| Page Range | 37135-37527 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 37311 - Sunshine Act Meeting | |
| 80 FR 37236 - Hydrographic Services Review Panel; Membership Solicitation | |
| 80 FR 37286 - Notice of Intent To Prepare a Programmatic Draft Environmental Impact Statement for Invasive Rodent and Mongoose Control and Eradication on U.S. Pacific Islands Within the National Wildlife Refuge System and in Native Ecosystems in Hawaii | |
| 80 FR 37326 - In the Matter of Aspire Japan, Inc., Market & Research Corp. (n/k/a MRC Group Ltd.), McIntosh Bancshares Inc., Pure Minerals, Inc. (f/k/a Pure Pharmaceuticals Corp.) and Salamon Group, Inc.; Order of Suspension of Trading | |
| 80 FR 37329 - In the Matter of Accres Holding, Inc., FirstBank Financial Services, Inc., MicroSmart Devices, Inc., Polymedix, Inc., RegenoCELL Therapeutics, Inc., and The Sagemark Companies Ltd.; Order of Suspension of Trading | |
| 80 FR 37349 - In the Matter of Vantone International Group, Inc.; Order of Suspension of Trading | |
| 80 FR 37156 - Safety Zone; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone-Celebration Freedom Fireworks | |
| 80 FR 37154 - Safety Zones; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone-Gary Air and Water Show | |
| 80 FR 37155 - Safety Zones; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone-Michigan City Summerfest Fireworks | |
| 80 FR 37155 - Safety Zones; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone-Start of the Chicago to Mackinac Race | |
| 80 FR 37156 - Safety Zones; Fireworks Events in Captain of the Port New York Zone | |
| 80 FR 37203 - Safety Zone; Ohio River between Mile 25.2 and 25.8; New Brighton, PA | |
| 80 FR 37221 - Foreign-Trade Zone 33-Pittsburgh, Pennsylvania Application for Reorganization Under Alternative Site Framework | |
| 80 FR 37353 - 30-Day Notice of Proposed Information Collection: Department of State Acquisition Regulation (DOSAR) | |
| 80 FR 37359 - Notice of Buy America Waiver | |
| 80 FR 37268 - Notice of Hearing: Reconsideration of Disapproval Texas Medicaid State Plan Amendment (SPA) 14-25 | |
| 80 FR 37352 - 30-Day Notice of Proposed Information Collection: Statement of Claim Related to Deportation During the Holocaust | |
| 80 FR 37237 - Request for Information Regarding the Consumer Complaint Database: Data Normalization | |
| 80 FR 37327 - Sunshine Act Meeting | |
| 80 FR 37315 - Sunshine Act Meeting | |
| 80 FR 37314 - Sunshine Act Meeting Notice | |
| 80 FR 37222 - Fresh Garlic From the People's Republic of China: Preliminary Results of the Changed Circumstances Review of Jining Yongjia Trade Co., Ltd. and Jinxiang County Shanfu Frozen Co., Ltd. | |
| 80 FR 37259 - Zimmer Holdings, Inc. and Biomet, Inc.; Analysis of Proposed Consent Order To Aid Public Comment | |
| 80 FR 37285 - 60-Day Notice of Proposed Information Collection: Neighborhood Stabilization Program 2 (NSP2) Reporting | |
| 80 FR 37282 - 60-Day Notice of Proposed Information Collection: Insurance Termination Request for Multifamily Mortgage | |
| 80 FR 37296 - Notice of Realty Action: Competitive Sale of 33 Parcels of Public Land in Clark County, NV | |
| 80 FR 37223 - Certain Corrosion-Resistant Steel Products From the People's Republic of China, India, Italy, the Republic of Korea, and Taiwan: Initiation of Countervailing Duty Investigations | |
| 80 FR 37362 - Proposed Collection; Comment Request for Regulation Project | |
| 80 FR 37228 - Certain Corrosion-Resistant Steel Products From Italy, India, the People's Republic of China, the Republic of Korea, and Taiwan: Initiation of Less-Than-Fair-Value Investigations | |
| 80 FR 37363 - Proposed Collection; Comment Request for Regulation Project | |
| 80 FR 37355 - Second Meeting: Special Committee 234 (SC 234) | |
| 80 FR 37356 - Fifth Meeting: Tiger Team 011 (TG 011) | |
| 80 FR 37364 - Proposed Collection; Comment Request for Regulation Project | |
| 80 FR 37358 - Twenty Ninth Meeting: Special Committee 213 (SC 213) | |
| 80 FR 37358 - Fifteenth Meeting: Subcommittee 227 (SC 227) | |
| 80 FR 37248 - Certain New Chemicals; Receipt and Status Information | |
| 80 FR 37282 - Announcement of Funding Awards for Office of Lead Hazard Control and Healthy Homes (OLHCHH) Grant Programs for Fiscal Year (FY) 2014 | |
| 80 FR 37255 - Proposed Issuance of NPDES General Permits for Wastewater Lagoon Systems Located in Indian Country in EPA Region 8 | |
| 80 FR 37245 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Voluntary Aluminum Industrial Partnership (VAIP) (Renewal) | |
| 80 FR 37263 - Commission To Eliminate Child Abuse and Neglect Fatalities; Cancellation of Meeting | |
| 80 FR 37245 - Environmental Management Site-Specific Advisory Board, Paducah | |
| 80 FR 37255 - Proposed Information Collection Request; Comment Request; Fuel Use Requirements for Great Lake Steamships (Renewal) | |
| 80 FR 37246 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Polyvinyl Chloride and Copolymer Production Area Sources (Renewal) | |
| 80 FR 37247 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Nine Metal Fabrication and Finishing Sources (Renewal) | |
| 80 FR 37293 - Indian Gaming | |
| 80 FR 37312 - NuScale Power, LLC, Design-Specific Review Standard and Safety Review Matrix | |
| 80 FR 37248 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Other Solid Waste Incineration Units (Renewal) | |
| 80 FR 37257 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Pesticide Active Ingredient Production (Renewal) | |
| 80 FR 37254 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Coke Oven Batteries (Renewal) | |
| 80 FR 37302 - Manufacturer of Controlled Substances Registration: Insys Therapeutics, Inc. | |
| 80 FR 37292 - Advisory Committee on Climate Change and Natural Resource Science | |
| 80 FR 37265 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 80 FR 37264 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 80 FR 37301 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Trustworthy Accountability Group, Inc. | |
| 80 FR 37302 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-American Society of Mechanical Engineers | |
| 80 FR 37359 - Notice of Final Federal Agency Actions on the Interstate 64 Peninsula Study in Virginia | |
| 80 FR 37269 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Export Certificates for Food and Drug Administration Regulated Products | |
| 80 FR 37269 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Animal Food Labeling; Declaration of Certifiable Color Additives | |
| 80 FR 37303 - Notice Lodging of Proposed Joint Stipulation To Modify Consent Decree Under the Clean Air Act | |
| 80 FR 37270 - Agency Information Collection Activities; Proposed Collection; Comment Request; Evaluation of the Food and Drug Administration's Campaign To Reduce Tobacco Use Among Lesbian, Gay, Bisexual, and Transgender Young Adults | |
| 80 FR 37181 - Fisheries of the Northeastern United States; Summer Flounder Fishery; Quota Transfer | |
| 80 FR 37220 - Submission for OMB Review; Comment Request | |
| 80 FR 37180 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2015 Commercial Accountability Measure and Closure for South Atlantic Snowy Grouper | |
| 80 FR 37259 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 80 FR 37259 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 37240 - Proposed Collection; Comment Request | |
| 80 FR 37273 - Product-Specific Bioequivalence Recommendations; Draft and Revised Draft Guidances for Industry; Availability | |
| 80 FR 37466 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Geophysical and Geotechnical Survey in Cook Inlet, Alaska | |
| 80 FR 37275 - Premarket Notification Requirements Concerning Gowns Intended for Use in Health Care Settings; Draft Guidance for Industry and Food and Drug Administration Staff; Availability | |
| 80 FR 37294 - Renewal of Agency Information Collection for Reindeer in Alaska | |
| 80 FR 37235 - Marine Mammals; File No. 15537 | |
| 80 FR 37310 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Permit-Required Confined Spaces in General Industry Standard | |
| 80 FR 37294 - Renewal of Information Collection and Request for Comments: OMB Control Number 1093-0006, Volunteer Partnership Management | |
| 80 FR 37258 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 80 FR 37351 - Texas Disaster Number TX-00447 | |
| 80 FR 37351 - Texas Disaster Number TX-00448 | |
| 80 FR 37351 - Harbert Mezzanine Partners II SBIC, L.P.; Notice Seeking Exemption Under Section 312 of the Small Business Investment Act, Conflicts of Interest | |
| 80 FR 37243 - Submission for OMB Review; Comment Request | |
| 80 FR 37323 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of No Objection to an Advance Notice Concerning Modifications To Backtesting Procedures in Order To Enhance Monitoring of Margin Coverage and Model Risk Exposure | |
| 80 FR 37351 - Interest Rates | |
| 80 FR 37135 - Federal Employees' Retirement System; Present Value Conversion Factors for Spouses of Deceased Separated Employees | |
| 80 FR 37219 - Forest Resource Coordinating Committee | |
| 80 FR 37315 - Product Change-Priority Mail Negotiated Service Agreement | |
| 80 FR 37315 - Product Change-Priority Mail and First-Class Package Service Negotiated Service Agreement | |
| 80 FR 37178 - Federal Employees Health Benefits Program: FEHB Plan Performance Assessment System | |
| 80 FR 37353 - WTO Dispute Settlement Proceeding Regarding Indonesia-Importation of Horticultural Products, Animals and Animal Products | |
| 80 FR 37352 - Reporting and Recordkeeping Requirements Under OMB Review | |
| 80 FR 37316 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Amending the Eighth Amended and Restated Operating Agreement of the Exchange To Establish a Regulatory Oversight Committee as a Committee of the Board of Directors of the Exchange and Make Certain Conforming Amendments to Exchange Rules | |
| 80 FR 37337 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating To Amending Rule 6.42 To Extend Its Penny Pilot Until June 30, 2016 | |
| 80 FR 37333 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Extension of the Exchange's Penny Pilot Program and Replacement of Penny Pilot Issues That Have Been Delisted | |
| 80 FR 37349 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 510 To Extend the Penny Pilot Program | |
| 80 FR 37347 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Extension of the Exchange's Penny Pilot Program and Replacement of Penny Pilot Issues That Have Been Delisted | |
| 80 FR 37340 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Equities Rules 7.25 and 8.800 in Order To Allow An Issuer to Elect for its Exchange Traded Product to Participate in the Crowd Participant Program or the ETP Incentive Program Monthly Rather than Quarterly and To Extend the Effectiveness of the Crowd Participant Program until June 23, 2016 | |
| 80 FR 37338 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Commentary .02 to NYSE Amex Options Rule 960NY in Order To Extend the Penny Pilot in Options Classes in Certain Issues Through June 30, 2016 | |
| 80 FR 37331 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Commentary .02 to Exchange Rule 6.72 in Order To Extend the Penny Pilot in Options Classes in Certain Issues Through June 30, 2016 | |
| 80 FR 37335 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Amending Rule 6.4 To Extend the Penny Pilot through June 30, 2016 | |
| 80 FR 37330 - Context Capital Advisers, LLC, et al.; Notice of Application | |
| 80 FR 37327 - Self-Regulatory Organizations; NASDAQ OMX Phlx LLC; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 1, To Amend and Restate Certain Rules That Govern the NASDAQ OMX PSX | |
| 80 FR 37343 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 1.1 Governing Definitions and Various Equity Trading Rules in Order To Eliminate Obsolete References | |
| 80 FR 37177 - Modernizing the E-rate Program for Schools and Libraries | |
| 80 FR 37206 - Assessment and Collection of Regulatory Fees for Fiscal Year 2015 | |
| 80 FR 37299 - Certain Toner Cartridges and Components; Commission Determination To Review in Part an Initial Determination Granting Complainant's Motion for Summary Determination of Violation of Section 337 and, on Review, To Modify Certain Portions of the Initial Determination; Request for Written Submissions on Remedy, the Public Interest, and Bonding | |
| 80 FR 37303 - Unimin Corporation, Gleason, Tennessee; Notice of Affirmative Determination Regarding Application for Reconsideration | |
| 80 FR 37305 - United States Steel Corporation, Lorain Tubular Operations, Lorain, OH; United States Steel Corporation, Fairfield Works-Flat Roll Operations, Fairfield-Tubular Operations, Fairfield, AL; et al.; Amended Certification Regarding Eligibility to Apply for Worker Adjustment Assistance | |
| 80 FR 37309 - Brayton International, a Subsidiary of Steelcase, Inc., Including On-Site Leased Workers From Manpower Group, Experis, Bradley Personnel Inc., Graham Personnel Services, Aerotek, Workforce Unlimited, Experis, Impact Business Group, and Century Employer Organization LLC, High Point, North Carolina; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 37306 - Modine Manufacturing Company, Including On-Site Leased Workers From Masterson, Working World, Aerotek, Reemploy (Seek Professionals, LLC), and Lucas Group, Ringwood, Illinois; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 37305 - Bausch & Lomb Incorporated, North Goodman Street Facility, a Subsidiary of Valeant Pharmaceuticals International, Inc., Including On-Site Leased Workers from Kelly Services Aerotek and Computech Corp., Rochester, New York; Bausch & Lomb Incorporated, Bausch & Lomb Place Facility, a Subsidiary of Valeant Pharmaceuticals International, Inc., Including On-Site Leased Workers From Kelly Services and Computech Corp., Rochester, New York; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 37308 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance | |
| 80 FR 37304 - Investigations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 37307 - General Mills Bakery Division, Including On-Site Leased Workers From Randstad Temp Agency, Aerotek, Inc., and Sonoco, New Albany, Indiana; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 37307 - U.S. Steel Tubular Products, Inc., Tubular Processing Houston Operations, a Subsidiary of United States Steel Corporation, Houston, Texas; U.S. Steel Oilwell Services, LLC, Offshore Operations-Houston, Houston, Texas; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 37307 - Autoliv ASP, Inc., Autoliv Electronics Division, Production Operations Department, Including On-Site Leased Workers From Technical Needs, Lowell, Massachusetts; Aerotek, Working On-Site at Autoliv ASP, Inc., Autoliv Electronics Division, Production Operations Department, Lowell, Massachusetts; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 37306 - Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 37239 - Notice of Intent To Grant Exclusive Patent License to Nano-C, Inc.; Westwood, MA | |
| 80 FR 37239 - Board of Visitors, United States Military Academy (USMA) | |
| 80 FR 37244 - Agency Information Collection Activities; Comment Request; Recent Graduates Employment and Earnings Survey (RGEES) Standards and Survey Form | |
| 80 FR 37302 - Notice of Lodging of Proposed Consent Decree Under the Clean Air Act | |
| 80 FR 37153 - Amendment of Class D and Class E Airspace, Revocation of Class E Airspace; Salem, OR | |
| 80 FR 37356 - Discontinuation of Airport Advisory Service in the Contiguous United States, Puerto Rico, and Hawaii | |
| 80 FR 37292 - Agency Information Collection Activities: Request for Comments | |
| 80 FR 37404 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Mount Charleston Blue Butterfly (Icaricia (Plebejus) shasta charlestonensis | |
| 80 FR 37281 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 37278 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 37279 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 80 FR 37280 - National Institute of Environmental Health Sciences; Notice of Closed Meeting | |
| 80 FR 37279 - National Institute of Neurological Disorders and Stroke Notice of Closed Meetings | |
| 80 FR 37221 - Submission for OMB Review; Comment Request | |
| 80 FR 37263 - Advisory Board on Radiation and Worker Health (ABRWH or Advisory Board), National Institute for Occupational Safety and Health (NIOSH) | |
| 80 FR 37241 - 36(b)(1) Arms Sales Notification | |
| 80 FR 37161 - Modification of Significant New Uses of Certain Chemical Substances | |
| 80 FR 37161 - Approval and Promulgation of Implementation Plans; Texas; Revision To Control Volatile Organic Compound Emissions From Storage Tanks and Transport Vessels | |
| 80 FR 37284 - 30-Day Notice of Proposed Information Collection: Certification of Consistency With Sustainable Communities Planning and Implementation | |
| 80 FR 37136 - Energy Conservation Program: Test Procedures for Packaged Terminal Air Conditioners and Packaged Terminal Heat Pumps | |
| 80 FR 37150 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 80 FR 37200 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
| 80 FR 37276 - Submission for OMB Review; 60-Day Comment Request; Population Assessment of Tobacco and Health Study | |
| 80 FR 37280 - Proposed Collection; 60-Day Comment Request; Population Sciences Biospecimen Catalog | |
| 80 FR 37277 - Submission for OMB Review; 30-Day Comment Request; The Effectiveness of Donor Notification, HIV Counseling, and Linkage of HIV Positive Donors to Health Care in Brazil | |
| 80 FR 37167 - Review of the Emergency Alert System | |
| 80 FR 37432 - Revision of Fee Schedules; Fee Recovery for Fiscal Year 2015 | |
| 80 FR 37182 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Standardized Bycatch Reporting Methodology Omnibus Amendment | |
| 80 FR 37157 - Approval and Promulgation of Air Quality Implementation Plans; North Dakota; Alternative Monitoring Plan for Milton R. Young Station | |
| 80 FR 37205 - Approval and Promulgation of Air Quality Implementation Plans; North Dakota; Alternative Monitoring Plan for Milton R. Young Station | |
| 80 FR 37366 - National Emissions Standards for Hazardous Air Pollutants: Ferroalloys Production | |
| 80 FR 37496 - Defining Larger Participants of the Automobile Financing Market and Defining Certain Automobile Leasing Activity as a Financial Product or Service |
Forest Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Geological Survey
Indian Affairs Bureau
Land Management Bureau
Antitrust Division
Drug Enforcement Administration
Employment and Training Administration
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, issue, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Office of Personnel Management.
