting during and 60 cubic feet of volume per person, includes varying requirements for transport or moves. Maintenance particularly in low mining heights. volume, based on mining heights that examinations assure that the MSHA received comments in support of are less than or equal to 54 inches. components will be readily available for and opposed to the proposal. These varying volume requirements deployment. Preshift examinations are Some commenters supported 15 accommodate commenters’ concerns discussed elsewhere in this preamble square feet of floor space per person, but regarding the ability to maneuver, under §§ 7.505(d)(1) and 75.360(d). stated that the 60 cubic feet of volume deploy, or use larger units in mines with Final paragraph (a)(3), like the per person was not a sufficient amount low seam heights. proposal, requires that refuge of space for each miner and could result After reviewing the comments, MSHA alternatives include an airlock that in a higher risk of carbon dioxide determined that the proposed 15 square creates a barrier and isolates the interior exposure or excessive heat within the feet of floor space per person is space from the mine atmosphere, except refuge alternative. These commenters necessary to assure that persons can for a refuge alternative capable of urged MSHA to adopt the 85 cubic feet conduct necessary activities in the maintaining adequate positive pressure. recommendation of NIOSH. In its refuge alternative. Occupants will need This provision addresses the need to comment on the proposed rule, NIOSH to attend to harmful gas removal; provide breathable air to persons stated that the NIOSH recommendation monitor gas levels; attend to basic entering the refuge alternative if the of 85 cubic feet was ‘‘based on needs, such as drinking, eating, and mine atmosphere is contaminated. In published research conducted under the using the sanitation facilities; and this case, pressures need to be old civil defense program [OCDM 1958], provide care to injured miners. incrementally higher in the interior and it is difficult to apply those findings Adequate space is needed to space as compared to the airlock and the directly to mining applications.’’ NIOSH accommodate larger than average airlock pressure needs to be higher than further stated that in the absence of persons. In addition, adequate volume is the mine atmosphere. Persons will pass NIOSH testing, it supports the interior needed for proper function of passive through the airlock via airtight doors volume requirement in the proposed harmful gas removal systems. It is also into the interior space. The exception to rule. important to note that larger volumes the requirement for an airlock Other commenters stated that both the are more effective at dissipating heat recognizes that the positive pressure proposed space and volume because of increased surface area, which would prevent outside air from requirements were excessive in an helps control the apparent temperature contaminating the refuge alternative; emergency because persons could in the interior space of the refuge therefore, an airlock would not be survive with less space. In addition, alternative. MSHA recognizes that the necessary. some stated that larger refuge lower mining height refuge alternatives One commenter stated that both alternatives were hard to transport, may have less volume per person, but positive pressure inside the shelter and
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an airlock must be required for all types response to comments, the Agency has strength of these are more difficult to of shelters. Another commenter asked clarified its intent with respect to the forecast.’’ Because of the difficulty in that MSHA clarify ‘‘adequate positive maximum volume of refuge alternatives predicting the likelihood and strength of pressure’’ and the scenario under which and stated that the airlock can be a secondary explosion, the final rule this exception will be accepted. In the included in calculating space and does not include strength requirements final rule, the Agency uses the volume. After a review of all comments, with respect to a second explosion. commonly understood definition of the final rule is the same as the After reviewing all the comments, the ‘‘adequate’’ to mean that there would be proposal. final rule is substantively the same as sufficient positive pressure to allow the Final paragraph (a)(4) makes editorial the proposal. refuge alternative to function as it changes, but is substantively the same Final paragraph (a)(5) makes an would with an airlock. After as the proposal and requires that refuge editorial change, but is substantively the considering the comments received, the alternatives be designed and made to same as the proposal, and requires that final rule is the same as the proposal. withstand 15 pounds per square inch refuge alternatives be designed and Final paragraph (a)(3)(i), like the (psi) overpressure for 0.2 seconds prior made to withstand exposure to a flash proposal, requires that the airlock be to deployment. This requirement fire of 300 °Fahrenheit for 3 seconds designed for multiple uses to assures that the refuge alternative is prior to deployment. This requirement accommodate the structure’s maximum capable of withstanding an initial assures that the refuge alternative is occupancy. This requirement assures explosion and that the components are capable of withstanding a fire and that access for the maximum number of not damaged and are able to function as the components will not be damaged persons for which the refuge alternative intended. and are able to function as intended. is designed. MSHA received comments both in One commenter agreed with the One commenter requested support of and opposed to the proposal. proposal. The final rule is substantively clarification of the proposed One commenter who supported the the same as the proposal. requirement relating to the number of proposal stated that ‘‘the 15 psi value Final paragraph (a)(6), substantively purges. MSHA has performed limited for the survivability of the shelter is the same as the proposal, requires that carbon monoxide purge testing that sufficient as levels higher than that structural components of refuge indicates a 50 percent carbon monoxide would not likely result in survivors.’’ alternatives be made with materials that concentration reduction with each Other commenters who supported the do not have a potential to ignite or are purge. In PIB P07–03, under Safe Haven proposal referred to the West Virginia MSHA-approved. Materials under this Assumptions providing breathable air, Mine Safety Technology Task Force final rule could include, but are not MSHA addressed carbon monoxide (CO) Report of May 29, 2006, which limited to, inflatable shelters and any purging. Purging ‘‘efficiency’’ was recommended that refuge alternatives materials providing a secure space to estimated to require compressed air only be designed to survive an initial protect the inside atmosphere from the cylinders providing at least three times event. hazardous outside atmosphere. MSHA the amount of safe haven volume. Commenters who opposed the notes that materials are generally tested Miners are to be inside the volume proposal stated that the proposal was for noncombustibility under American being purged wearing an SCSR until inadequate because explosions can Society for Testing and Materials purging is accomplished. The Agency create pressures greater than 20 psi, that (ASTM) E136 ‘‘Standard Test Method anticipated using compressed air refuge alternatives should be capable of for Behavior of Materials in a Vertical cylinders as necessary to reduce Safe withstanding a second explosion, and Tube Furnace at 750 Degrees C’’ (2004), Haven concentration to less than 25 that inflatable shelters are unsafe although a similar ISO test, ISO parts per million (ppm) for safe havens because they may not endure a second 1182:2002 also exists. Tests for flame with a captive volume (not using explosion. resistance in existing 30 CFR 7.27 could positive pressure forced air from either The final rule is consistent with the be used to determine the flame a compressed air line or borehole from NIOSH Report, which recommended a resistance of materials that have the the surface). 15 psi overpressure for 0.2 seconds. potential to ignite. Final paragraph (a)(3)(ii), like the NIOSH test results from the Lake Lynn One commenter requested that MSHA proposal, requires that the airlock be Laboratory support a 15 psi clarify the extent of materials that must configured to accommodate a stretcher overpressure and a 0.2 second duration be flame resistant or noncombustible without compromising its function. The for a typical blast wave propagation in and clarify whether the requirement airlock must be large enough to an underground mine. MSHA notes that applies to materials that will be accommodate a stretcher with an the Agency has reviewed information deployed and used only after the event injured miner while the outside door is from the U.S. Department of Defense occurs. closed and the inside door is open. weapon designers which use a 13 psi This provision applies to any One commenter, who supported the peak overpressure as the 100% lethal materials used to provide a secure space proposal, stated that this proposed threshold. to protect persons from the hazardous requirement was absolutely necessary to With respect to secondary explosions, outside atmosphere. This final rule accommodate the need to bring injured the NIOSH report states that a number assures that the refuge alternative is miners into an airlock. Another of factors make optimal design of refuge capable of withstanding a fire and that commenter noted that a large amount of chambers difficult. These factors the components will not be damaged space would be required to include the complexity of mine and are able to function as intended in accommodate a stretcher in the airlock. explosions and the interaction of the case of an emergency. Taken together, MSHA believes that this final explosion with the physical paragraphs (a)(4), (a)(5), and (a)(6) requirement is necessary to environment. The Report further states: would assure that the refuge alternative accommodate a stretcher in the air lock ‘‘[t]he most likely locations of an initial is able to withstand an initial fire and and to allow transfer of the injured explosion can be predicted with some that the structure and internal miner on the stretcher into the refuge certainty,’’ and ‘‘[i]f there is an ignition components and provisions will not be alternative’s interior space. MSHA notes source, there could be subsequent damaged and will function as intended that elsewhere in the final rule, in explosions, although the location and following the emergency. The final rule
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remains substantively the same as the In a worst-case scenario, where only one MSHA did not receive any comments proposal. SCSR is available to provide 60 minutes on this proposal. The final rule clarifies Final paragraph (a)(7) makes an of breathable air, the first 30 minutes that a ‘‘test’’ be conducted. The final editorial change, but is substantively the could be used to evacuate and, if rule is substantively the same as same as the proposal, and requires that evacuation is not possible, return to the proposed. refuge alternatives be made from refuge alternative. If the person returns Final paragraph (b)(4) clarifies the reinforced material that has sufficient to the refuge alternative, 10 minutes proposal and requires inspections to durability to withstand routine handling could be used to establish a secure determine that overpressure forces of and resist puncture and tearing during space between the interior and exterior 15 psi applied to the pre-deployed deployment and use. Refuge alternatives atmospheres, and 20 minutes could be structure for 0.2 seconds do not prevent need to be made from reinforced used to purge the interior space to the stored components from operating. material to be capable of withstanding establish a breathable atmosphere. This provision helps assure that stored the harsh underground mining Under the final rule, testing should be components are capable of withstanding environment. This especially applies to conducted simulating real-life situations an initial explosion and will function as refuge alternatives with inflatable and conditions, such as smoke, heat, intended following an explosion. structures. humidity and darkness while using One commenter supported and no One commenter supported and no SCSRs. commenters opposed the proposal. The commenters opposed the proposed Several commenters questioned final rule clarifies that an ‘‘inspection’’ requirement. The final rule is whether miners could activate the be conducted and makes an editorial substantively the same as the proposal. refuge alternative within 10 minutes. change. The final rule is substantively Final paragraph (a)(8), makes an MSHA recognizes there may be the same as proposed. editorial change, but is substantively the differences in refuge alternatives Final paragraph (b)(5) clarifies the same as the proposal, and requires that necessitating different start-up proposal and requires an inspection to refuge alternatives be guarded or procedures. Training requirements for determine that a flash fire of 300 °F for reinforced to prevent damage to the persons deploying and using refuge 3 seconds does not prevent the stored structure that would hinder alternatives are addressed in part 75. components from operating. This deployment, entry, or use. This The Agency has included this training provision helps assure that stored requirement assures that the refuge requirement in recognition of the components are capable of withstanding alternative will be designed to limited time available for persons to a flash fire and will function as incorporate protective features to establish a secure space between the intended following a flash fire. protect the integrity of the structure and interior and exterior atmospheres and to One commenter supported and no operation of doors, inflatable extensions purge the refuge alternative to establish commenters opposed the proposal. The of the refuge alternative, and other a breathable air atmosphere. The final final rule clarifies that an ‘‘inspection’’ functions necessary to deploy, enter, or rule clarifies the Agency’s intent that a be conducted. The final rule is use the refuge alternative. ‘‘test’’ be conducted. The final rule is substantively the same as proposed. One commenter supported and no substantively the same as the proposal. Final paragraph (b)(6) clarifies the commenters opposed the proposal. The Final paragraph (b)(2) clarifies the proposal and requires a test to final rule is substantively the same as proposal and requires that a test be demonstrate that each structure resists the proposal. conducted to demonstrate that an puncture and tearing when tested in Final paragraph (a)(9), like the overpressure of 15 psi applied to the accordance with ASTM D2582–07 proposal, requires that refuge pre-deployed refuge alternative ‘‘Standard Test Method for Puncture- alternatives permit measurement of structure for 0.2 seconds will not allow Propagation Tear Resistance of Plastic outside gas concentrations without gases to pass through the structure. The Film and Thin Sheeting.’’ This standard exiting the structure or allowing entry of test must verify that the refuge is copyrighted by ASTM International, the outside atmosphere. Gas monitoring alternative structure is capable of 100 Barr Harbor Drive, PO Box C700, of the atmosphere outside the refuge withstanding an initial explosion, and West Conshohocken, PA 19428–2959. alternative is needed when there is a that gases do not pass through the Individual reprints (single or multiple lack of communication with rescuers structure following an explosion. The copies) of this standard may be obtained and persons are considering whether test should demonstrate the integrity of by contacting ASTM at the above evacuation is a viable option. the structure and that doors remain address or at 610–832–9585 (phone), Several commenters supported the operational. 610–832–9555 (fax), or [email protected] proposal. One commenter stated that it MSHA did not receive any comments (e-mail); or through the ASTM Web site was absolutely essential to be able to on this proposal. The final rule clarifies (http://www.astm.org). A copy may be measure outside gas concentrations that a ‘‘test’’ be conducted and makes an inspected at any MSHA Coal Mine without exiting the structure or allowing editorial change. The final rule is Safety and Health district office, or at outside air to enter. The final rule is the substantively the same as proposed. MSHA’s Office of Standards, 1100 same as the proposal. Final paragraph (b)(3) clarifies the Wilson Blvd., Room 2353, Arlington, Final paragraph § 7.505(b), like the proposal and requires that a test be Virginia, 22209, or at the National proposal, requires inspections or tests of conducted to demonstrate that a flash Archives and Records Administration the structural components. Final fire of 300 °F for 3 seconds will not (NARA). For information on the paragraph (b)(1) clarifies the proposal allow gases to pass from the outside to availability of this material at NARA, and requires that a test be conducted to the inside of the structure. The test must call 202–741–6030, or go to: http:// demonstrate that trained persons can verify that the refuge alternative www.archives.gov/federal_register/ fully deploy the structure, without the structure is capable of withstanding a code_of_federal _regulations/ibr_ use of tools, within 10 minutes of flash fire, and that gases do not pass locations.html. reaching the refuge alternative. This through the structure following a flash This requirement assures that the provision assures that persons can fire. The test should demonstrate the material used to make the refuge deploy and use the refuge alternative in integrity of the structure and that doors alternative is capable of withstanding a short amount of time upon reaching it. remain operational. the harsh mining environment and
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abrasion, tears, and punctures which nonmetallic materials before or after the create a safety hazard. The regulator might result during handling, flash fire test. It also requires a test to must be designed to assure that effective transportation, and deployment. This identify the gases released and relief of overpressure can be especially applies to inflatable-type determine their concentrations. This accomplished. refuge alternatives and tent refuge requirement assures that the Final paragraph (c)(2), like the alternative structures. These materials nonmetallic materials will not emit proposal, requires a means to repair and must be capable of maintaining a secure odors that may sicken persons re-pressurize the structure in case of space without compromising the occupying the refuge alternative. failure of the structure or loss of air interior atmosphere of the refuge Noticeable odors also might indicate pressure. If the inflatable-type refuge alternative. that a material is giving off vapors or alternative is damaged or leaks, it will One commenter supported and no gas. Although a noticeable odor may not need repair and additional compressed commenters opposed the proposal. The be objectionable, it could still be air to re-establish the pressure and final rule clarifies that a ‘‘test’’ be harmful. Testing should include volume of air that was lost. conducted. The final rule is instruments used for detecting any One commenter supported and no substantively the same as proposed. released gases. Nonmetallic materials commenters opposed the proposal. The Final paragraph (b)(7) clarifies the such as paints, plastics, and fiber that final rule remains the same as the proposal and requires a test to are used in the manufacturing of the proposal. demonstrate that each reasonably refuge alternative structure should not Final § 7.505(d)(1) makes an editorial anticipated repair can be completed release harmful fumes, vapors, or gases. change, but is substantively the same as within 10 minutes of opening the One commenter stated that, when the the proposal, and requires that the storage space for repair materials and refuge alternative is stored, only the refuge alternative structure provide a tools. MSHA is concerned that externally exposed components need to means to conduct a preshift inflatable-type refuge alternative be tested for toxic gases when exposed examination of the components critical structures have the potential to be to a flash fire test. This commenter for deployment, without entering the ripped, torn, or develop a leak. A leak suggested that the final rule clarify that structure. This requirement assures that or tear must be repaired without delay requirement only applies to materials necessary inspections can be performed to avoid jeopardizing the safety of potentially exposed to flash fires in the to identify problems that may occur in persons occupying the refuge stored configuration. case of an emergency. The gauges and alternative. The atmosphere of a refuge MSHA expects that a number of controls for critical components, such as alternative must remain isolated at all different types and combinations of compressed air and oxygen, should be times. The test would demonstrate that refuge alternatives and components will easy to observe to determine the a miner would be able to make a repair be used, and that some of these will readiness of those components. such as mending a tear or resealing the likely be stored inside the structural Some commenters supported the fabric within 10 minutes of opening the components. Testing would address the proposal. Other commenters opposed it, storage space. interior materials and components to stating that the final rule should require Some commenters questioned assure that they do not release harmful that a preshift examination be whether a person could repair the refuge fumes, vapors, or gases under normal conducted inside the refuge alternative alternative structure within 10 minutes. conditions. An inspection must be to examine critical components. A commenter stated that the performed to determine that no harmful MSHA does not encourage entering a manufacturer cannot guarantee any gases or harsh odors are released from refuge alternative for pre-shift particular time frame for repairs, nonmetallic materials after the flash fire examinations. The Agency believes that especially during an emergency, and test. A properly designed system also the structure should be designed so that that mandating a time limit is neither would control heat penetration inside components critical for deployment, practical nor enforceable. the refuge alternative to protect the such as gauges and controls, can be MSHA recognizes there may be components and materials in the easily observed externally. After differences in refuge alternatives, and, interior of the refuge alternative. considering the comments, the final rule hence, in refuge alternatives’ repair The Agency agrees with the remains substantively unchanged from procedures. This requirement in commenter that the flash fire test would the proposal. included in the final rule in recognition be performed on a stored refuge Final paragraph (d)(2), like the of the limited time available, to repair alternative and its components with the proposal, requires that the refuge a structure or to re-establish a secure contents of the refuge alternative inside. alternative structure provide a means to space between the interior and exterior However, the contents of a refuge indicate unauthorized entry or atmospheres of the refuge alternative to alternative should remain inside the tampering. This requirement assures maintain a breathable air atmosphere. refuge alternative when a test is that a refuge alternative is intact and Training requirements for miners for performed. ready for use, if necessary. refuge alternatives, which are addressed The final rule clarifies that an One commenter supported the in part 75, must cover repairs. Training ‘‘inspection’’ be conducted after the proposal. Another commenter requested will help prepare miners for the flash fire test. The final rule is that the proposal be changed to permit possible need to repair a refuge substantively the same as the proposal. operators to enter the refuge to examine alternative after a protective isolated Final § 7.505(c) makes an editorial the cylinders on a regular basis, and that atmosphere has been established. After change, but is substantively the same as there should be a requirement for a considering the comments, the final rule the proposal, and provides requirements means to detect tampering with clarifies that a ‘‘test’’ be conducted, but for pressurized air if it is used to deploy components and materials stored inside the final rule is substantively the same the structure or maintain its shape. the refuge. as the proposal. Final paragraph (c)(1), like the proposal, As stated in the proposal, tamper- Final paragraph (b)(8) clarifies the requires a pressure regulator or other proof seals are necessary and must be proposal and requires a test to means to prevent over-pressurization of provided for visual indication of demonstrate that no harmful gases or the structure. Over-pressurization of the unauthorized entry into the refuge noticeable odors are released from interior space or airlock space would alternative. This deters tampering with
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or pilfering of the contents of the refuge level of protection as those meeting the trapped miners. Successful mine rescue alternative. Refuge alternatives would requirements of Subpart L—Refuge progression often requires repairs to need to be designed so that if Alternatives. damaged infrastructure, e.g., roof examination or repair requires entry One commenter observed that, in at control systems, and ventilation into the refuge alternative, then the seal least two mines outside the United controls. History has shown there can be or other means can be replaced. The States, operators had installed backup delays associated with implementing final rule remains unchanged from the systems for providing breathable air. successful mine rescue protocols and proposal. Another commenter also supported procedures that can delay reaching backup systems for providing breathable trapped miners. Section 7.506 Breathable Air air. While the final rule does not require Components the use of a secondary, independent In MSHA’s February 8, 2007, PIB Requirements in this section assure breathable air component (a backup P07–03, the Agency stated that it that there is adequate breathable air system), operators are encouraged to considered 96 hours of breathable air to inside the refuge alternative because provide backup breathable air systems be necessary, and concluded that a 96- maintaining breathable air inside the for use with refuge alternatives. hour supply was warranted. In arriving refuge alternative is vital to sustain One commenter suggested that the at the 96-hour requirement in this final persons trapped underground. The final rule include an option that would rule, MSHA reviewed recent and Agency recognizes that different types permit mines with existing exhaust historical data on entrapments. While and combinations of breathable air ventilation systems to ventilate through most safety and health professionals and components from several manufacturers boreholes to provide breathable air in researchers agree that refuge alternatives may be used to provide breathable air the refuge alternative. The final rule can sustain trapped persons, there is not for refuge alternatives. does not permit this type of option general agreement on the amount of Final § 7.506(a), clarifies the proposal because it is not reliable. Breathable air time that the refuge alternative should and requires that breathable air must be systems must be able to operate be capable of sustaining miners. After supplied by compressed air cylinders, following an explosion or fire. Main reviewing Agency data and comments, compressed breathable-oxygen mine fans are sometimes damaged by the Agency continues to believe that the cylinders, or boreholes with fans explosions and may not be operable 96-hour requirement is necessary and installed on the surface or compressors following an explosion or fire. installed on the surface. The final rule Final § 7.506(b) clarifies the proposal the final rule is the same as proposed. clarifies MSHA’s intent that fans or and provides requirements that assist Final paragraph (b)(2), like the compressors installed on the surface are MSHA in evaluating the effectiveness, proposal, requires that mechanisms be to be used with boreholes. In addition, compatibility, and supply of the provided and procedures be included so the final rule contains an editorial breathable air component. The final that, within the refuge alternative, the change, but remains substantively rule, which is substantively the same as oxygen concentration is maintained at unchanged from the proposal. It the proposal, states that the procedures levels between 18.5 and 23 percent. requires that only uncontaminated must be ‘‘included’’ rather than This requirement is consistent with the breathable air be supplied to the refuge ‘‘followed’’. NIOSH report. alternative. These final requirements Final paragraph (b)(1) requires that A commenter stated that the assure that the breathable air component mechanisms be provided and is reliable and ready to be deployed and procedures be included so that, within minimum oxygen level in refuge used. the refuge alternative, the breathable air chambers should be 19.5 percent. One commenter stated that specific will sustain each person for 96 hours. Existing § 75.321 requires that the air in approval requirements could stifle Several commenters requested an areas where persons work or travel must innovation and technological advances, explanation with respect to the contain at least 19.5 percent oxygen. and that MSHA should follow a requirement for providing 96 hours of MSHA believes that the performance-oriented approach and breathable air, some stating that 48 recommendation in the NIOSH Report specify only the quantity and quality of hours of breathable air would be for a minimum of 18.5 percent will be air or oxygen entering the shelter. sufficient. Other commenters supported adequate to sustain miners in the MSHA is promulgating this final rule to the 96-hour requirement. isolated atmosphere of the refuge implement the MINER Act’s goal related Each mine emergency is a unique alternative. Like the proposal, the final to the maintenance of individuals event and it is impossible to predict rule includes a range for oxygen due to trapped underground in the event that with precision the period of time the variety of oxygen delivery systems miners are not able to evacuate the required to maintain miners prior to used. Further, MSHA has included the mine. To achieve this goal, the Agency’s rescue. To provide for an added margin upper limit to lessen the risk of fire or final rule must provide requirements of safety, the Agency has determined explosion. that assure that refuge alternatives will that it is necessary to require a 96-hour MSHA believes that the atmosphere operate effectively. To allow for supply of breathable air. The 96-hour in refuge alternatives would experience innovations in technology, the Agency supply of breathable air in the final rule has developed a final rule that is largely will assist the rescue effort by providing levels of 18.5 percent only performance-oriented. Under the final necessary time for rescuers to safely intermittently and of short duration and rule, applicants have a variety of reach trapped miners. The depth of the expects that the level of 19.5 percent options for developing refuge mine, the geology of the overburden, would be available to persons for most alternatives that will maintain trapped and the terrain above the mine of the time. Data show that short-term miners. In addition, final § 7.510 allows significantly affect rescue activities. levels of 18.5 percent are not harmful to MSHA to approve refuge alternatives Mine rescue protocol requires the persons who are normally at rest, and components that incorporate new monitoring of mine atmospheres and not working, and are not likely to technology if the applicant assessing the risk prior to mine rescue experience difficulty breathing, demonstrates that the refuge alternative teams entering the mine and making conditions that are likely to be present or component provides at least the same progressive steps underground toward in the refuge alternative. The Foster
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Miller Report 3 cites a large body of Limit. Further, under the circumstances, economic feasibility, and supporting work, from a number of sources, 10 persons would reach 10 percent data. indicating safe working levels for carbon dioxide and resulting Several commenters opposed the oxygen below 19.5 percent. Based on its unconsciousness in approximately 16.6 proposal. Some of these commenters review of comments and data, the hours. stated that the minimum flow rate was Agency has kept the final rule the same One commenter stated that the MSHA too high. Other commenters requested as proposed. requirement for carbon dioxide levels clarification that the minimum flow rate Final paragraph (b)(3) clarifies the was too stringent and cited international only applied when carbon dioxide is not proposal and requires that mechanisms standards that were 5 percent. Several scrubbed. One commenter suggested be provided and procedures be included commenters discussed the ill effects of that the manufacturer determine flow so that, within the refuge alternative, the high levels of carbon dioxide and rate based on the refuge alternative average carbon dioxide concentration is supported MSHA’s proposal. design. 1.0 percent or less, and excursions do The NIOSH report recommends that The minimum flow rate in this final not exceed 2.5 percent. components operate to maintain carbon rule is based on MSHA studies, MSHA calculated oxygen dioxide at or below the levels in the comparisons with existing OSHA consumption rates for persons using a final rule (1 percent with excursions not requirements, and engineering refuge alternative. Because most activity exceeding 2.5 percent) and, based on a handbooks. MSHA has determined that would involve sleeping or resting, and review of medical information, research, the flow rate of 12.5 cfm is the because a small amount of activity and accident experience, MSHA is minimum amount of air needed for would involve taking readings or aware of ill effects associated with respiration and dilution of carbon changing curtains, MSHA estimated exposure to concentrations of carbon dioxide and other harmful gases. In activity levels of 4⁄5 of the time at rest addition, the 12.5 cfm flow rate assures 1 dioxide greater than the levels in the and ⁄5 of the time engaged in moderate final rule. MSHA reviewed international positive pressure to prevent contamination from the mine activity. Oxygen consumption at the standards for safe levels of carbon assumed breathing rate would be 1.32 atmosphere. This requirement applies to dioxide and found none to be higher cubic feet per hour per person (0.022 breathable air systems that do not than 1.25 percent for extended periods. cubic feet per minute per person). These incorporate carbon dioxide scrubbing The concentrations of carbon dioxide in oxygen consumption rates were based components. The Agency’s intent is for the enclosed atmosphere of a refuge on the U.S. Bureau of Mines, Foster breathable air supplied by compressed alternative need to be within established Miller Report, ‘‘Development of air from cylinders, fans, or compressors limits to prevent debilitating or even Guidelines for Rescue Chambers,’’ to be used from the surface through a lethal effects. Based on comment, data, Volume I, 1983. borehole or with an in-mine horizontal and Agency experience, the final rule In PIB P07–03, MSHA demonstrated piping system that is protected from the rate at which a person would remains at 1 percent and excursions explosions. Based on comment, data, experience adverse health effects from must not exceed 2.5 percent. and Agency experience, the final rule carbon dioxide if it were not removed Final § 7.506(c) makes an editorial remains the same as the proposal. from the environment. MSHA used air change, but is substantively the same as Final paragraph (c)(1), like the supply calculations and activity levels the proposal and requires that proposal, provides requirements for fans based on information provided in the breathable air supplied by compressed or compressors. In PIB P07–03, MSHA Foster Miller report. The Agency used a air from cylinders, fans, or compressors provided a number of recommendations hypothetical sealed space with a volume provide a minimum flow rate of 12.5 that should be followed when of 1,800 cubic feet (20 feet long, 18 feet cubic feet per minute (cfm) of breathable compressors are used to provide wide and 5 feet high) that contained one air for each person. Compressor air breathable air underground. These person. The initial air quality was intakes should be installed and recommendations would also apply assumed to be 19.5 percent oxygen and maintained to assure that only clean, when fans are used for the same 0.03 percent carbon dioxide, and the uncontaminated air enters the purpose. MSHA recommended that breathing rate (4⁄5 of the time at rest and compressors. In addition, compressors compressor air intakes should assure 1⁄5 of the time engaged in moderate must have the capacity to deliver the that only clean, uncontaminated air activity) for oxygen inhaled is 0.022 required volume of air at the point of enters the compressors. cubic feet per minute per person. expected usage. Final paragraph (c)(1)(i), like the For this example, MSHA found that MSHA notes that the use of proposal, requires that fans or one person could be maintained 49.5 compressed air cylinders as the sole compressors be equipped with a carbon hours in an 1,800 cubic foot enclosed means of providing breathable air may monoxide detector located at the surface space with an initial air quality of 19.5 be impractical and the Agency that automatically provides a visual and percent oxygen and 0.03 percent carbon encourages mine operators to consider audible alarm if carbon monoxide in dioxide. This equates to 1.65 minutes other options. As MSHA pointed out in supplied air exceeds 10 parts per per cubic foot of enclosed space PIB P07–03, when using a borehole to million (ppm). This provision helps (volume). Using these same parameters, deliver sufficient quantities of assure that harmful levels of carbon 10 persons could be maintained for 4.95 breathable air, a fan or equivalent monoxide are not transferred into the hours before the carbon dioxide method should be used to force fresh air refuge alternative. This requirement is concentration reached the defined into the hole with enough positive the same as the carbon monoxide unacceptable level of 3 percent based on pressure to overcome total mine concentration in supplied breathable air Peele Mining Engineers’ Handbook and pressure. from oil-lubricated compressors as MSHA’s current Short Term Exposure During the rulemaking process and at established by OSHA in 29 CFR each public hearing, MSHA requested 1910.134(i)(7), which will maintain 3 Foster Miller. Phase II Report, Chapter 4, Table comments on the proposed flow rate uniformity in requirements for the use 2, page 3, December 2007; and U.S. Bureau of and asked that commenters be specific of this specialized equipment. Although Mines. Development of Guidelines for Rescue Chambers, Volume I, Table 2, page 20, October including alternatives, rationale, safety the NIOSH recommended value of 1983. benefits to miners, technological and maximum concentration of carbon