Final rule.
The Office of Personnel Management (OPM) is adopting its proposed rule to revise the table of reduction factors for early commencing dates of survivor annuities for spouses of separated employees who die before the date on which they would be eligible for unreduced deferred annuities. This rule is necessary to ensure that the tables conform to the economic and demographic assumptions adopted by the Board of Actuaries and published in the
Effective October 1, 2015.
Roxann Johnson, (202) 606-0299.
On March 20, 2015, OPM published at 80 FR 15036, a notice in the
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order (E.O.) 12866, as amended by E.O. 13258 and E.O. 13422.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect retirement payments to surviving current and former spouses of former employees and Members who separated from Federal service with title to a deferred annuity.
Air traffic controllers, Disability benefits, Firefighters, Government employees, Law enforcement officers, Pensions, Retirement.
For the reasons stated in the preamble, the Office of Personnel Management amends 5 CFR part 843 as follows:
5 U.S.C. 8461; §§ 843.205, 843.208, and 843.209 also issued under 5 U.S.C. 8424; § 843.309 also issued under 5 U.S.C. 8442; § 843.406 also issued under 5 U.S.C. 8441.
With at least 10 but less than 20 years of creditable service—
With at least 20, but less than 30 years of creditable service—
With at least 30 years of creditable service—
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
On March 13, 2014, the U.S. Department of Energy (DOE) issued a notice of proposed rulemaking (NOPR) to amend the test procedures for packaged terminal air conditioners (PTACs) and packaged terminal heat pumps (PTHPs). That NOPR serves as the basis for this final rule regarding the test method for PTACs and PTHPs. The amendments adopted here do not affect measured energy use. These changes incorporate by reference certain sections of the latest versions of industry test procedures AHRI Standard 310/380-2014, ANSI/ASHRAE Standard 16-1983 (RA 2014), ANSI/ASHRAE Standard 37-2009, and ANSI/ASHRAE Standard 58-1986 (RA 2014), and specify additional testing provisions that must be followed including an optional break-in period, require that cooling capacity tests be conducted using electricity measuring instruments accurate to +/− 0.5% of reading, explicitly require that wall sleeves be sealed, allow for the pre-filling of the condensate drain pan, and require testing with 14-inch deep wall sleeves and the filter option most representative of a typical installation.
The effective date of this rule is July 30, 2015. The final rule changes will be mandatory for representations starting June 24, 2016. The incorporation by reference of certain publications listed in this rule was approved by the Director of the Federal Register as of July 30, 2015.
The docket, which includes
A link to the docket Web page can be found at:
For further information on how to review the docket, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Mr. Ronald Majette, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-7935. Email:
Jennifer Tiedeman, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6111. Email:
This final rule incorporates by reference into Part 431 the following industry standards:
(1) AHRI Standard 310/380-2014 (“AHRI 310/380-2014”), (Supersedes ANSI/AHRI 310/380-2004), “Standard for Packaged Terminal Air-Conditioners and Heat Pumps,” published February 2014.
(2) ANSI/ASHRAE Standard 16-1983 (RA 2014), (“ANSI/ASHRAE 16”), “Method of Testing for Rating Room Air Conditioners and Packaged Terminal Air Conditioners,” ASHRAE reaffirmed July 3, 2014.
(3) ANSI/ASHRAE Standard 58-1986 (RA 2014), (“ANSI/ASHRAE 58”), “Method of Testing for Rating Room Air-Conditioner and Packaged Terminal Air-Conditioner Heating Capacity,” ASHRAE reaffirmed July 3, 2014.
(4) ANSI/ASHRAE Standard 37-2009, (“ANSI/ASHRAE 37”) (Supersedes ANSI/ASHRAE Standard 37-2005), “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment,” ASHRAE approved June 20, 2009; ANSI approved June 25, 2009.
You can obtain copies of AHRI standards from the Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Boulevard, Suite 500, Arlington, VA 22201, 703-524-8800, or
Title III, Part C
Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA.
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA provides that any test procedure prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of industrial equipment (or class thereof) during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))
In addition, if DOE determines that a test procedure amendment is warranted, it must publish a proposed test procedure and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6314(b)) Finally, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered equipment as determined under the existing test procedure. (42 U.S.C. 6314(a)(4))
DOE's test procedures for PTACs and PTHPs are codified at Title 10 of the Code of Federal Regulations (CFR) section 431.96. The test procedures were established on December 8, 2006, in a final rule that incorporated by reference the American National Standards Institute's (ANSI) and Air-Conditioning, Heating, and Refrigeration Institute's (AHRI) Standard 310/380-2004, “Standard for Packaged Terminal Air-Conditioners and Heat Pumps” (“ANSI/AHRI 310/380-2004”). 71 FR 71340, 71371. ANSI/AHRI 310/380-2004 is incorporated by reference at 10 CFR 431.95(a)(3) and it references (1) the ANSI and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 16-1983 (RA 99), “Method of Testing for Rating Room Air Conditioners and Packaged Terminal Air Conditioners” (“ANSI/ASHRAE 16”); (2) ANSI/ASHRAE Standard 58-1986 (RA 99), “Method of Testing for Rating Room Air-Conditioner and Packaged Terminal Air-Conditioner Heating Capacity” (“ANSI/ASHRAE 58”); and (3) ANSI/ASHRAE Standard 37-1988, “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment” (“ANSI/ASHRAE 37”).
On May 16, 2012, DOE published a final rule for commercial heating, air-conditioning, and water-heating equipment (“ASHRAE equipment”), which included amendments to the test procedures for PTACs and PTHPs. These amendments incorporated a number of sections of ANSI/AHRI 310/380-2004 by reference. 77 FR 28928, 28990.
On February 22, 2013, DOE published a notice of public meeting and availability of framework document to consider potential amendment of energy conservation standards for PTACs and PTHPs (“February 2013 Framework Document”). 78 FR 12252. In the February 2013 Framework Document, DOE sought comments on issues pertaining to the test procedures for PTACs and PTHPs, including equipment break-in, wall sleeve sealing, pre-filling the condensate drain pan, barometric pressure correction, and differences between the test methods of ANSI/ASHRAE 16 and ANSI/ASHRAE 37. In response to the February 2013 Framework Document, interested parties provided comments responding to the requests for comment regarding test procedure issues.
On February 26, 2013, members of the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) unanimously decided to form a working group to engage in a negotiated rulemaking effort on the certification of commercial heating, ventilation, and air conditioning (HVAC) equipment (10 CFR part 431, subparts D, E and F), water heating (WH) equipment (10 CFR part 431, subpart G), and refrigeration equipment (10 CFR part 431, subpart C). A notice of intent to form the Commercial Certification Working Group (“Working Group”) was published in the
In February 2014, AHRI published AHRI Standard 310/380-2014, “Standard for Packaged Terminal Air-Conditioners and Heat Pumps,” (“AHRI 310/380-2014”), which updates and supersedes the ANSI/AHRI 310/380-2004 referenced by the current test procedure.
On March 13, 2014, DOE published a NOPR (“March 2014 NOPR”) proposing amendments to the DOE PTAC and PTHP test procedures (10 CFR 431, Subpart F), specifically to specify an optional break-in period, explicitly require that wall sleeves be sealed, allow for the pre-filling of the condensate drain pan, require that the cooling capacity for PTACs and PTHPs be determined by testing pursuant to ANSI/ASHRAE 16, and require testing with 14-inch deep wall sleeves and the filter option most representative of a typical installation. 79 FR 14186. DOE held a public meeting on April 28, 2014, to hear oral comments on and solicit information relevant to the March 2014 NOPR.
On July 3, 2014, ASHRAE reaffirmed ANSI/ASHRAE 16 and ANSI/ASHRAE 58 and republished the standards to correct errata that existed in previous versions. These errata corrections do not change the procedures. The reaffirmed 2014 versions of ANSI/ASHRAE 16 and ANSI/ASHRAE 58 are not referenced by the updated AHRI Standard 310/380-2014 test procedure published in February 2014.
With respect to this rulemaking, DOE determined that none of the adopted amendments change the measured energy use of PTACs and PTHPs when compared to the current test procedures. (42 U.S.C. 6314(a)(4); 10 CFR 431.96)
This final rule fulfills DOE's obligation to periodically review its test procedures for all covered equipment, including PTACs and PTHPs, at least once every 7 years and either amend the applicable test procedures or publish a determination in the
In this final rule, DOE amends the test procedures for PTACs and PTHPs in 10 CFR 431, Subpart F, to reference certain sections of the industry test procedures AHRI 310/380-2014, ANSI/ASHRAE Standard 16-1983 (RA 2014), ANSI/ASHRAE 37-2009, and ANSI/ASHRAE 58-1986 (RA 2014), and to specify an optional break-in period, explicitly require that wall sleeves be sealed, allow for the pre-filling of the condensate drain pan, require that measurements of cooling capacity be conducted using electrical instruments accurate to +/−0.5% of reading, and require testing with 14-inch deep wall sleeves and the filter option most representative of a typical installation.
The amendments explicitly allow PTAC and PTHP manufacturers the option of using a break-in period (up to 20 hours) before conducting the test procedures. In this regard, DOE adds AHRI 310/380-2014 to the list of commercial air-conditioner standards at 10 CFR 431.96(c), which currently provides an optional break-in period of up to 20 hours for other commercial air-conditioner equipment types. Any PTAC or PTHP manufacturer that elects to use a break-in period must certify the duration of the break-in period it used for each basic model in the certification report for such basic models. DOE will use the same break-in period for any DOE-initiated testing as the manufacturer used in its certified ratings. In the case an alternate efficiency determination method (AEDM) is used to develop the certified ratings, DOE will use the maximum 20-hour break-in period, which will provide the unit sufficient time to stabilize and achieve optimal performance.
The amended test method requires that, as part of the set-up for testing, testers seal gaps between wall sleeves and the test facility dividing wall. This requires the PTAC or PTHP wall sleeve to be sealed per manufacturer specifications as provided in the installation manual or, if none, by using a standard sealing method.
The amended test method allows pre-filling of the condensate drain pan with water before running the DOE test procedures. This amendment allows the unit to reach steady state more quickly, which may decrease the burden and cost of testing.
In the March 2014 NOPR, DOE proposed to modify the test procedures to require ANSI/ASHRAE 16 as the test method for measuring the cooling capacity of PTACs and PTHPs. 79 FR at 14190-91 (March 13, 2014). The proposal would have disallowed testing to determine cooling capacity by psychrometric testing in accordance with ANSI/ASHRAE 37, which is currently allowed by the DOE test procedures. Interested parties commented that the differences in test results between ANSI/ASHRAE 16 and ANSI/ASHRAE 37 are small, and provided data to support their claims. Interested parties also commented that the requirement of a calorimetric test using ANSI/ASHRAE 16 places additional burdens on manufacturers in the form of significant capital expenditures to construct test facilities compliant with ANSI/ASHRAE 16. Based on these comments, DOE determined that disallowing psychrometric testing (such as that conducted using ANSI/ASHRAE 37) would place additional burden on manufacturers. As a result, in this final rule, DOE does not require the use of ANSI/ASHRAE 16 as the sole test method acceptable for measuring the cooling capacity of PTACs and PTHPs.
The amended test method requires that measurements of cooling capacity be conducted using electricity measuring instruments accurate to +/− 0.5% of reading. DOE believes this tighter requirement for electricity measurement accuracy will help to ensure consistency between tests conducted using ANSI/ASHRAE 16 and ANSI/ASHRAE 37, which have differing requirements for electrical instrumentation accuracy. Section 5.4.2 of ANSI/ASHRAE 16 requires that instruments for measuring electrical inputs be accurate to +/− 0.5% of the quantity measured, while section 5.4.2 of ANSI/ASHRAE 37 requires accuracy to +/− 2.0% of the quantity measured, which represents allowing up to 1.5% greater uncertainty in measurements of input power and efficiency. The amendment requiring +/− 0.5% accuracy is consistent with the March 2014 NOPR proposal to require use of ANSI/ASHRAE 16 as the sole test method acceptable for measuring the cooling capacity of equipment.
The amended test method requires testing using a 14-inch deep wall sleeve and the air filter that is shipped with the tested unit. If no filter is supplied with the unit, the amended test procedures require testing using an off-the-shelf filter rated at Minimum Efficiency Reporting Value (MERV)-1. These amendments remove testing variability resulting from the use of non-standard accessories.
DOE prefers to reference the most recent industry standards, where possible. Therefore, this final rule updates the DOE test procedures for PTACs and PTHPs to reference AHRI 310/380-2014 instead of the superseded ANSI/AHRI 310/380-2004. DOE also incorporates by reference the recently updated ANSI/ASHRAE 16-1983 (RA 2014) and ANSI/ASHRAE 58-1986 (RA 2014), as well as the 2009 version of ANSI/ASHRAE 37. The amended test procedure directly incorporates by reference these three ASHRAE standards, allowing use of ANSI/ASHRAE 16-2014 or ANSI-ASHRAE 37-2009 for determination of cooling mode ratings and ANSI/ASHRAE 58-2014 for determination of heating mode ratings.
DOE determined that these changes to the PTAC and PTHP test procedures do not result in any additional burden to manufacturers or result in any changes to the current measured energy efficiency of covered equipment. Rather, the changes provide additional
Break-in, also called run-in, refers to the operation of equipment prior to testing to cause preliminary wear in the compressor, which may improve measured performance. DOE understands that many labs commonly incorporate a break-in period before the start of efficiency tests for air conditioning equipment. DOE's May 16, 2012 final rule for ASHRAE equipment added a specification in the test procedures for several types of commercial air conditioning and heating equipment that allows an optional break-in period of up to 20 hours and requires that manufacturers record the duration of the break-in period. The May 16, 2012 final rule included amendments to the test procedures for PTACs and PTHPs. However, DOE did not apply this optional break-in period provision to PTACs or PTHPs in the May 16, 2012 final rule. 77 FR 28928, 28991.
In the March 2014 NOPR, DOE proposed to allow an optional break-in period of up to 20 hours applicable to testing of PTACs and PTHPs. DOE also proposed to add a certification reporting requirement to indicate the duration of the break-in period for tests used to support certification. DOE requested comments on these proposals and, if commenters supported longer break-in periods, data demonstrating that longer break-in periods make a significant impact on efficiency measurements for this equipment. 79 FR at 14188-89 (March 13, 2014).
In response, AHRI commented that a break-in period is necessary, but recommended that the break-in period be a minimum of 24 hours and a maximum of 72 hours to provide for more consistent and accurate efficiency measurements. (AHRI, No. 8 at p. 1)
Therefore, in this final rule, DOE adds PTACs and PTHPs to the list of commercial air-conditioning and heating equipment for which a break-in period of up to 20 hours prior to testing is allowed.
DOE did not receive any comments on its related proposal to add a certification reporting requirement to indicate the duration of the break-in period. Thus, DOE requires manufacturers to provide the duration of the break-in period used during testing to support the development of the certified ratings in the certification report. As such, DOE modifies the certification requirements for PTACs and PTHPs that were proposed on February 14, 2014 (79 FR 8886, 8900) to require the manufacturer to include the break-in period in the certification report. DOE notes that manufacturers must maintain records underlying their certified rating, which must reflect this optional break-in period duration pursuant to 10 CFR 429.71.
PTACs and PTHPs are tested in a testing facility incorporating a room simulating indoor conditions and a room simulating outdoor ambient conditions. The rooms are separated by a dividing wall with an opening through which a wall sleeve is mounted to hold the test sample. In most cases, the wall sleeve and test sample are placed in the opening, and any remaining gaps between the dividing wall and the wall sleeve around the unit are filled with insulating material. Under the current test procedures, the gaps between the wall sleeve and the dividing wall may also be sealed with duct tape. Regarding sealing for air leakage, ANSI/ASHRAE 16 states, “Interior surfaces of the calorimeter compartments shall be of nonporous material with all joints sealed against air and moisture leakage.” (Section 4.2.8). This statement does not explicitly require that gaps between the wall and the test sample's wall sleeve be sealed.
ANSI/ASHRAE 16 also states, “The air conditioner shall be installed in a manner similar to its normal installation” (Section 4.2.2). In normal practice, PTACs and PTHPs are installed within wall sleeves that are permanently installed and sealed to the external wall of a building. However, the set-up of the DOE test procedures does not allow for the permanent installation of wall sleeves in the partition cavity. Thus, during testing, the wall sleeve is not necessarily air-sealed to the wall as it would be in a
In the March 2014 NOPR, DOE proposed to require that test facilities, when installing PTACs and PTHPs in the test chamber, seal all potential leakage gaps between the wall sleeve and the dividing wall. DOE sought comments on the sealing of PTAC and PTHP wall sleeves to the test facility dividing wall, including whether the type or method of sealing (
In response, Goodman agreed with the proposed clarification that any gaps or area between wall sleeves and walls should be sealed, and stated that the method of sealing should not be specified. (Goodman, No. 7 at p. 2) AHRI recommended that the wall sleeve be sealed to the test facility dividing wall in accordance with the manufacturer's installation instructions and, if not possible to seal in accordance with the provided instructions, the test procedures should specify that adhesive tape, such as duct tape or brown packaging tape, be used to seal the entire perimeter of the wall sleeve to the test facility diving wall. (AHRI, No. 8 at p. 2) The CA IOUs commented that sealing the test chamber is good practice, but that it is not important to prescribe how sealing is accomplished. (CA IOUs, No. 5 at p. 21) DOE notes that field instructions for sealing the sleeve to the building are inconsistent with equipment testing, because field installation involves permanently sealing the sleeve to the building penetration, whereas the tested unit and its sleeve are intended to be removed after testing. Furthermore, DOE did not propose a particular sealing method such as adhesive tape, since methods other than use of adhesive tape may be just as effective for providing a temporary seal.
In this final rule, DOE requires that any area(s) between the wall sleeve and the insulated partition between the indoor and outdoor rooms must be sealed to eliminate all air leakage through this area, but DOE does not specify the method used to achieve the seal.
Most PTACs and PTHPs transfer the condensate that forms on the evaporator to a condensate pan in the unit's outdoor-side where a water slinger integrated with the outdoor fan distributes the water over the air-inlet side of the condenser. This process results in evaporative cooling that enhances the cooling of the outdoor coil in air-conditioning mode. At the beginning of a test, there may be no water in the condensate pan. As the test progresses and the unit approaches an equilibrium state of operation, the condensate level in the drip pan will rise and stabilize at a constant level. It can take several hours to reach this steady state.
To accelerate the testing process, test facilities typically add water to the condensate pan at the beginning of the test rather than wait for the unit to generate sufficient condensate to stabilize. The current test procedures do not indicate whether this practice is allowed during efficiency testing.
In the March 2014 NOPR, DOE proposed to add a provision in its test procedures at 10 CFR 431.96 to allow manufacturers the option of pre-filling the condensate drain pan before starting the efficiency test. The proposed provision did not specify requirements regarding the water purity or the water temperature that is to be used. DOE sought comments on pre-filling the condensate drain pan, including whether the type and/or temperature of the water used should be specified in the test procedures and/or recorded in the test data underlying the results. 79 FR at 14189-14190 (March 13, 2014).
In response, the CA IOUs and Goodman supported DOE's proposal to adopt test procedure amendments that allow pre-filling of the condensate pan. (CA IOUs, No. 9 at p. 3; Goodman, No. 7 at p. 2)
AHRI recommended that DOE specify in the test procedures that the condensate pan be filled with distilled water between 70 °F and 85 °F and that the condensate pan water temperature at steady state operation be documented in the test reports underlying the certification. However, AHRI also stated in their comment that the mineral content of the water is not a concern because the short test period would not allow for scaling to build up. (AHRI, No. 8 at p. 2) AHRI did not provide data showing that the temperature of the water used to prefill the pan will impact the test results. Also, if, as AHRI acknowledges, the mineral content of the water used to initially fill the pan is not a concern, it is unclear why using distilled water as opposed to tap water would make any difference to the measurement.
Private citizen Mike Haag commented that assisting the unit with achieving steady state might mask issues with the cooling of the system. (Mike Haag, No. 2 at p. 1) DOE notes that the DOE test procedures measure cooling efficiency at steady state conditions, and test reports do not record the amount of time taken to achieve steady state. Thus, pre-filling the condensate pan with water to accelerate the achievement of steady state conditions would not mask any issues that would otherwise be identified by the test procedures.
In this final rule, DOE adds the proposed provision in its test procedures at 10 CFR 431.96 to allow manufacturers the option of pre-filling the condensate drain pan before starting the efficiency test. This provision does not include requirements regarding the purity or temperature of the water used to fill the pan.
In February 2014, AHRI published AHRI 310/380-2014 superseding ANSI/AHRI 310/380-2004, which is referenced by the current DOE test procedure. ANSI/AHRI 310/380-2004 and AHRI 310/380-2014 both indicate that either ANSI/ASHRAE 16 or ANSI/ASHRAE 37 may be used to determine cooling capacity.
ANSI/ASHRAE 16 specifies a calorimetric test method involving measurement of the electric resistance heater power input needed to exactly balance a test sample's cooling capacity. ANSI/ASHRAE 37 specifies a psychrometric test method which calculates capacity based on the air flow rate and the air inlet and outlet conditions on the indoor side of the test sample. The two test methods have differences that could influence test results, particularly for units for which outgoing evaporator air can recirculate back to the evaporator air inlet. When using ANSI/ASHRAE 37, the air leaving the evaporator section is collected in a duct that transfers the air to instrumentation for measuring its temperature, moisture content, and flow rate (see,
Another difference between ANSI/ASHRAE 16 and ANSI/ASHRAE 37 is that the two methods have different requirements for electrical instrumentation accuracy. Section 5.4.2 of ANSI/ASHRAE 16 requires that instruments for measuring electrical
In the March 2014 NOPR, DOE described experimental testing conducted using three PTAC units. DOE tested all three units at a third-party testing lab under both ANSI/ASHRAE 16 and ANSI/ASHRAE 37. The test results showed that differences in the calculated EER between ANSI/ASHRAE 16 and ANSI/ASHRAE 37 ranged from 0.4 to 1.0 Btu/h-W, depending on the unit. These values represent differences in the calculated EER between ANSI/ASHRAE 16 and ANSI/ASHRAE 37 ranging from 4.1 percent to 9.7 percent of the lower EER value calculated by the two test methods. DOE stated in the March 2014 NOPR that these results did not support a conclusion that the two methods of test generate consistent results. 79 FR at 14190 (March 13, 2014). Based in part on these results, DOE proposed in the March 2014 NOPR to require that only ANSI/ASHRAE 16 be used when conducting a cooling mode test for PTACs and PTHPs. DOE sought comment on its proposal to designate ANSI/ASHRAE 16 as the sole test method for determining cooling capacity. Specifically, DOE was interested in the potential test burden on manufacturers. DOE also sought information on whether there are PTAC or PTHP manufacturers that conduct a significant number of tests using ANSI/ASHRAE 37. 79 FR at 14190-91 (March 13, 2014).