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monoxide is 25 ppm, MSHA believes whether a higher pressure relief should paragraph (c)(1)(v)(A) requires that air that, based on the Agency’s experience, be required. lines be capable of preventing or controlling supplied air delivered to a Some commenters stated that the removing water accumulation. This refuge alternative should contain no proposed relief pressure should be requirement helps prevent the more than 10 ppm. modified, especially with inflatable accumulation of water, which could One commenter stated that a carbon refuge alternatives. Some commenters affect the quantity and quality of monoxide detector should not be noted that most steel-type refuge breathable air provided underground. required when systems are not equipped alternatives have pressure relief set at MSHA understands that coal mines are with internal combustion engines. One 0.25 psi. not entirely horizontal and may contain commenter supported the proposed The Foster Miller report specifies a dips where water can accumulate in the requirement for a carbon monoxide minimum of 5 inches of water gauge piping. Moisture-laden air should not be detector located on the surface. overpressure in the refuge alternative piped into the area where miners are The final rule, like the proposal, which is equivalent to approximately trapped. If moisture is not removed, requires the use of carbon monoxide 0.18 psi. Although most manufactured water could accumulate in the refuge detectors when fans and compressors refuge alternatives presently have alternative. MSHA anticipates air dryers are used on the surface. The Agency pressure relief valves set at 0.25 psi, too with drain valves will be used. In recognizes that compressors or fans may much pressure differential makes addition, air lines or pipes that are pre- operate in the vicinity of other opening doors difficult for persons installed should be capped to prevent equipment having gas or diesel engines entering the refuge alternative. The final the entry of rain or moisture-laden air. and the carbon monoxide detector safety rule addresses all types of refuge If horizontal air lines or pipes are used, feature is necessary to assure the alternatives and clarifies the required they should be provided with a means persons in the refuge alternative are setting for pressure relief. For to automatically drain any water delivered uncontaminated air. prefabricated units, the pressure must accumulation. Final paragraph (c)(1)(ii) merged automatically be relieved at 0.18 psi, or One commenter requested that the proposed paragraphs (c)(1)(ii) and (iii) as specified by manufacturer, above proposal be modified to require the and requires fans or compressors to mine atmospheric pressure. For refuge applicant to explain how preventing or include in-line air-purifying sorbent alternatives consisting of 15 psi removing water accumulation will be beds and filters or other equivalent stoppings constructed prior to an event, accomplished, if necessary, because means to assure the breathing air quality the pressure must automatically be many mines in the southwest desert do and prevent condensation. Further, it relieved at 0.18 psi above mine not have significant rainfall or requires maintenance instructions that atmospheric pressure. humidity. provide specifications for periodic Final paragraph (c)(1)(iv), Regardless of the location of the mine, replacement or refurbishment. Sorbent redesignated from proposed paragraph all compressed air systems must have beds and filters and maintenance (c)(1)(v), requires that fans or moisture removal capabilities because instructions help assure that the air compressors include warnings to assure all atmospheric air contains water quality is maintained and condensation that only uncontaminated breathable air vapor. During compression, air is prevented. is supplied to the refuge alternative. temperature is increased significantly, One commenter stated that purifying MSHA expects that the warning could which allows the air to retain moisture. sorbent beds should not be required be a highly visible tag or label affixed to After compression, air is typically when systems are not equipped with the supplied air fans or compressors cooled reducing its ability to retain internal combustion engines. Regardless stating that only uncontaminated water vapor. A proportion of this water of whether internal combustion engines breathable air may be supplied to the vapor condenses into liquid water are used, in-line air-purifying sorbent trapped persons in the refuge which must be removed, for example, beds and filters or other equivalent alternative. Care should be exercised by a drain fitted to the compressor after- means are necessary to assure the when using compressors in the vicinity cooler. The final rule is the same as the breathing air quality and to prevent of other equipment having gas or diesel proposal. condensation when fans and internal combustion engines because Under final paragraph (c)(1)(v)(B), air compressors are used on the surface. these engines emit toxic gases, such as lines must be designed and protected to Final paragraph (c)(1)(iii) is carbon monoxide, sulfur dioxide, and prevent damage during normal mining redesignated from proposed paragraph nitrogen oxides, which can contaminate operations, a flash fire of 300° (c)(1)(iv) and clarifies that fans or the air being supplied by the Fahrenheit for 3 seconds, a pressure compressors provide positive pressure compressor. In addition, compressors wave of 15 psi overpressure for 0.2 and an automatic means to assure that requiring oil can generate carbon seconds, and ground failure. This the pressure is relieved at 0.18 psi, or as monoxide (CO) which can be supplied requirement provides protection for air specified by the manufacturer, above inadvertently to miners. Oil-type lines that come from boreholes or air mine atmospheric pressure in the refuge compressors could be used; however, lines from the surface that are extended alternative. the air quality should be sampled and underground to a refuge alternative. Positive pressure in the refuge controlled using carbon monoxide Operators could achieve protection alternative that exceeds total mine filtration. Oil-less compressors that do required under this final rule by burying pressure will prevent contamination not generate carbon monoxide do not pipes by through trenching. Trenching and allow sufficient quantities of require carbon monoxide filtering. would have to be deep enough to breathable air. An automatic means, There were no comments related to protect the pipes from mine traffic, such as a relief valve, must be provided the proposal. The final rule is explosions, ground movement, or to assure that the refuge alternative is unchanged from the proposal. equipment damage. not over-pressurized when breathable Final paragraph (c)(1)(v), redesignated One commenter supported the air is supplied. Excessive pressure from proposed paragraph (c)(1)(vi), proposal, but stated that it may creates adverse physiological effects. requires that fans or compressors sometimes be impossible to protect air MSHA requested comments on the include air lines to supply breathable air lines due to geologic conditions. MSHA proposed setting for pressure relief and to the refuge alternative. Final recommended trenching and burying air
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lines as one method of protecting air The final rule remains the same as the Agency believes that there is no lines from damage; however, the final proposed rule. additional risk of an oxygen leak rule is performance-oriented, allowing Final paragraph (d)(2), like the because these regulators are safe to use other methods of protecting air lines to proposal, requires that compressed, and must be checked periodically to be used. The final rule remains breathable oxygen provide oxygen at a assure that they will function properly. unchanged from the proposal. minimum flow rate of 1.32 cubic feet Accordingly, backup regulators must be Final paragraph (c)(1)(vi), per hour per person. provided. The final rule remains the redesignated and the same as proposed One commenter supported the same as the proposed rule. paragraph (c)(1)(vii), requires that fans proposal, but requested clarification of Final paragraph (d)(5), like the or compressors assure that harmful or the activity levels that MSHA relied on proposal, requires that compressed explosive gases, water, and other to support the proposed minimum flow breathable oxygen be used only with materials cannot enter the breathable rate. regulators, piping, and other equipment air. Harmful gases could contaminate MSHA relied on the activity levels that is certified and maintained to filters or other components or collect in stated in PIB P07–03, which contains prevent ignition or combustion. A the equipment and affect the quality of breathing rates and calculations for compressed breathable oxygen system the air being supplied to trapped persons who need to use a refuge should not be used with a previously miners. alternative. No commenters opposed the used compressed air system because a There were no comments on this proposal. The final rule remains the fire or explosion could occur when pure proposal and the final rule remains the same as the proposed rule. oxygen contacts oil and grease from the same as the proposal. Final paragraph (d)(3), like the previously used compressed air system. Final paragraph (c)(2) clarifies the proposal, requires that compressed One commenter supported the proposal and requires that redundant breathable oxygen include a means to proposal. One commenter opposed the fans or compressors and power sources readily regulate the pressure and requirement for certified equipment and be provided to permit prompt re- volume of the compressed oxygen. materials that are used downstream of activation of equipment in the event of Regulating compressed breathable the regulator because the equipment and failure. This requirement assures that oxygen is necessary to assure that materials carry oxygen that is not under breathable air will be maintained in the oxygen levels remain within the high pressure and, therefore, is not a event of failure of one of the sources of recommended values. In addition, all hazard. Based on MSHA’s experience, breathable air. The final rule clarifies oxygen valves should be opened slowly the Agency believes that there is a risk that redundant fans or compressors and to prevent the oxygen from heating. of fire or explosion for all oxygen power sources are required rather than One commenter agreed and no supply piping and equipment and, a ‘‘redundancy of ’’ fans or compressors commenters opposed the proposal. The therefore, it is necessary that the and ‘‘each power source’’ in the final rule remains the same as the equipment and materials be certified. proposal. proposed rule. The final rule remains the same as the There were no comments to this Final paragraph (d)(4), like the proposal. proposal and the final rule is proposal, would require that In the final rule, MSHA has moved substantively the same as the proposal. compressed breathable oxygen include proposed § 7.506(e) and (f) addressing Final paragraph (d), like the proposal, an independent regulator as a backup in carbon dioxide removal components’ provides requirements for compressed case of failure. It is crucial to maintain instructions and testing to final breathable oxygen. Final paragraph a continuous supply of breathable air to § 7.508(a), (b), and (c) addressing (d)(1) requires that compressed persons trapped underground. harmful gas removal components. This breathable oxygen include instructions Some commenters opposed the move places all the instructions and for activation and operation. This proposal. These commenters stated that testing requirements for harmful gas information will assure that persons backup regulators are not necessary removal in the same section (discussed activating and operating the cylinders because these devices have been used later in this preamble). have the proper information to correctly for decades with an excellent safety The final rule does not include perform the task so as to not imperil the record and minimal failure. Some proposed § 7.506(g), which addressed lives of persons within the refuge commenters also stated that the the use of respirators as a breathable air alternative. proposal would require additional component. Proposed paragraph (g)(1) One commenter suggested that the piping and fittings which would would have required respirators or operating instructions cover adjustment increase the risk of oxygen leaks. breathing apparatus to be NIOSH- of oxygen flow to prevent oxygen A backup regulator assures that approved with a means of flow and toxicity in the refuge alternative. breathable air will be maintained during pressure regulation. Proposed paragraph Under the final rule, instructions an emergency. Based on MSHA’s review (g)(2) would have required that should include topics such as adjusting of literature and system analyses, MSHA respirators or breathing apparatus be oxygen flow rates and checking for loose notes that there is the potential for equipped with fittings that connect only connections, sounds of leaking gas, failure and instances where regulators to a breathable air compressed line. damage to hoses along the length or at have failed. Persons who need to use the Proposed paragraph (g)(3) would have the fittings, and broken gauges. These refuge alternative must be able to rely required that respirators or breathing instructions assure that compressed air on oxygen regulators for survival. If a apparatus allow for communication, and tanks are secure and pressure regulators regulator fails during an emergency, it the provision of food and water while are properly set and that wrenches and would take too much time and would be preventing the entry of any outside pliers will be in proper working order. too difficult to repair and re-establish atmosphere. Proposed paragraph (g)(4) Instructions could be developed from breathable air especially if persons would have required that respirators or sources such as ASTM Stock No.: MNL inside the unit are injured. In addition, breathing apparatus be capable of being 36, ‘‘Safe Use of Oxygen and Oxygen based on MSHA’s review of costs, the worn for up to 96 hours. Systems: Guidelines for Oxygen System Agency believes that the cost of a Several comments opposed the use of Design, Materials Selection, Operations, backup regulator is small compared to respirators, citing uncertainties Storage, and Transportation.’’ the cost of an entire unit. Further, the regarding the wearing of respirators for
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prolonged periods. They also Proposed paragraph (i), concerning eliminated. The Agency believes that questioned how the respirator type fire extinguishers, is moved to final the monitoring of all the inside system would provide refuge. § 7.504(c)(6). atmosphere, including the airlock, is necessary because persons occupying After reviewing the comments, MSHA Section 7.507 Air-Monitoring the refuge alternative will be accessing considered possible adverse effects that Components might be associated with respirator use the airlock. The final rule remains as and determined that this provision Final § 7.507(a), like the proposal, proposed. should not be included in the final rule. requires that each refuge alternative Final § 7.507(b), like the proposal, The use of respirators for 96 hours may have an air-monitoring component that requires that refuge alternatives present medical problems, such as lung provides persons inside with the ability designed for use in mines with a history damage due to lack of humidity or to determine the concentrations of of harmful gases, other than carbon poisoning due to skin exposure to toxic carbon dioxide, carbon monoxide, monoxide, carbon dioxide, and gases. In addition, the use of masks oxygen, and methane, inside and methane, be equipped to measure those would require special individual fitting outside the structure, including the harmful gas concentrations. Some mines to prevent leakage. Further, injured airlock. The ability to monitor these have a history of liberating harmful persons may not physically be able to gases inside the refuge alternative is gases such as hydrogen sulfide, volatile don the mask. Accordingly, the final critical to the survival of persons hydrocarbons, or sulfur dioxide. The rule does not include the use of occupying the refuge alternative. For ability to detect and measure harmful respirators as a breathable air example, monitoring methane gases is necessary for the safety of the component. minimizes possible oxygen deficiency persons using the refuge alternative. or explosion. In addition, the ability to Final paragraph (e) is redesignated A commenter requested that the final monitor the atmosphere outside the rule specify each gas that would need to from and clarifies proposed paragraph refuge alternative assists persons inside be monitored because monitors are gas (h) and requires that an applicant the refuge alternative in making crucial specific. Under the final rule, the prepare and submit an analysis or study decisions regarding rescue and Agency intends that refuge alternatives demonstrating that the breathable air evacuation. designed for use in mines with a history component will not cause an ignition. One commenter stated that the air of harmful gases, other than those The final rule clarifies MSHA’s intent monitoring component should be mentioned, must be equipped to that an analysis or study should portable and permit use inside and measure the gases encountered. evaluate the potential fire and ignition outside the refuge alternative. The final Manufacturers will know the conditions risks of breathable air components, rule does not specify that the air in the mines in which their refuge equipment, or materials. Final monitoring component has to be either alternatives will be used. The final rule paragraph (e)(1) requires that the portable or fixed nor does it state that remains as proposed. analysis or study specifically address only electronic type instruments be Final § 7.507(c), like the proposal, oxygen fire hazards and fire hazards used. Any measurements taken outside requires that the air-monitoring from chemicals used for removal of the refuge alternative should be through component be inspected or tested and carbon dioxide. Final paragraph (e)(2) ports that prevent contamination of the the test results be included in the requires that the analysis or study refuge alternative. Under the final rule, application. This requirement assures identify the means used to prevent any monitoring outside the refuge that the monitors or detectors are ignition source. These requirements alternative should be periodic, as suitable for and will perform under minimize or prevent the inherent needed, and would not need to be mining conditions. Air monitoring potential fire hazard from oxygen and continuous. Pumps attached to hoses component must be approved as the fire hazards from chemicals used for could be used to safely draw samples intrinsically safe or permissible in removal of carbon dioxide. Applicants from outside the refuge alternative. accordance with the general should analyze inherent potential fire One commenter supported the requirements for approval of refuge hazards and include a mitigation plan to proposal to monitor the outside alternative components under minimize or prevent ignition of atmosphere while another commenter § 7.504(a)(1). breathable air component equipment or opposed the proposal, stating that MSHA received no comments on the materials. persons should stay in the refuge proposal. The final rule is the same as One commenter supported the alternative until rescued. MSHA the proposal. proposal, stating that the analysis believes that the measurement of the In the final rule, MSHA has included should be completed to assure all outside atmosphere will be important so proposed § 7.507(d), addressing air- potential fire and ignition risks are that refuge alternative occupants will monitoring component approval analyzed and addressed by design. have necessary information to relay to numbers in the approval application, in Another commenter suggested that there rescuers on the surface and make crucial final § 7.503(2)(i), which addresses should be a Material Safety Data Sheet decisions regarding evacuation. MSHA application requirements. (MSDS) on everything within the refuge reiterates the longstanding principle in Final § 7.507(d), redesignated from alternative because MSDSs have all the mine rescue that miners should first proposed § 7.507(e), like the proposal, information requested in a form familiar attempt to evacuate the mine, and if addresses requirements for air- to users. evacuation is impossible, then retreat to monitoring components. Final Under the final rule, fire and ignition the refuge alternative. paragraph (d)(1) requires that the total hazards must be analyzed and One commenter stated that part 75 measurement error, including the cross- addressed in the breathable air did not have a comparable monitoring sensitivity to other gases, not exceed component design; however, applicants requirement. This is not correct; the ±10 percent of the reading, except as may provide MSDSs for persons using emergency response plan provision in specified in the approval. Gas analyzer refuge alternatives. While the language part 75 requires monitoring inside and specifications under existing part 7, has been changed slightly, the final rule outside the refuge alternative. concerning diesel engine approvals requirements are the same as the One commenter stated that the airlock under existing § 7.86(b)(9), specify the proposal. monitoring requirement should be gas analyzer instrument error, including
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cross-sensitivity to other gases, as ±5 is 25 ppm. After considering the commenter stated that a 50 ppm level percent. The ±10 percent accuracy in comments, the Agency has determined will reduce the required time in the this final rule allows for random and that the final rule should remain the airlock and allow persons to enter the systematic errors in measurement. It is same as the proposal. refuge main chamber more quickly. This important to control the measurement Final paragraph (d)(3), redesignated commenter added that further dilution error and cross-sensitivity because of from proposed paragraph (e)(3), like the will occur between the airlock and the the uncertainty inherent with the proposal, requires that calibration gas main chamber of the refuge alternative instrument and measurement, and the values be traceable to the National estimating that the time it takes to reach need for reproducibility of the Institute for Standards and Technology 50 ppm will be 25 percent shorter than instrument measurements. This final (NIST) ‘‘Standard Reference Materials’’ the time it takes to reach 25 ppm. requirement is necessary to assure the (SRMs). This requirement, which is MSHA understands that the airlock readings taken by persons in the refuge based on existing § 7.86(b)(16), assures may contain carbon monoxide alternative verify that the air is that the air-monitoring equipment is concentrations as high as 50 ppm when breathable and does not have the properly calibrated. The NIST SRMs are persons are entering the refuge potential for fires and explosions. recognized and accepted industry alternative. The carbon monoxide MSHA did not receive comments on standards. There were no comments to concentration of 50 ppm recommended this provision. The final rule remains the proposal. The final rule is the same by some commenters is generally based the same as the proposal. as the proposal. on an 8-hour exposure per day. Final paragraph (d)(2), redesignated Final paragraph (d)(4) merged However, after all persons have entered from paragraph (e)(2), like the proposal, proposed paragraphs (e)(4) and (e)(5) the refuge alternative, the interior of the requires that the measurement error and requires that the analytical accuracy refuge alternative, including the airlock, limits not be exceeded after start-up, of the calibration gas and span gas must be maintained at 25 ppm or less after 8 hours of continuous operation, values be within 2.0 percent of NIST gas because, under the final rule, the airlock after 96 hours of storage, and after standards. This requirement is based on is usable space that persons may exposure to atmospheres with a carbon existing § 7.86(b)(16) and (17), which occupy. MSHA reviewed other monoxide concentration of 999 ppm also reference analytical accuracy of standards pertaining to carbon (full-scale), a carbon dioxide calibration gases within 2.0 percent of monoxide exposure, and considered concentration of 3 percent, and full- NIST gas standards. that persons could be entrapped for scale concentrations of other gases. Full- There were no comments on the periods up to 96 hours. For these scale concentrations are those at the proposal. The final rule is substantively reasons, the final rule remains at 25 upper limit of the air monitoring the same as the proposal. ppm for carbon monoxide, since the instrument’s capability to measure Final paragraph (d)(5), redesignated Agency believes that the interior space accurately within the instrument’s error from proposed paragraph (e)(6), like the of the refuge alternative must be factor. proposal, requires that the detectors maintained at this level. This carbon This requirement allows persons must be capable of being kept fully monoxide limit is consistent with the using gas monitors or detectors to charged and ready for immediate use. NIOSH report. The methane determine accurate gas concentrations This requirement assures that persons concentration limit has been changed throughout the duration of occupancy in using refuge alternatives have detectors from the proposal to be consistent with the refuge alternative and at different that are reliable and ready for use. existing standards governing methane parameters such as startup, after 8 hours One commenter stated that keeping limits. of continuous operation, during storage the detector batteries charged requires One commenter stated that MSHA when continuously exposed to the too much maintenance. The final rule should clarify that purge air must be in maximum recommended gas requires that the methods of charging addition to the 96 hours of breathable concentrations, and at other and calibrating be stated in the air that each person must have. Under concentrations much higher than the emergency response plan. It is the final rule, MSHA intends that the air recommended maximum values. It takes imperative that the detectors be that is used to purge the airlock must be into account the effects high gas inspected and ready for immediate use in addition to the breathable air needed concentration levels may have on these in the event of an emergency that to sustain persons for 96 hours. measurements over extended periods of requires using the refuge alternative. One commenter stated that the entire time. For example, MSHA reviewed the After considering the comments, the interior, and not just the airlock, should ANSI standard for carbon monoxide final rule remains the same as the be purged. The final rule, like the detection instruments to evaluate the proposal. proposal, provides that refuge performance testing of instruments at alternatives should be configured to different levels of carbon monoxide, Section 7.508 Harmful Gas Removal assure that the inside air is isolated from including high levels. Components the mine atmosphere, which minimizes A commenter stated that the proposed Final § 7.508, like the proposal, the quantity of purge air needed to concentration of 999 ppm for carbon provides requirements for harmful gas purge the interior space. An airlock, monoxide was too high and that the removal. Final paragraph (a)(1) requires which provides a transition area wording of the provision was unclear. that purging or other effective between the mine atmosphere and the MSHA reviewed data from previous procedures be provided for the airlock refuge alternative’s interior space, accidents and found that a carbon to dilute the carbon monoxide minimizes contamination of the interior monoxide concentration of 999 ppm concentration to 25 ppm or less and the space. Therefore, airlocks need to be may exist following an explosion or fire. methane concentration to 1.0 percent or capable of removing contaminants or It is necessary to evaluate the effects of less as persons enter, within 20 minutes configured in a way that assures that the higher concentrations on the of persons deploying the refuge contaminated mine atmosphere is instruments because the higher limits alternative. prevented from migrating through the may exist prior to purging the airlock. Some commenters opposed the 25 airlock into the interior space of the The carbon monoxide limit for the ppm carbon monoxide limit and refuge alternative. This requirement atmosphere inside the refuge alternative suggested a limit of 50 ppm. One assures that contaminated air is forced
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out of the refuge alternative. Purge air final rule is the same as proposed with these chemicals is in curtains or should be provided from compressed air one editorial change. cartridges that are isolated so that cylinders. Final paragraph (a)(2)(i), redesignated contact with or exposure to the Another commenter stated that from proposed § 7.506(e)(2), like the chemicals is prevented. For example, purging the airlock within 20 minutes of proposal, requires that carbon dioxide commonly used CO2 removal systems persons activating the refuge alternative removal components be used with include lithium hydroxide or soda lime is an excessive amount of time. Based breathable air cylinders or oxygen curtains or soda lime cartridges. These on MSHA’s experience, the Agency cylinders. Carbon dioxide removal curtains or cartridges assure that believes that 20 minutes to purge the components must be compatible with persons do not contact the caustic airlock and to establish a breathable air the overall system for providing chemicals, which can cause burns. atmosphere is appropriate and breathable air. The carbon dioxide Chemicals must be activated without necessary. removal systems are dependent on the compromising the packaging materials One commenter requested occupancy and volume of the refuge and exposing persons to chemical clarification of the initial concentration alternative. The breathable air system is hazards. of methane so that purge air volumes also dependent on those same factors. MSHA received no comments on this can be computed. The final rule does One commenter supported and no proposal. The final rule includes not specify an initial concentration of commenters opposed the proposal. The proposed § 7.506(e)(4), concerning methane, but the Agency expects that final rule is the same as proposed. carbon dioxide removal components, the initial test concentration, prior to Final paragraph (a)(2)(ii), redesignated and contains editorial changes, but from proposed § 7.506(e)(3), like the purging, should be a minimum of 12 remains substantively the same as the proposal, requires that carbon dioxide percent. proposal. Another commenter stated that MSHA removal components remove carbon Final paragraph (b)(2) requires that should specify that all flow rates be dioxide at a rate of 1.08 cubic feet per each chemical used for removal of defined at ‘‘Standard Temperature and hour per person. As stated previously, harmful gas be provided with all Pressure’’ (STP) conditions, ‘‘including MSHA is assuming that breathing rates materials; parts, such as hangers, racks, the assumptions of CO2 production from for persons who have reached refuge and clips; equipment; and instructions humans.’’ The Agency contacted an alternatives reflect activity levels of 4⁄5 necessary for its deployment and use. author of the Foster Miller Report and at rest and 1⁄5 moderate activity. Depending on the type of CO removal determined that 60 °F was used as the Therefore, using the respiratory 2 system, instructions could include standard temperature and that there is quotient, which is the ratio of CO 2 deployment and proper handling of general agreement that 14.7 psi is the expelled to O consumed, the average 2 materials. These instructions would standard pressure at 1 atmosphere. carbon dioxide generation is 1.08 cubic assure that mine operators have the Because approved permissible electrical feet per hour per person. These proper information to correctly perform components may be present in the breathing rates were based on the Foster tasks involving carbon dioxide removal refuge alternative, in the final rule, the Miller report. proposed 1.5 percent concentration of One commenter supported and no components. This provision clarifies the methane was reduced to 1.0 percent to commenters opposed the proposal. The proposal and will expedite deployment be consistent with existing final rule is the same as proposed with of the scrubbing system to reduce start- § 75.323(b)(1)(i) and (ii). one editorial change. up time and make the system easy to Final paragraph (a)(2), like the Final paragraph (a)(3), redesignated use for the occupants. MSHA’s intent is proposal, requires that chemical from proposed § 7.506(e)(1), requires that the steps required to deploy the scrubbing or other effective procedures that harmful gas removal components harmful gas removal component should be provided so that the average carbon must include instructions for not be difficult and should be designed dioxide concentration in the occupied deployment and operation. The final on a per-person incremental basis to structure does not exceed 1.0 percent rule clarifies that instructions are make the system easily understood by over the rated duration and excursions required for harmful gas removal occupants. do not exceed 2.5 percent. Carbon components, which include carbon MSHA received no comments on the dioxide is an asphyxiant produced by dioxide removal components. proposal. The final rule includes human respiration. The carbon dioxide One commenter supported and no proposed § 7.506(e)(1) and (5) concentration limit is consistent with commenters opposed the proposal. The concerning carbon dioxide removal the NIOSH report. final rule is substantively the same as components, but remains substantively To prevent the accumulation of the proposal. the same as the proposal. harmful concentrations of carbon Final paragraph (b), like the proposal, Final paragraph (b)(3), like the dioxide, scrubbing systems have been addresses requirements for each proposal, requires that each chemical developed to chemically absorb the chemical used for removal of harmful used for removal of harmful gas be carbon dioxide. Carbon dioxide gas. Final paragraph (b)(1), like the stored in an approved container that is scrubbing systems may be active or proposal, requires that each chemical conspicuously marked with the passive. Passive systems rely solely on for removal of harmful gas be contained manufacturer’s instructions for disposal natural air currents for the air to react such that when stored or used it cannot of used chemicals. This requirement with the chemical bed. Passive system come in contact with persons and it assures appropriate containment during chemicals are usually packaged in cannot release airborne particles. This shipping and storage. MSHA’s intent is curtains. These curtains would be provision is consistent with the NIOSH that an approved container is one that suspended in the refuge chamber. report which stated that the scrubbing is accepted under general chemical Active systems force air through a material must not become airborne or industry practice and appropriate for chemical bed by fans or compressed air, otherwise cause respiratory distress or pre-deployment transport and storage. and are generally more efficient than other acute reaction. Deployment and disposal instructions passive systems. Because harmful gas removal should be provided to assure persons One commenter supported and no chemicals are caustic, each would need are not exposed or otherwise injured commenters opposed the proposal. The to be contained. One way of packaging while handling chemicals.