In response, neither AHRI nor Goodman supported the removal of ANSI/ASHRAE 37 from the DOE test procedures. Both AHRI and Goodman disagreed with DOE's assessment of the differences between test results achieved using ANSI/ASHRAE 16 and ANSI/ASHRAE 37. (AHRI, No. 8 at p. 3; Goodman, Public Meeting Transcript, No. 5 at p. 27) AHRI stated that it has observed good correlation in testing between calorimetric and psychrometric rooms for the purposes of rating PTAC and PTHP equipment. (AHRI, No. 8 at p. 3) Goodman stated that it has not observed large differences in test results between ANSI/ASHRAE 16 and ANSI/ASHRAE 37. (Goodman, Public Meeting Transcript, No. 5 at p. 27) Goodman presented data from trial tests comparing (1) three units tested in Goodman's calorimetric chamber and then tested in Goodman's psychrometric chamber, and (2) five units tested in a third party calorimetric test chamber and then tested in Goodman's psychrometric test facility. For these eight units, the maximum variation in measured EER between the calorimetric test and the psychrometric test was 2.5%. (Goodman, No. 7 at p. 3-6). These data provided by Goodman suggest that the potential discrepancies between calorimetric and psychrometric tests are much smaller than suggested by the NOPR-stage DOE testing described above. DOE agrees that Goodman's test results provide an indication that calorimetric and psychrometric tests can provide consistent results. DOE notes that Goodman used a larger sample size of eight units in its experimentation compared to the sample size of three units that DOE used in its NOPR-stage experiments described above.
Both AHRI and Goodman commented that the requirement of a calorimetric test places additional burdens on manufacturers. AHRI commented that it is an additional burden to build a calorimeter room and to re-test units that were previously tested psychrometrically. (AHRI, Public Meeting Transcript, No. 5 at p. 34) Goodman believes the elimination of psychrometric testing would place an additional burden on manufacturers in the form of significant capital expenditure requirements, as well as a significant testing burden increase. Goodman commented that new test facilities often cost up to $750,000 and have construction lead times of a year or more, and that calorimetric tests may take 2.5 times as long as psychrometric tests. (Goodman, No. 7 at p. 6)
DOE acknowledges that it underestimated the burden that would be imposed on manufacturers by eliminating psychrometric testing from the PTAC and PTHP test procedures. In response to the comments above, DOE accepts that it would be burdensome to manufacturers if DOE required use of ANSI/ASHRAE 16 for all PTAC and PTHP testing. Further, the additional data provided by Goodman show that discrepancies between the calorimetric and psychrometric test methods are less pronounced than DOE's NOPR-stage test data suggested. Hence, this final rule does not eliminate the optional use of ANSI/ASHRAE 37 to determine cooling capacity.
As noted above, ANSI/ASHRAE 16 and ANSI/ASHRAE 37 have different requirements for electrical instrumentation accuracy. A single requirement for electricity measurement accuracy is necessary to maintain consistency between tests conducted using ANSI/ASHRAE 16 and ANSI/ASHRAE 37. In the March 2014 NOPR, DOE proposed to require ANSI/ASHRAE 16 as the sole test method acceptable for measuring the cooling capacity of equipment. If this proposal were adopted, it would have imposed a requirement that electricity measurement instrumentation used in cooling capacity tests be accurate to +/−0.5% of reading, since +/- 0.5% of reading is the requirement specified in ANSI/ASHRAE 16. As described above, stakeholders opposed the proposed requirement of ANSI/ASHRAE 16 as the sole test method for cooling capacity tests based on the burden of constructing calorimetric test chambers. None of the stakeholder comments raised concerns regarding the more stringent electrical measurement accuracy requirements of ANSI/ASHRAE 16. In this final rule, DOE does not eliminate testing using ANSI/ASHRAE 37, but DOE retains the more stringent electrical measurement accuracy requirement. Specifically, the final rule adds this requirement in the DOE regulatory language, indicating that tests be conducted using electricity measuring instruments accurate to +/- 0.5% of reading in spite of the incorporation by reference of other portions of ANSI/ASHRAE 37. DOE does not expect this requirement to pose additional test burden since electrical meters that achieve this level of accuracy are readily available and are already in use at many test facilities. This requirement does not represent a change that would alter the measurements as compared with the current DOE test procedure; rather, it ensures the accuracy of measurements.
In the NOPR, DOE proposed to adopt only those parts of ANSI/AHRI 310/380-2004 relevant for the DOE test procedure, specifically sections 3, 4.1, 4.2, 4.3, and 4.4. Additionally, DOE proposed to directly incorporate by reference those industry test methods that were previously incorporated via ANSI/AHRI 310/380-2004, such as ANSI/ASHRAE 16-1999 and ASHRAE 58-1999.
In response to the NOPR, Goodman commented that DOE should consider updated versions of ANSI/ASHRAE 16 and ANSI/ASHRAE 37. Goodman conceded that it was unlikely ANSI/ASHRAE 37 would be updated in time to be incorporated in this Final Rule, but encouraged DOE to accommodate
In July 2014, ASHRAE reaffirmed both ANSI/ASHRAE 16, a test method for measuring cooling performance of PTACs and PTHPs, and ANSI/ASHRAE 58, a test method for measuring heating performance of PTHPs. While Goodman commented that it expected some changes in ANSI/ASHRAE 16 (Goodman, No. 7 at p. 7), DOE reviewed the reaffirmed standard and did not discern substantive differences between the 2009 and 2014 versions. The test methods described in the 2014 reaffirmations of both ANSI/ASHRAE 16 and ANSI/ASHRAE 58 are identical to their 1999 and 2009 versions—the later reaffirmed versions correct errata that existed in previous versions of ANSI/ASHRAE 16 and ANSI/ASHRAE 58. These corrections do not change the test procedures.
Further, in February 2014 AHRI published AHRI 310/380-2014, which supersedes ANSI/AHRI 310/380-2004. In an effort stay current with industry testing methodologies, DOE is updating its referenced industry standard. In alignment with the NOPR, DOE is only adopting the sections of AHRI 310/380-2014 relevant for the DOE test procedure. For cooling performance, this includes sections 3, 4.1, 4.2, 4.3, and 4.4. For measurement of heating performance, DOE is adopting section 3, 4.1, 4.2, 4.3, and 4.4 except for subsection 4.2.1.2(b), which allows ANSI/ASHRAE 37 as an optional method for verifying the standard heating rating of equipment. The March 2014 NOPR did not propose the use of ANSI/ASHRAE 37 as a method for verifying the standard heating rating of equipment and thus, DOE is excluding this provision in this final rule. Where this final rule refers to the sections of AHRI 310/380-2014 to be used for measurement of heating performance, it omits section 4.2.1.2(b) so as not to allow the use of ANSI/ASHRAE 37 for verifying the standard heating rating of equipment.
Finally, AHRI 310/380-2014 references the 2009 versions of ANSI/ASHRAE 16, ANSI/ASHRAE 58, and ANSI/ASHRAE 37. As previously stated, DOE is directly incorporating by reference those industry test methods that were previously referenced in ANSI/AHRI 310/380—ANSI/ASHRAE 16, ANSI/ASHRAE 58, and ANSI/ASHRAE 37 . Therefore, in this final rule, DOE is incorporating by reference ANSI/ASHRAE 37-2009, which is referenced in AHRI 310/380-2014 for measuring cooling performance. Although DOE's previous test method, ANSI/AHRI 310/380-2004, incorporated ANSI/ASHRAE 37-1988, DOE's review of the two editions of ANSI/ASHRAE 37 confirmed that, for the purposes of measuring cooling performance for PTACs and PTHPs, the test methods are essentially identical. Also, rather than incorporating by reference the 1999 reaffirmations of ANSI/ASHRAE 16 and ANSI/ASHRAE 58, this final rule amends the test procedure to incorporate by reference ANSI/ASHRAE 16-1983 (RA 2014) and ANSI/ASHRAE 58-1986 (RA 2014)—as mentioned above, these more recent versions of ANSI/ASHRAE 16 and ANSI/ASHRAE 58 prescribe test procedures identical to the older 2009 and 1999 versions.
The DOE test procedures provide limited guidance on the type of wall sleeve that should be used during testing. The wall sleeve is technically part of the PTAC or PTHP (see,
Some manufacturers offer extended wall sleeves up to 31 inches deep that can be used with any of their standard size PTACs or PTHPs. DOE believes that the use of varying test sleeve depths can affect measured test results, due to the effect the sleeve depth has on airflow and fan performance. DOE's test procedures, in section 4.3 of ANSI/AHRI 310/380-2004, provide some limited guidance about the wall sleeve that should be used during testing; section 4.3 of ANSI/AHRI 310/380-2004 states that “standard equipment shall be in place during all tests, unless otherwise specified in the manufacturer's instructions to the user.” Section 4.3 of the updated AHRI 310/380-2014 provides the same limited guidance. However, there currently is no guidance for units for which installation instructions allow sleeves of different depths.
DOE's survey of wall sleeve sizes on the market showed that the most common wall sleeve depth is 14 inches. While DOE has no data indicating the impact of testing with a maximum-depth sleeve as opposed to a standard-depth sleeve, DOE expects that there may be an incremental reduction in efficiency associated with use of a sleeve as deep as 31 inches. The Working Group discussed the issue of varying wall sleeve sizes and voted to adopt the position that units should be tested using a standard 14 inch sleeve. (ASRAC to Negotiate Certification Requirements for Commercial HVAC, WH, and Refrigeration Equipment, Docket No. EERE-2013-BT-NOC-0023, No. 53 at pg. 17)
In the March 2014 NOPR, DOE proposed to add a provision to 10 CFR 431.96 to require testing using a wall sleeve with a depth of 14 inches (or the wall sleeve option that is closest to 14 inches in depth that is available for the basic model being tested). 79 FR at 14191 (March 13, 2014). This final rule adopts the Working Group recommendation. DOE sought comment on whether there are any PTACs or PTHPs that cannot be tested using a 14 inch deep wall sleeve. Id. AHRI and Goodman supported the proposal to require testing using 14-inch deep wall sleeves. (AHRI, No. 8 at p. 2; Goodman, No. 7 at p. 3) DOE did not receive any comments describing units that cannot be tested with 14-inch deep wall sleeves.
In this final rule, DOE adopts its proposal to add a provision to 10 CFR 431.96 to require testing using a wall sleeve with a depth of 14 inches (or the wall sleeve option that is closest to 14 inches in depth that is available for the basic model being tested).
The DOE test procedures provide limited guidance on the type of air filter that should be used during testing. PTACs or PTHPs generally ship with an air filter to remove particulates from the indoor airstream. There is currently no description in the DOE test procedures of the type of filter to be used during testing. While some PTACs and PTHPs only have one filter option, some PTACs and PTHPs are shipped with either a standard filter or a high efficiency filter. A high efficiency filter will impose more air flow restriction, which can incrementally decrease air flow and thus the capacity and/or efficiency of the unit.
DOE considered whether to specify filters with a particular MERV rating for use with the test, such as MERV-2 or MERV-3 levels of filtration. However, DOE noted that the filter efficiencies offered in PTACs and PTHPs generally are not specified using a standard
In the March 2014 NOPR, DOE proposed to add a provision to 10 CFR 431.96 to require testing using the standard or default filter option that is packaged and shipped with the PTAC or PTHP unit being tested. 79 FR at 14191 (March 13, 2014). This proposal was consistent with the Working Group's recommendations. For those models that are not shipped with a filter, DOE proposed to require the use of an off-the-shelf MERV-3 filter for testing. DOE sought comment on whether a MERV-3 filter is appropriate for testing PTACs and PTHPs that do not ship with filters. 79 FR at 14191 (March 13, 2014).
In response, Goodman recommended that DOE specify a MERV rating lower than MERV-3 because MERV-3 filters may significantly reduce airflow. (Goodman, No. 7 at p. 3) AHRI commented that MERV-1 filters, which are electrostatic, self-charging woven panel filters, may be more representative of filters found in PTACs or PTHPs. (AHRI, No. 8 at p. 2) DOE accepts this feedback and will reduce the MERV rating for filters to be used when testing units shipped without a filter.
In this final rule, DOE adds a provision to 10 CFR 431.96 to require testing using the standard or default filter option that is shipped with most units of a given basic model. For those models that are not shipped with a filter, DOE requires the use of an off-the-shelf MERV-1 filter for testing.
The DOE test procedures, in Section 6.1.3 of referenced ANSI/ASHRAE 16, allows for adjustment of the capacity measurement based on the tested barometric pressure: “The capacity may be increased 0.8% for each in. Hg below 29.92 in. Hg.” Theoretically, air is less dense when barometric pressure is lower, such as at higher altitudes. As a result, air mass flow generated by fans and blowers may be less at higher altitudes, which may affect the measured cooling performance. However, there are other competing effects that may negate this decrease and DOE has not seen data that definitively demonstrate the impact of barometric pressure on measurements of the cooling performance of PTACs or PTHPs.
In the March 2014 NOPR, DOE did not propose to amend or remove the barometric pressure provision. DOE sought comments or data on the barometric pressure correction specifically used for PTACs and PTHPs. 79 FR at 14191 (March 13, 2014). Goodman and AHRI responded in support of DOE's position to retain the barometric pressure correction. (Goodman, No.7 at p. 3; AHRI, No. 8 at p. 2) DOE received no comments providing data that either supported or refuted the validity of the barometric pressure correction.
In this final rule, DOE does not amend or remove the provision allowing for adjustment of the capacity measurement based on the tested barometric pressure.
The current DOE test procedures for PTACs and PTHPs measure cooling efficiency and heating efficiency in terms of EER and coefficient of performance (COP), respectively. Both of these metrics measure the efficiency of the unit running steadily at maximum cooling or heating output settings.
In the March 2014 NOPR, DOE did not propose to adopt either a part-load or seasonal efficiency metric for the cooling mode that considers part-load performance, or a seasonal efficiency metric for the heating mode that considers electric resistance heating for PTACs or PTHPs. DOE sought comments regarding this proposal, including any information regarding seasonal load patterns for PTACs and PTHPs in both cooling and heating modes. 79 FR at 14192 (March 13, 2014).
In response, Goodman and AHRI supported DOE's proposal to not develop seasonal efficiency metrics. (Goodman, No. 7 at p. 6; AHRI, No. 8 at p. 3) AHRI commented that a part-load performance metric would not be representative of PTAC and PTHP equipment operating cycles. (AHRI, Public Meeting Transcript, No. 5 at p. 46) The CA IOUs commented that they would like the test procedures to characterize performance at full-load and part-load. (CA IOUs, Public Meeting Transcript, No. 5 at p. 7) The CA IOUs commented that they are content with using a single metric for the purposes of rating equipment, but that they would like additional test conditions to be measured and reported according to a standard test procedure. The CA IOUs commented that this additional information would help them to distinguish new equipment models with good low-temperature performance that are becoming available. (CA IOUs, Public Meeting Transcript, No. 5 at p. 43)
DOE believes that the existing EER and COP metrics, both for full-load operation, provide an adequate indication of PTAC and PTHP efficiency. DOE does not currently have information indicating the magnitude of energy that might be saved if part-load or full-season metrics were developed. ASAP and ACEEE encouraged DOE to begin a collaboration with AHRI to develop a test method to measure the part-load performance of PTACs and PTHPs. (ASAP & ACEEE, No. 6 at p. 1) DOE may consider support and/or development of such test methods in the future.
In this final rule, DOE has not adopted seasonal efficiency metrics for cooling or heating performance for PTACs or PTHPs.
The Federal energy conservation standard levels for PTAC and PTHP equipment are calculated based on the certified cooling capacity of the equipment. (10 CFR 431.97(c)) The DOE test procedures for PTACs and PTHPs specifies the methods that may be used to determine the cooling capacity and energy efficiency of PTACs and PTHPs. (10 CFR 431.96(b)) Testing conducted for assessment and enforcement measures the cooling capacity of test units pursuant to the test requirements of 10 CFR part 431, and uses the measured cooling capacity as the basis for calculation of EER for the test units. The minimum allowed EER (and the minimum allowed COP for PTHP units) of a test unit is calculated using the certified cooling capacity of the test unit as the basis for calculation. For various reasons, the measured cooling capacity of equipment may deviate from the certified cooling capacity of the equipment. Small deviations of the measured cooling capacity from the certified cooling capacity are expected due to variability in manufacturing conditions. However, large deviations
In the March 2014 NOPR, DOE proposed regulatory text amendments describing how DOE will select the cooling capacity values that are used to calculate the minimum allowable EER for a basic model. The proposed amendments to 10 CFR 429.134 would establish a provision requiring use of the certified cooling capacity as the basis for calculation of minimum allowed EER if the average measured cooling capacity is within five percent of the certified cooling capacity. The proposed amendments would require use of the average measured cooling capacity as the basis for calculation of minimum allowed EER if the average measured cooling capacity is not within five percent of the certified cooling capacity. 79 FR at 14197 (March 13, 2014).
In response to the proposed amendments, AHRI questioned whether the five percent allowance between tested and rated values is a two-sided tolerance. (AHRI, Public Meeting Transcript, No. 5 at p. 54) Goodman agreed in concept with the proposed requirement that measured cooling capacity be within five percent of the certified cooling capacity, but Goodman suggested that the requirement be one‐sided, such that the certified cooling capacity would be used to determine the minimum efficiency unless the measured cooling capacity is less than 95% of the certified cooling capacity, in which event the measured cooling capacity would be used to determine the minimum efficiency level. (Goodman, No. 7 at p. 6)
DOE clarifies that the proposed five percent allowance between tested and rated values is a two-sided tolerance. This means that units with average measured cooling capacity below 95% or above 105% of the certified cooling capacity would require use of the average measured cooling capacity as the basis for calculation of minimum allowed EER.
DOE notes that if the proposed provision used a one-sided tolerance as Goodman suggested, then units with a measured cooling capacity above their certified cooling capacity would be held to an efficiency standard determined by their certified cooling capacity. With a one-sided tolerance, units having a measured cooling capacity that is above 105% of their certified cooling capacity would be held to a calculated minimum EER that is more stringent than the minimum EER calculated using a two-sided tolerance as DOE proposed. DOE does not seek to impose more stringent standards on units that exceed their certified cooling capacity.
In this final rule, DOE adopts its proposal to add a provision to 10 CFR 429.134 that requires assessment and enforcement testing to measure the total cooling capacity of the basic model pursuant to the test requirements of 10 CFR part 431 for each unit tested. The provision requires that results of the measurement(s) be averaged and compared to the value of cooling capacity certified by the manufacturer. The adopted provision considers the certified cooling capacity to be valid only if the measurement is within five percent of the certified cooling capacity. If the certified cooling capacity is valid, that cooling capacity will be used as the basis for calculation of minimum allowed EER for the basic model. If the certified cooling capacity is not valid, the average measured cooling capacity will be used as the basis for calculation of minimum allowed EER for the basic model.
DOE received additional comments that are not classified in the discussion sections above. Responses to these additional comments are provided below.
The CA IOUs recommended that DOE require the reporting of power factor
The CA IOUs commented that they would like DOE to explore adding test procedure specifications for units containing gas-fired components, since ANSI/AHRI 310/380-2004 excludes such units. (CA IOUs, No. 9 at p. 1-2) DOE notes that EPCA defines a “packaged terminal air conditioner” as “a wall sleeve and a separate unencased combination of heating and cooling assemblies specified by the builder and intended for mounting through the wall. It includes a prime source of refrigeration, separable outdoor louvers, forced ventilation, and heating availability by builder's choice of hot water, steam, or electricity.” (42 U.S.C. 6311(10)(A)) EPCA defines a “packaged terminal heat pump” as “a packaged terminal air conditioner that utilizes reverse cycle refrigeration as its prime heat source and should have supplementary heat source available to builders with the choice of hot water, steam, or electric resistant heat.” (42 U.S.C. 6311(10)(B)) These definitions include units with heating provided by hot water, steam, or electric resistant heat, but they do not include units containing gas-fired components. As such, DOE does not have the authority to regulate units with gas-fired components.
In amending a test procedure, EPCA directs DOE to determine to what extent, if any, the test procedure would alter the measured energy efficiency or measured energy use of a covered product. (42 U.S.C. 6314(a)(4)) The test procedure amendments for PTACs and PTHPs incorporated by this final rule do not contain changes that will materially alter the measured energy efficiency of equipment. DOE did not receive any comments suggesting that the test procedure amendments will alter the measured energy efficiency of equipment. Rather, most of the proposed changes represent clarifications that will improve the uniform application of the test procedures for this equipment. Any change in the rated efficiency associated with these clarifications, if any, is expected to be
DOE's test procedure amendments incorporated by this final rule are effective 30 days after publication of the final rule in the
The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the OMB.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This rule prescribes test procedures that will be used to test compliance with energy conservation standards for the products that are the subject of this rulemaking. DOE has concluded that the rule will not have a significant impact on a substantial number of small entities.
The Small Business Administration (SBA) considers an entity to be a small business if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121, which relies on size standards and codes established by the North American Industry Classification System (NAICS). The threshold number for NAICS classification for 333415, which applies to air conditioning and warm air heating equipment and commercial and industrial refrigeration equipment, is 750. Searches of the SBA Web site
For the reasons explained below, DOE has concluded that the test procedure amendments contained in this final will not have a significant economic impact on any manufacturer, including small manufacturers. The rule amends DOE's test procedures to specify an optional break-in period, explicitly require that wall sleeves be sealed to prevent air leakage, allow for the pre-filling of the condensate drain pan, and require testing with 14-inch deep wall sleeves and the filter option most representative of a typical installation. These tests can be conducted in the same facilities used for the current energy testing of these products and do not require testing in addition to what is currently required. The break-in period is optional and may result in improved energy efficiency of the unit; the break-in typically is conducted outside of the balanced-ambient calorimeter facility. DOE expects that manufacturers will require minimal time to set the PTACs and PTHPs up for break-in, which requires that the units simply be plugged in and powered on. Further, manufacturers will only incur the additional time for the break-in step if it is beneficial to testing. In this case, the cost will be minimal due to the nature of the break-in procedure and the fact that it is not typically conducted within the test chamber.
Material costs associated with the test procedure amendments adopted in this final rule are expected to be negligible, as air sealing the wall sleeves can be accomplished with typically available lab materials. Further, DOE expects that manufacturers typically seal the wall sleeves in their current testing, because not doing so could result in measurements indicating a lower efficiency. Also, there are no additional costs associated with the requirement to use a 14-inch wall sleeve and/or the standard filter that typically comes with the unit. In addition, pre-filling of the condensate pan is expected to reduce test time by 2-4 hours, which would reduce testing costs by approximately $375-750 per test. Thus, DOE determined that the test procedure amendments adopted by this final rule will not impose a significant economic impact on manufacturers.
This notice adds one additional item to the certification report requirements for PTACs and PTHPs: The duration of the break-in period. However, providing this additional item in certification reports is not expected to impose a significant economic impact.
For these reasons, DOE concludes and certifies that this final rule will not have a significant economic impact on a substantial number of small entities, so DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE has provided its certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).
Manufacturers of PTACs and PTHPs must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for PTACs and PTHPs, including any amendments adopted for those test procedures on the date that compliance is required. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including PTACs and PTHPs. See 10 CFR part 429. The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this final rule, DOE amends its test procedures for PTACs and PTHPs. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this final rule and determined that it will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2)
This regulatory action to amend the test procedures for measuring the energy efficiency of PTACs and PTHPs is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.
The modifications to the test procedures addressed by this action incorporate testing methods contained in the following commercial standards: AHRI 310/380-2014, ANSI/ASHRAE Standard 16-1983 (RA 2014), ANSI/ASHRAE Standard 37-2009, and ANSI/ASHRAE Standard 58-1986 (RA 2014). DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
In this final rule, DOE is incorporating by reference four industry standards related to the testing of packaged terminal air conditioners and heat pumps. These industry standards include AHRI Standard 310/380-2014, “Standard for Packaged Terminal Air-Conditioners and Heat Pumps;” ANSI/ASHRAE Standard 16-1983 (RA 2014), “Method of Testing for Rating Room Air Conditioners and Packaged Terminal Air Conditioners;” ANSI/ASHRAE Standard 37-2009, “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment;” and ANSI/ASHRAE Standard 58-1986 (RA 2014) “Method of Testing for Rating Room Air-Conditioner and Packaged Terminal Air-Conditioner Heating Capacity.”
AHRI Standard 310/380-2014 is an industry accepted test standard that specifies definitions and general testing requirements for packaged terminal air conditioners and heat pumps. AHRI Standard 310/380-2014 references ANSI/ASHRAE Standard 16, ANSI/ASHRAE Standard 37, and ANSI/ASHRAE Standard 58 for the detailed testing methodologies. AHRI Standard 310/380-2014 is readily available on AHRI's Web site at
ANSI/ASHRAE Standard 16-1983 (RA 2014) and ANSI/ASHRAE Standard 37-2009 specify methods for determining the cooling performance of packaged terminal air conditioners. ANSI/ASHRAE Standard 16-1983 (RA 2014) specifies a calorimetric test method involving measurement of the electric resistance heater power input needed to exactly balance a test sample's cooling capacity. ANSI/ASHRAE Standard 37-2009 specifies a psychrometric test method which calculates capacity based on the air flow rate and the air inlet and outlet conditions on the indoor side of the test sample. ANSI/ASHRAE Standard 16-1983 (RA 2014) is readily available at ASHRAE's Web site at:
ANSI/ASHRAE Standard 58-1986 (RA 2014) specifies a test method for measuring heating performance of packaged terminal heat pumps. ANSI/ASHRAE Standard 58-1986 (RA 2014) is readily available on ASHRAE's Web site at:
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this final rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of this final rule.
Energy conservation, Imports, Measurement standards, Reporting and recordkeeping requirements.
Energy conservation, Imports, Incorporation by reference, Measurement standards, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, DOE amends parts 429 and 431 of Chapter II, Subchapter D, of Title 10 the Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317.
(a) * * *
(1) * * *
(iii) For packaged terminal air conditioners and packaged terminal heat pumps, the represented value of cooling capacity shall be the average of the capacities measured for the sample selected as described in (a)(1)(ii) of this section, rounded to the nearest 100 Btu/h.
(b) * * *
(2) * * *
(v) Packaged terminal air conditioners: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the rated cooling capacity in British thermal units per hour (Btu/h), the wall sleeve dimensions in inches (in), and the duration of the break-in period (hours).
(vi) Packaged terminal heat pumps: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/W-h)), the coefficient of performance (COP), the rated cooling capacity in British thermal units per hour (Btu/h), the wall sleeve dimensions in inches (in), and the duration of the break-in period (hours).
(a)
(e)
(i) If the certified cooling capacity is found to be valid, that cooling capacity will be used as the basis for calculation of minimum allowed EER (and minimum allowed COP for PTHP models) for the basic model.
(ii) If the certified cooling capacity is found to be invalid, the average measured cooling capacity will serve as the basis for calculation of minimum allowed EER (and minimum allowed COP for PTHP models) for the tested basic model.
(2) [Reserved].
42 U.S.C. 6291-6317.
(b) * * *
(3) AHRI Standard 310/380-2014, (“AHRI 310/380-2014”), “Standard for Packaged Terminal Air-Conditioners and Heat Pumps,” February 2014, IBR approved for § 431.96.
(c) * * *
(1) ANSI/ASHRAE Standard 16-1983 (RA 2014), (“ANSI/ASHRAE 16”), “Method of Testing for Rating Room Air Conditioners and Packaged Terminal Air Conditioners,” ASHRAE reaffirmed July 3, 2014, IBR approved for § 431.96.
(2) ANSI/ASHRAE Standard 37-2009, (“ANSI/ASHRAE 37”), “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment,” ASHRAE approved June 24, 2009, IBR approved for § 431.96.
(3) ANSI/ASHRAE Standard 58-1986 (RA 2014), (“ANSI/ASHRAE 58”), “Method of Testing for Rating Room Air-Conditioner and Packaged Terminal Air-Conditioner Heating Capacity,” ASHRAE reaffirmed July 3, 2014, IBR approved for § 431.96.