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MSHA received no comments on the dioxide analyzers can be affected by a timer be started and the structure proposal. The final rule includes high temperature and humidity and can purged or CO otherwise removed. The proposed § 7.506(e)(6) concerning negatively impact analyzer accuracy. stabilization of the concentration will carbon dioxide removal components, MSHA intends that the tests required by assure that gas is distributed throughout but remains substantively the same as the final rule will verify the accuracy of the structure and the test is properly the proposal. the instruments in high temperature and performed. Final § 7.508(c), like the proposal, high humidity to assure that MSHA received no comments on the provides requirements for testing each measurements are accurate. proposed provision; the final rule is the harmful gas removal component to One commenter recommended that as same as the proposal. Comments related determine its ability to remove harmful an alternative, the final rule permit to the ending concentration were gases. Final paragraph (c)(1) requires external analyzers and require that these addressed earlier in the harmful gas that the component be tested in a refuge analyzers have a response time of less removal section. alternative structure that is than 1.5 minutes and that a minimum Final paragraph (c)(2)(ii), like the representative of the configuration and 99.5% of sampled gases be returned into proposal, requires that the carbon maximum volume for which the the refuge alternative. An external monoxide concentration readings from component is designed. The analyzer would be inappropriate for each of the three sampling instruments requirement assures that the test results tests requiring the monitors to be be recorded every 2 minutes. This are representative of actual conditions. exposed to the inside atmosphere. requirement assures that there are A commenter stated that purging a However, an external analyzer would be sufficient data points to constitute a contaminated space should not be an acceptable as a supplemental testing valid test. Recording should continue accepted practice unless the purging instrument for this test. MSHA would until stabilization is reached at the process can be proven totally effective at allow for tests of gas monitoring lowest concentration. providing a safe, livable atmosphere for components to be simultaneous with the MSHA received no comments on the all of the occupants in every situation. harmful gas removal tests. proposed provision; the final rule is the After evaluating the comments, Under the final rule, test results should same as the proposal. confirm that purging or scrubbing is MSHA has determined that the final Final paragraph (c)(2)(iii), like the effective in removing harmful gases. If rule should remain the same as the proposal, requires that the time be the data are from small-scale tests or proposal. recorded from the start of harmful gas prototype testing, interpretations and Final paragraph (c)(1)(iv), like the removal until the readings of the three assumptions should represent full-scale proposal, requires that the sampling sampling instruments all indicate a performance. instruments simultaneously measure the carbon monoxide concentration of 25 One commenter supported the gas concentrations at the three sampling ppm or less. This requirement assures proposal. The final rule makes editorial points. Simultaneous sampling helps that the time to remove carbon changes, but is substantively the same determine the interior atmosphere at monoxide and deploy the refuge as proposed. different locations at a given point in Final paragraph (c)(1)(i), like the time, eliminates any sampling alternative is less than the time to proposal, requires that the test include variability introduced by sequential deplete the SCSR. All occupants should three sampling points located vertically sampling, and determines if a be able to be located safely inside the along the centerlines of the length and homogenous atmosphere is maintained refuge alternative prior to depletion of width of the structure and equally throughout the refuge alternative. their SCSRs. spaced over the horizontal centerline of MSHA received no comments on the Comments related to the 25 ppm the height of the structure. The required proposed provision; the final rule is the concentration were addressed earlier in sampling points assure an accurate same as the proposal. this section. The final rule makes representation of the gas concentration Final paragraph (c)(2) is substantively editorial changes, but is substantively found in the middle of the structure as the same as the proposal and requires the same as the proposal. opposed to the ends, corners, top, sides, that when testing the component’s Final § 7.508(c)(3), redesignated from or bottom. ability to remove carbon monoxide, the proposed § 7.506(f), requires that the MSHA did not receive comments on structure be filled with a test gas of carbon dioxide removal component be the proposal; the final rule is the same either purified synthetic air or purified tested to demonstrate that it can as the proposal. nitrogen that contains 400 ppm carbon maintain average carbon dioxide Final paragraph (c)(1)(ii), like the monoxide, ±5 percent. The final rule concentration at 1.0 percent or less, proposal, requires that the structure be includes the ±5 percent to be consistent with excursions not to exceed 2.5 sealed airtight. This requirement helps with final paragraph (c)(2)(i). The 400 percent under the following conditions: prevent contamination which could ppm testing concentration was selected (i) at 55 °F (±4 °F), 1 atmosphere (±1 interfere with the testing. MSHA did not based on the American Conference of percent), and 50 percent (±5 percent) receive comments on the proposal; the Industrial Hygienists (ACGIH) Short relative humidity; (ii) at 55 °F (±4 °F), final rule is the same as the proposal. Term Exposure Limit (STEL). The test 1 atmosphere (±1 percent), and 100 Final paragraph (c)(1)(iii), like the should determine the performance of percent (±5 percent) relative humidity; proposal, requires that the operating gas the gas purification/decontamination (iii) at 90 °F (±4 °F), 1 atmosphere (±1 sampling instruments be placed inside system in achieving gas concentration percent), and 50 percent (±5 percent) the structure and continuously exposed level reductions for the entire ingress/ relative humidity; (iv) at 82 °F (±4 °F), to the test atmosphere. This requirement egress process at maximum occupancy. 1 atmosphere (±1 percent), and 100 is necessary to assure that the MSHA received no comments on the percent (±5 percent) relative humidity. instruments operate as designed in the proposal. MSHA uses the standard error actual space and representative Final paragraph (c)(2)(i), like the terminology of ±5 percent, but atmosphere including higher proposal, requires that, after a stable recognizes that +5 percent does not temperatures and humidity. concentration of 400 ppm, ±5 percent, apply to relative humidity at 100 A commenter stated that the carbon monoxide has been obtained for percent. This requirement is consistent electronics of some precision carbon 5 minutes at all three sampling points, with the NIOSH report.
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Some CO2 scrubbing components may MSHA believes that there may be MSHA did not receive any comments not perform as well as others. The most potential chemical degradation on the proposal. The final rule is the commonly used CO2 scrubbing associated with time, transport, and same as the proposal. chemicals performed within an environmental conditions. The final Final paragraph § 7.509(d), like the acceptable range in underground mines. rule, however, does not include a proposal, requires that the airlock be Testing under final paragraphs (c)(3)(i) specific requirement for shock testing. conspicuously marked with the through (iv) represents extreme Instead, it includes a performance- recommended maximum number of conditions that CO2 scrubbing oriented requirement that testing persons that can use it at one time. This components may be exposed to in demonstrate the component’s continued requirement assures that the airlock will underground coal mines. The increased ability to remove harmful gases be used as intended to allow safe temperature and humidity ranges reflect effectively throughout its designated passage of persons and to prevent any increases in the occupancy of a refuge shelf-life. contamination of the interior space atmosphere. alternative, although MSHA assumes Final paragraph (d), like the proposal, MSHA did not receive any comments that some body heat and moisture provides that alternate performance generation will be dissipated through on the proposal. The final rule is the tests may be conducted if the tests same as the proposal. the refuge alternative into the mine air, provide the same level of assurance of roof, ribs, and floor. Testing and the harmful gas removal component’s Section 7.510 New Technology evaluation of the CO2 scrubbing capability as the tests specified in this components will enable mine operators Final § 7.510, like the proposal, final rule. If the applicant plans to use provides that MSHA may approve a to make informed choices in selecting alternate tests, they must be specified in scrubbing components. refuge alternative or a component that the approval application. The applicant One commenter stated that there is incorporates new knowledge or must demonstrate that the alternate tests difficulty in controlling humidity to technology, if the applicant these extremely tight tolerances and that will assure the same degree of demonstrates that the refuge alternative there is difficulty in measuring relative protection as that provided in this final or component provides no less humidity to the required level of rule. There were no comments on the protection than those meeting the precision in the proposed rule. The proposal; the final rule is the same as requirements of the final rule. Because commenter added that very high quality the proposal. some aspects surrounding the use of chilled mirror humidity sensors are Section 7.509 Approval Markings refuge alternatives involve developing typically unable to measure 100 percent technology, MSHA believes that relative humidity to 5 parts in 1,000. Final § 7.509(a), like the proposal, innovations in technology will Other comments included questions requires that each approved refuge continue, resulting in further concerning the temperatures and if they alternative or component be identified improvements in miner safety and were starting values only, and if the four by a legible, permanent approval health. The final rule would permit temperatures were to be maintained marking that is securely and applicants to incorporate technological throughout the test. Another comment conspicuously attached to the improvements so long as they provide recommended that the requirements component or its container. The equivalent protection to that in the final specify that the addition of water vapor marking should be placed to avoid rule. into the testing chamber be maximized damage or removal. MSHA believes that credible scientific at the metabolic rate being simulated. Final § 7.509(b) clarifies the proposal research supports the use of refuge The proposed tolerances for humidity and requires that each approval marking alternatives. Refuge alternatives are were based on an instrument be inscribed with the component’s technologically feasible. They use specification and not a measurement MSHA approval number, and any commercially available technology that specification. However, based on additional markings required by the can reasonably be integrated into most comments, MSHA believes that there approval. The final rule clarifies coal mining operations dependent upon could be difficulty in measuring relative MSHA’s intent that the approval specific physical characteristics of the humidity to the proposed level of marking be ‘‘inscribed with the mine. MSHA recognizes that using precision. Therefore, MSHA has component’s MSHA approval number’’ refuge alternatives in low coal mines changed the proposed tolerances for rather than ‘‘include the refuge could be problematic. Certain types of ± relative humidity to 5 percent. alternative’s and component’s MSHA refuge alternatives may not be feasible Under the final rule, MSHA has not approval number’’. In addition, the final in low coal mines. During the changed the proposed tolerances for rule does not include the proposed rulemaking process and at each of the temperature. Temperature must be expiration date. public hearings, MSHA specifically measured inside the refuge alternative, solicited comment on the use of refuge and held constant within the tolerances Final paragraphs (a) and (b) assure alternatives in low coal mines, and of ±4 °F. Tests should simulate the that only approved materials and asked that commenters be specific occupancy and accurate metabolic rates components are used in refuge including alternatives, rationale, safety per number of persons. alternatives. MSHA did not receive any benefits to miners, technological and Final paragraph (c)(4) is new and comments on the proposal. The final economic feasibility, and supporting requires that testing demonstrate the rule makes clarifications, but is data. component’s continued ability to substantively the same as the proposal. One commenter stated that miners at remove harmful gases effectively Final § 7.509(c), like the proposal, low coal mines deserve the same throughout its designated shelf-life, requires that each refuge alternative protection as those working in high specifically addressing the effects of structure provide a conspicuous means seams. Another commenter stated that storage and transportation. for indicating an out-of-service status, prefabricated units are available as short One commenter requested that the including the reason it is out of service. as 27 inches for low coal. The NIOSH harmful gas removal component be This requirement will provide report stated that ‘‘it may be impractical subjected to shock testing prior to information necessary for maintenance to implement viable refuge alternatives approval. In response to this comment, and repair. in the few mines that operate in very
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low coal, e.g., less than 36 inches.’’ In must describe it in the mine’s roof availability of compressed oxygen and response to commenters’ concerns control plan. MSHA agrees that with air. regarding the ability to maneuver, proper advance planning, additional During the rulemaking process and at deploy, or use larger units in mines with roof support may not be necessary in all all the public hearings, MSHA requested low seam heights, the final rule has cases. The final rule requires additional specific comments on the visual damage changed the proposed volume support, if necessary. If the roof support that would be revealed during the requirements to take mining height into in the operator’s existing plan is preshift examinations, and asked that consideration. sufficient to protect the refuge commenters be specific including MSHA believes that the requirements alternative, the operator must so state. alternatives, rationale, safety benefits to in the final rule are feasible. Refuge miners, technological and economic Section 75.313 Main Mine Fan feasibility, and supporting data. The alternatives are currently being Stoppage With Persons Underground manufactured for, and some are Agency was concerned with the currently in place in, underground coal Final § 75.313(f) clarifies the proposal feasibility and practicality of visually mines. The Agency will continue to and requires that any electrical checking the status of refuge alternatives work with NIOSH and the mining components exposed to the mine without having to enter the structure or community as refuge alternative atmosphere be approved as intrinsically break the tamper-evident seal. technology continues to evolve and will safe for use during fan stoppages. It also Commenters supported examinations inform the mining community of any requires that any electrical components of refuge alternatives, but offered changes in technology. MSHA located inside the refuge alternative be differing opinions on the extent and recognizes that it may not be feasible in either approved as intrinsically safe or frequency of these examinations. Some every case to install a refuge alternative approved as permissible for use during commenters supported preshift in accordance with all of the fan stoppages. examinations, while others supported requirements in the final rule. In Commenters generally supported the weekly examinations, examinations addition, MSHA recognizes that some proposal that electric-powered following relocation, or examinations aspects of refuge alternatives involve components operated during fan based on the manufacturer’s developing technology, for example, stoppages be intrinsically safe. Some recommendations. In addition, some suggested that permissible electrical wireless communications facilities and commenters favored examinations of the equipment that is located inside the means of controlling the temperature exterior and some of the interior refuge alternative also be allowed to inside refuge alternatives. components based on the design, while All refuge alternative components are operate during fan stoppages. others favored only exterior Mine explosions, mine fires, and coal currently available. MSHA may approve examinations. bumps and bounces may compromise refuge alternatives or components that Most commenters agreed with MSHA the mine ventilation system resulting in incorporate new technology, if the that refuge alternatives may be damaged a mine fan stoppage. A refuge applicant demonstrates that the refuge by persons, mining equipment, or the alternative that is normally located in mine environment. Damage may also alternative or components provide no intake air may be exposed to a occur when the unit is moved. Damage less protection than those meeting the potentially explosive mixture of could consist of sheared bolts or dents requirements of the final rule. methane in the aftermath of a mine which affect the proper functioning of B. Part 75 Safety Standards emergency. Similar to existing the unit. Also, compressed gas storage § 75.313(e), the final rule clarifies systems may leak. Section 75.221 Roof Control Plan MSHA’s intent that only approved Due to the critical purpose of refuge Information intrinsically safe electrical components alternatives, the final rule requires that Final § 75.221(a)(12), like the that are exposed to the mine atmosphere refuge alternatives be examined as part proposal, requires that the operator are allowed to be operated during fan of the preshift examination. Because describe the roof and rib support stoppages. However, electrical preshift examinations occur on a routine necessary for the refuge alternative in components that are located inside the basis, they will assure that potentially the roof control plan. Some commenters refuge alternative would not be exposed dangerous conditions are detected and supported the proposal. Other to an explosive mixture of methane. The corrected before refuge alternatives are commenters stated that the roof support atmosphere inside the refuge alternative used and that the refuge alternatives are specified in the mine’s roof control plan is isolated, secure, and monitored for operational when needed. should be sufficient and that additional harmful gases. Therefore, after Some commenters requested roof support may not be necessary in all considering comments, the final rule clarification of the extent or degree of cases. clarifies MSHA’s intent by including a the examination. Under this final rule, Roof and rib falls could damage a provision that electrical components the preshift examination consists of an refuge alternative and compromise its located inside the refuge alternative be examination of the complete structure integrity. Humidity, fire, vibration, either approved as intrinsically safe or that is made without entering the unit shock, and thermal effects may require approved as permissible for use during to detect visible damage to the refuge the use of additional roof support for fan stoppages. alternative structure and damage to the areas housing refuge alternatives. Due to tamper-evident seal. The examination the vital role of refuge alternatives in the Section 75.360 Preshift Examination at includes observing the gauges showing event of an emergency, mine operators Fixed Intervals the ready availability of compressed must plan for their location and assure Final § 75.360(d) makes an editorial oxygen and air. The examination should that they are adequately protected from change, but is substantively the same as include observing the battery status and possible roof and rib falls. MSHA the proposal. It requires that the person testing the communications system. If encourages the mine operator to prepare conducting the preshift examination the preshift examination reveals that the locations for refuge alternatives in check the refuge alternative for damage, tamper-evident seal or other evidence advance. If additional roof or rib the integrity of the tamper-evident seal indicates unauthorized entry or support is needed to protect these units and the mechanisms required to deploy tampering, further examination of the at the selected locations, the operator the refuge alternative, and the ready refuge alternative and components
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should be conducted to assure that the on the mine map relative to the location The final rule is consistent with NIOSH unit, components, and provisions are of each refuge alternative every time findings that refuge alternatives have not damaged and that components and that either is relocated. Moreover, the potential for saving lives if they are provisions are not missing. Following existing § 75.1202–1 already requires part of a comprehensive escape and this examination, the seal or other that the mine map be kept up-to-date by rescue plan and if appropriate training means should be immediately replaced. temporary notations. Final § 75.1200– is provided. MSHA received no Section 75.372 Mine Ventilation Map 1(n) addressing the location of refuge comments on this proposal. alternatives on the mine map is added Final § 75.372(b)(11), like the Final paragraph (c)(4)(vi), like the to be consistent with other requirements proposal, requires that the program of proposal, requires that the location of all in part 75. refuge alternatives be shown on the instruction include using refuge mine ventilation map. Some Section 75.1202–1 Temporary alternatives. Although MSHA expects commenters supported the proposal. Notations, Revisions, and Supplements that miners would occupy refuge One commenter opposed the proposal Final § 75.1202–1(b)(4), like the alternatives only if evacuation is not stating that the location of each refuge proposal, requires the new location of a possible, they need to know how to alternative should only be indicated on refuge alternative to be shown on the deploy and use the refuge alternative in the escapeway map. mine map with temporary symbols each the event of an emergency. MSHA did This requirement facilitates an time it is moved. MSHA received one not receive comments on this proposal. evaluation of the effectiveness of a comment supporting this proposal. Final paragraph (c)(8), like the potential refuge alternative location. Knowing the locations of refuge proposal, requires that the program of The location of the refuge alternative in alternatives is critical to effective instruction include the locations of relationship to potential hazards such as decision-making during rescue refuge alternatives. The locations of seals and oil and gas wells will be operations; refuge alternatives must be refuge alternatives may be critical for evaluated during the ventilation map kept current on the mine map. The final persons who are involved in mine review. The mine ventilation map is rule is the same as the proposal. emergencies. MSHA did not receive often used as a reference during mine comments on this proposal. rescue efforts. Plotting refuge Section 75.1500 Emergency Shelters alternatives on the ventilation map and In the final rule, like the proposal, Final paragraph (c)(10) is changed knowing their accurate locations could § 75.1500 is removed and reserved. The from the proposal and requires a aid decisions during rescue operations. statutory provisions are being deleted summary of the procedures related to and replaced with specific requirements deploying refuge alternatives. This Section 75.1200–1 Additional requirement applies to all types of Information on Mine Map for refuge alternatives in existing §§ 75.1501, 75.1502, 75.1504, and refuge alternatives in approved ERPs. In the final rule, MSHA has added 75.1505 and new §§ 75.1506, 75.1507, The final rule contains an editorial new § 75.1200–1(n) to clarify the 75.1508, and 75.1600–3. MSHA change. It changes the term ‘‘activating’’ proposal that the locations of refuge received one comment supporting the to ‘‘deploying.’’ In addition, the alternatives are additional information proposal. proposed requirement for a summary of that must be shown on the mine maps procedures related to ‘‘constructing’’ required under existing § 75.1200. Section 75.1501 Emergency refuge alternatives is moved to final Commenters generally supported Evacuations paragraph (c)(11). including this information on the mine Final § 75.1501(a)(1), like the Final paragraph (c)(11) redesignates map. One commenter stated that the proposal, requires that the responsible and clarifies proposed paragraph (c)(10). mine communication system and its person know the locations of refuge Final paragraph (c)(11) requires a relationship to the location of each alternatives. MSHA received one summary of construction methods for 15 refuge alternative should be identified comment supporting the proposal. psi stoppings constructed prior to an on the official mine map every time that Under the final rule, the designated event. Final paragraph (c)(11) clarifies either is relocated. The commenter also responsible person must have current MSHA’s intent that a summary of stated that the refuge alternative knowledge of the locations, types, and procedures related to ‘‘constructing’’ location should be posted on the mine capacities of refuge alternatives to make refuge alternatives applies to refuge map no later than the end of the shift necessary informed mine evacuation alternatives consisting of 15 psi following relocation. One commenter decisions in the event of an emergency. stoppings that will be built prior to an opposed the proposal stating that the event that traps miners. refuge alternatives should only be Section 75.1502 Mine Emergency indicated on the escapeway map. Evacuation and Firefighting Program of Final paragraph (c)(12) is redesignated The existing § 75.1200 mine map Instruction from proposed paragraph (c)(11), and forms the basis for decisions made Final § 75.1502(c)(3), makes an requires a summary of the procedures during mine rescue efforts. Plotting editorial change, but is substantively the related to refuge alternative use. refuge alternatives on the mine map same as the proposal, and requires that The summaries required under final allows the mine rescue decision makers instruction in the deployment, use, and paragraphs (c)(10) through (12) provide to determine where miners may be maintenance of refuge alternatives be the information necessary for the miners sheltered after a mine emergency. This added to the mine emergency to review during training. The information will be critical to mine evacuation program of instruction. This summaries should include all of the rescue personnel in locating trapped requirement assures that miners are able step-by-step procedures in a manner persons. Because each refuge alternative to effectively deploy and use refuge easily understood by miners. For easy must have a communication facility that alternatives in case of an emergency. It availability, mine operators should is part of the mine communication also assures that miners are able to consider laminated cards or other system, this final rule does not include maintain the refuge alternative, by equally durable forms of summaries for a provision requiring the mine repairing or correcting any problems use by miners during training. Several communication system to be identified that may develop during storage or use. commenters supported the proposal.
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Section 75.1504 Mine Emergency able to deploy and use the refuge to deploy and use the various Evacuation Training and Drills alternative and components safely in an components to sustain life until Final § 75.1504(b)(3)(ii), like the emergency. MSHA’s Office of rescued. During each quarterly drill, proposal, requires that in quarterly Educational Policy and Development miners would be required to locate the training and drills, miners locate refuge will assist mine operators with the refuge alternatives and review the alternatives. In addition, final paragraph development of job task analysis and deployment and use of the refuge (b)(4)(ii), like the proposal, requires that training materials such as videos to alternative for the area where the miners in quarterly training and drills, miners improve the quality and effectiveness of normally work and travel. Final § 75.1504(c)(1) and (2), like the review locating refuge alternatives on programs of instruction. In addition, NIOSH is developing a refuge proposal, make editorial changes to the mine and escapeway maps, the alternative training program that is existing paragraph (c)(1). Final firefighting plan, and the mine expected to be available the first quarter paragraph (c) requires that over the emergency evacuation plan. Both of calendar year 2009. course of each year, each miner must requirements provide necessary Final paragraph (b)(9), redesignated participate in expectations training. information to miners in the event of an from proposed § 75.1508, requires that Under final paragraph (c)(1), annual emergency. in quarterly training and drills, miners expectations training must include Final paragraph (b)(6) changes and receive task training in proper donning and transferring SCSRs in clarifies the proposal and requires that, transportation of refuge alternatives and smoke, simulated smoke, or an in quarterly training and drills, miners components. To minimize potential equivalent environment. Under final review the procedures for deploying damage when they are moved, miners paragraph (c)(2), annual expectations refuge alternatives and components. need to be aware of the safe procedures training must include breathing through This requirement applies to all types of necessary to transport refuge a realistic SCSR training unit that refuge alternatives in approved ERPs. alternatives and components. This provides the sensation of SCSR airflow This final rule makes editorial changes. training should include information on resistance and heat. It changes the term ‘‘activating’’ to all connections necessary for Final § 75.1504(c)(3)(i) and (ii) make ‘‘deploying’’ and the term ‘‘checklist’’ to transportation, such as tow bars, an editorial change, but are ‘‘procedures.’’ clevises, and hitches. substantively the same as the proposal, Final paragraph (b)(7) redesignates This final rule, like the proposal, and require annual expectations training and clarifies proposed paragraph (b)(6). adopts a training approach that consists on deployment and use of refuge Final paragraph (b)(7) requires that, for of both quarterly training and drills alternatives similar to those in use at the miners who will be constructing the 15 under final § 75.1504(b) and annual mine, including deployment and psi stoppings prior to an event, miners expectations training, i.e., simulated operation of component systems and review the procedures for constructing hands-on training, under final emphasizing that refuge alternatives are them. Miners constructing a 15 psi § 75.1504(c). The best refuge technology, the last resort when escape is stopping must receive training for the equipment, and emergency supplies are impossible. This requirement is correct materials and procedures to be of little benefit if they are misused or consistent with the NIOSH report. used prior to construction. Final not used at all. In addition, final paragraph (c)(4), paragraph (b)(7) clarifies MSHA’s intent MSHA has identified problems redesignated from existing that the quarterly training on refuge related to skill degradation in § 75.1504(c)(2) and like the proposal, alternatives consisting of 15 psi emergency evacuations of mines. In a requires that a miner participate in stoppings constructed prior to an event series of studies from 1990 through expectations training within one quarter applies to miners who will be 1993, the U.S. Bureau of Mines, of being employed at the mine. This constructing these types of units. These University of Kentucky, and MSHA could be accomplished during new types of refuge alternatives will be built researchers measured skills degradation. miner or newly employed miner prior to an event that traps miners. In one study, the proficiency rates training. Comments on types of refuge dropped about 80 percent in follow-up Under this final rule, the expectations alternatives permitted under this final evaluations conducted about 90 days training requires an annual realistic rule are discussed elsewhere in this after training. MSHA recognizes that experience of deploying and using a preamble under § 75.1507(a)(1). with any non-routine task, such as refuge alternative in a simulated Final paragraph (b)(8), redesignated deploying and using a refuge alternative emergency situation. This training could from proposed paragraph (b)(7), requires or component, knowledge and skill be combined with existing expectations that in quarterly training and drills, diminish rapidly. The final rule reflects training. miners review the procedures related to MSHA’s conviction that frequent and During the rulemaking process and at use of refuge alternatives and effective refuge alternative training is each of the public hearings, MSHA components. Miners need to be aware of necessary to assure miner proficiency. solicited comment on the proposed how to use a refuge alternative safely in Emergencies can result in miner strategy and the proposed elements of the event of an emergency. This disorientation and panic. Using sound training, and asked that commenters be information will be critical for miners judgment in a given emergency can be specific including alternatives, who need to spend a sustained period critical for survival. Based on MSHA’s rationale, safety benefits to miners, in a refuge alternative. Procedures knowledge and experience, MSHA technological and economic feasibility, should include the step-by-step process believes that quarterly training and and supporting data. Some commenters necessary for miners to use the refuge drills together with annual expectations supported the annual expectations alternative or component and be easily training is a reasonable approach to training requirements, agreeing with understood by miners. Manufacturers instill the discipline, confidence, and MSHA that such training is necessary to generally provide information on the skills necessary to survive a mine assure miner proficiency in the safe use of their products. emergency. This final rule improves deployment and use of refuge As with any non-routine task, miner training and helps assure that alternatives. Other commenters either knowledge and skill diminish rapidly. underground coal miners know when to opposed expectations training or stated This final rule assures that miners are use a refuge alternative and know how that the training should be limited and
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should not include actual activation or alternative. Commenters supported the structural components of refuge miners’ exposure to heat and humidity. proposal. alternatives consisting of 15 psi Other commenters generally supported Inclusion of refuge alternatives and stoppings constructed prior to an event the provisions on training and drills, but SCSR storage locations on the must be approved by the District some expressed concern that all aspects escapeway map and requiring the map Manager, and the breathable air, air of deploying and maintaining a refuge to be posted or readily accessible at the monitoring, and harmful gas removal alternative be covered during hands-on refuge alternatives can be vital to the components of these units must be training and that this hands-on training survival of miners during mine approved under 30 CFR part 7. should occur every 90 days. emergencies. Escapeway maps form the A few commenters expressed concern Based on MSHA’s knowledge and basis for decisions made during mine regarding the approval requirements for experience, the Agency believes that evacuation. Having escapeway maps on the types of refuge alternatives and expectations training will help hand for miners will facilitate important components. One commenter stated that minimize panic and anxiety associated decision making. the proposal did not specify which with using refuge alternatives and Final § 75.1505(b), like the proposal, components needed approval components. NIOSH supports requires that all escapeway maps be concerning the different types of refuge expectations training to reduce the level kept up-to-date, and that any change in alternatives. Final § 75.1506(a)(1) and of panic and anxiety associated with the the location of refuge alternatives be (a)(2) clarifies the types of refuge shown on the map by the end of the use of refuge alternatives.4 Properly alternatives and components and the shift on which the change is made. deploying a refuge alternative or approval requirements applicable to Commenters supported the proposal. component can be a relatively complex each unit. These requirements are Escapeway maps are the primary consistent with MSHA’s statement in procedure that must be done correctly to source of information needed by miners establish a breathable air environment the preamble to the proposal that, as as they are evacuating the mine. appropriate, MSHA would approve the in a smoke-filled mine. Miners would Locations of refuge alternatives are have to deploy the refuge alternative, refuge alternatives and components critical to decisions made during under either part 7 or by the District purge the atmosphere, and turn on the evacuation efforts and must be kept Manager depending on the type of breathable air and maintain a viable current on the escapeway map. refuge alternative and components (73 atmosphere. In addition, the operation FR 34160). MSHA will accept, as good of most refuge alternatives and Section 75.1506 Refuge Alternatives faith evidence of compliance with final components requires periodic This section requires that mine § 75.1506(a)(1) and (a)(2), a copy of a monitoring of and adjustments to the operators provide refuge alternatives to valid, bona fide, written purchase order gases to assure a breathable atmosphere. accommodate all persons working with a confirmed delivery date for an Failure to correctly perform these tasks underground and specify criteria for the approved unit. may imperil the lives of persons within use and maintenance of refuge Final paragraph (a)(3) is new and the refuge alternative. MSHA envisions alternatives. MSHA believes that refuge provides that prefabricated refuge the use of a reusable training model of alternatives will provide a refuge of last alternative structures that states have the refuge alternative in the mine for resort for miners unable to evacuate the approved and those that MSHA has this purpose when they become mine during an emergency. By accepted in approved Emergency available. providing the essential elements of Response Plans (ERPs) that are in In addition, training must include survival (breathable air, water, food, service prior to the effective date of the deployment of the refuge alternative and communications, etc.) the likelihood of rule (60 days after date of publication), components within it, including miners surviving an inhospitable post- are permitted until December 31, 2018, adjustments to the breathable air and emergency environment would be or until replaced, whichever comes first. harmful gas removal components. The increased. MSHA realizes that a flexible In addition, breathable air, air- training must emphasize that, in the approach to providing refuge monitoring, and harmful gas removal event of an emergency, miners should alternatives is necessary due to the wide components of either a prefabricated first try to evacuate the mine and that range of mining conditions (mining self-contained unit or a unit consisting refuge alternatives are the option of last height, pitch, mining method, and mine of 15 psi stoppings constructed prior to resort when escape is impossible. layout) that exist in underground coal an event in a secure space and an Although this final rule does not mines. To address these widely varying isolated atmosphere that states have include a minimum time for this conditions, in the final rule, MSHA has approved and those that MSHA has training, the training should provide taken a performance-based approach to accepted in approved ERPs that are in miners with adequate time to perform refuge alternatives. For example, the use prior to the effective date of the rule all of the necessary tasks and give them refuge alternative has to provide for (60 days after date of publication), are a realistic experience of deploying and essential needs of occupants, but the permitted until December 31, 2013, or using the refuge alternatives and final rule does not require specific until replaced, whichever comes first. components. methods, equipment, or devices. Further, refuge alternatives consisting Final paragraph (a) clarifies MSHA’s of materials pre-positioned for miners to Section 75.1505 Escapeway Maps intent in the proposal that refuge deploy in a secure space with an Final § 75.1505(a), like the proposal, alternatives and components must be isolated atmosphere that MSHA has requires that an escapeway map include approved as specified in paragraphs accepted in approved ERPs that are in refuge alternatives and SCSR storage (a)(1) and (a)(2). Final paragraph (a)(1) use prior to the effective date of the rule locations. In addition, paragraph (a)(3), requires that prefabricated self- (60 days after date of publication), are like the proposal, requires that the contained refuge alternatives, including permitted until December 31, 2010, or escapeway map be posted or readily the structural, breathable air, air until replaced, whichever comes first. accessible for all miners at the refuge monitoring, and harmful gas removal MSHA received several comments components of the unit, must be regarding the grandfathering of refuge 4 NIOSH, Research Report on Refuge Alternatives approved under 30 CFR part 7. alternatives and components that states for Underground Coal Mines (2008), p. 14. Paragraph (a)(2) requires that the have approved or that MSHA has
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accepted in approved ERPs. Some whichever comes first. Provisions such impossible, a refuge alternative must be commenters stated that MSHA should as communications, lighting, food, available for all persons working unconditionally accept state-approved water, sanitation, first aid, parts and underground. Under the final rule, units. Most of these commenters stated materials for repair, and tools, etc., must refuge alternatives must have sufficient that MSHA should accept state- be replaced within 5 years, if shelf life capacity to accommodate state and approved refuge alternatives based on limits so require. federal inspectors who can reasonably the manufacturer’s suggested service Regarding refuge alternatives be expected to be working underground. life, or for as long as they function consisting of materials pre-positioned Final paragraph (b)(1), is redesignated effectively, and not limit use to 10 years. for miners to deploy in a secure space from proposed paragraph (a)(1), and like A commenter stated that manufacturers with an isolated atmosphere that have the proposal requires that refuge who have successfully completed an been approved in ERPs, MSHA has alternatives provide at least 15 square approval by a state mine health and determined that these units need to be feet of floor space per person. It safety agency should be allowed to phased out due to potential issues modifies the proposed 60 cubic feet of submit those materials in support of the associated with deploying these units in volume per person to 30 to 60 cubic feet proposal and that the results be treated a secure space with an isolated per person, which takes entry height as those from an approved third-party atmosphere after an event. MSHA has into consideration according to the testing laboratory. determined that 2 years from the date of following chart. It also provides that the Other commenters, however, stated publication of the rule is a reasonable airlock can be included in the space and that MSHA should not accept time to replace these units. volume if waste is disposed outside the previously approved refuge alternatives Under this final rule, a refuge refuge alternative. if they do not meet the requirements of alternative structure that has been approved and is in service or the proposal. In addition, several Unrestricted commenters stated that some items such components that have been approved volume (cubic as permissible mine phone and and are in use, but require replacement Mining height (inches) feet) per flashlight batteries, food packets, and due to damage, must be replaced with person* water either have no specified shelf life a unit or components that meet the or a shelf life longer than 5 years. Other requirements of the final rule. 36 or less ...... 30 >36¥≤42 ...... 37 .5 commenters stated that some For prefabricated refuge alternative ¥≤ structures that states have approved and >42 48 ...... 45 components such as a harmful gas >48¥≤54 ...... 52 .5 removal component can last longer than those that MSHA has accepted in >54 ...... 60 5 years. approved Emergency Response Plans MSHA considered different periods (ERPs) that are in service, i.e., in the * Includes an adjustment of 12 inches for for allowing approved refuge mine, prior to the effective date of the clearances. alternatives and components that do not rule, March 2, 2009, the District The volume per person includes an meet the approval requirements of the Manager may accept, in lieu of the ‘‘in adjustment of 12 inches based on two final rule. MSHA is aware that some service’’ requirement of this factors: (1) 6 inches is necessary to prefabricated refuge alternative grandfathering provision, a copy of a allow for clearance of the refuge structures may last longer than 10 years valid, bona fide, written purchase order alternative to be moved; and (2) the and that some components may last entered into by the effective date of the usable interior height of the refuge longer than 5 years. However, MSHA rule, March 2, 2009, provided that the alternative is reduced by 6 inches for has determined that it must evaluate the purchase order contains a confirmed the roof and floor beams resulting in a commenters’ suggestions on the service delivery date prior to December 31, minimum of 60 cubic feet of available life of the prefabricated refuge 2009. MSHA expects first year volume per person for mining heights alternative’s structure and the other approvals to be completed by December above 54 inches with gradually components within the context of 31, 2009, and refuge alternatives decreasing minimum volume establishing a reasonable time for delivered after this date must be requirements for mining heights in manufacturers to meet the safety and approved units. between. approval requirements of this final rule. Final § 75.1506(b), redesignated from As an example, a 36-inch mine height Accordingly, the final rule allows proposed paragraph (a), requires that, is reduced by 6 inches for clearance and prefabricated refuge alternative except as permitted under paragraph 6 inches for inside beams leaving 24 structures that states have approved and (a)(3) of this section, each operator must inches or 2 feet. The 24 inches or 2 feet those that MSHA has accepted in provide refuge alternatives with multiplied by 15 square feet of floor approved ERPs that are in service prior sufficient capacity to accommodate all space equals a minimum of 30 cubic feet to the effective date of the rule (60 days persons working underground. of volume per person in the lowest after date of publication), to be used Commenters generally supported the mining conditions, i.e., 36 inches or until replaced or 10 years after date of proposal. One commenter stated, publication, whichever comes first. however, that an operator can easily less. The requirements are intended to The final rule also allows breathable address the capacity of refuge mean that persons would have free air, air monitoring, and harmful gas alternatives for its employees, but that space without obstruction from removal components of either a the operator has no control over the components or stored items. prefabricated self-contained unit or a number of state and federal inspectors During the rulemaking process and at unit consisting of 15 psi stoppings that may be present at any time in the each of the public hearings, MSHA constructed prior to an event in a secure mines. Another commenter questioned requested comments on the proposed space and an isolated atmosphere that the need to accommodate all persons in requirement of at least 15 square feet of states have approved and those that refuge alternatives. floor space and 60 cubic feet of volume MSHA has accepted in approved ERPs As the Agency has stated many times per person, particularly in low mining that are in use prior to the effective date during this rulemaking process, MSHA heights, and asked that commenters be of the rule (60 days after date of believes that escape to the surface is specific including alternatives, publication), to be used until replaced more protective than using a refuge rationale, safety benefits to miners, or 5 years after date of publication, alternative. However, when escape is technological and economic feasibility,
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and supporting data. Comments on the economic feasibility, and supporting Another commenter said that MSHA proposed space and volume data. Some commenters supported the should eliminate existing § 75.1100–2(i), requirements, including MSHA’s proposed requirement for refuge which requires emergency materials, rationale for its decision in the final rule alternatives for outby areas, but stated because no one would use them when are addressed elsewhere in this that these refuge alternatives should refuge alternatives are available. The preamble under final § 7.505(a)(1) either be sized for section miners emergency materials listed in this concerning structural components. working near the belt drive outby or be existing standard are required for Final paragraph (b)(2) is redesignated adequate to house all personnel that are firefighting and would not affect this from proposed paragraph (a)(2), and like working in that area and not just those final rule. the proposal, requires that refuge who are regularly assigned to that area. Final paragraph (c), redesignated from alternatives for working sections Other commenters opposed the proposed paragraph (b), addresses accommodate the maximum number of proposal. Some stated that, based on 12 locations for placement of refuge persons that can be expected on or near past mining disasters, refuge alternatives. Final paragraph (c)(1) the section at any time. alternatives for outby areas would not requires that refuge alternatives be During the rulemaking process and at have been beneficial to the outcome of located within 1,000 feet from the each of the public hearings, MSHA the tragedy. Others stated that the nearest working face and from locations solicited comments on the proposed presence of escape shafts or other means where mechanized mining equipment is approach to refuge alternative capacity, of exiting the mine could eliminate the being installed or removed, except that and asked that commenters be specific requirement for outby refuge for underground anthracite coal mines including alternatives, rationale, safety alternatives, or that the need for refuge that have no electrical face equipment, benefits to miners, technological and alternatives for outby areas should be refuge alternatives must be provided if economic feasibility, and supporting determined on a case-by-case, site- the nearest working face is greater than data. Some commenters stated that it is specific basis. 2,000 feet from the surface. impossible to determine, in advance, Under this final rule, if persons work During the rulemaking process and at how many inspectors, vendors, or other in an outby area that is within 30 each of the public hearings, MSHA persons may be present, and therefore, minutes travel time (walking or requested comments on the proposed the normal number of miners exposed crawling) from a portal or surface escape requirement that refuge alternatives be should be the standard. One commenter facility, an outby refuge alternative located between 1,000 feet and 2,000 supported the proposal stating that would not be required. Otherwise, feet from the working face and from using the maximum number of persons MSHA has determined that refuge areas where mechanized mining to determine capacity, such as occurs alternatives are necessary in outby areas equipment is being installed or during ‘‘hot seat’’ changeover of shifts, of the mine to protect persons who may removed, and asked that commenters be is appropriate. The commenter stated: be working in the outby areas. MSHA’s specific including alternatives, The concept of using the shift change to accident data support providing rationale, safety benefits to miners, determine the maximum number of breathable air in the event someone technological and economic feasibility, occupants of a shelter was established by the cannot escape. If a person is in an outby and supporting data. MSHA received West Virginia rules. It was recognized as not area that is further than 30 minutes numerous comments on the proposal. only practical but it provided an almost travel time from a portal or surface Some commenters supported the 100% safety margin for those most likely to escape facility, then they cannot escape proposal stating that a minimum be using a shelter. in accordance with the placement of distance of 1,000 feet decreases the Under the final rule, refuge their SCSR caches, and need a refuge chance of damage to the refuge alternatives for the working sections alternative. MSHA believes that persons alternative from an explosion and must accommodate the maximum working or located outby must be provides more space for maneuvering. number of persons working near the afforded the same protection or refuge Some commenters stated that a greater section. This includes all miners that as those in the face areas. distance from the working face would join those working at the section during Under the final rule, outby refuge decrease the potential damage from a shift change. For example, if a mine alternatives must accommodate the transporting the unit by reducing the has a practice of ‘‘hot seat’’ change-out number of persons reasonably expected number of times the refuge alternative of crews at the face, the refuge to use it. These persons would include would need to be moved. alternative would need to accommodate supply persons, locomotive operators, Many commenters opposed the both crews and any other persons who examiners, state and Federal inspectors, proposal because it conflicted with West would routinely work near the section, pumpers, maintenance persons, belt Virginia’s state law. Some of these such as managers, surveyors, vendors, persons, and other persons who may be commenters suggested that the final rule and state and Federal inspectors. working in the outby areas. Because require refuge alternatives within 2,000 Final paragraph (b)(3), is redesignated § 75.1506(c)(2) of the final rule requires feet of the working face to eliminate from and changed from proposed that outby refuge alternatives be spaced conflict with the West Virginia law. paragraph (a)(3). It requires that each so that persons in outby areas are never Other commenters stated that MSHA refuge alternative in an outby area more than a 30-minute travel distance should specify a maximum distance accommodate persons reasonably from a refuge alternative or a safe exit, from the face, rather than a minimum, expected to use it. the final rule does not require that outby and that the distance should be based During the rulemaking process and at refuge alternatives accommodate all on regional conditions, allowing each of the public hearings, MSHA section miners working near the belt ‘‘within 1,000 feet’’ for refuge solicited comments on the proposed drive outby. In the event that a fire or alternatives in West Virginia mines and requirement that refuge alternatives for explosion occurs in an outby area and ‘‘within 2,000 feet’’ for western mines. outby areas accommodate persons evacuation is not possible, section Several commenters suggested that assigned to work in the outby area, and miners working near the belt drive refuge alternatives be located closer to asked that commenters be specific outby would have access to the refuge the working face, within a few hundred including alternatives, rationale, safety alternative located at the nearest feet. Some commenters stated that benefits to miners, technological and working face. miners would not be able to travel much
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over 1,000 feet through smoke and close to the working face so that persons operators the option of requesting debris, and that the primary refuge can reach it more quickly. However, different locations for refuge alternatives chamber must be within 1,000 feet with MSHA recognizes that refuge to be approved in the ERP. Another other refuge alternatives spaced along alternatives with pre-connected commenter stated that refuge the escapeway. boreholes are superior to other types of alternatives should be 30 minutes In its report, NIOSH recommended refuge alternatives, even though it may walking distance from each other and in that the refuge alternative be located at not be practical or feasible to locate the primary escapeway that miners least 1,000 feet from the working face to them close to the working face that would use in the event of an evacuation. limit damage from explosions at the advances daily, and may not be feasible One commenter stated that the distance working face; but, NIOSH also indicated at all for certain mining conditions. between refuge alternatives should be that it would be advantageous to place MSHA appreciates that some aspects of much shorter than 30 minutes, the refuge alternative as close to the face refuge alternatives involve developing especially when miners are traveling as possible to minimize the time and and innovative technology. Therefore, under emergency conditions. effort required for miners to reach it. the Agency encourages mine operators MSHA believes that it is necessary to The NIOSH report noted that lower to connect each refuge alternative specify distances for locating outby seam heights, difficult bottom located along the escapeway to a refuge alternatives for purposes of conditions, and the presence of smoke, borehole, where feasible and consistency and training. Specifying among other factors, would affect travel appropriate. distances will improve miners’ times. Final paragraph (c)(2), redesignated awareness of the location of these refuge The highest concentration of miners from proposed paragraph (b)(2), requires alternatives. Miners are already aware of underground will be at the working that outby refuge alternatives be spaced SCSR storage locations under the face; therefore, a refuge alternative within 1-hour travel distances in outby Emergency Mine Evacuation final rule. capable of accommodating these miners areas where persons work such that In 2006, in developing the Emergency must be positioned close to the working persons in outby areas are never more Mine Evacuation final rule (71 FR section. In the final rule, MSHA than a 30-minute travel distance from a 71430), MSHA examined how far changed the location requirement based refuge alternative or safe exit. In miners could travel during 30 minutes. on testimony and comments regarding addition, it provides that the operator Existing § 75.1714–4(c)(2) provides two the inability of miners on the working may request and the District Manager methods for determining the 30-minute section to travel over 1,000 feet through may approve a different location in the spacing of SCSR storage locations in smoke and debris to reach the refuge ERP. escapeways. The first method is based alternative, especially if injured or The operator’s request must be based on a sample of typical miners walking exhausted. MSHA also took into on an assessment of the risk to persons a selected length of each escapeway. consideration that the final rule requires in outby areas, considering the The second method is based on average the structural component of refuge following factors: proximity to seals; entry height, specified in the following alternatives to be designed to withstand proximity to potential fire or ignition table, except for escapeways with uphill an explosion. sources; conditions in the outby areas; grades over 5 percent. MSHA is aware that underground location of stored SCSRs; and proximity anthracite coal mines have unique to the most direct, safe, and practical Maximum distance mining conditions. These conditions route to an intake escapeway. MSHA Average entry height between SCSR include the lack of available locations to recognizes that the different locations storage locations place a refuge alternative due to approved in the ERP may require crosscuts on extreme angles. The unique <40 in. (Crawl) ...... 2,200 ft. persons in outby areas to travel farther >40–<50 in. (Duck 3,300 ft. conditions in underground anthracite than 30 minutes to reach a refuge Walk). coal mines make compliance with the alternative. The Agency believes that >50–<65 in. (Walk 4,400 ft. ‘‘within 1,000 feet’’ requirement of the the availability of additional SCSRs, as Head Bent). final rule regarding location required in MSHA’s Emergency Mine >65 in. (Walk Erect) .. 5,700 ft. problematic. Therefore, the final rule Evacuation standard, further assures requires that, for underground that persons in outby areas will be able The table could be used to determine anthracite coal mines with no electrical to reach a refuge alternative if necessary. the locations of the outby refuge face equipment, refuge alternatives must During the rulemaking process and at alternatives based on 30-minute travel be provided if the nearest working face each of the public hearings, MSHA time. is greater than 2,000 feet from the solicited comments on locating refuge According to the table above, SCSR surface. alternatives in outby areas, including storage locations are at 60-minute MSHA also requested comments on the minimum and maximum distances, intervals. Based on the spacing of SCSR an alternative addressed in the preamble and asked that commenters be specific storage locations, outby refuge to the proposal that would allow refuge including alternatives, rationale, safety alternatives may be situated at every alternatives with boreholes to be located benefits to miners, technological and other SCSR storage location along the up to 4,000 feet from the working face. economic feasibility, and supporting escapeway. The final rule does not Some commenters stated that this data. Some commenters stated that the change the proposed 30-minute travel proposed alternative may complement, distance between refuge alternatives in distance because the final rule requires but should never be allowed in place of, outby areas should not be specified; but refuge alternatives to be within 1,000 a refuge alternative near the working generally supported the proposal, feet of the working face. Persons face. Other commenters stated that the including allowing the operator the needing to access outby refuge prescriptive distances unnecessarily option of requesting a different location alternatives are assisted by escapeway limit the use of refuge alternatives with in the ERP. These commenters stated lifelines and SCSR caches. a borehole. that the distance between refuge Final paragraph (d) is redesignated After evaluating all comments and alternatives in outby areas is best from proposed paragraph (c) and, like data, MSHA determined that it is more addressed in the ERP approval process. the proposal, requires that roof and rib protective to have a refuge alternative Other commenters opposed allowing support for refuge alternative locations
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be specified in the mine’s roof control protection intended, the operator must system to locate the refuge alternative in plan. MSHA addresses this requirement withdraw persons from any area when an emergency. Reflective material elsewhere in this preamble under final the refuge alternative serving that area is greatly increases the visibility of the § 75.221 concerning roof control plan removed from service. This does not sign. This requirement is the same as information. MSHA included this include persons performing repairs, existing § 75.1714–4(f), which requires requirement in this standard to assure who should be provided with additional reflective signs on SCSR storage that mine operators adequately prepare SCSRs to assure that they can reach locations. As noted above, miners may locations for refuge alternatives. another refuge alternative. If, however, not be located in escapeways when an Final paragraph (e) is redesignated an approved refuge alternative is emergency occurs. For them, a system of from proposed paragraph (d) and, like provided and maintained as a back-up, directional signs may be critical during the proposal, requires that the operator persons do not have to be withdrawn an emergency. Signs should be posted at protect the refuge alternative and because a functional replacement refuge intersections of the escapeway and the contents from damage during alternative is readily available. crosscut leading to the refuge transportation, installation, and storage. Final paragraph (f)(2) is redesignated alternative. Persons traveling in adjacent Some commenters supported the from proposed paragraph (e)(2) and, like entries would have signs directing them proposal; one commenter opposed it. the proposal, requires that refuge to the refuge alternative. The final requirement assures that care alternative components removed from Some commenters opposed the will be taken to avoid damage to the service be replaced or repaired in proposed requirement that the sign or refuge alternative and contents at all accordance with manufacturer’s marker use the word ‘‘REFUGE.’’ They times. When transporting a refuge specifications. This requirement assures stated that operators should have alternative from one location to another, that the refuge alternative is maintained flexibility to use different terminology attention needs to be paid to procedures in its approved condition to provide the that is more appropriate, such as, such as the use of proper connections protection afforded by approved refuge ‘‘rescue chamber,’’ or ‘‘escape shelters.’’ and devices, such as tow bars, clevises, alternatives at all times. MSHA did not A standardized sign or marker with the and hitches, for transportation. receive comments on this requirement word ‘‘REFUGE’’ will reduce the Final paragraph (f) is redesignated and the final rule is the same as possibility of confusion in an from proposed paragraph (e) and, like proposed. emergency, and will provide an the proposal, requires that a refuge Final paragraph (g) is redesignated additional safety benefit to persons who alternative be removed from service if from proposed paragraph (f). It includes work in different mines because they examination reveals damage or an editorial change, but is substantively would not have to become familiar with tampering that could interfere with the the same as the proposal, and requires new terminology. Use of the word functioning of the refuge alternative or that, at all times, the site and area ‘‘REFUGE,’’ however, does not preclude any component. Refuge alternatives may around the refuge alternative be kept the use of additional terms on the sign be damaged by persons, mining clear of machinery, materials, and or marker to identify the refuge equipment, or the mine environment. obstructions that could interfere with alternative. Therefore, the final rule The final rule requires that damage must the deployment or use of the refuge makes no change to the proposal. be evaluated and, as noted above, if alternative. Final paragraph (i) has been added to damage or tampering could interfere One commenter stated that it may be make part 75 consistent with with the functioning of the refuge impractical to keep materials from § 7.506(b)(2) of the approval alternative or its components, it must be blocking access to or use of the refuge requirements. It requires that, during removed from service. For the safety of alternative. To protect persons during use of the refuge alternative, the the persons who would need to use the an emergency, the site and area around atmosphere within the refuge alternative refuge alternative, removal should occur the refuge alternative must be easily must be monitored. It further requires immediately. For example, if a preshift accessible. Areas around refuge that changes or adjustments must be examination reveals a leak in a alternatives must be maintained without made to reduce the concentration of compressed gas storage system, the obstructions that hinder access to the methane to less than 1 percent; to refuge alternative must be removed from refuge alternative. This requirement is reduce the concentration of carbon service since it would be unable to necessary to assure the availability of dioxide to 1 percent or less, and provide breathable air in an emergency. the refuge alternative and the excursions not to exceed 2.5 percent; MSHA did not receive comments on survivability of persons who need to use and to reduce the concentration of this proposal and the final rule is the it. carbon monoxide to 25 ppm or less. same as proposed. Final paragraph (h) is redesignated Oxygen must be maintained at 18.5 to Final paragraph (f)(1) is redesignated from proposed paragraph (g) and, like 23 percent. from proposed paragraph (e)(1) and, like the proposal, requires that each refuge The occupants of the refuge the proposal, requires the operator to alternative be conspicuously identified alternative must follow the monitoring withdraw all persons from the area with a sign or marker. Under final procedures included with the air- serviced by the refuge alternative if the paragraph (h)(1), like the proposal, the monitoring component. This refuge alternative is removed from sign or marker must be made of requirement was proposed in the service, except those persons referred to reflective material with the word approval requirements and is included in § 104(c) of the Mine Act. ‘‘REFUGE’’ and must be posted in the safety standards to clarify Some commenters supported the conspicuously at each refuge MSHA’s intent that operators take proposed requirement. Other alternative. Under final paragraph (h)(2), appropriate actions to assure that commenters opposed the proposal like the proposal, a directional sign persons will operate the refuge stating that MSHA should allow miners must be made of reflective material and alternative safely and properly. to continue working in the area if the must be posted leading to each refuge Final paragraph (j) has been added to operator provides an alternative that alternative location. make part 75 consistent with provides equivalent protection. This requirement provides a quick § 7.504(c)(6) of the approval Because an inoperable or damaged way for persons not in escapeways and requirements. It requires that refuge refuge alternative does not provide the therefore not able to use the lifeline alternatives contain a fire extinguisher