(b)
(2) After June 24, 2016, any representations made with respect to the energy use or efficiency of packaged terminal air conditioners and heat pumps (PTACs and PTHPs) must be made in accordance with the results of testing pursuant to this section. Manufacturers conducting tests of PTACs and PTHPs after July 30, 2015 and prior to June 24, 2016, must conduct such test in accordance with either table 1 to this section or § 431.96 as it appeared at 10 CFR part 431, subpart F, in the 10 CFR parts 200 to 499 edition revised as of January 1, 2014. Any representations made with respect to the energy use or efficiency of such packaged terminal air conditioners and heat pumps must be in accordance with whichever version is selected.
(c)
(g)
(2)
(3)
(4)
(5)
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all Dassault Aviation Model FALCON 2000EX airplanes. This AD requires revising the airplane flight manual to include a procedure for addressing minimum fan speed rotation (N1) values during stand-alone engine anti-ice system operation for engines equipped with certain air inlets. This AD was prompted by a quality review of recently delivered airplanes which identified a manufacturing deficiency of some engine air inlet anti-ice piccolo tubes. We are issuing this AD to detect and correct reduced performance of the engine anti-ice protection system, leading to ice accretion and ingestion into the engines, which could result in dual engine power loss and consequent reduced controllability of the airplane.
This AD becomes effective June 30, 2015.
We must receive comments on this AD by August 14, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency Airworthiness Directive 2015-0102-E, dated June 8, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FALCON 2000EX airplanes. The MCAI states:
A quality review of recently delivered aeroplanes identified a manufacturing deficiency of some engine air inlet anti ice piccolo tubes.
This condition, if not detected and corrected, could lead to reduced performance of the engine anti-ice protection system, with consequent ice accretion and ingestion, possibly resulting in dual engine power loss and reduced control of an aeroplane.
The Falcon 2000EX Aircraft Flight Manual (AFM) contains a procedure 4-200-05, “Operations in Icing Conditions”, addressing minimum fan speed rotation (N1) during combined operation of wing anti-ice and engine anti-ice systems. However, the AFM does not specify minimum N1 values for stand-alone engine anti-ice system operation. The subsequent investigation demonstrated that the operation of an engine at or above the minimum N1 value applicable for combined wing and engine anti-ice operations, provides efficient engine anti ice performance during stand-alone engine anti-ice operation, for engines equipped with an air inlet affected by the manufacturing deficiency.
For the reasons described above, this [EASA] AD requires amendment of the applicable AFM which can be removed (or is not applicable) for aeroplanes having both engine air inlet[s] marked “NRK” on the associated data plate.
This [EASA] AD is considered to be an interim measure and further AD action may follow.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the identified unsafe condition could result in engine inlet ice accretion with possible ice separation in volumes beyond engine ingestion capability. These conditions could lead to engine damage or engine shutdown. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 120 airplanes of U.S. registry.
We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $10,200, or $85 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective June 30, 2015.
None.
This AD applies to all Dassault Aviation Model FALCON 2000EX airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 30, Ice and Rain Protection.
This AD was prompted by a quality review of recently delivered airplanes which identified a manufacturing deficiency of some engine air inlet anti-ice piccolo tubes. We are issuing this AD to detect and correct reduced performance of the engine anti-ice protection system, leading to ice accretion and ingestion into the engines, which could result in dual engine power loss and consequent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 10 flight cycles after the effective date of this AD: Revise the Limitations Section of the Dassault Falcon 2000EX AFM to include the statement in figure 1 to this paragraph. This may be done by inserting a copy of this AD in the AFM. When a statement identical to that in figure 1 to this paragraph has been included in the general revisions of the AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM.
(2) Airplanes on which the air engine inlet on both engines has a mark “NRK” on the associated data plate are not affected by the requirements in paragraph (g)(1) of this AD.
Engine air inlets which have been refurbished and comply with the design standard are marked as “NRK” on the air inlet data plate.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Emergency Airworthiness Directive 2015-0102-E, dated June 8, 2015, for related information. You may examine the MCAI on the Internet at
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and removes Class E surface area airspace designated as an extension at McNary Field, Salem, OR. After reviewing the airspace, the FAA found it necessary to increase the airspace areas for the safety and management of Instrument Flight Rules (IFR) operations during Standard Instrument Approach Procedures (SIAPs) at the airport.
Effective 0901 UTC, August 20, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and ATC Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC, 29591; telephone: 202-267-8783.
Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA, 98057; telephone (425) 203-4563.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at McNary Field, Salem, OR.
On May 1, 2015, the FAA published in the
Class D and Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and removes Class E surface area airspace as an extension at McNary Field, Salem, OR. A review of the airspace revealed an increase and reconfiguration of the airspace is needed for IFR operations due to cancellation of the Turno non-directional radio beacon (NDB) and cancellation of the NDB approach. Class D airspace and Class E surface area airspace extends upward from the surface to and including 2,700 feet within a 4-mile radius northeast of McNary Field, within a 6.2-mile radius southeast of the airport, and within an 8.1-mile radius southeast to northwest of the airport, excluding airspace within 1.2 miles of Independence State Airport, OR. Class E airspace extending upward from 700 feet above the surface is amended to within a 6.5-mile radius northeast of McNary Field, within an 8.2-mile radius southeast of the airport, and within a 9.1-mile radius southeast to northwest of the airport, excluding airspace within 1.2 miles of Independence State Airport, OR. This action enhances the safety and management of controlled airspace within the NAS.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 2,700 feet MSL within a 4-mile radius of McNary Field from the 330° bearing from the airport clockwise to the 074° bearing, and that airspace within a 6.2-mile radius of McNary Field from the 074° bearing from the airport clockwise to the 150° bearing, and that airspace within a 8.1-mile radius of McNary Field from the 150° bearing from the airport clockwise to the 330° bearing, excluding that airspace within 1.2 miles of Independence State Airport, OR. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface within a 4-mile radius of McNary Field from the 330° bearing from the airport clockwise to the 074° bearing, and that airspace within a 6.2-mile radius of McNary Field from the 074° bearing from the airport clockwise to the 150° bearing, and that airspace within a 8.1-mile radius of McNary Field from the 150° bearing from the airport clockwise to the 330° bearing, excluding that airspace within 1.2 miles of Independence State Airport, OR. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of McNary Field from the 330° bearing from the airport clockwise to the 074° bearing, and that airspace within a 8.2-mile radius of McNary Field from the 074° bearing from the airport clockwise to the 150° bearing, and that airspace within a 9.1-mile radius of McNary Field from the 150° bearing from the airport clockwise to the 330° bearing, excluding that airspace within 1.2 miles of Independence State Airport, OR.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zone for the Gary Air and Water Show on a portion of Lake Michigan, on July 9, 2015 through July 14, 2015. This action is necessary and intended to ensure safety of life on the navigable waters of the United States immediately prior to, during, and immediately after the air and water show. During the enforcement period listed below, the Coast Guard will enforce restrictions upon, and control movement of, vessels in the safety zone. No person or vessel may enter the safety zone while it is being enforced without permission of the Captain of the Port Lake Michigan.
The regulations in 33 CFR 165.929 will be enforced for safety zone (e)(33), Table 165.929, on July 9, 2015 until July 14, 2015, from 8:30 a.m. until 5:00 p.m. on each day.
If you have questions on this document, call or email LT Lindsay Cook, Waterways Management Division, Marine Safety Unit Chicago, at 630-986-2155, email address
The Coast Guard will enforce the Safety Zone; Gary Air and Water Show listed as item (e)(33) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone encompasses all waters of Lake Michigan bounded by a line drawn from 41°37.250′ N., 087°16.763′ W.; then east to 41°37.440′ N., 087°13.822′ W.; then north to 41°38.017′ N., 087°13.877′ W.; then southwest to 41°37.805′ N., 087°16.767′ W.; then south returning to the point of origin. This zone will be enforced on July 9, 2015 until July 14, 2015, from 8:30 a.m. until 5:00 p.m. on each day.
All vessels must obtain permission from the Captain of the Port Lake Michigan, or a designated on-scene representative to enter, move within, or exit this safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.
This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Start of the Chicago to Mackinac Race Safety Zone on a portion of Lake Michigan, on July 10, 2015 and July 11, 2015. This action is necessary and intended to ensure safety of life on the navigable waters of the United States immediately prior to, during, and immediately after the start of each race. During the enforcement period listed below, the Coast Guard will enforce restrictions upon, and control movement of, vessels in the safety zone. No person or vessel may enter the safety zone while it is being enforced without permission of the Captain of the Port Lake Michigan.
The regulations in 33 CFR 165.929 will be enforced for safety zone (e)(45), Table 33 CFR 165.929, on July 10, 2015 from 2 p.m. until 4:30 p.m. and on July 11, 2015 from 9 a.m. until 3 p.m.
If you have questions on this document, call or email MST1 John Ng, Waterways Management Division, Marine Safety Unit Chicago, at 630-986-2122, email address
The Coast Guard will enforce the Safety Zone; Start of the Chicago to Mackinac Race listed as item (e)(45) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone encompasses all waters of Lake Michigan in the vicinity of Navy Pier at Chicago IL, within a rectangle that is approximately 1500 by 900 yards. The rectangle is bounded by the coordinates beginning at 41°53′15.1″ N., 087°35′25.8″ W.; then south to 41°52′48.7″ N., 087°35′25.8″ W.; then east to 41°52′49.0″ N., 087°34′26.0″ W.; then north to 41°53′15″ N., 087°34′26″ W.; then west, back to point of origin. This zone will be enforced on July 10, 2015 from 2 p.m. until 4:30 p.m. and on July 11, 2015 from 9 a.m. until 3 p.m.
All vessels must obtain permission from the Captain of the Port Lake Michigan, or a designated on-scene representative to enter, move within, or exit this safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.
This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Michigan City Summerfest Fireworks Safety Zone on a portion of Lake Michigan, on July 4, 2015. This action is necessary and intended to ensure safety of life on the navigable waters of the United States immediately prior to, during, and immediately after the air and water show. During the enforcement period listed below, the Coast Guard will enforce restrictions upon, and control movement of, vessels in the safety zone. No person or vessel may enter the safety zone while it is being enforced without permission of the Captain of the Port Lake Michigan.
The regulations in 33 CFR 165.929 will be enforced for safety zone (e)(35), Table 33 CFR 165.929, on July 4, 2015, from 8:45 p.m. until 9:45 p.m.
If you have questions on this document, call or email MST1 John Ng, Waterways Management Division, Marine Safety Unit Chicago, at 630-986-2155, email address
The Coast Guard will enforce the Safety Zone; Michigan City Summerfest Fireworks listed as item (e)(35) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone encompasses all waters of Michigan City Harbor and Lake Michigan within the arc of a circle with a 800-foot radius from the fireworks launch site located in position 41°43.700′ N., 086°54.617′ W. This zone will be enforced on July 4, 2015, from 8:45 p.m. until 9:45 p.m.
All vessels must obtain permission from the Captain of the Port Lake Michigan, or a designated on-scene representative to enter, move within, or exit this safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.
This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce various safety zones within the Captain of the Port New York Zone on the specified dates and times. This action is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. During the enforcement period, no person or vessel may enter the safety zones without permission of the Captain of the Port (COTP).
The regulation for the safety zones described in 33 CFR 165.160 will be enforced on the dates and times listed in the table below.
If you have questions on this notice, call or email MST1 Daniel Vazquez, Coast Guard; telephone 718-354-4197, email
The Coast Guard will enforce the safety zones listed in 33 CFR 165.160 on the specified dates and times as indicated in Table 1 below. This regulation was published in the
Under the provisions of 33 CFR 165.160, vessels may not enter the safety zones unless given permission from the COTP or a designated representative. Spectator vessels may transit outside the safety zones but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zone on Lake Macatawa in Holland, MI for the Celebration Freedom Fireworks. This zone will be enforced from 10 p.m. until 11:50 p.m. on July 4, 2015. Should inclement weather force a cancellation of the fireworks on July 4, 2015, this zone will be enforced from 10 p.m. until 11:50 p.m. on July 6, 2015. This action is necessary and intended to ensure safety of life on navigable waters immediately prior to, during, and immediately after the fireworks display. During the aforementioned periods, the Coast Guard will enforce restrictions upon, and control movement of, vessels in the safety zone. No person or vessel may enter the safety zone while it is being enforced without permission of the Captain of the Port Lake Michigan or a designated representative.
The regulations in 33 CFR 165.929 will be enforced for safety zone (e)(13), Table 165.929, from 10 p.m. until 11:50 p.m. on July 4, 2015. Should inclement weather force a cancellation of the fireworks on July 4, 2015, this zone will be enforced from 10 p.m. until 11:50 p.m. on July 6, 2015.
If you have questions on this document, call or email MST1 Joseph McCollum, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7148, email
The Coast Guard will enforce the Celebration Freedom Fireworks safety zone listed as item (e)(13) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in
All vessels must obtain permission from the Captain of the Port Lake Michigan, or the on-scene representative to enter, move within, or exit the safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated representative.
This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a State Implementation Plan (SIP) revision submitted by the State of North Dakota. On April 8, 2013, the Governor of North Dakota submitted to EPA an alternative monitoring plan for Milton R. Young Station (MRYS). The plan relates to continuous opacity monitoring for Unit 1 at MRYS. The intended effect of this action is to approve a state plan established to address minimum emission monitoring requirements. The EPA is taking this action under section 110 of the Clean Air Act (CAA).
This rule is effective on August 31, 2015 without further notice, unless EPA receives adverse comment by July 30, 2015. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2015-0026, by one of the following methods:
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•
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Gail Fallon, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, (303) 312-6218,
1.
2.
a. Identify the rulemaking by docket number and other identifying information (subject heading,
b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
Sections 110(a)(2) and 110(l) of the CAA require that a state provide reasonable notice and public hearing before adopting a SIP revision and submitting it to us. To provide for public comment, the North Dakota Department of Health (NDDH), after providing notice, offered to hold a public hearing for the alternative monitoring plan for MRYS Unit 1. No one requested a public hearing so a hearing was not conducted. No one provided comments on the plan. Following the comment period and legal review by the North Dakota Attorney General's Office, NDDH adopted the alternative monitoring plan for MRYS Unit 1 as a SIP revision on March 1, 2013. The Governor submitted the SIP revision to EPA on April 8, 2013. EPA acted separately on a portion of the April 8, 2013 submittal that revised Chapter 2, Section 2.15, Respecting Boards. 78 FR 45866, July 30, 2013.