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that meets the requirements for portable this type of refuge alternative is a unit MSHA has determined, based on further fire extinguishers used in underground consisting of 15 psi stoppings analysis, and the testimony and coal mines under this part; that the fire constructed prior to an event in a secure comments, that using pre-positioned extinguisher is appropriate for fires space and an isolated atmosphere. It is materials to construct a secure space involving the chemicals used for important to note that under the final after a fire or explosion could be harmful gas removal; and that it uses a rule, MSHA’s intent is that these refuge problematic. low-toxicity extinguishing agent that alternatives would be built and in place Final paragraph (a)(2), like the does not produce a hazardous by- prior to an emergency. The breathable proposal, requires that the ERP include product when activated. This air, air monitoring, and harmful gas procedures or methods for maintaining requirement was proposed in the removal components of this unit are approved refuge alternatives and approval requirements and is included placed in a cross-cut or dead-end entry components. One commenter stated that in the safety standards to clarify and stoppings create a secure area with repair capability is limited during MSHA’s intent that operators provide an isolated atmosphere. The approved emergencies. appropriate firefighting protection for components should be ready to be This final rule assures that the refuge refuge alternatives. deployed when miners reach the secure alternative will be maintained during area. The stoppings and doors are built Section 75.1507 Emergency Response storage so that it is available for prior to an emergency and must be able Plan; Refuge Alternatives deployment and use in an emergency. to resist a 15 psi overpressure. Maintenance procedures or methods Final § 75.1507(a), like the proposal, The doors should have a tamper- should include frequent maintenance contains the information on refuge evident seal or other means to indicate checks and replacement schedules for alternatives that the operator must unauthorized entry. The structural components. The final rule is the same include in the ERP. One commenter components of these units must be as proposed. stated that MSHA should not require approved by the District Manager, and Final paragraph (a)(3), like the that the ERP document include all the the breathable air, air monitoring, and proposal, requires that the rated specifications that the manufacturer has harmful gas removal components of capacity of each refuge alternative, the had certified by MSHA. these units must be approved under part The requirement in this final rule number of persons expected to use each 7. refuge alternative, and the duration of assists the District Manager in Refuge alternatives consisting of 15 breathable air provided per person by determining whether the refuge psi stoppings constructed prior to an the approved breathable air component alternative or component meets the event would typically be used in outby of each refuge alternative be included in approval requirements. For refuge areas. If used near the working section, the ERP. alternatives approved under 30 CFR part the stoppings could be removed to allow 7, the ERP would only need to include the components to be moved MSHA received comments on the the information provided by the periodically to the next location and proposed rated capacity and 96-hour approval holder. new stoppings would be needed. duration for breathable air. Those Final § 75.1507(a)(1), like the Some commenters supported, while comments are addressed elsewhere in proposal, requires that the mine others opposed the proposed refuge this preamble under final §§ 7.505(a)(1) operator specify the types of refuge alternative consisting of ‘‘materials pre- and 7.506(b)(1). The final rule is the alternatives and components used in the positioned for miners to construct a same as proposed. mine. The type of refuge alternative is secure space with an isolated Final paragraph (a)(4) is changed from not dependent upon mining height. The atmosphere.’’ Commenters who the proposal and requires that the ERP final rule provides flexibility in the type supported all three types of proposed include the methods for providing of refuge alternatives that will meet the refuge alternatives stated that there are breathable air with sufficient detail of requirements. benefits and drawbacks to each type, but the component’s capability to provide One type of refuge alternative allowed that all three should be allowed because breathable air over the duration stated under the final rule is a prefabricated there is no ‘‘one-size-fits-all’’ solution. in the approval. The proposed self-contained unit. The unit is portable They noted that the size of a unit requirement to include the methods for and may be used near the working face consisting of ‘‘materials pre-positioned’’ removing carbon dioxide is moved to or in outby areas. Prefabricated units may be preferable under some final § 75.1507(a)(8) addressing harmful may consist of structures that are sealed circumstances because the size of the gas removal. to protect against contamination. Refuge unit would not be constrained by the MSHA received comments on the alternatives contain structural, size of the inflatable tent or metal proposed methods for providing breathable air, air monitoring, and structure. Commenters opposed to the breathable air and removing carbon harmful gas removal components. The refuge alternative consisting of dioxide. They are addressed elsewhere structural component of prefabricated ‘‘materials pre-positioned’’ stated that in this preamble under final §§ 7.506 units may consist of steel enclosures constructing a unit during or after an and 7.508. that contain tents that are inflated upon emergency is not a viable solution for Final paragraph (a)(5), like the deployment. Prefabricated self- persons who cannot evacuate because proposal, requires that the ERP include contained units are evaluated under crosscuts cannot be successfully purged methods to provide ready backup MSHA’s approval requirements. after a fire or explosion. Some of these oxygen controls and regulators. The Some commenters expressed concern commenters stated that construction is term ‘‘ready’’ means pre-connected regarding the refuge alternative in the too difficult because of dust, chaos, valves and regulators. Backup oxygen proposal consisting of a secure space injury, inability to see, disorientation, controls and regulators are necessary to constructed in place, with an isolated and fatigue. assure that miners will always have atmosphere. These commenters stated Because of potential issues associated breathable air available in case of that the term ‘‘constructed’’ implies the with miners constructing a secure space component failures. use of a post-event barricade, which has with an isolated atmosphere after an MSHA received comments on back-up not been demonstrated as effective. The emergency, the final rule does not oxygen controls and regulators. Those final rule clarifies the Agency’s intent; include this type of refuge alternative. comments are addressed elsewhere in
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this preamble under final § 7.506. The to clear the refuge alternative of smoke, the refuge alternative according to the final rule is the same as proposed. carbon monoxide, carbon dioxide, and proposal. Final paragraph (a)(6), like the other toxic and irritant gases, fumes, In response to comments, final proposal, requires that the ERP include mists, and dusts that may enter the paragraph (a)(11)(ii) contains a new the methods for providing an airlock refuge alternative through the airlock. provision that the operator may request and the methods for providing MSHA received comments on the and the District Manager may approve breathable air in the airlock, except proposal dealing with harmful gas an alternative location in the ERP if where adequate positive pressure is removal. They are addressed elsewhere mining involves two-entry systems or maintained. The ERP must provide in this preamble under final § 7.508. yield pillars in a longwall that would specific information regarding how the The final rule is the same as proposed. prohibit locating the refuge alternative airlock will provide and maintain Final paragraph (a)(9), like the out of direct line of sight of the working breathable air. When miners enter the proposal, requires that the ERP include face. refuge alternative through the airlock, methods for monitoring gas Some commenters supported the sufficient purge air is necessary to clear concentrations, including charging and proposal stating that it minimizes the airlock of contaminants to minimize calibration of equipment. This damage from the direct forces from an contamination inside the refuge information is essential for MSHA to explosion. Many commenters, however, alternative. Purging or other effective determine that persons inside the refuge opposed the proposed limitations on methods would be necessary, within 20 alternative will be aware of the positioning of refuge alternatives. Some minutes of miners deploying the refuge concentrations of carbon dioxide, commenters stated that the mining plan alternative, for the airlock to dilute the carbon monoxide, methane, oxygen and, and conditions at each mine need to be carbon monoxide concentration to 25 if necessary, other harmful gases considered and that positioning should ppm or less and the methane specific to the mine, inside and outside be assessed on a mine-by-mine basis by concentration to 1.0 percent or less. the structure, including the airlock. It the District Manager in the ERP. Some commenters stated that the proposal on The positive pressure relief should be also assists MSHA in evaluating set at 0.18 psi for refuge alternatives positioning of refuge alternatives is whether the air-monitoring component consisting of 15 psi stoppings unnecessary because the units are meets the requirements for sustaining constructed prior to an event. required to withstand an overpressure of persons for 96 hours. MSHA received comments on the 15 psi under the proposal. Other MSHA received comments on the proposed methods for providing an commenters stated that the proposal airlock and the methods for providing proposal addressing monitoring gas creates the potential for unnecessary breathable air in the airlock. Those concentrations, and charging and risk of: Damaging a prefabricated unit, comments are addressed elsewhere in calibrating equipment. They are because of the difficulty in maneuvering this preamble under final § 7.508(a)(1). addressed elsewhere in this preamble refuge alternatives in and out of The final rule is the same as proposed under final § 7.507 addressing air crosscuts; and injuring miners when the with one editorial change. monitoring components. The final rule unit is moved, because moves in and Final paragraph (a)(7), like the is the same as proposed. out of crosscuts require a lot more proposal, requires that the ERP include Paragraph (a)(10) is substantively the handling. methods for providing sanitation same as the proposal and requires that The final rule assures the availability facilities. Under the approval the ERP include the method for and survivability of the refuge requirements, prefabricated units are providing lighting sufficient for persons alternative and its occupants. Refuge required to be designed to provide a to perform tasks. This requirement alternatives must be positioned so that means to contain human waste assists MSHA in evaluating whether they are easily accessible. In addition, effectively and minimize objectionable persons have adequate light to read positioning refuge alternatives so that odors. Information on sanitation instructions, warnings, and gauges; they are located away from potential facilities in prefabricated units must be operate gas monitoring detectors; and hazards, such as an explosion or fire at contained in the manufacturer’s perform other activities related to the the working face, minimizes the heat or operations manual. For units consisting operation of the refuge alternatives. explosive forces that could affect the of 15 psi stoppings constructed prior to MSHA received comments on the safety of persons in the refuge an event, the operator should provide proposal. They are addressed elsewhere alternative. comparable information in the ERP. The in this preamble under final § 7.504. The final rule is consistent with the final rule assists MSHA in verifying that The final rule includes a non- NIOSH report, which recommended that the refuge alternative has an adequate substantive change, adding the term ‘‘for refuge alternatives be positioned in means for containing or disposing of persons’’ to the requirement. crosscuts, rather than entries, or located waste. Final paragraphs (a)(11)(i) and (ii), in dead-end cuts to decrease the MSHA received comments on the like the proposal, require that the ERP possibility of damage from overpressure proposed requirement dealing with a include suitable locations for the refuge or flying debris from an explosion. means to contain human waste alternatives and that the ERP specify NIOSH also recommended that refuge effectively and minimize objectionable that refuge alternatives are not within alternatives be located away from odors. They are addressed elsewhere in direct line of sight of the working face potential sources of fires, such as belt this preamble under final § 7.504. The and, where feasible, not in areas directly drives. final rule is the same as proposed. across from, nor closer than 500 feet Final paragraph (a)(12) is new and is Final paragraph (a)(8), like the radially from, belt drives, take-ups, included in the final rule to proposal, requires that the ERP include transfer points, air compressors, complement the Agency’s proposal on the methods for harmful gas removal if explosive magazines, seals, entrances to apparent temperature and to clarify the necessary. Information on harmful gas abandoned areas, and fuel, oil, or other Agency’s intent that apparent removal is essential for MSHA to flammable or combustible material temperature be achieved in all mining determine the ability of the refuge storage. In the preamble to the proposal, conditions. It requires that the ERP alternative to sustain occupants for 96 MSHA stated that it would consider include the maximum mine air hours. Sufficient purge air is necessary exceptions if it was not feasible to locate temperature at each of the locations
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where refuge alternatives are to be the final rule is discussed in the construct drill sites. It assures that placed. preamble under § 75.1506(a). delays are minimized or eliminated and During the rulemaking process and at Final paragraph (c), redesignated from that drilling can proceed immediately each of the public hearings, MSHA proposed paragraph (d), requires that, if upon arrival of the drill rig. asked for comment on how best to the refuge alternative sustains persons Final paragraph (c)(4) requires an achieve apparent temperature, and for only 48 hours, the ERP must detail arrangement with a drilling contractor asked that commenters be specific advanced arrangements that have been or other supplier of drilling services to including alternatives, rationale, safety made to assure that persons who cannot provide a suitable drilling rig, benefits to miners, technological and be rescued within 48 hours will receive personnel, and support so that a hole economic feasibility, and supporting additional supplies to sustain them can be completed to the refuge data. This provision is added in until rescue. MSHA expects that a alternative within 48 hours. This response to commenters’ concerns borehole would be drilled near the arrangement should include details regarding the effect that the mine location of the refuge alternative. A concerning mobilization, availability, temperature would have on the internal method for supplying breathable air ancillary services, backup plans, drill- apparent temperature in the refuge from the surface through the borehole hole specifications, completion alternative. These commenters stated would need to have the capability to schedules, and spare parts. that the temperature outside of the unit provide a sufficient quantity of air to Final paragraph (c)(5) requires the must be taken into consideration dilute any harmful gases in and around capability to promptly transport a drill because of heat transfer. The final rule the refuge alternative. rig to a pre-surveyed location so that a also includes a corresponding provision Final paragraph (c) also requires that drilled hole would be completed and under final § 7.503(b)(5) requiring that the ERP include the following advance located near a refuge alternative the application for approval specify the arrangements. Final paragraph (c)(1) structure within 48 hours of an maximum mine air temperature under requires pre-surveyed areas for refuge emergency at a mine. If the pre-surveyed which the refuge alternative is designed alternatives with closure errors of less location is not easily accessible, the to operate when the unit is fully than 20,000:1. This requirement assures operator should have advance occupied. that the survey that is done on the arrangements to have the appropriate surface and the one performed equipment to transport the drill rig to Final paragraph (b) contains underground are closed. The surface the location. The operator should requirements for ERPs for refuge survey could be done with global consider and prepare for potential alternatives consisting of 15 psi positioning satellite equipment. When a delays. stoppings constructed prior to an event survey connects back to itself, it is Final paragraph (c)(6) requires in a secure space and an isolated called a loop. The loop in this provision specifications of the pipes, air lines, atmosphere. As stated previously, the would begin with the surface survey of approved fans, or approved compressors final rule clarifies the Agency’s intent the location above the location of the that will be used. This information regarding this type of refuge alternative. refuge alternative and along a route to decreases the possibility that an Final paragraph (b)(1), like the proposal, the underground location of the refuge inappropriate or inadequate source of requires that the ERP specify that the alternative and back to the beginning breathable air would be connected to breathable air components are approved survey location on the surface. If a loop the borehole. by MSHA. MSHA received comments is surveyed perfectly, the survey should Final paragraph (c)(7) requires a on the proposed breathable air come back to the exact point at which method for assuring that breathable air provisions and those comments are it started. If the loop does not come back is provided within 48 hours. This addressed elsewhere in this preamble to the exact starting point, it is called a provision assures that the means to under final § 7.506. The final rule is the closure error. Closure errors indicate provide breathable air, i.e., compressors, same as proposed. that some or all of the survey fans, and blowers, is designed for the Final paragraph (b)(2), like the measurements within a loop have planned conditions. The design should proposal, requires that the ERP specify errors. This provision assures accuracy include consideration of pipe resistance, that the refuge alternative can withstand in getting the borehole to the correct volumes and velocities needed, ° exposure to a flash fire of 300 F for 3 location underground. connections required on the surface, seconds and a pressure wave of 15 psi Final paragraph (c)(2) requires an power needs, and required supplies. overpressure for 0.2 seconds. Because analysis of the surface terrain, the strata, The system should be on hand and the stoppings must protect persons and the capabilities of the drill rig, and all ready to provide breathable air after the the components of the refuge other factors that could affect drilling. borehole is completed. alternative, they must be able to This analysis must demonstrate that a Final paragraph (c)(8) requires a withstand both flash fires and explosive hole can be drilled within 48 hours of method for assuring the immediate overpressures. MSHA received an emergency and that the hole will be availability of a backup source for comments on both the proposal’s flash able to provide required supplies and supplying breathable air and a backup fire and overpressure requirements. materials to trapped persons. This power source for surface installations. They are addressed elsewhere in this requirement assures that the operator This information assists MSHA in preamble under final § 7.505(a)(4) and will discover and repair any conditions evaluating the continued availability of (a)(5). The final rule is the same as that could interfere with or delay breathable air. proposed. drilling. The drill rig capabilities should Some commenters opposed the Proposed § 75.1507(c) is not included be examined to assure that the proposal. These commenters stated that in the final rule. The proposal addressed appropriate drill model is selected. This storing only 48 hours of breathable air requirements for ERPs for refuge allows planning so that correct is not sufficiently protective because it alternatives that consist of materials pre- equipment and supplies are available is unlikely that enough additional positioned for miners to deploy in a when needed. supplies could be provided to sustain secure space with an isolated Final paragraph (c)(3) requires that persons. These commenters also stated atmosphere. The Agency’s rationale for the operator secures permissions to that the alternative leaves too much to not including this refuge alternative in cross properties, build roads, and chance given the availability of refuge
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alternatives that are able to provide 96 Final paragraph (d)(1) requires that that the refuge alternative is stocked hours of breathable air. the ERP specify a minimum of 2,000 with first aid supplies. This requirement Other commenters supported the calories of food and 2.25 quarts of assures that adequate first aid supplies proposal. These commenters stated that potable water per person per day to are provided for persons injured in an operators have made arrangements sustain the maximum number of emergency situation. Although MSHA under MSHA’s Program Information persons reasonably expected to use the received comments on the proposal, the Bulletin No. P07–03 and that these refuge alternative at one time. comments are discussed in this provisions need to be maintained in the Commenters generally supported the preamble under final § 7.504(c)(4), final rule. One commenter requested proposal. Commenters suggested which includes the general that the ERP include additional including a range of caloric intake, requirements for a refuge alternative’s provisions, such as contracts between electrolyte substitutes as a fluid approval. The final rule is the same as the operator and drilling contractor and requirement, and individual disposable proposed. access to earth-moving equipment, etc., packages. One commenter said that some survival companies are providing Section 75.1508 Training and Records to demonstrate advance preparation and for Examination, Maintenance, and help assure that trapped persons receive sterile water and M.R.E. food packets with a shelf life of as much as 12 years Repair of Refuge Alternatives and additional supplies as early as possible. Components Based on MSHA’s experience and and that MSHA should allow them to be information provided from mine used for their entire service life. Final paragraph (a), like the proposal, operators, MSHA believes that most Another commenter noted that, in the requires that persons examining, operators will provide refuge NIOSH report, providing for the most maintaining, or repairing refuge alternatives with 96 hours of breathable basic human needs, e.g., water, food, alternatives and components be air. However, based on Agency and waste disposal, is crucial for instructed in how to perform this work. knowledge and experience, MSHA also survival. This final rule addresses training for believes that there can be advantages to The final rule is consistent with examination, maintenance, and repair of providing breathable air through a NIOSH’s recommendations and is refuge alternatives and components in borehole. Once a borehole is established intended to meet the basic nutritional addition to quarterly training and drills in proximity to the refuge alternative, needs of trapped miners. Food and under final § 75.1504(b) and annual the supply of breathable air at the water should be replaced upon expectations training under final expiration. Additional calories and location of the refuge alternative would § 75.1504(c). Final paragraph (a) does fluids, such as electrolyte substitutes, be unlimited. The final rule requires not include training on transportation of may be provided. The final rule is the that the ERP contain enough refuge alternatives or components as same as proposed. proposed. Task training for persons information to allow the District Final paragraph (d)(2), redesignated transporting refuge alternatives or Manager to evaluate the adequacy of the from proposed paragraph (e)(2), amends components is required quarterly in operator’s advanced arrangements to and clarifies the proposed provision. mine emergency evacuation training provide breathable air to sustain trapped Final paragraph (d)(2) requires the ERP and drills under final § 75.1504(b)(10). persons for 96 hours. to specify that the refuge alternative be During the rulemaking process and at stocked with a manual that contains Under final paragraph (a)(1), the each public hearing, MSHA requested sufficient detail for each refuge operator must assure that all persons comments on whether the rule should alternative or component addressing in- assigned to examine, maintain, and contain a provision that the advanced mine transportation, operation, and repair refuge alternatives and arrangements specified in the ERP maintenance of the unit. The final rule components are trained. This include a method for assuring that there clarifies MSHA’s intent that the refuge requirement assures that persons will be a suitable means to connect the alternative contain a manual that assigned to these tasks are capable so drilled hole to the refuge alternative and provides information in a simpler, more that refuge alternatives and components that the connection be made within 10 straightforward manner for ease of are available and usable when needed. minutes, and asked that commenters be understanding by the persons using it. All units and components should be specific including alternatives, The manual should contain step-by-step maintained using the manufacturer’s rationale, safety benefits to miners, or pictorial instructions or checklists for specifications and procedures. The technological and economic feasibility, ease of understanding and necessary examiner should be trained in the and supporting data. Commenters information in sufficient detail for the aspects critical to the deployment and opposed the proposed requirement. safe and effective operation and use of the refuge alternative. For some They expressed concern regarding the maintenance of the refuge alternative non-routine maintenance and repair safety of persons leaving the refuge and components. MSHA did not receive work, persons may need on-the-job alternative to connect it to a borehole. comments on this proposal. training just before or as they conduct Accordingly, the final rule does not Final paragraph (d)(3), like the the maintenance or repair. For example, include the proposed requirement. As proposal, requires the ERP to specify a manufacturer’s representative or other stated above, a method for supplying that the refuge alternative is stocked knowledgeable person may need to be breathable air from the surface through with sufficient quantities of materials contacted for instructions. The training the borehole would need to have the and tools to repair components. can vary given the scope of the tasks capability to provide a sufficient Materials and tools should include and the interval since the last training quantity of air to dilute any harmful metal repair materials, fiber material, in that same task. gases in and around the refuge adhesives, sealants, tapes, and general Under final paragraph (a)(2), the alternative. hardware (i.e., screws, bolts, rivets, operator must certify, by signature and Final paragraph (d) is redesignated wire, zippers, and clips). MSHA did not date, the training of persons who from proposed paragraph (e). Like the receive comments on the proposal. The examine, maintain, and repair refuge proposal, it requires the ERP to specify final rule is the same as proposed. alternatives and components. The that the refuge alternative is stocked Final paragraph (d)(4), like the training certifications help MSHA and with essential supplies or provisions. proposal, requires the ERP to specify the operator assure that the appropriate
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personnel have received the required soon as it becomes commercially impacts, and paperwork. The REA can training. available, a two-way wireless be found at MSHA’s Web site at Under final paragraph (b), the person communications system will be http://www.msha.gov/REGSINFO.HTM. conducting the maintenance or repair required in the ERP and, shortly A copy of the REA can be obtained from must make a record of all corrective thereafter, in all underground refuge MSHA’s Office of Standards, action taken at the completion of each alternatives. Regulations and Variances at the repair. Records of corrective action Communications with the persons in address in the ADDRESSES section of this taken help identify defective parts and refuge alternatives are vital to mine preamble. design flaws so they can be addressed rescue efforts. The knowledge of where Under E.O. 12866, a significant appropriately to better assure the miners are in refuge alternatives, their regulatory action is one meeting any of effective operation of the unit. condition, and the conditions in the a number of specified conditions, Under final paragraph (c), the mine mine may make the difference between including the following: having an operator must keep training life-and-death in a post-accident crisis. annual effect on the economy of $100 certifications and repair records at the The MINER Act requires that, by June million or more, creating a serious mine for one year. Certifications and 15, 2009, for an Emergency Response inconsistency or interfering with an repair records are necessary to help Plan to be approved, it must include a action of another agency, materially MSHA and the operator identify any two-way wireless communication altering the budgetary impact of systemic defects or problems with the system and an electronic tracking entitlements or the rights of entitlement refuge alternative and assure that they system that permits surface personnel to recipients, or raising novel legal or are corrected. determine the location of any persons policy issues. Based on the REA, MSHA Commenters generally supported the trapped underground. If these systems has determined that the final rule will training requirements. Commenters cannot be adopted, the MINER Act have an effect of $100 million or more supported training that is requires that ERPs set forth an on the economy in the first year that the comprehensive and practical. One alternative means of compliance that final rule is in effect and that, therefore, commenter suggested that hands-on approximates ‘‘as closely as possible, it is an economically significant training be used whenever possible. the degree of functional utility and regulatory action. Another commenter supported training safety protection provided by the Congressional Review Act in accordance with manufacturers’ wireless two-way medium and tracking recommendations. Comments system.’’ MSHA is working with NIOSH Under the Congressional Review Act concerning quarterly training and on this emerging technology and will (CRA), a major rule generally cannot annual expectations training are provide further guidance to the mining take effect until 60 days after the rule is discussed elsewhere in this preamble community with respect to the Agency’s published. The term ‘‘major rule’’ is under final § 75.1504(b) and (c). The expectations for ‘‘wireless defined under the CRA as any rule that final rule is the same as proposed. communication’’ systems in ERPs. results in or is likely to result in ‘‘an annual effect on the economy of Section 75.1600–3 Communications Because the ‘‘fully wireless’’ $100,000,000 or more. The costs in the Facilities; Refuge Alternatives communications technology is not fully developed at this time, and it is not REA represent what MSHA believes to Final § 75.1600–3 requires that refuge likely to be technically achievable for all be the upper bound of the range of alternatives be provided with a mines in the foreseeable future, the final estimated compliance costs: $129 communications system. Paragraph rule does not include a requirement for million first year and $53 million (a)(1) requires a two-way fully wireless communications. MSHA yearly. MSHA has presented these communication facility that is a part of is aware that alternatives are being upper-bound estimates as a conservative the mine communication system, which developed that would improve the approach to estimating compliance can be used from inside the refuge communications for trapped miners. costs. alternative. Paragraph (a)(2) requires an Manufacturers may need to provide The final rule allows existing additional communication system and other accommodations for these prefabricated refuge alternative other requirements as defined in the systems. The final rule uses the structures that states have approved and communications portion of the language ‘‘additional communications’’ those that MSHA has accepted in operator’s approved ERP. The additional systems as defined in the approved ERPs that are in service prior communications system should be communications portion of the to the effective date of the rule (60 days independent of the mine operator’s ERP. When a wireless system after date of publication) to be used communication system and continuous becomes available, the Agency will until December 31, 2018, or until to the surface. An additional means of require mine operators to include them replaced, whichever comes first. It also communication will improve the in their ERPs. The final rule makes an allows existing breathable air, air survivability of communications post- editorial change, but is the same as the monitoring, and harmful gas removal accident. When hardwired systems are proposal. components of either a prefabricated used to meet the MINER Act self-contained unit or a unit consisting requirement for redundant III. Executive Order 12866 of 15 psi stoppings constructed prior to communication between surface and Executive Order (E.O.) 12866 requires an event in a secure space and an underground personnel, wires should be that regulatory agencies assess both the isolated atmosphere that states have routed through separate entries or costs and benefits of regulations. To approved and those that MSHA has boreholes continuous to the surface. comply with E.O. 12866, MSHA has accepted in approved ERPs that are in Commenters generally supported the prepared a Regulatory Economic use prior to the effective date of the rule proposal. Commenters agreed that a Analysis (REA) for the final rule. The (60 days after date of publication) to be means of two-way communications REA contains supporting data and used until December 31, 2013, or until from the refuge alternative to the surface explanation for the summary materials replaced, whichever comes first. Refuge should be available at all times. One presented in this preamble, including alternatives consisting of materials pre- commenter asked MSHA to add the covered mining industry, costs and positioned for miners to deploy in a language to the rule clarifying that, as benefits, feasibility, small business secure space with an isolated
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atmosphere that MSHA has accepted in Two separate and distinct escapeways manufacturers and $50 million for approved ERPs that are in use prior to for each working section, maps in an underground coal mine operators. The the effective date of the rule (60 days underground mine that delineate escape first-year cost of the final rule is after date of publication) may be used routes out of the mine, miner approximately $129 million. The costs until December 31, 2010, or until participation in practice drills to escape in the REA represent what MSHA replaced, whichever comes first. First the mine in an emergency situation, and believes to be the upper bound of the year costs could be lower because of use life-saving devices such as lifelines and range of estimated compliance costs. of existing refuge alternatives as self-contained self-rescue (SCSR) MSHA has presented these upper-bound described above. devices to facilitate escape. estimates as a conservative approach to estimating compliance costs. Costs A. Population at Risk The final rule will increase miners’ safety and improve mine operators’ could be lower as mine operators The final rule applies to all preparedness for mine emergencies by evaluate their situation for using underground coal mines in the United requiring refuge alternatives existing refuge alternatives under the States. As of 2007, there were 624 underground to protect and sustain requirements of the final rule. underground coal mines, employing miners trapped when a life-threatening By mine size, the estimated yearly approximately 42,200 miners, of which event occurs that prevents escape. cost is $4 million for operators with 1– 613 mines employed miners working 19 employees; $41 million for operators underground. These 613 mines 2. Evaluation of Accident and Injury with 20–500 employees; and $5 million employed approximately 37,800 miners Data for operators with 501+ employees. and 5,100 contractors working MSHA has evaluated its accident and The $53 million of yearly costs underground, for a total of injury data from 1900 through 2006. consist of approximately: $2.6 million approximately 42,900 underground During that period, 264 miners who for refuge alternative and component employees. were alive after a mine accident died application and approval costs; $4 B. Benefits later during rescue or escape. MSHA has million for roof control plan estimated that recent MSHA standards information; $6 million for additional 1. Introduction could have saved the lives of 43 of these time for preshift examinations; $13 One of the goals of the MINER Act is miners. Thus, for purposes of estimating million for revisions to the mine to improve emergency response benefits, this final rule could potentially emergency evacuation program of capability in underground coal mines. have saved the lives of 221 miners over instruction, mine emergency evacuation MSHA has published a number of the 107 year period. If refuge training and drills; $27 million for standards in the last several years and alternatives had been available, MSHA refuge alternatives and emergency has stated in them that, in the event of estimates that the range of lives saved response plan and $0.5 million for a mine emergency in an underground would have been between a low of 25 revisions to maps, training and records coal mine, the miner should be trained percent and a high of 75 percent. Using for examination, maintenance and to evacuate the mine. In addition, over these estimates, the final rule repair of refuge alternatives and the years, MSHA has published a potentially could save an average of components, and communication number of standards that address the from one to three lives every two years. facilities. safety of miners in the event of Table 1 presents a summary of the C. Compliance Costs explosions, fires, or inundations in yearly costs of the final rule by mine underground coal mines. These MSHA estimates that the total yearly size and by cost category. In some cases standards include requirements cost of the final rule is approximately the totals may deviate from the sum of concerning escape from a mine, such as: $53 million: $3 million for the components due to rounding.
TABLE 1—SUMMARY OF YEARLY COSTS OF FINAL RULE
Requirement Yearly cost
Cost to Manufacturers
Application and Approval Costs ...... $2.6 million.
Cost to Mine Operators
Mine Size
1–19 employees 20–500 employees 501+ employees Total
Roof Control Plan Information ...... $438,000 ...... $3.2 million ...... $297,000 ...... $4.0 million. Preshift Examination ...... $235,000 ...... $5.0 million ...... $923,000 ...... $6.1 million. Mine Emergency Evacuation and Firefighting $515,000 ...... $10.3 million ...... $1.9 million ...... $12.8 million. Program of Instruction, Mine Emergency Evacuation Training and Drills. Refuge Alternatives and Emergency Re- $3.0 million ...... $21.9 million ...... $2.0 million ...... $26.9 million. sponse Plan. Other Provisions* ...... $60,000 ...... $400,000 ...... $30,000 ...... $0.5 million.
Total Yearly Cost to Mine Operators ...... $4.3 million ...... $40.8 million ...... $5.2 million ...... $50.3 million. * Includes Mine Ventilation Map; Mine Map; and Escapeway Maps; Training and Records for Examination, Maintenance, and Repair of Refuge Alternatives and Components; and Communication Facilities.
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IV. Feasibility because the total yearly compliance cost affected sector. When the estimated MSHA has concluded that the is below one percent of the estimated compliance cost is less than one percent requirements of the final rule are both annual revenue for all underground coal of the estimated revenue, the Agency technologically and economically mines. believes it is generally appropriate to conclude that the rule will not have a feasible. MSHA, however, recognizes V. Regulatory Flexibility Act and Small that not all refuge alternatives will be Business Regulatory Enforcement significant economic impact on a appropriate for all mining conditions. In Fairness Act substantial number of small entities. When the estimated compliance cost addition, MSHA recognizes that some Under the Regulatory Flexibility Act aspects of refuge alternatives involve exceeds one percent of revenue, MSHA (RFA) of 1980, as amended by the Small investigates whether further analysis is developing technology; for example, Business Regulatory Enforcement wireless communications facilities and required. Fairness Act (SBREFA), MSHA has Total underground coal production in means of controlling the temperature analyzed the impact of the final rule on 2007 was approximately 7.7 million inside refuge alternatives. small entities. Based on that analysis, tons for mines with 1 to 19 employees A. Technological Feasibility MSHA has notified the Chief Counsel and 278 million tons for mines with 1 for Advocacy, Small Business Refuge alternatives are to 500 employees. Multiplying tons by Administration (SBA), and made the technologically feasible. They use the 2007 price of underground coal of certification under the RFA at 5 U.S.C. commercially available technology that $40.29 per ton, 2007 underground coal 605(b) that the final rule does not have can reasonably be integrated into most revenue was $310 million for mines a significant economic impact on a coal mining operations. Refuge with 1 to 19 employees and $11.2 substantial number of small entities. alternatives are currently being billion for mines with 1 to 500 The factual basis for this certification is manufactured for, and some are employees. The final rule will result in presented in the REA and summarized currently in place, in underground coal an average yearly cost per mine of below. mines. In addition, refuge alternative approximately $19,000 for mines with 1 components are currently available. A. Definition of a Small Mine to 19 employees and $73,000 for mines with 1 to 500 employees. MSHA has MSHA may approve refuge alternatives Under the RFA, in analyzing the or components that incorporate new provided in the REA to this final rule a impact of the final rule on small complete analysis of the costs of the technology, if the applicant entities, MSHA must use the SBA demonstrates that the refuge alternative final rule for each size category of definition for a small entity, or after mines. or components provide no less consultation with the SBA Office of protection than those meeting the The estimated yearly cost of the final Advocacy, establish an alternative rule for underground coal mines with 1 requirements of the final rule. definition for the mining industry by MSHA recognizes that using refuge to 19 employees is approximately $4.3 publishing that definition in the Federal million, or approximately $19,000 per alternatives in mines with low seam Register for notice and comment. MSHA heights could be problematic. However, mine. This is equal to approximately has not established an alternative 1.38 percent of annual revenues. MSHA the final rule has changed the proposed definition and is required to use the volume requirements to take seam estimates that some mines might SBA definition. The SBA defines a experience costs somewhat higher than height into consideration. small entity in the mining industry as MSHA also recognizes that research the average per mine in its size category an establishment with 500 or fewer while others might experience lower on some requirements of the final rule employees. is ongoing. For example, the final rule costs. MSHA has also examined the impact Under the SBA’s definition of a small requires additional communication of the final rule on underground coal mine, the estimated yearly cost of the systems in the operator’s approved mines with fewer than 20 employees, final rule for underground coal mines Emergency Response Plan (ERP). MSHA which MSHA has traditionally referred with 1 to 500 employees is is aware that these additional systems to as ‘‘small mines.’’ These small mines approximately $45 million, or may not yet be available, but as they are differ from larger mines not only in the approximately $73,000 per mine. This is developed, mine operators will be number of employees, but also in equal to approximately 0.40 percent of required to include them in their ERPs. economies of scale in material annual revenue. Even though the The MINER Act requires, by June 15, produced, in the type and amount of analysis reflects a range of impacts for 2009, that ERPs contain wireless production equipment, and in supply different mine sizes, from 0.40 percent communication systems. MSHA is inventory. Therefore, the cost of to 1.38 percent of annual revenue, the working with NIOSH on this emerging complying with MSHA’s final rule and Agency concludes that this is not a technology and will provide further the impact of the final rule on mines significant economic impact on a guidance to the mining community with with fewer than 20 employees will substantial number of small mines. respect to the Agency’s expectations for differ from the cost and impact on Because the yearly cost of the final rule ‘‘wireless communication’’ systems in mines with 500 or fewer employees. is less than one percent of annual ERPs. This analysis complies with the legal revenues for small underground coal B. Economic Feasibility requirements of the RFA for an analysis mines, as defined by SBA, MSHA has of the impact on ‘‘small entities’’ while The yearly compliance cost of the certified that the final rule will not have continuing MSHA’s traditional concern a significant impact on a substantial final rule to underground coal mine for ‘‘small mines.’’ operators is $50.3 million, which is number of small mining entities, as approximately 0.4 percent of the total B. Factual Basis for Certification defined by SBA. annual revenue of $14.0 billion ($50.3 MSHA initially evaluates the impact VI. Paperwork Reduction Act million/$14.0 billion) for all on small entities by comparing the underground coal mines. MSHA estimated compliance cost of a rule for A. Summary concludes that the final rule will be small entities in the sector affected by The information collection package economically feasible for these mines the rule to the estimated revenue of the for the final rule has been assigned OMB
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Control Number 1219–0146. The final B. Treasury and General Government Accordingly, Executive Order 13175 rule contains information collection Appropriations Act of 1999: Assessment requires no further agency action or requirements that will affect of Federal Regulations and Policies on analysis. Families requirements in existing paperwork H. Executive Order 13211: Actions packages with OMB Control Numbers The final rule has no effect on family Concerning Regulations That 1219–0004, 1219–0054, 1219–0066, well-being or stability, marital Significantly Affect Energy Supply, 1219–0073, 1219–0088, and 1219–0141. commitment, parental rights or Distribution, or Use The information collection requirements authority, or income or poverty of The final rule has been reviewed for families and children. Accordingly, contained in the final rule are found in its impact on the supply, distribution, § 654 of the Treasury and General final §§ 7.503, 75.221, 75.360, 75.372, and use of energy because it applies to Government Appropriations Act of 1999 75.1200, 75.1502, 75.1505, 75.1507, and the coal mining industry. Insofar as the (5 U.S.C. 601 note) requires no further 75.1508. The final rule will result in final rule will result in yearly costs of agency action, analysis, or assessment. 87,732 burden hours and related costs of approximately $50 million to the approximately $6.6 million in the first C. Executive Order 12630: Government underground coal mining industry, year the rule is in effect. In the second Actions and Interference With relative to annual revenues of $14.0 year the rule is in effect, and every year Constitutionally Protected Property billion in 2007, it is not a ‘‘significant thereafter, the final rule will result in Rights energy action’’ because it is not ‘‘likely 75,681 burden hours and related costs of The final rule does not implement a to have a significant adverse effect on approximately $6.4 million. policy with takings implications. the supply, distribution, or use of For a detailed summary of the burden Accordingly, Executive Order 12630 energy * * * (including a shortfall in supply, price increases, and increased hours and related costs by provision, see requires no further agency action or use of foreign supplies).’’ Accordingly, the REA accompanying the final rule. analysis. Executive Order 13211 requires no The REA is posted on MSHA’s Web site D. Executive Order 12988: Civil Justice further Agency action or analysis. at http://www.msha.gov/ Reform REGSINFO.HTM. A copy of the REA can I. Executive Order 13272: Proper The final rule was written to provide be obtained from MSHA’s Office of Consideration of Small Entities in a clear legal standard for affected Standards, Regulations, and Variances Agency Rulemaking conduct and was carefully reviewed to at the address provided in the eliminate drafting errors and MSHA has reviewed the final rule to ADDRESSES section of this preamble. ambiguities, so as to minimize litigation assess and take appropriate account of its potential impact on small businesses, and undue burden on the Federal court B. Procedural Details small governmental jurisdictions, and system. Accordingly, the final rule small organizations. MSHA has The information collection package meets the applicable standards provided determined and certified that the final has been submitted to OMB for review in § 3 of Executive Order 12988. rule does not have a significant under 44 U.S.C. 3504, paragraph (h) of E. Executive Order 13045: Protection of economic impact on a substantial the Paperwork Reduction Act of 1995, Children From Environmental Health number of small entities. as amended. A copy of the information Risks and Safety Risks collection package can be obtained from List of Subjects The final rule has no adverse impact the Department of Labor by electronic 30 CFR Part 7 mail request to [email protected] or on children. Accordingly, Executive by phone request to 202–693–4129. Order 13045 requires no further agency Coal mines, Incorporation by action or analysis. reference, Mine safety and health, Since the proposed rule was Reporting and recordkeeping F. Executive Order 13132: Federalism published, MSHA has not received any requirements, Underground mining. substantive comments on the The final rule does not have information collection package. ‘‘federalism implications’’ because it 30 CFR Part 75 does not ‘‘have substantial direct effects Coal mines, Mine safety and health, VII. Other Regulatory Analyses on the States, on the relationship Reporting and recordkeeping A. The Unfunded Mandates Reform Act between the national government and requirements, Safety, Training of 1995 the States, or on the distribution of programs, Underground mining. power and responsibilities among the Dated: December 19, 2008. MSHA has reviewed the final rule various levels of government.’’ West Richard E. Stickler, under the Unfunded Mandates Reform Virginia and Illinois have laws on refuge Acting Assistant Secretary for Mine Safety Act of 1995 (2 U.S.C. 1501 et seq.). alternatives and MSHA has drafted the and Health. final rule to minimize conflict with MSHA has determined that the final ■ For the reasons set out in the these laws. rule does not include any Federal preamble, and under the authority of the mandate that may result in increased G. Executive Order 13175: Consultation Federal Mine Safety and Health Act of expenditures by State, local, or tribal and Coordination With Indian Tribal 1977 as amended by the Mine governments or significantly or Governments Improvement and New Emergency uniquely affect small governments. The final rule does not have ‘‘tribal Response Act of 2006, MSHA is MSHA estimates that the final rule will implications’’ because it does not ‘‘have amending chapter I of title 30 of the increase private sector expenditures by substantial direct effects on one or more Code of Federal Regulations as follows: more than $100 million in the first year Indian tribes, on the relationship and has included an analysis of the PART 7—TESTING BY APPLICANT OR between the Federal government and THIRD PARTY—[AMENDED] costs of the requirements of the final Indian tribes, or on the distribution of rule in the REA. power and responsibilities between the ■ 1. The authority citation for part 7 Federal government and Indian tribes.’’ continues to read as follows:
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Authority: 30 U.S.C. 957. (ii) Each component’s or part’s in- (2) The procedure for operation of the mine shelf life, service life, and individual devices so that they function ■ 2. Add new subpart L to read as recommended replacement schedule; as necessary to test gas concentrations follows: (iii) Materials that have a potential to over a 96-hour period. Subpart L—Refuge Alternatives ignite used in each component or part (3) The procedures for monitoring and Sec. with their MSHA approval number; and maintaining breathable air in the 7.501 Purpose and scope. (iv) A statement that the component airlock, before and after purging. 7.502 Definitions. or part is compatible with other (4) The instructions for determining 7.503 Application requirements. components and, upon replacement, is the quality of the atmosphere in the 7.504 Refuge alternatives and components; equivalent to the original component or airlock and refuge alternative interior general requirements. part. and a means to maintain breathable air 7.505 Structural components. (3) The capacity and duration (the in the airlock. 7.506 Breathable air components. number of persons it is designed to 7.507 Air-monitoring components. (d) The application for approval of the 7.508 Harmful gas removal components. maintain and for how long) of the refuge harmful gas removal component shall 7.509 Approval markings. alternative or component on a per- specify the following: 7.510 New technology. person per-hour basis. (1) The volume of breathable air (4) The length, width, and height of available for removing harmful gas both § 7.501 Purpose and scope. the space required for storage of each at start-up and while persons enter This subpart L establishes component. through the airlock. requirements for MSHA approval of (b) The application for approval of the (2) The maximum volume of each gas refuge alternatives and components for refuge alternative shall include the that the component is designed to use in underground coal mines. Refuge following: remove on a per-person per-hour basis. alternatives are intended to provide a (1) A description of the breathable air life-sustaining environment for persons component, including drawings, air- § 7.504 Refuge alternatives and trapped underground when escape is supply sources, piping, regulators, and components; general requirements. impossible. controls. (a) Refuge alternatives and (2) The maximum volume, excluding components: § 7.502 Definitions. the airlock; the dimensions of floor (1) Electrical components that are The following definitions apply in space and volume provided for each exposed to the mine atmosphere shall this subpart: person using the refuge alternative; and be approved as intrinsically safe for use. Apparent temperature. A measure of the floor space and volume of the Electrical components located inside the relative discomfort due to the combined airlock. refuge alternative shall be either effects of air movement, heat, and (3) The maximum positive pressures approved as intrinsically safe or humidity on the human body. in the interior space and the airlock and approved as permissible. Breathable oxygen. Oxygen that is at a description of the means used to limit (2) Shall not produce continuous least 99 percent pure with no harmful or control the positive pressure. noise levels in excess of 85 dBA in the contaminants. (4) The maximum allowable apparent structure’s interior. Flash fire. A fire that rapidly spreads temperature of the interior space and (3) Shall not liberate harmful or through a diffuse fuel, such as airborne the airlock and the means to control the irritating gases or particulates into the coal dust or methane, without apparent temperature. structure’s interior or airlock. producing damaging pressure. (5) The maximum mine air (4) Shall be designed so that the Noncombustible material. Material, temperature under which the refuge refuge alternative can be safely moved such as concrete or steel, that will not alternative is designed to operate when with the use of appropriate devices such ignite, burn, support combustion, or the unit is fully occupied. as tow bars. release flammable vapors when (6) Drawings that show the features of (5) Shall be designed to withstand subjected to fire or heat. each component and contain sufficient forces from collision of the refuge Overpressure. The highest pressure information to document compliance alternative structure during transport or over the background atmospheric with the technical requirements. handling. pressure that could result from an (7) A manual that contains sufficient (b) The apparent temperature in the explosion, which includes the impact of detail for each refuge alternative or structure shall be controlled as follows: the pressure wave on an object. component addressing in-mine (1) When used in accordance with the Refuge alternative. A protected, transportation, operation, and manufacturer’s instructions and defined secure space with an isolated maintenance of the unit. limitations, the apparent temperature in atmosphere and integrated components (8) A summary of the procedures for the fully occupied refuge alternative that create a life-sustaining environment deploying refuge alternatives. shall not exceed 95 degrees Fahrenheit for persons trapped in an underground (9) A summary of the procedures for (°F). coal mine. using the refuge alternative. (2) Tests shall be conducted to (10) The results of inspections, determine the maximum apparent § 7.503 Application requirements. evaluations, calculations, and tests temperature in the refuge alternative (a) An application for approval of a conducted under this subpart. when used at maximum occupancy and refuge alternative or component shall (c) The application for approval of the in conjunction with required include: air-monitoring component shall specify components. Test results including (1) The refuge alternative’s or the following: calculations shall be reported in the component’s make and model number, (1) The operating range, type of application. if applicable. sensor, gas or gases measured, and (c) The refuge alternative shall (2) A list of the refuge alternative’s or environmental limitations, including include: component’s parts that includes— the cross-sensitivity to other gases, of (1) A two-way communication facility (i) The MSHA approval number for each detector or device in the air- that is a part of the mine electric-powered equipment; monitoring component. communication system, which can be
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used from inside the refuge alternative; (ii) The airlock shall be configured to Pennsylvania 19428–2959. A copy may and accommodations for an additional accommodate a stretcher without be inspected at any MSHA Coal Mine communication system and other compromising its function. Safety and Health district office,; or at requirements as defined in the (4) Be designed and made to MSHA’s Office of Standards, 1100 communications portion of the withstand 15 pounds per square inch Wilson Blvd., Room 2353, Arlington, operator’s approved Emergency (psi) overpressure for 0.2 seconds prior Virginia 22209 (phone: 202–693–9440); Response Plan. to deployment. or at the National Archives and Records (2) Lighting sufficient for persons to (5) Be designed and made to Administration (NARA). For perform tasks. withstand exposure to a flash fire of 300 information on the availability of this (3) A means to contain human waste °F for 3 seconds prior to deployment. material at NARA, call 202–741–6030, effectively and minimize objectionable (6) Be made with materials that do not or go to: http://www.archives.gov/ odors. have a potential to ignite or are MSHA- federal_register/code_of_federal (4) First aid supplies. approved. _regulations/ibr_ locations.html. (5) Materials, parts, and tools for (7) Be made from reinforced material (7) A test shall be conducted to repair of components. that has sufficient durability to demonstrate that each reasonably (6) A fire extinguisher that— withstand routine handling and resist anticipated repair can be completed (i) Meets the requirements for portable puncture and tearing during within 10 minutes of opening the fire extinguishers used in underground deployment and use. storage space for repair materials and coal mines under part 75; (8) Be guarded or reinforced to tools. (ii) Is appropriate for extinguishing prevent damage to the structure that (8) A test shall be conducted to fires involving the chemicals used for would hinder deployment, entry, or use. demonstrate that no harmful gases or harmful gas removal; and (9) Permit measurement of outside gas noticeable odors are released from (iii) Uses a low-toxicity extinguishing concentrations without exiting the nonmetallic materials before or after the agent that does not produce a hazardous structure or allowing entry of the flash fire test. The test shall identify the by-product when deployed. outside atmosphere. gases released and determine their (d) Containers used for storage of (b) Inspections or tests shall be concentrations. refuge alternative components or conducted as follows: (c) If pressurized air is used to deploy provisions shall be— (1) A test shall be conducted to the structure or maintain its shape, the (1) Airtight, waterproof, and rodent- demonstrate that trained persons can structure shall— proof; fully deploy the structure, without the (1) Include a pressure regulator or (2) Easy to open and close without the use of tools, within 10 minutes of other means to prevent over use of tools; and reaching the refuge alternative. pressurization of the structure, and (3) Conspicuously marked with an (2) A test shall be conducted to (2) Provide a means to repair and re- expiration date and instructions for use. demonstrate that an overpressure of 15 pressurize the structure in case of psi applied to the pre-deployed refuge failure of the structure or loss of air § 7.505 Structural components. alternative structure for 0.2 seconds pressure. (a) The structure shall— does not allow gases to pass through the (d) The refuge alternative structure (1) Provide at least 15 square feet of structure separating the interior and shall provide a means— floor space per person and 30 to 60 exterior atmospheres. (1) To conduct a preshift examination, cubic feet of volume per person (3) A test shall be conducted to without entering the structure, of according to the following chart. The demonstrate that a flash fire of 300 °F components critical for deployment; airlock can be included in the space and for 3 seconds does not allow gases to and volume if waste is disposed outside the pass from the outside to the inside of (2) To indicate unauthorized entry or refuge alternative. the structure. tampering. (4) An inspection shall be conducted Unrestricted § 7.506 Breathable air components. Mining height volume to determine that the overpressure (a) Breathable air shall be supplied by (inches) (cubic feet) forces of 15 psi applied to the pre- compressed air cylinders, compressed per person * deployed refuge alternative structure for breathable-oxygen cylinders, or 0.2 seconds does not prevent the stored boreholes with fans installed on the 36 or less ...... 30 components from operating. >36–≤42 ...... 37 .5 surface or compressors installed on the ≤ (5) An inspection shall be conducted surface. Only uncontaminated >42– 48 ...... 45 to determine that a flash fire of 300 °F >48–≤54 ...... 52 .5 breathable air shall be supplied to the >54 ...... 60 for 3 seconds does not prevent the refuge alternative. stored components from operating. (b) Mechanisms shall be provided and * Includes an adjustment of 12 inches for (6) A test shall be conducted to clearances. procedures shall be included so that, demonstrate that each structure resists within the refuge alternative,— (2) Include storage space that secures puncture and tearing when tested in (1) The breathable air sustains each and protects the components during accordance with ASTM D2582–07 person for 96 hours, transportation and that permits ready Standard Test Method for Puncture- (2) The oxygen concentration is access to components for maintenance Propagation Tear Resistance of Plastic maintained at levels between 18.5 and examinations. Film and Thin Sheeting. This 23 percent, and (3) Include an airlock that creates a publication is incorporated by reference. (3) The average carbon dioxide barrier and isolates the interior space The Director of the Federal Register concentration is 1.0 percent or less and from the mine atmosphere, except for a approves this incorporation by reference excursions do not exceed 2.5 percent. refuge alternative capable of in accordance with 5 U.S.C. 552(a) and (c) Breathable air supplied by maintaining adequate positive pressure. 1 CFR part 51. A copy may be obtained compressed air from cylinders, fans, or (i) The airlock shall be designed for from the American Society for Testing compressors shall provide a minimum multiple uses to accommodate the Materials (ASTM), 100 Barr Harbor flow rate of 12.5 cubic feet per minute structure’s maximum occupancy. Drive, West Conshohocken, of breathable air for each person.