Minnkota Power Cooperative, Inc. (Minnkota) currently operates MRYS Unit 1, a coal-fired electric generating unit located near Center, North Dakota. Unit 1 was constructed in the late 1960's and began operating in 1970. Minnkota is required to continuously monitor the opacity of emissions from Unit 1 according to 40 CFR part 51, appendix P, and North Dakota SIP Chapter 8, Source Surveillance.
The revision in the April 8, 2013 submittal to be addressed in this document included a revision to SIP Chapter 8, Source Surveillance, to provide an alternative monitoring plan for MRYS Unit 1. In May 1977, NDDH modified the permit to operate for Unit 1 requiring the installation and operation of continuous opacity monitoring (COM) equipment for emissions at Unit 1, and the opacity has been continuously monitored since the compliance date of August 30, 1978.
In 2006, Minnkota entered into a consent decree with NDDH and EPA to settle allegations of noncompliance under the Prevention of Significant Deterioration Program. As part of this settlement, Minnkota was required to control sulfur dioxide emissions from Unit 1. Minnkota has installed a wet scrubber which treats all of the flue gas from Unit 1 and achieves 95% reduction of the inlet sulfur dioxide. However, the large amount of moisture from the scrubber has made monitoring of the opacity in accordance with the requirements of 40 CFR part 51, appendix P, section 3.1.1 infeasible. Specifically, water droplets contained in the flue gas could potentially result in the existing continuous opacity monitor's overstating the true opacity.
Because of this change in circumstances, Minnkota requested alternative monitoring requirements for MRYS Unit 1 under 40 CFR part 51, appendix P, sections 6.0 and 6.1. NDDH agreed with Minnkota that such alternative monitoring procedures and requirements were warranted given that the excess moisture in the stack from the wet scrubber interferes with the COM and makes the COM data inaccurate. As a result, NDDH revised SIP Chapter 8, “Source Surveillance,” Section 8.3, “Continuous Emission Monitoring Requirements for Existing Stationary Sources, including amendments to Permits to Operate and Department Order.” The revision provided for a new Section 8.3.2, “Continuous Opacity Monitoring for M.R. Young Station Unit 1 Main Boiler.” This new section provides alternative monitoring procedures and requirements for MRYS Unit 1.
Under North Dakota Administrative Code (NDAC) 33-15-03-01.2, MRYS Unit 1 is subject to a 20% opacity limit, except for one 6-minute period per hour in which up to 40% opacity is allowed. Without the scrubber, Minnkota was able to comply with the 20% opacity limit with limited exceedances. We obtained monthly exceedance report data from the State which indicate that opacity readings greater than the 20% standard occurred only 0.30 percent of the time for the 2008 through 2010 three-year average.
Under the alternative monitoring plan, Minnkota will ensure compliance with the opacity limit through the use of a continuous emissions monitoring system (CEMS) for particulate matter (PM) as well as periodic visible emissions reading using test method 9 from 40 CFR part 60, appendix A. Minnkota must comply with specific monitoring, recordkeeping, and reporting requirements of 40 CFR 60 as listed in the alternative monitoring plan in Section 8.3.2 for both the PM CEMS and the visible emissions testing. Among these requirements are:
1. Minnkota must conduct weekly Method 9 tests for six consecutive weeks during regular source operation. If compliance with opacity is demonstrated from the weekly tests, Minnkota can begin conducting monthly tests. If excess emissions are identified, the tests revert to a weekly frequency.
2. Minnkota must monitor the filterable PM emission rate with PM CEMS. The PM emission rate may not exceed 0.052 lb/MMBtu (pounds per one million British Thermal Units) (3-hour average).
3. Minnkota must keep records of all PM and visible emissions readings and
4. Minnkota must submit quarterly excess emissions reports for both the PM CEMS and visible emissions readings. The reports must also list any time periodic monitoring is not conducted as outlined in Section 8.3.2. Minnkota must also submit annual certifications indicating compliance with the visible emission limit.
Minnkota has developed a Compliance Assurance Monitoring (CAM) plan for PM in accordance with 40 CFR 64. The CAM plan indicates that 20% opacity occurs with a filterable PM emission rate of 0.062 lb/MMBtu. The alternative monitoring plan sets the filterable PM emission limit at 0.052 lb/MMBtu (3-hour average) with a 20% visible emission limit (6-minute average). The PM emission limit thus allows for a modest safety margin when compared to the 0.062 lb/MMBtu emission rate. For the purposes of this SIP revision, the PM CEMS is used only for demonstrating compliance with the visible emissions standard. This SIP revision does not cover monitoring for demonstrating compliance with the particulate matter emission limit for this unit.
Once the SIP revision is approved by EPA, NDDH will begin the procedures required under NDAC 33-15-14-06(6)(e) to modify the source's Title V permit by incorporating the alternative monitoring requirements into the permit. NDDH will then have the authority to enforce the SIP revision like any other permit condition.
We agree that the addition of the wet scrubber at MRYS Unit 1 necessitates an alternate means of demonstrating opacity compliance, and that the wet scrubber will further reduce visible emissions from this unit. We have evaluated the SIP revision that North Dakota submitted for this purpose and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. On October 8, 2013, by operation of law under CAA section 110(k)(1)(B), the SIP revision was deemed to have met the minimum “completeness” criteria found in 40 CFR part 51, appendix V.
We are also satisfied that this SIP revision will ensure that Minnkota complies with the requirements of 40 CFR 51.214 and 40 CFR part 51, appendix P, to continuously monitor opacity emissions, and that it will be adequate to ensure that Minnkota complies with the SIP opacity limits for MRYS Unit 1. We reviewed the alternative monitoring plan—in particular, the PM emission limit of 0.052 lb/MMBtu (3-hour average)—in conjunction with the CAM plan, and we agree that this limit will ensure equivalency of monitoring methods and compliance with the opacity limit as required by our regulations. Furthermore, it is unlikely that the opacity limits will be exceeded, as the consent decree PM emission limit of 0.03 lb/MMBtu would be triggered first.
Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirements of the CAA. There are no nonattainment areas in North Dakota. The revision to SIP Chapter 8 regarding the alternative monitoring plan for MRYS Unit 1 adequately details monitoring parameters, frequency of monitoring, the PM emission limit, recordkeeping, and reporting requirements to ensure that the source can comply with requirements to continuously monitor opacity emissions, and the revision will be adequate to ensure that Minnkota complies with the SIP opacity limits for MRYS Unit 1. Therefore, this revision does not interfere with attainment or maintenance of the NAAQS or other applicable requirements of the CAA.
EPA is approving a revision to the North Dakota SIP that the Governor of North Dakota submitted on April 8, 2013. Specifically, EPA is approving an alternative monitoring plan for MRYS. The plan relates to continuous opacity monitoring for Unit 1 at MRYS. EPA acted previously on a portion of the April 8, 2013 submittal that revised Chapter 2, Section 2.15, Respecting Boards. 78 FR 45866, July 30, 2013.
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial revision and anticipates no adverse comments. However, in the Proposed Rules section of today's
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference the North Dakota Department of Health rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 31, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
40 CFR part 52 is amended to read as follows:
42 U.S.C. 7401
(d) * * *
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
The Environmental Protection Agency (EPA) is withdrawing a direct final rule published on May 13, 2015 because relevant adverse comments were received. The rule pertained to EPA approval of a Texas State Implementation Plan (SIP) revision for control of volatile organic compound (VOC) emissions from degassing of storage tanks, transport vessels and marine vessels. In a separate subsequent final rulemaking EPA will address the comments received.
The direct final rule published at 80 FR 27251 on May 13, 2015, is withdrawn effective June 30, 2015.
Mr. Robert M. Todd, (214) 665-2156,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA. On May 13, 2015 we published a direct final rule approving a Texas State Implementation Plan (SIP) revision for control of volatile organic compound (VOC) emissions from degassing of storage tanks, transport vessels and marine vessels (80 FR 27251). The direct final rule was published without prior proposal because we anticipated no adverse comments. We stated in the direct final rule that if we received relevant adverse comments by June 12, 2015 we would publish a timely withdrawal in the
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Final rule.
EPA is amending the significant new use rules (SNURs) under section 5(a)(2) of the Toxic Substances Control Act (TSCA) for 21 chemical substances which were the subject of premanufacture notices (PMNs). This action amends the SNURs to allow certain uses without requiring a significant new use notice (SNUN), and extends SNUN requirements to certain additional uses. EPA is amending these SNURs based on review of new data for each chemical substance. This action requires persons who intend to manufacture (including import) or process any of these 21 chemical substances for an activity that is designated as a significant new use by this proposed rule to notify EPA at least 90 days before commencing that activity. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.
This final rule is effective August 31, 2015.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2014-0649, is available at
You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to a modified SNUR must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export the chemical substance that is the subject of a final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
In the
EPA received public comments for the proposed SNUR amendments for the remaining three chemical substances of the 24 included in the proposed rule subject to SNURs at 40 CFR 721.5575, 721.9675, and 721.10515. EPA will address these three proposed SNUR amendments in a separate action.
Upon conclusion of the review of the 21 chemical substances in this SNUR amendment, EPA designated certain activities as significant new uses. Under § 721.185, EPA may at any time amend a SNUR for a chemical substance which has been added to subpart E of 40 CFR part 721 if EPA makes one of the determinations set forth in § 721.185. Amendments may occur on EPA's initiative or in response to a written request. Under § 721.185(b)(3), if EPA concludes that a SNUR should be amended, the Agency will propose the changes in the
If uses begun after the proposed rule was published were considered ongoing rather than new, any person could defeat the SNUR by initiating the significant new use before the final rule was issued. Therefore EPA has designated the date of publication of the proposed rule as the cutoff date for determining whether the new use is ongoing. Consult the
Any person who began commercial manufacture or processing activities of the chemical substances in this rule for any of the significant new uses designated in the proposed SNUR after the date of publication of the proposed SNUR, must stop that activity before the effective date of the final rule. Persons who ceased those activities will have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires, before engaging in any activities designated as significant new uses. If a person were to meet the conditions of advance compliance under § 721.45(h), the person would be considered to have met the requirements of the final SNUR for those activities.
EPA recognizes that TSCA section 5 does not require the development of any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see § 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In this case, EPA recommends persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to
The recommended testing specified in Unit IV. of the proposed rule may not be the only means of addressing the potential risks of the chemical substance. However, SNUNs submitted without any test data may increase the likelihood that EPA will take action
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. E-PMN software is available electronically at
EPA evaluated the potential costs of SNUN requirements for potential manufacturers and processors of the chemical substances in the rule. The Agency's complete Economic Analysis is available in the docket under docket ID number EPA-HQ-OPPT-2014-0649.
This action will modify SNURs for 21 chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
According to PRA, 44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUN submitted by any small entity would not cost significantly more than $8,300.
A copy of that certification is available in the docket for this rule.
This rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit VI and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300.
Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this final rule. As such, EPA has determined that this rule would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501
This action would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “
This rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “
This action is not subject to Executive Order 13045, entitled “
This action is not subject to Executive Order 13211, entitled “
In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
15 U.S.C. 2604, 2607, and 2625(c).
(a) * * *
(1) The chemical substance identified as oxirane, methyl-, polymer with oxirane, mono (3,5,5,-trimethylhexyl) ether (PMN P-99-669, SNUN S-09-1, and SNUN S-13-29; CAS No. 204336-40-3) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) * * *
(i)
The revisions and addition read as follows:
(a) * * *
(1) The chemical substance identified as 1-butanol, 3-methoxy-3-methyl-, acetate (PMN P-00-618; SNUN S-05-03; and SNUN S-11-4; CAS No. 103429-90-9) is subject to reporting under this section for the significant new uses described in paragraphs (a)(2) and (a)(3) of this section.
(2) * * *
(i)
(3) The significant new uses for any use other than the use described in P-00-618:
(i)
(ii)
(iii)
(b) * * *
(1)
The revisions read as follows:
(a) * * *
(1) The chemical substance identified as aluminosilicates, phospho- (PMN P-98-1275 and SNUN S-11-10; CAS No. 201167-69-3) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) * * *
(i)
(b) * * *
(1)
(a) * * *
(1) The chemical substance identified as D-Glucuronic acid, polymer with 6-deoxy-L-mannose and D-glucose, acetate, calcium magnesium potassium sodium salt (PMN P-00-7; SNUN S-05-1; SNUN S-06-4; SNUN S-07-03; and SNUN S-07-5; CAS No. 125005-87-0) is subject to reporting under this section for the significant new use described in paragraph (a)(2) of this section.
(2) * * *
(i)
The revisions and addition read as follows:
(a) * * *
(1) The chemical substance identified as 2-Propen-1-one, 1-(4-morpholinyl)- (PMN P-95-169; SNUN S-08-7; and SNUN S-14-1; CAS No. 5117-12-4) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section. The requirements of this rule do not apply to quantities of the chemical substance after it has been completely reacted (cured) because 2-Propen-1-one, 1-(4-morpholinyl)- will no longer exist.
(2) * * *
(iii)
(iv)
(b) * * *
(1)
(a) * * *
(1) The chemical substance identified as pentane 1,1,1,2,3,4,4,5,5,5,-decafluoro (PMN P-95-638, SNUN P-97-79, and SNUN S-06-8; CAS No. 138495-42-8) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) * * *
(i)
(a) * * *
(1) The chemical substance identified generically as a phenol—biphenyl polymer condensate (PMN P-00-1220 and S-07-2) is subject to reporting under this section for the significant new use described in paragraph (a)(2) of this section.