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(1) Fans or compressors shall meet the (2) The analysis or study shall (i) Carbon dioxide removal following: identify the means used to prevent any components shall be used with (i) Be equipped with a carbon ignition source. breathable air cylinders or oxygen monoxide detector located at the surface cylinders. § 7.507 Air-monitoring components. that automatically provides a visual and (ii) Carbon dioxide removal audible alarm if carbon monoxide in (a) Each refuge alternative shall have components shall remove carbon supplied air exceeds 10 parts per an air-monitoring component that dioxide at a rate of 1.08 cubic feet per million (ppm). provides persons inside with the ability hour per person. (ii) Provide in-line air-purifying to determine the concentrations of (3) Instructions shall be provided for sorbent beds and filters or other carbon dioxide, carbon monoxide, deployment and operation of the equivalent means to assure the oxygen, and methane, inside and harmful gas removal component. breathing air quality and prevent outside the structure, including the (b) The harmful gas removal condensation, and include maintenance airlock. component shall meet the following (b) Refuge alternatives designed for instructions that provide specifications requirements: Each chemical used for use in mines with a history of harmful for periodic replacement or removal of harmful gas shall be— gases, other than carbon monoxide, refurbishment. (1) Contained such that when stored carbon dioxide, and methane, shall be or used it cannot come in contact with (iii) Provide positive pressure and an equipped to measure the harmful gases’ automatic means to assure that the persons, and it cannot release airborne concentrations. particles. pressure is relieved at 0.18 psi, or as (c) The air-monitoring component specified by the manufacturer, above (2) Provided with all materials; parts, shall be inspected or tested and the test such as hangers, racks, and clips; mine atmospheric pressure in the refuge results shall be included in the alternative. equipment; and instructions necessary application. for deployment and use. (iv) Include warnings to assure that (d) The air-monitoring component only uncontaminated breathable air is (3) Stored in an approved container shall meet the following: that is conspicuously marked with the supplied to the refuge alternative. (1) The total measurement error, manufacturer’s instructions for disposal (v) Include air lines to supply including the cross-sensitivity to other of used chemical. breathable air from the fan or gases, shall not exceed ± 10 percent of (c) Each harmful gas removal compressor to the refuge alternative. the reading, except as specified in the component shall be tested to determine (A) Air lines shall be capable of approval. preventing or removing water (2) The measurement error limits shall its ability to remove harmful gases. (1) The component shall be tested in accumulation. not be exceeded after start-up, after 8 a refuge alternative structure that is (B) Air lines shall be designed and hours of continuous operation, after 96 representative of the configuration and protected to prevent damage during hours of storage, and after exposure to maximum volume for which the normal mining operations, a flash fire of atmospheres with a carbon monoxide component is designed. 300 °F for 3 seconds, a pressure wave concentration of 999 ppm (full-scale), a (i) The test shall include three of 15 psi overpressure for 0.2 seconds, carbon dioxide concentration of 3 sampling points located vertically along and ground failure. percent, and full-scale concentrations of the centerlines of the length and width (vi) Assure that harmful or explosive other gases. (3) Calibration gas values shall be of the structure and equally spaced over gases, water, and other materials cannot the horizontal centerline of the height of enter the breathable air. traceable to the National Institute for Standards and Technology (NIST) the structure. (2) Redundant fans or compressors (ii) The structure shall be sealed and power sources shall be provided to ‘‘Standard Reference Materials’’ (SRMs). (4) The analytical accuracy of the airtight. permit prompt re-activation of (iii) The operating gas sampling equipment in the event of failure. calibration gas and span gas values shall be within 2.0 percent of NIST gas instruments shall be placed inside the (d) Compressed breathable oxygen structure and continuously exposed to shall— standards. (5) The detectors shall be capable of the test atmosphere. (1) Include instructions for (iv) Sampling instruments shall deployment and operation; being kept fully charged and ready for immediate use. simultaneously measure the gas (2) Provide oxygen at a minimum flow concentrations at the three sampling rate of 1.32 cubic feet per hour per § 7.508 Harmful gas removal components. points. person; (a) Each refuge alternative shall (2) For testing the component’s ability (3) Include a means to readily regulate include means for removing harmful to remove carbon monoxide, the the pressure and volume of the gases. structure shall be filled with a test gas compressed oxygen; (1) Purging or other effective of either purified synthetic air or (4) Include an independent regulator procedures shall be provided for the purified nitrogen that contains 400 ppm as a backup in case of failure; and airlock to dilute the carbon monoxide carbon monoxide, ±5 percent. (5) Be used only with regulators, concentration to 25 ppm or less and the (i) After a stable concentration of 400 piping, and other equipment that is methane concentration to 1.0 percent or ppm, ±5 percent, carbon monoxide has certified and maintained to prevent less as persons enter, within 20 minutes been obtained for 5 minutes at all three ignition or combustion. of persons deploying the refuge sampling points, a timer shall be started (e) The applicant shall prepare and alternative. and the structure shall be purged or submit an analysis or study (2) Chemical scrubbing or other carbon monoxide otherwise removed. demonstrating that the breathable air effective procedures shall be provided (ii) Carbon monoxide concentration component will not cause an ignition. so that the average carbon dioxide readings from each of the three (1) The analysis or study shall concentration in the occupied structure sampling instruments shall be recorded specifically address oxygen fire hazards shall not exceed 1.0 percent over the every 2 minutes. and fire hazards from chemicals used rated duration, and excursions shall not (iii) The time shall be recorded from for removal of carbon dioxide. exceed 2.5 percent. the start of harmful gas removal until
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the readings of the three sampling PART 75—MANDATORY SAFETY § 75.1202–1 Temporary notations, instruments all indicate a carbon STANDARDS–UNDERGROUND COAL revisions, and supplements. monoxide concentration of 25 ppm or MINES—[AMENDED] * * * * * less. (b) * * * ■ 3. The authority citation for part 75 (4) Escapeways and refuge (3) For testing the component’s ability continues to read as follows: to remove carbon dioxide, the carbon alternatives designated by means of dioxide concentration shall not exceed Authority: 30 U.S.C. 811. symbols. 1.0 percent over the rated duration and ■ 4. Amend § 75.221 by adding § 75.1500 [Reserved] excursions shall not exceed 2.5 percent paragraph (a)(12) to read as follows: ■ 10. Remove and reserve § 75.1500. under the following conditions: ■ 11. Amend § 75.1501 by revising ° ± ° ± § 75.221 Roof control plan information. (i) At 55 F ( 4 F), 1 atmosphere ( 1 paragraph (a)(1) to read as follows: percent), and 50 percent (±5 percent) (a) * * * relative humidity. (12) A description of the roof and rib § 75.1501 Emergency evacuations. support necessary for the refuge (ii) At 55 °F (±4 °F), 1 atmosphere (±1 (a) * * * alternatives. percent), and 100 percent (±5 percent) (1) The responsible person shall have relative humidity. * * * * * current knowledge of the assigned ■ 5. Amend § 75.313 by adding location and expected movements of (iii) At 90 °F (±4 °F), 1 atmosphere (±1 paragraph (f) to read as follows: miners underground, the operation of percent), and 50 percent (±5 percent) the mine ventilation system, the relative humidity. § 75.313 Main mine fan stoppage with persons underground. locations of the mine escapeways and (iv) At 82 °F (±4 °F), 1 atmosphere (±1 refuge alternatives, the mine percent), and 100 percent (±5 percent) * * * * * communications system, any mine relative humidity. (f) Any electrical refuge alternative monitoring system if used, locations of components exposed to the mine (4) Testing shall demonstrate the firefighting equipment, the mine’s atmosphere shall be approved as component’s continued ability to Emergency Response Plan, the Mine intrinsically safe for use during fan remove harmful gases effectively Rescue Notification Plan, and the Mine stoppages. Any electrical refuge throughout its designated shelf-life, Emergency Evacuation and Firefighting alternative components located inside specifically addressing the effects of Program of Instruction. the refuge alternative shall be either storage and transportation. * * * * * approved as intrinsically safe or ■ 12. Amend § 75.1502 as follows: (d) Alternate performance tests may approved as permissible for use during ■ A. Redesignating paragraphs (c)(3) be conducted if the tests provide the fan stoppages. through (c)(8) as paragraphs (c)(4) same level of assurance of the harmful ■ 6. Amend § 75.360 by redesignating through (c)(9). gas removal component’s capability as paragraphs (d) through (g) as paragraphs ■ B. Add paragraph (c)(3). the tests specified in paragraph (c) of (e) through (h) and adding a new ■ C. Revise paragraphs (c)(4)(iv) and (v). this section. Alternate tests shall be paragraph (d) to read as follows: specified in the approval application. ■ D. Add paragraph (c)(4)(vi). § 75.360 Preshift examination at fixed ■ E. Revise paragraph (c)(8). § 7.509 Approval markings. intervals. ■ F. Add paragraphs (c)(10) through (a) Each approved refuge alternative * * * * * (c)(12). or component shall be identified by a (d) The person conducting the The revisions read as follows: legible, permanent approval marking preshift examination shall check the § 75.1502 Mine emergency evacuation and that is securely and conspicuously refuge alternative for damage, the firefighting program of instruction. integrity of the tamper-evident seal and attached to the component or its * * * * * the mechanisms required to deploy the container. (c) * * * refuge alternative, and the ready (b) The approval marking shall be * * * * * inscribed with the component’s MSHA availability of compressed oxygen and air. (3) The deployment, use, and approval number and any additional maintenance of refuge alternatives. markings required by the approval. * * * * * ■ (4) * * * (c) The refuge alternative structure 7. Amend § 75.372 by revising (iv) Switching escapeways, as shall provide a conspicuous means for paragraph (b)(11) to read as follows: applicable; indicating an out-of-service status, § 75.372 Mine ventilation map. (v) Negotiating any other unique including the reason it is out of service. * * * * * escapeway conditions; and (d) The airlock shall be conspicuously (b) * * * (vi) Using refuge alternatives. marked with the recommended (11) The location of all escapeways * * * * * maximum number of persons that can and refuge alternatives. (8) A review of the mine map; the use it at one time. * * * * * escapeway system; the escape, firefighting, and emergency evacuation § 7.510 New technology. ■ 8. Amend § 75.1200–1 by adding paragraph (n) to read as follows: plan in effect at the mine; and the MSHA may approve a refuge locations of refuge alternatives and alternative or a component that § 75.1200–1 Additional information on abandoned areas. incorporates new knowledge or mine map. * * * * * technology, if the applicant * * * * * (10) A summary of the procedures demonstrates that the refuge alternative (n) The locations of refuge related to deploying refuge alternatives. or component provides no less alternatives. (11) A summary of the construction protection than those meeting the ■ 9. Amend § 75.1202–1 by revising methods for 15 psi stoppings requirements of this subpart. paragraph (b)(4) to read as follows: constructed prior to an event.
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(12) A summary of the procedures stations to the surface or the exits at the (b) Except as permitted under related to refuge alternative use. bottom of the shaft or slope, refuge paragraph (a)(3) of this section, each * * * * * alternatives, and SCSR storage locations. operator shall provide refuge ■ 13. Amend § 75.1504 by revising The escapeway map shall be posted or alternatives with sufficient capacity to paragraphs (b)(3)(ii), (b)(4)(ii), and (c), readily accessible for all miners— accommodate all persons working and adding paragraphs (b)(6), (b)(7), (1) In each working section; underground. (b)(8), and (b)(9) to read as follows: (2) In each area where mechanized (1) Refuge alternatives shall provide at mining equipment is being installed or least 15 square feet of floor space per § 75.1504 Mine emergency evacuation removed; person and 30 to 60 cubic feet of volume training and drills. (3) At the refuge alternative; and per person according to the following * * * * * (4) At a surface location of the mine chart. The airlock can be included in the (b) * * * where miners congregate, such as at the space and volume if waste is disposed (3) * * * mine bulletin board, bathhouse, or outside the refuge alternative. (ii) Physically locates and practices waiting room. using the continuous directional Unrestricted volume (b) Keeping maps current. All maps Mining height (inches) (cubic feet) per lifelines or equivalent devices and shall be kept up-to-date and any change person* tethers, and physically locates the in route of travel, location of doors, stored SCSRs and refuge alternatives; location of refuge alternatives, or 36 or less ...... 30 * * * * * direction of airflow shall be shown on >36–≤42 ...... 37.5 >42–≤48 ...... 45 (4) * * * the maps by the end of the shift on ≤ (ii) Locating escapeways, exits, routes >48– 54 ...... 52.5 which the change is made. >54 ...... 60 of travel to the surface, abandoned * * * * * areas, and refuge alternatives. ■ * Includes an adjustment of 12 inches for 15. Add § 75.1506 to subpart P of this clearances. * * * * * part to read as follows: (6) Reviewing the procedures for (2) Refuge alternatives for working deploying refuge alternatives and § 75.1506 Refuge alternatives. sections shall accommodate the components. (a) Each operator shall provide refuge maximum number of persons that can (7) For miners who will be alternatives and components as follows: be expected on or near the section at constructing the 15 psi stoppings prior (1) Prefabricated self-contained units, any time. to an event, reviewing the procedures including the structural, breathable air, (3) Each refuge alternative for outby for constructing them. air monitoring, and harmful gas removal areas shall accommodate persons (8) Reviewing the procedures for use components of the unit, shall be reasonably expected to use it. of the refuge alternatives and approved under 30 CFR part 7; and (c) Refuge alternatives shall be components. (2) The structural components of units provided at the following locations: (9) Task training in proper consisting of 15 psi stoppings (1) Within 1,000 feet from the nearest transportation of the refuge alternatives constructed prior to an event shall be working face and from locations where and components. approved by the District Manager, and mechanized mining equipment is being (c) Annual expectations training. Over the breathable air, air monitoring, and installed or removed except that for underground anthracite coal mines that the course of each year, each miner shall harmful gas removal components of have no electrical face equipment, participate in expectations training that these units shall be approved under 30 refuge alternatives shall be provided if includes the following: CFR part 7. the nearest working face is greater than (1) Donning and transferring SCSRs in (3) Prefabricated refuge alternative 2,000 feet from the surface. smoke, simulated smoke, or an structures that states have approved and (2) Spaced within one-hour travel equivalent environment. those that MSHA has accepted in distances in outby areas where persons (2) Breathing through a realistic SCSR approved Emergency Response Plans work such that persons in outby areas training unit that provides the sensation (ERPs) that are in service prior to March are never more than a 30-minute travel of SCSR airflow resistance and heat. 2, 2009 are permitted until December distance from a refuge alternative or safe (3) Deployment and use of refuge 31, 2018, or until replaced, whichever exit. However, the operator may request alternatives similar to those in use at the comes first. Breathable air, air- and the District Manager may approve a mine, including— monitoring, and harmful gas removal different location in the ERP. The (i) Deployment and operation of components of either a prefabricated operator’s request shall be based on an component systems; and self-contained unit or a unit consisting assessment of the risk to persons in (ii) Instruction on when to use refuge of 15 psi stoppings constructed prior to outby areas, considering the following alternatives during a mine emergency, an event in a secure space and an factors: proximity to seals; proximity to emphasizing that it is the last resort isolated atmosphere that states have potential fire or ignition sources; when escape is impossible. approved and those that MSHA has conditions in the outby areas; location (4) A miner shall participate in accepted in approved ERPs that are in of stored SCSRs; and proximity to the expectations training within one quarter use prior to March 2, 2009 are permitted most direct, safe, and practical route to of being employed at the mine. until December 31, 2013, or until an intake escapeway. * * * * * replaced, whichever comes first. Refuge (d) Roof and rib support for refuge ■ 14. Amend § 75.1505 by revising alternatives consisting of materials pre- alternative locations shall be specified paragraphs (a) and (b) to read as follows: positioned for miners to deploy in a in the mine’s roof control plan. secure space with an isolated (e) The operator shall protect the § 75.1505 Escapeway maps. atmosphere that MSHA has accepted in refuge alternative and contents from (a) Content and accessibility. An approved ERPs that are in use prior to damage during transportation, escapeway map shall show the March 2, 2009 are permitted until installation, and storage. designated escapeways from the December 31, 2010, or until replaced, (f) A refuge alternative shall be working sections or the miners’ work whichever comes first. removed from service if examination
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reveals damage that interferes with the (2) Procedures or methods for detail advanced arrangements that have functioning of the refuge alternative or maintaining approved refuge been made to assure that persons who any component. alternatives and components. cannot be rescued within 48 hours will (1) If a refuge alternative is removed (3) The rated capacity of each refuge receive additional supplies to sustain from service, the operator shall alternative, the number of persons them until rescue. Advance withdraw all persons from the area expected to use each refuge alternative, arrangements shall include the serviced by the refuge alternative, and the duration of breathable air following: except those persons referred to in provided per person by the approved (1) Pre-surveyed areas for refuge § 104(c) of the Mine Act. breathable air component of each refuge alternatives with closure errors of less (2) Refuge alternative components alternative. than 20,000:1. removed from service shall be replaced (4) The methods for providing breathable air with sufficient detail of (2) An analysis to demonstrate that or be repaired for return to service in the surface terrain, the strata, the accordance with the manufacturer’s the component’s capability to provide breathable air over the duration stated capabilities of the drill rig, and all other specifications. factors that could affect drilling are such (g) At all times, the site and area in the approval. (5) The methods for providing ready that a hole sufficient to provide required around the refuge alternative shall be supplies and materials reliably can be kept clear of machinery, materials, and backup oxygen controls and regulators. (6) The methods for providing an promptly drilled within 48 hours of an obstructions that could interfere with accident at a mine. the deployment or use of the refuge airlock and for providing breathable air alternative. in the airlock, except where adequate (3) Permissions to cross properties, (h) Each refuge alternative shall be positive pressure is maintained. build roads, and construct drill sites. conspicuously identified with a sign or (7) The methods for providing (4) Arrangement with a drilling marker as follows: sanitation facilities. contractor or other supplier of drilling (8) The methods for harmful gas (1) A sign or marker made of a services to provide a suitable drilling removal, if necessary. reflective material with the word rig, personnel and support so that a hole (9) The methods for monitoring gas ‘‘REFUGE’’ shall be posted can be completed to the refuge concentrations, including charging and alternative within 48 hours. conspicuously at each refuge calibration of equipment. alternative. (10) The method for providing (5) Capability to promptly transport a (2) Directional signs made of a lighting sufficient for persons to perform drill rig to a pre-surveyed location such reflective material shall be posted tasks. that a drilled hole would be completed leading to each refuge alternative (11) Suitable locations for the refuge and located near a refuge alternative location. alternatives and an affirmative structure within 48 hours of an accident (i) During use of the refuge statement that the locations are— at a mine. alternative, the atmosphere within the (i) Not within direct line of sight of (6) The specifications of pipes, air refuge alternative shall be monitored. the working face; and lines, and approved fans or approved Changes or adjustments shall be made to (ii) Where feasible, not placed in areas compressors that will be used. reduce the concentration of methane to directly across from, nor closer than 500 (7) A method for assuring that within less than 1 percent; to reduce the feet radially from, belt drives, take-ups, 48 hours, breathable air shall be concentration of carbon dioxide to 1 transfer points, air compressors, provided. percent or less and excursions not explosive magazines, seals, entrances to (8) A method for assuring the exceeding 2.5 percent; and to reduce the abandoned areas, and fuel, oil, or other immediate availability of a backup concentration of carbon monoxide to 25 flammable or combustible material source for supplying breathable air and ppm or less. Oxygen shall be storage. However, the operator may a backup power source for surface maintained at 18.5 to 23 percent. request and the District Manager may installations. (j) Refuge alternatives shall contain a approve an alternative location in the fire extinguisher that— ERP if mining involves two-entry (d) The ERP shall specify that the (1) Meets the requirements for systems or yield pillars in a longwall refuge alternative is stocked with the portable fire extinguishers used in that would prohibit locating the refuge following: underground coal mines under this part; alternative out of direct line of sight of (1) A minimum of 2,000 calories of (2) Is appropriate for extinguishing the working face. food and 2.25 quarts of potable water fires involving the chemicals used for (12) The maximum mine air per person per day in approved harmful gas removal; and temperature at each of the locations containers sufficient to sustain the (3) Uses a low-toxicity extinguishing where refuge alternatives are to be maximum number of persons agent that does not produce a hazardous placed. reasonably expected to use the refuge by-product when activated. (b) For a refuge alternative consisting alternative for at least 96 hours, or for ■ 16. Add § 75.1507 to subpart P of this of 15 psi stoppings constructed prior to 48 hours if advance arrangements are part to read as follows: an event in a secure space and an made under paragraph (c) of this isolated atmosphere, the ERP shall section; § 75.1507 Emergency Response Plan; specify that— refuge alternatives. (2) A manual that contains sufficient (1) The breathable air components detail for each refuge alternative or (a) The Emergency Response Plan shall be approved by MSHA; and component addressing in-mine (ERP) shall include the following for (2) The refuge alternative can transportation, operation, and each refuge alternative and component: withstand exposure to a flash fire of 300 maintenance of the unit; (1) The types of refuge alternatives degrees Fahrenheit (°F) for 3 seconds used in the mine, i.e., a prefabricated and a pressure wave of 15 pounds per (3) Sufficient quantities of materials self-contained unit or a unit consisting square inch (psi) overpressure for 0.2 and tools to repair components; and of 15 psi stoppings constructed prior to seconds. (4) First aid supplies. an event in a secure space and an (c) If the refuge alternative sustains ■ 17. Add § 75.1508 to subpart P of this isolated atmosphere. persons for only 48 hours, the ERP shall part to read as follows:
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§ 75.1508 Training and records for (b) At the completion of each repair, (1) A two-way communication facility examination, maintenance and repair of the person conducting the maintenance that is a part of the mine refuge alternatives and components. or repair shall make a record of all communication system, which can be (a) Persons examining, maintaining, corrective action taken. used from inside the refuge alternative; or repairing refuge alternatives and (c) Training certifications and repair and components shall be instructed in how records shall be kept at the mine for one to perform this work. (2) An additional communication (1) The operator shall assure that all year. system and other requirements as persons assigned to examine, maintain, ■ 18. Add § 75.1600–3 to subpart Q of defined in the communications portion and repair refuge alternatives and this part to read as follows: of the operator’s approved Emergency components are trained. Response Plan. (2) The mine operator shall certify, by § 75.1600–3 Communications facilities; refuge alternatives. [FR Doc. E8–30669 Filed 12–30–08; 8:45 am] signature and date, the training of persons who examine, maintain, and (a) Refuge alternatives shall be BILLING CODE 4510–43–P repair refuge alternatives and provided with a communications components. system that consists of—
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Reader Aids Federal Register Vol. 73, No. 251 Wednesday, December 31, 2008
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 77544, 77546, 77548, 77549, Presidential Documents 3 CFR Executive orders and proclamations 741–6000 77551, 77553 Proclamations: The United States Government Manual 741–6000 8324...... 73149 7 CFR Other Services 8325...... 73151 210...... 76847 Electronic and on-line services (voice) 741–6020 8326...... 74925 245...... 76847 Privacy Act Compilation 741–6064 8327...... 75293 250...... 74605 Public Laws Update Service (numbers, dates, etc.) 741–6043 8328...... 75925 278...... 79591 TTY for the deaf-and-hard-of-hearing 741–6086 8329...... 78174 279...... 79595 8330...... 78911 301...... 75537 8331...... 79585 ELECTRONIC RESEARCH 319...... 76863 8332...... 80289 400...... 76868 World Wide Web Executive Orders: 407...... 76868 Full text of the daily Federal Register, CFR and other publications 12171 (amended by 457...... 76868, 80295 is located at: http://www.gpoaccess.gov/nara/index.html 13480) ...... 73991 761...... 74343 Federal Register information and research tools, including Public 13454 (superseded by 762...... 74343 Inspection List, indexes, and links to GPO Access are located at: 13483) ...... 78587 764...... 74343 http://www.archives.gov/federallregister 13480...... 73991 767...... 74343 13481...... 75531 920...... 75537 E-mail 13482...... 76501 927...... 78149 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13483...... 78587 930...... 75927 an open e-mail service that provides subscribers with a digital Administrative Orders: 946...... 74346, 75929 form of the Federal Register Table of Contents. The digital form Memorandums: 966...... 76191, 78150 of the Federal Register Table of Contents includes HTML and Memorandum of July 984 ...... 73761, 73995, 78151 PDF links to the full text of each document. 10, 2002 987...... 75931 To join or leave, go to http://listserv.access.gpo.gov and select (superseded by 993...... 75934 Online mailing list archives, FEDREGTOC-L, Join or leave the list Memorandum of 1000...... 78917 (or change settings); then follow the instructions. December 9, 1001...... 78917 PENS (Public Law Electronic Notification Service) is an e-mail 2008) ...... 75535 1005...... 78917 service that notifies subscribers of recently enacted laws. Memorandum of 1006...... 78917 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html December 8, 2006 1007...... 78917 and select Join or leave the list (or change settings); then follow (superseded by EO 1030...... 78917 the instructions. 13481) ...... 75531 1032...... 78917 FEDREGTOC-L and PENS are mailing lists only. We cannot Memorandum of 1033...... 78917 respond to specific inquiries. December 9, 2008 ...... 75531 1124...... 78917 Reference questions. Send questions and comments about the Memorandum of 1126...... 78917 Federal Register system to: [email protected] December 9, 2008 ...... 75535 1131...... 78917 The Federal Register staff cannot interpret specific documents or Memorandum of 1280...... 76193 regulations. December 23, 1400...... 79267 2008 ...... 79589 1412...... 79284 FEDERAL REGISTER PAGES AND DATE, DECEMBER Presidential 1430...... 73764 Determinations: 1779...... 76698 72687–73148...... 1 No. 2009-8 of 3575...... 76698 73149–73544...... 2 December 4, 2008 ...... 76503 4279...... 76698 73545–73760...... 3 No. 2009-9 of 4280...... 76698 73761–73994...... 4 December 18, 5001...... 76698 73995–74342...... 5 2008 ...... 80293 Proposed Rules: 74343–74604...... 8 319...... 74073 5 CFR 74605–74926...... 9 905...... 79028 74927–75304...... 10 531...... 76847 930...... 74073 75305–75534...... 11 Proposed Rules: 1205...... 72747 75535–75926...... 12 315...... 74071 1220...... 74078 75927–76190...... 15 316...... 74071 1487...... 73617 76191–76502...... 16 532...... 74374 1493...... 76568 76503–76846...... 17 591...... 74858 76847–77472...... 18 9901...... 73606 8 CFR 77473–78148...... 19 2417...... 79024 103...... 75540 78149–78586...... 22 204...... 78104 78587–78916...... 23 6 CFR 212...... 75540 78917–79266...... 24 Proposed Rules: 214 ...... 75540, 76891, 78104 79267–79584...... 29 5 ...... 74632, 74633, 74635, 215 ...... 76891, 77473, 78104 79585–80288...... 30 74637, 75372, 75373, 77536, 217...... 79595 80289–80700...... 31 77537, 77539, 77541, 77543, 235...... 77473
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245...... 75540 741...... 79307 760...... 74348 23 CFR 274a...... 76505, 76891 Proposed Rules: 764...... 75942 620...... 77495 299...... 74605, 75540 226...... 74989, 77554 766...... 75942 635...... 77495 1001...... 76914 768...... 75942 13 CFR 636...... 77495 1003...... 76914 770...... 73547 710...... 77495 1240...... 76927 120...... 75498 772...... 75942 924...... 78959 1241...... 76927 301...... 76194 774...... 73547, 75942 1292...... 76914 302...... 76194 902...... 74003, 76136 24 CFR 303...... 76194 9 CFR Proposed Rules: 26...... 76832 305...... 76194 301...... 76571 28...... 76830 94...... 78925 307...... 76194 922...... 77557 180...... 79324 317...... 75564 308...... 76194 203...... 80297 381...... 75564 16 CFR 310...... 76194 576...... 75324 314...... 76194 Proposed Rules: 1303...... 77492 582...... 75324 315...... 76194 2...... 77554 1500...... 77493 583...... 75324 201...... 76288, 78661 14 CFR 17 CFR Proposed Rules: 10 CFR 291...... 78554 1...... 73768, 76195 140...... 79608 30...... 78599 25...... 73997 240...... 76104 25 CFR 40...... 78599 39 ...... 73165, 73168, 73169, Proposed Rules: 293...... 74004 50...... 78599 73545, 73782, 73785, 75305, 15...... 75888 60...... 78599 75307, 75312, 75314, 75316, Proposed Rules: 16...... 75888 502...... 78242 61...... 78599 75319, 78173, 78175, 78927, 17...... 75888 63...... 78599 78929, 78931, 78934, 78936, 514...... 78242 18...... 75888 531...... 78242 70...... 78599 78939, 78944, 78946, 78948, 19...... 75888 72...... 78599 78951, 78956, 80296 533...... 78242 21...... 75888 535...... 78242 75...... 78599 71 ...... 75936, 75938, 75939, 36...... 75888 76...... 78599 75941, 76517, 76518, 76519, 537...... 78242 40...... 75888 539...... 78242 95...... 78599 76940, 78178, 78179, 78618, 200...... 80313 110...... 78599 79313 556...... 78242 150...... 78599 73...... 76215 18 CFR 558...... 78242 91...... 73171 571...... 78242 Proposed Rules: Ch. I ...... 79316 93...... 76195, 79313 573...... 78242 430...... 74639 35...... 79610 97...... 74927, 74928 431 ...... 76569, 78220, 79723 284 ...... 72692, 73494, 79628 26 CFR 101...... 73768 440...... 79414 358...... 78183 121...... 73171 1 ...... 75326, 75566, 75946, 452...... 78663 806...... 78618 125...... 73171 78930, 78969, 79324, 79334 1004...... 74658 Proposed Rules: 1010...... 72748 198...... 78958 20...... 78930 400...... 73768 35...... 79420 25...... 78930 11 CFR 401...... 73768 40...... 77560 26...... 78930 100...... 79597 420...... 73768 19 CFR 31...... 78930, 79354 101...... 79597 Proposed Rules: 40...... 78930 351...... 74930 102...... 79597 23...... 73195 41...... 78930 104...... 79597 39 ...... 73618, 74080, 74661, Proposed Rules: 44...... 78930 110...... 79597 74999, 75007, 75009, 75977, 360...... 75624 53...... 78930 54...... 78930 111...... 72687 76291, 76974, 76979, 77555, 20 CFR 113...... 79597 78670, 78672, 78673, 78675, 55...... 78930 400...... 79597 78678 404...... 76940 56...... 78930 9001...... 79597 71 ...... 74376, 74377, 74378, 408...... 76940 156...... 78930 9003...... 79597 75011, 75013, 76293, 76981, 416...... 76940 157...... 78930 9031...... 79597 76982, 76983, 76985, 76986, 422...... 76940 301 ...... 73180, 76216, 78930, 9033...... 79597 79035 655...... 77110, 78020 79361 234...... 74586 656...... 78020 602...... 78930 12 CFR 259...... 74586 1010...... 78132 Proposed Rules: 3...... 79602 399...... 74586 Proposed Rules: 1 ...... 73197, 74380, 75979, 25...... 78153 404...... 76573 78252, 79421 201...... 79306 15 CFR 416...... 74663 31...... 74082, 79423 203...... 78616 6...... 75321 301...... 78254 21 CFR 204...... 78616 710...... 78170 208...... 79602 711...... 78180 101...... 74349 28 CFR 225...... 79602 712...... 78180 520...... 76946 26...... 75327 228...... 78153 716...... 78180 524...... 79318 28...... 74932 229...... 77491 718...... 78180 556...... 72714 32...... 76520 308...... 73153 719...... 78180 558 ...... 72714, 75323, 76946 73...... 73181 325...... 79602 720...... 78180 573...... 78958 75...... 77432 327...... 73158, 78155 730...... 75942 1300...... 73549 345...... 78153 734...... 75942 1314...... 79318 29 CFR 371...... 78162 736...... 75942 1315...... 73549 3...... 77504 516...... 76938 740...... 75942 1316...... 73549 5...... 77504 563e...... 78153 742...... 75942 Proposed Rules: 501...... 77110 567...... 79602 743...... 75942 Ch. I ...... 75625 780...... 77110 575...... 76938 744...... 73999 878...... 78239 788...... 77110 701...... 73392 745...... 75942 1910...... 75568 702...... 72688 747...... 75942 22 CFR 1915...... 75568 704...... 72688 754...... 75942 Proposed Rules: 1917...... 75246, 75568 712...... 79307 758...... 75942 62...... 75015, 76575 1918...... 75246, 75568
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1926...... 75568 1256...... 79392 221...... 74983 1001...... 76575 4001...... 79628 Proposed Rules: 222...... 74983 4022...... 72715, 78621 4...... 76987, 78680 223...... 74983 43 CFR 4044...... 72716, 79362 251...... 79424 224...... 74983 419...... 74031 4211...... 79628 227...... 74983 429...... 74326 4219...... 79628 37 CFR 228...... 74983 423...... 75347 Proposed Rules: 41...... 74972 232...... 79641 2300...... 74039 1926...... 73197 381...... 72726 261...... 72912, 77954 3800...... 73789 262...... 72912 Proposed Rules: 30 CFR 44 CFR 201...... 79425 271...... 78647, 79761 302...... 76948 6...... 80580 370...... 79727 64...... 75609 7...... 80656 312...... 78651 65...... 76230, 76232 14...... 80580 38 CFR 355...... 76948 67...... 73182, 76234 1045...... 73789 18...... 80580 21...... 79645 Proposed Rules: 48...... 80580 1054...... 73789 67 ...... 74666, 74673, 76318, 53...... 73558 1065...... 73789 75...... 80580, 80656 Proposed Rules: 76322, 76324 219...... 78622 Proposed Rules: 17...... 79428 Ch. I ...... 73620 45 CFR 780...... 75814 21...... 78876 784...... 75814 52 ...... 74096, 74097, 74098, 88...... 78072, 78997 816...... 75814 39 CFR 75626, 78258, 79435, 79760 144...... 76960 817...... 75814 60 ...... 72962, 73629, 78260, 1...... 78981 301...... 74898 924...... 74943 78522 2...... 78981 302...... 74898 938...... 72717 61...... 73629 3...... 78981 303...... 74898 948...... 78970 63 ...... 72756, 73629, 73631 304...... 74898 4...... 78981 72...... 75983 Proposed Rules: 31 CFR 5...... 78981 73...... 75983 301...... 74408 6...... 78981 74...... 75983 103...... 74010 302...... 74408 7...... 78981 77...... 75983 380...... 75589 303...... 74408 8...... 78981 78...... 75983 560...... 73788 305...... 74408 9...... 78981 80...... 74350 594...... 78631 308...... 74408 10...... 78981 81...... 79760 595...... 78631 681...... 79761 11...... 78981 82...... 78680, 78705 597...... 78631 912...... 75339 158...... 75629 46 CFR 32 CFR 3020 ...... 77512, 78186, 78189, 161...... 75629 79396 180...... 73632, 80317 56...... 76247 199...... 74945 3060...... 79256 393...... 79665 706 ...... 72725, 73556, 73557, 239...... 75986 Proposed Rules: Proposed Rules: 75591 258...... 75986 111...... 79430 260...... 73520 71...... 74426 Proposed Rules: 233...... 79734 261...... 73520 114...... 74426 185...... 73896 261...... 79734 264...... 73520 115...... 74426 199...... 79726 262...... 79734 265...... 73520 122...... 74426 170...... 74426 33 CFR 263...... 79734 268...... 73520 264...... 79734 270...... 73520 171...... 74426 110...... 75951 265...... 79734 271...... 79761 172...... 74426 117 ...... 74018, 74966, 76217, 266...... 79734 273...... 73520 174...... 74426 79637, 79639, 80298, 80299 3001...... 72754 300...... 77560 175...... 74426 147...... 77512 312...... 78716 176...... 74426 155...... 79314, 80618 40 CFR 700...... 78261 178...... 74426 156...... 79314 Ch. I ...... 75592 720...... 78261 179...... 74426 165 ...... 76536, 77512, 78184, 3...... 78991 721...... 78261 185...... 74426 79363, 79639 19...... 75340 723...... 78261 47 CFR 323...... 79641 27...... 75340 725...... 78261 334...... 78633, 78634 50...... 76219 Ch. 1 ...... 79667 Proposed Rules: 51...... 76539, 77882 41 CFR 51...... 72732 117...... 72752 52 ...... 73562, 74019, 74027, 102-74...... 77517 54...... 72732 160...... 76295 74029, 75600, 76558, 76560, 61...... 72732 42 CFR 161...... 76295 76947, 77882, 78192, 79400, 64...... 79683 164...... 76295 79652, 79653, 79655, 80300 405...... 80302 69...... 72732 165...... 75980, 76295 55...... 78196 409...... 80302 73 ...... 73192, 74047, 78655, 58...... 77517 410...... 80302 79696, 79697, 80305 34 CFR 59...... 78994 411...... 79664, 80302 Proposed Rules: 99...... 74806 60 ...... 78199, 78546, 78549 412...... 79664 Ch. 1 ...... 75629 200...... 78636 63 ...... 72727, 76220, 78199, 413...... 79664, 80302 1...... 75376 300...... 73006 78637 414...... 80302 51...... 76325 Proposed Rules: 65...... 78199 415...... 80302 54...... 76325 Ch. VI...... 80314 72...... 75954, 75959 422...... 79664 61...... 76325 73...... 75954, 75959 423...... 80302 69...... 76325 36 CFR 74...... 75954, 75959 424...... 80302 73 ...... 73199, 75381, 75630, 2...... 74966 77...... 75954, 75959 440...... 73694, 77519 75631, 76577, 78720, 79036, 7...... 74606 78...... 75954, 75959 447...... 77904 79436, 79769, 80332 212...... 74612 80...... 74403 455...... 77904 219...... 80299 81...... 79655 485...... 80302 48 CFR 223...... 79367 112...... 74236, 75346 486...... 80302 212...... 76969 261...... 79367 180 ...... 73580, 73586, 74972, 489...... 79664, 80302 225...... 76970 1250...... 79392 74978, 75601, 75605, 80301 Proposed Rules: 252...... 76970, 76971 1251...... 79392 220...... 74983 84...... 75027, 75045 533...... 74613
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552...... 74613 230...... 79698 Proposed Rules: 660 ...... 72739, 72740, 75975, Proposed Rules: 231...... 79698 89...... 74098 79008 536...... 73199 232...... 74070, 79698 213...... 73078 665...... 75615, 75622 1804...... 73201 233...... 79698 240...... 80349 679 ...... 74987, 76136, 77534, 1845...... 73202 234...... 79698 390...... 73129 80307 1852...... 73201, 73202 235...... 79698 391...... 73129 680...... 76136 571...... 72758, 76326 236...... 79698 Proposed Rules: 49 CFR 573...... 74101 238...... 79698 17 ...... 73211, 74123, 74427, 575...... 72758 192...... 72737, 79002 239...... 79698 74434, 74674, 74675, 75176, 579...... 72758, 74101 209...... 79698 240...... 79698 76454, 76990, 77264, 77568, 213...... 79698 241...... 79698 50 CFR 79226, 79770 214...... 79698 244...... 79698 20...... 76577 215...... 79698 14...... 74615 21...... 74445, 74447 216...... 79698 365...... 76472 17 ...... 73794, 74357, 75356, 217...... 79698 383...... 73096 76249 92...... 76994 218...... 79698 384...... 73096 27...... 74966 216 ...... 75631, 75988, 77577 219...... 78656, 79698 385...... 76472, 76794 229 ...... 73032, 75611, 75613, 218...... 76578 220...... 79698 386...... 76794 76269, 77531 226...... 74681 221...... 79698 387...... 76472 300...... 72737 300...... 78276 222...... 79698 390 ...... 73096, 76472, 76794 402...... 76272 622...... 73219, 79037 223...... 79698 391...... 73096 404...... 73592 635...... 75382 224...... 79698 392...... 76794 600...... 75968, 79705 660...... 77589, 80516 225...... 78657, 79698 393...... 76794 622...... 73192 665...... 75057 227...... 79698 396...... 76794 635...... 76972, 79005 679 ...... 73222, 75059, 75659, 228...... 79698 1520...... 77531 648 ...... 74373, 74631, 77534, 76605, 79773 229...... 74070, 79698 1580...... 77531 78659, 79719, 79720, 80306 680...... 74129, 75661
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Effective January 1, 2009, FEDERAL DEPOSIT Merger Net Worth; Regulation 1.38 and the Reminders, including INSURANCE CORPORATION published 12-1-08 Guidance on Core Rules Going Into Effect and Rules of Practice and Principle 9; Extension of Comments Due Next Week, Procedure; published 12-2- COMMENTS DUE NEXT Comment Period; will no longer appear in the 08 WEEK comments due by 1-5-09; Reader Aids section of the published 11-14-08 [FR FEDERAL ELECTION Federal Register. This E8-27121] COMMISSION AGRICULTURE information can be found DEPARTMENT ENERGY DEPARTMENT online at http:// Extension of Administrative Agricultural Marketing Revision of Department of www.regulations.gov. Fines Program; published 12-1-08 Service Energy’s Freedom of Tart Cherries Grown in the Information Act Regulations; REMINDERS HEALTH AND HUMAN comments due by 1-8-09; SERVICES DEPARTMENT States of Michigan, et al.; The items in this list were Final Free and Restricted published 12-9-08 [FR E8- Food and Drug editorially compiled as an aid Percentages for the 2008- 28940] Administration to Federal Register users. 2009 Crop Year for Tart ENERGY DEPARTMENT Inclusion or exclusion from Administrative rulings and Cherries; comments due by Federal Energy Regulatory this list has no legal decisions: 1-5-09; published 12-5-08 Commission significance. Ozone-depleting substances [FR E8-28769] Frequency Response and Bias use; essential-use AGRICULTURE and Voltage and Reactive designations— DEPARTMENT RULES GOING INTO Control Reliability Standards: Albuterol used in oral Animal and Plant Health EFFECT DECEMBER 31, Electric Reliability pressurized metered- Inspection Service Organization 2008 dose inhalers; removed; Importation of Longan from Interpretations of Specific published 4-4-05 Taiwan; comments due by Requirements; comments AGRICULTURE HOMELAND SECURITY 1-6-09; published 11-7-08 due by 1-7-09; published DEPARTMENT DEPARTMENT [FR E8-26612] 12-19-08 [FR E8-30235] Federal Crop Insurance Coast Guard AGRICULTURE ENVIRONMENTAL Corporation Drawbridge Operation DEPARTMENT PROTECTION AGENCY Common Crop Insurance Regulations: Rural Housing Service Agency Information Collection Regulations, Coverage Atlantic Intracoastal Income Limit Modification; Activities; Proposals, Enhancement Option Waterway (AIWW), comments due by 1-5-09; Submissions, and Approvals; Provisions; Corrections; Elizabeth River, Southern published 11-4-08 [FR E8- comments due by 1-8-09; published 12-31-08 Branch, VA, Maintenance; 25849] published 12-9-08 [FR E8- AGRICULTURE published 11-10-08 COMMERCE DEPARTMENT 29111] DEPARTMENT Safety Zone: International Trade Agency Information Collection Forest Service Activities; Proposals, Flagler Museum New Year’s Administration Submissions, and Approvals: National Forest System Land Eve Celebration Fireworks Withdrawal of the Regulatory Management Planning; Display, West Palm Provisions Governing NESHAP for Primary Lead Correction; published 12-31- Beach, FL; published 12- Targeted Dumping in Smelters; comments due 08 30-08 Antidumping Duty by 1-9-09; published 12- Investigations; comments 10-08 [FR E8-29229] COMMERCE DEPARTMENT Safety Zones: National Oceanic and due by 1-9-09; published NESHAP for Steel Pickling, Bayfront Park New Year’s 12-10-08 [FR E8-29225] HCl Process Facilities and Atmospheric Administration Eve Celebration, Biscayne Pacific Halibut Fisheries: COMMERCE DEPARTMENT Hydrochloric Acid Bay, FL; published 11-26- Regeneration Plants Subsistence Fishing; National Oceanic and 08 (Renewal); comments due published 12-1-08 Atmospheric Administration LABOR DEPARTMENT Fisheries of the Exclusive by 1-9-09; published 12- EDUCATION DEPARTMENT Labor-Management Economic Zone Off Alaska: 10-08 [FR E8-29230] Assistance to States for the Standards Office Bering Sea and Aleutian Schools Chemical Cleanout Education of Children with Labor Organization Annual Islands; Proposed 2009 Campaign; comments due Disabilities and Preschool Financial Reports For Trusts and 2010 Harvest by 1-9-09; published 12- Grants for Children with In Which A Labor Specifications for 10-08 [FR E8-29234] Disabilities; published 12-1- Organization Is Interested; Groundfish; comments Approval and Promulgation of 08 published 10-2-08 due by 1-9-09; published Air Quality Implementation ENERGY DEPARTMENT LABOR DEPARTMENT 12-10-08 [FR E8-29216] Plans: Federal Energy Regulatory Mine Safety and Health Marine Mammals; Application: Connecticut; Enhanced Commission Administration Associated Scientists at Vehicle Inspection and Promotion of a More Efficient Woods Hole; comments Maintenance Program; Flame-Resistant Conveyor Capacity Release Market; due by 1-9-09; published comments due by 1-5-09; Belt, Fire Prevention and published 12-1-08 12-10-08 [FR E8-29204] published 12-5-08 [FR E8- Detection, and Use of Air 28735] Promotion of a More Efficient from the Belt Entry; Taking and Importing Marine Capacity Release Market; published 12-31-08 Mammals: Data Requirements for Correction; published 12-30- Taking Marine Mammals Antimicrobial Pesticides; 08 LEGAL SERVICES Incidental to Space comments due by 1-6-09; CORPORATION FEDERAL Vehicle and Test Flight published 10-8-08 [FR E8- COMMUNICATIONS Procedures for Disclosure of Activities from 23127] COMMISSION Information under the Vandenberg Air Force Environmental Statements; Freedom of Information Act; Telecommunications Relay Base, CA; comments due Notice of Intent: published 11-17-08 Services, Speech-to-Speech by 1-5-09; published 12- Coastal Nonpoint Pollution Services, E911 NATIONAL CREDIT UNION 19-08 [FR E8-30237] Control Programs; States Requirements for IP-Enabled ADMINISTRATION COMMODITY FUTURES and Territories— Service Providers; published Prompt Corrective Action; TRADING COMMISSION Florida and South 12-30-08 Amended Definition of Post- Execution of Transactions: Carolina; Open for
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comments until further Revised Designation of published 11-10-08 [FR E8- to Nonqualified Deferred notice; published 2-11- Critical Habitat for the 26681] Compensation Plans; Public 08 [FR 08-00596] Wintering Population of TRANSPORTATION Hearing; comments due by National Emission Standards the Piping Plover DEPARTMENT 1-7-09; published 12-8-08 for Hazardous Air Pollutants (Charadrius melodus) in Federal Aviation [FR E8-28894] for Chemical Manufacturing Texas; comments due by Administration Notices to Participants of Area Sources; comments 1-8-09; published 12-9-08 Airworthiness Directives: Consequences of Failing to due by 1-5-09; published [FR E8-28752] Boeing Model 707 Airplanes Defer Receipt of Qualified 11-20-08 [FR E8-27609] Receipt of Applications for and Model 720 and 720B Retirement Plan Regulation of Fuel and Fuel Permit; comments due by 1- Series Airplanes; Distributions; Expansion of Additives: 9-09; published 12-10-08 comments due by 1-5-09; Applicable Election Period Gasoline and Diesel Fuel [FR E8-29196] published 12-10-08 [FR and Period for Notices; Test Methods; comments comments due by 1-7-09; INTERIOR DEPARTMENT E8-29257] due by 1-7-09; published published 10-9-08 [FR E8- 12-8-08 [FR E8-28370] National Park Service Boeing Model 737 Airplanes; comments due 23918] Revisions to the California National Register of Historic by 1-9-09; published 11- VETERANS AFFAIRS State Implementation Plan: Places; Notification of 10-08 [FR E8-26373] DEPARTMENT Great Basin Unified Air Pending Nominations and Privacy Act; Systems of Pollution Control District Related Actions; comments Bombardier Model CL 600 2B19 (Regional Jet Series Records; comments due by and Kern County Air due by 1-6-09; published 1-7-09; published 12-8-08 Pollution Control District; 12-22-08 [FR E8-30323] 100 & 440) Airplanes; comments due by 1-5-09; [FR E8-29016] comments due by 1-5-09; LIBRARY OF CONGRESS published 12-5-08 [FR E8- published 12-4-08 [FR E8- Copyright Office, Library of 28732] 28365] LIST OF PUBLIC LAWS Congress South Coast Air Quality Turbomeca S.A. Arriel 2B, Management District; Compulsory License for 2B1, and 2B1A This is a continuing list of comments due by 1-5-09; Making and Distributing Turboshaft Engines; public bills from the current published 12-5-08 [FR E8- Phonorecords, Including comments due by 1-8-09; session of Congress which 28725] Digital Phonorecord published 12-9-08 [FR E8- have become Federal laws. It Deliveries; comments due 29102] FEDERAL may be used in conjunction by 1-6-09; published 11-7- COMMUNICATIONS Proposed Establishment of with ‘‘P L U S’’ (Public Laws 08 [FR E8-26666] COMMISSION Class D Airspace: Update Service) on 202–741– Agency Information Collection NUCLEAR REGULATORY Branson, MO; comments 6043. This list is also Activities; Proposals, COMMISSION due by 1-5-09; published available online at http:// Submissions, and Approvals; Model Safety Evaluation on 11-20-08 [FR E8-27544] www.archives.gov/federal- comments due by 1-5-09; Technical Specification Proposed Establishment of register/laws.html. published 12-4-08 [FR E8- Improvement to Relocate Class E Airspace; Tower, The text of laws is not 28755] Surveillance Frequencies: MN; comments due by 1-9- published in the Federal Television Broadcasting Licensee Control - Risk- 09; published 11-25-08 [FR Register but may be ordered Services: Informed Technical E8-28034] in ‘‘slip law’’ (individual Clovis, NM; comments due Specification Task Force Special Conditions: pamphlet) form from the by 1-8-09; published 12- (RITSTF) Initiative 5b, Airbus A318, A319, A320 Superintendent of Documents, 24-08 [FR E8-30693] Technical Specification and A321 Series U.S. Government Printing HOMELAND SECURITY Task Force - 425, Airplanes; Inflatable Office, Washington, DC 20402 DEPARTMENT Revision 2; comments Restraints; comments due (phone, 202–512–1808). The Federal Emergency due by 1-5-09; published by 1-5-09; published 11- text will also be made Management Agency 12-5-08 [FR E8-28850] 20-08 [FR E8-27541] available on the Internet from Proposed Flood Elevation Physical Protection of Dassault Falcon 2000 GPO Access at http:// Determinations; comments Byproduct Material; Series Airplanes; Aircell www.gpoaccess.gov/plaws/ due by 1-8-09; published comments due by 1-5-09; Airborne Satcom index.html. Some laws may 10-10-08 [FR E8-24089] published 11-19-08 [FR E8- Equipment Consisting of a not yet be available. Wireless Handset and HOMELAND SECURITY 27464] H.R. 6184/P.L. 110–456 DEPARTMENT Associated Base Station, PERSONNEL MANAGEMENT etc.; comments due by 1- America’s Beautiful National Privacy Act of 1974: OFFICE Parks Quarter Dollar Coin Act Implementation of 5-09; published 11-20-08 Noncompetitive Appointment of of 2008 (Dec. 23, 2008; 122 Exemptions; comments due [FR E8-27538] Certain Military Spouses; Stat. 5038) by 1-8-09; published 12-9- TRANSPORTATION comments due by 1-5-09; 08 [FR E8-29060] DEPARTMENT H.R. 7311/P.L. 110–457 published 12-5-08 [FR E8- William Wilberforce Trafficking HOUSING AND URBAN National Highway Traffic 28747] Victims Protection DEVELOPMENT Safety Administration Prevailing Rate Systems: DEPARTMENT Receipt of Petition for Reauthorization Act of 2008 (Dec. 23, 2008; 122 Stat. Public Housing Evaluation and Redefinition of the Little Decision: 5044) Oversight: Rock, AR, Southern Nonconforming 2005-2006 Changes to the Public Missouri, and Tulsa, OK, Porsche Carrera Cabriolet H.R. 7327/P.L. 110–458 Housing Assessment Appropriated Fund Passenger Cars Worker, Retiree, and Employer System and Determining Federal Wage System Manufactured Prior to Recovery Act of 2008 (Dec. and Remedying Wage Areas; comments September 1, 2006 are 23, 2008; 122 Stat. 5092) Substantial Default; due by 1-7-09; published Eligible for Importation; S. 3663/P.L. 110–459 comments due by 1-8-09; 12-8-08 [FR E8-28916] comments due by 1-9-09; Short-term Analog Flash and published 11-24-08 [FR SOCIAL SECURITY published 12-10-08 [FR Emergency Readiness Act E8-27807] ADMINISTRATION E8-29190] (Dec. 23, 2008; 122 Stat. INTERIOR DEPARTMENT Setting the Time and Place TREASURY DEPARTMENT 5121) Fish and Wildlife Service for a Hearing before an Internal Revenue Service S. 3712/P.L. 110–460 Endangered and Threatened Administrative Law Judge; Further Guidance on the To make a technical Wildlife and Plants: comments due by 1-9-09; Application of Section 409A correction in the Paul
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Wellstone and Pete Domenici enacted public laws. To PENS cannot respond to Mental Health Parity and subscribe, go to http:// specific inquiries sent to this Addiction Equity Act of 2008. Public Laws Electronic listserv.gsa.gov/archives/ address. (Dec. 23, 2008; 122 Stat. Notification Service publaws-l.html (PENS) 5123) Note: This service is strictly for E-mail notification of new Last List December 23, 2008 PENS is a free electronic mail laws. The text of laws is not notification service of newly available through this service.
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