(2) * * *
(i)
(a) * * *
(1) The chemical substance identified as propane,1,1,1,2,2,3,3-heptafluoro-3-methoxy- (PMN P-01-320; SNUN S-04-2; and SNUN 11-1; CAS No. 375-03-1) is subject to reporting under this section for the significant new use described in paragraph (a)(2) of this section.
(2) * * *
(i)
(a) * * *
(1) The chemical substance identified as silane, triethoxy[3-oxiranylmethoxy)propyl]- (PMN P-01-781; CAS No. 2602-34-8) is subject to reporting under this section for the significant new use described in paragraph (a)(2) of this section.
(a) * * *
(1) The chemical substance identified generically as siloxanes and silicones, aminoalkyl, fluorooctyl, hydroxy-terminated salt (PMN P-00-1132 and SNUN S-11-5) is subject to reporting under this section for the significant new use described in paragraph (a)(2) of this section.
(2) * * *
(i)
(a) * * *
(1) The chemical substances identified as benzenesulfonic acid, mono C-
(2) * * *
(i)
(a) * * *
(1) The chemical substance identified as 1,3-Dimethyl-2-imidazolidinone (PMN P-93-1649, SNUN S-04-3 and S-11-3; CAS No. 80-73-9) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) * * *
(iii)
The revisions read as follows:
(a) * * *
(2) * * *
(ii)
(b) * * *
(1)
(a) * * *
(1) The chemical substance identified as 1-propene, 2,3,3,3-tetrafluoro- (PMN P-07-601, SNUN S-14-11, and SNUN S-15-5; CAS No. 754-12-1) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) * * *
(i)
(A) Use other than as a refrigerant: In motor vehicle air conditioning systems in new passenger cars and vehicles (
(B) Section 721.80(m) (commercial use other than: In passenger cars and vehicles in which the original charging of motor vehicle air conditioning systems with the PMN substance was done by the motor vehicle original equipment manufacturer (OEM), in stationary and transport refrigeration, or in stationary air conditioning).
(C) Section 721.80(o) (use in consumer products other than products used to recharge the motor vehicle air conditioning systems in passenger cars and vehicles in which the original charging of motor vehicle air conditioning systems with the PMN substance was done by the motor vehicle OEM).
The revisions read as follows:
(a) * * *
(2) * * *
(i)
(ii) Disposal. Requirements as specified in § 721.85. A significant new of the substances is any method of disposal of a waste stream containing the PMN substances other than by incineration or by injection into a Class I or II waste disposal well.
(iii)
(b) * * *
(1)
The revisions read as follows:
(a) * * *
(2) * * *
(i)
(ii)
(iii)
(b) * * *
(1)
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) revises its rules governing the Emergency Alert System (EAS) to: Establish a national location code for EAS alerts issued by the President; amend the Commission's rules governing a national EAS test code for future nationwide tests; require broadcasters, cable service providers, and other entities required to comply with the Commission's EAS rules (EAS Participants) to file test result data electronically; and require EAS Participants to meet minimal standards to ensure that EAS alerts are accessible to all members of the public, including those with disabilities.
Effective July 30, 2015, except for § 11.21(a), and § 11.61(a)(3)(iv) which contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the
Lisa Fowlkes, Deputy Bureau Chief, Public Safety and Homeland Security Bureau, at (202) 418-7452, or by email at
This is a summary of the Commission's Sixth Report and Order in EB Docket No. 04-296, FCC 15-60, adopted on June 1, 2015 and released on June 3, 2015. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at:
1. In the
2. Commenters unanimously supported our adoption of the “six zeroes” national location code. For the reasons set forth herein, we agree and accordingly adopt “six zeroes” as the national location code for any future nationwide EAS test, as well as for any future nationwide EAS alerts. The rule we adopt today requires that EAS Participants' EAS encoder/decoder equipment be capable of processing “000000” in the location code field as a header code indicating that the alert is relevant to the entire United States.
3. Implementation of “six zeroes” as the national location code will present negligible costs to EAS Participants because most EAS equipment deployed in the field already supports the “six zeroes” national location code or would require only a software update to provide such support. For example, NCTA asserts that cable providers may have to engage in firmware updates and testing to verify that the new code functions within their systems. For this reason, NCTA asserts that adopting “six zeroes” as the national location code will present cable service provider EAS Participants with approximately $1.1 million in aggregated capital and operational costs for the entire cable industry. Similarly, in the
4. Use of “six zeroes” as the national location code promises to improve the efficacy of the EAS. Adoption of “six zeroes” as the national location code has the long-term benefit of ensuring consistency between the EAS rules and industry CAP standards, which already recognize “six zeroes” as the national location code. This, in turn, will facilitate the integration of the EAS into the IP-based IPAWS. We note that use of a “six zeroes” location code is also consistent with our requirement that EAS header codes not be “amended, extended, or abridged.” We have observed that using a single locality's location code for a national alert can cause confusion. We also recognize that to issue an alert for the entire United States without recourse to a national location code would require two separate alerts because the EAS alert headers can only hold thirty-one distinct location codes. Thus, we agree with Trilithic that the use of a single national location code simplifies our national alerting infrastructure. Finally, Monroe opines that “use of a national location code would provide improved geo-targeting of an EAN should the President wish to address a particular part of the country rather than the nation as a whole.” In light of these benefits, we find that adoption of a “six zeroes” national location code serves the public interest in promoting the effective use of the EAS.
5. In the
6. Commenters unanimously agree that the NPT—not the EAN, and not an NPT that is reprogrammed to fully emulate the EAN—should be the national test event code. Accordingly, and for reasons discussed in further detail below, we adopt the NPT as the test event code for the purpose of nationwide EAS testing, and further require that the NPT as used in such tests be limited in duration to two minutes or less, and have normal priority. In order to comply with FEMA's stated intent that the NPT be disseminated with the “same immediacy as the EAN,” we further require that the NPT be retransmitted immediately upon receipt. We also reiterate that any national or occasional “special” EAS tests referred to in the part 11 rules that use the NPT will replace the required monthly test (RMT) of the EAS for any month in which such an NPT-based test is scheduled.
7. The record indicates that the cost of upgrading EAS equipment to allow the NPT to function in the manner we adopt today will not be significant. The NPT is already present in Section 11.31 of the EAS rules as a required event code and, as such, has already been programmed into most EAS equipment. According to EAS equipment manufacturers, “the NPT code is already recognized by virtually all existing EAS devices or can be easily enabled by EAS [P]articipants through simple reconfigurations of the code filters on their encoder devices.” The costs that EAS Participants must incur as a result of our requirements are limited to those incurred by the relatively small number of EAS Participants who will have to manually change the settings of their EAS equipment to automatically respond to the NPT. Any additional regulatory costs that are imposed by this requirement will be further offset by the reduction in regulatory burdens that will result from broadcast, cable and satellite EAS Participants not having to explain to the public through video replacement slides and other outreach efforts that the alert displayed on the screen is not an actual alert.
8. We contrast the minimal costs imposed by the NPT functionality we require today with those that EAS Participants would incur were the NPT to fully emulate the EAN. Commenters argue that full-EAN emulation would require three years to implement, and would cost at least $3.3 million more than implementing an NPT with standard duration and priority. During that time, firmware in EAS equipment would need to be modified such that an NPT would take priority over all other alerts and to avoid triggering the reset functionality that automatically ends an alert after two minutes. The standards and other proprietary protocols governing the operation of downstream equipment also would need to be updated. That equipment would then need to be upgraded, tested, and deployed in order to achieve operational readiness for an EAS test with an EAN-emulating NPT. We also note that an NPT with maximum priority would supersede any live alert that may be delivered in an area of the country subject to the test. We believe that this would be inconsistent with the life-saving purpose of the EAS. For these reasons, we decline to adopt an NPT that fully emulates the EAN.
9. We agree with commenters' assertions that an NPT that shares the priority and two minute time limit of all other event codes will still advance the most important goal of this proceeding, namely, to ready the national alerting infrastructure for a test that FEMA intends to conduct in the near future. Further, we agree with commenters that an NPT with the characteristics we require today will “sufficiently test the reliability of the EAS dissemination ecosystem, providing adequate data for the Commission and FEMA to fully assess the hierarchy and dissemination of EAS alerts throughout the EAS system, via both legacy and CAP-enabled EAS devices.” We also agree with commenters that the approach we take today has the benefit of being “clearly marked as a test, preventing any public confusion.” As noted earlier, the use of the EAN in conjunction with the first nationwide test necessitated extensive outreach to ensure that the public understood that the event was only a test; none of this outreach would be required with the use of the NPT. Finally, as commenters suggest, we note that it may be possible for FEMA to test EAS equipment's ability to successfully process the priority and duration elements of an EAN in a test bed, thus ensuring that all elements of the system are tested.
10. As the Bureau reported in the EAS Nationwide Test Report, of the EAS Participants who submitted test result data, the vast majority chose to use the voluntary, temporary, electronic filing system employed for the first nationwide EAS test, rather than to submit paper filings. The data available from the electronic reporting system allowed the Commission to generate reports on EAS Participants' monitoring assignments at all points throughout the EAS' national distribution architecture that would not have been feasible with paper filings alone. As a result of the positive response to this temporary electronic filing system and the enhanced analytics it enabled, the EAS Nationwide Test Report recommended that the Commission develop a permanent electronic reporting system based on the system used during the first nationwide EAS test to provide a similarly efficient mechanism to expedite the filing of test result data by EAS Participants. Subsequently, at its March 20, 2014 meeting, the Communications Security, Reliability, and Interoperability Council (CSRIC) also recommended that the Commission develop a federal government database to contain EAS Participants' monitoring assignments.
11. In the
12. We also proposed certain improved processing procedures for the ETRS based on lessons learned from the first nationwide EAS test. In particular, we proposed that EAS Participants: (1) Would have the capability to review filings prior to final submission and to retrieve previous filings to correct errors; (2) would not be required to input data into the ETRS that EAS Participants have previously provided to the Commission elsewhere; and (3) would receive a filing receipt upon successful completion of the required report. We further proposed to revise our rules to integrate the identifying information provided by Form One of the new ETRS into the State EAS Plans filed pursuant to Section 11.21 of the Commission's EAS rules, and to consolidate those State EAS Plans into an EAS Mapbook. Finally, we proposed that EAS Participants submit Form One, the self-identifying portion of the ETRS, within one year of the effective date of the reporting rules, and to update the information that EAS Participants are required to supply in Form One on a yearly basis, and as required by any updates or waivers to State EAS Plans.
13. Commenters unanimously support the Commission's ETRS proposal because it eases the data-entry burden on EAS Participants and facilitates effective analysis of the EAS infrastructure. We agree, and therefore adopt a revised version of the ETRS, as described below. Although the ETRS we adopt today largely resembles the 2011 version, it also contains certain improvements supported by commenters. For example, in order to minimize EAS Participants' filing burden, the ETRS database will be pre-populated with the types of identifying information (
14. In order to address commenters' concerns expressed in the record, we adopt the following additional requirements for the ETRS:
• The ETRS will require a filer to identify itself as a radio broadcaster, television broadcaster, cable system, wireless cable system, Direct Broadcast Satellite (DBS), Satellite Digital Audio Radio Service (SDARS), wireline video system, or “other,” instead of the previous options (limited to “broadcaster” or “cable operator”).
• The ETRS will reflect that the Physical System ID (PSID) is not necessarily equivalent to the geographic area in which an EAS Participant delivers emergency alerts. In addition to a PSID field, the system will include a new field called “Geographic Zone” so that EAS Participants can provide more granular information, if appropriate. For example, when the applicable PSID includes multiple geographic areas that span across counties or states, one ETRS filing for a PSID containing multiple “Geographic Zones” will be accepted.
• The ETRS will permit EAS Participants to supply latitude and longitude information as separate fields, using the North American Datum of 1983 (NAD83).
• The ETRS will require filers to supply contact information related to the individual who completes the form.
• The ETRS will allow for batch filing to facilitate more efficient reporting, consistent with the record on this issue.
• EAS Participants will be required to attest to the truthfulness of their filings in the ETRS, and are reminded that they are responsible for the accuracy of the information they file with the Commission, including any pre-populated data.
15. We find that the ETRS will minimize filing burdens on EAS Participants. In comparison to equivalent paper filings, the costs associated with requiring EAS Participants to file test result data in ETRS will be minimal, and the database improvements we adopt today are aimed at streamlining the filing process and reducing these costs even further. Most of the information that we propose EAS Participants submit to the ETRS has already been populated in other FCC databases, and thus compliance with the ETRS merely requires EAS Participants to review and update the pre-populated data fields to ensure the information is accurate and up to date. For the few data fields that EAS Participants must complete, we conclude that compliance would entail a one-time cost of approximately $125.00 per EAS Participant. This $125.00 figure for the cost of complying with ETRS filing requirements is based on the cost of filing in the comparable system used for the first nationwide EAS test, a cost which has already been reviewed and approved by the Office of Management and Budget in the Paperwork Reduction Act analysis. We also note that no commenter objects to this figure. Accordingly, we conclude that the aggregate cost for all EAS Participants to file test result data with the Commission is approximately $3.4 million.
16. We decline to make several changes to the ETRS proposal that were requested in the record. We do not agree that EAS Participants should only be required to report test results once. The purpose of “day of test” reporting is to provide an instant “yes/no” answer to whether the test worked for a particular EAS Participant. In the aggregate, such reporting provides the Commission and its Federal partners with near to near real-time situational awareness of all or any portion of the system. We believe that the burden of supplying such “yes/no” information is small compared to the benefit of knowing, in close to real time, any specific geographic areas where a national test has not been successful. For example, such instant reporting would allow the Commission and FEMA to map a particular area where a test may have failed and immediately identify any point of failure within the EAS alert distribution hierarchy that may have caused downstream failures. We also do not agree that a streamlined waiver process is necessary for those few EAS Participants who do not have Internet access and may need to file their test
17. Further, we will not, as Consumer Groups suggest, allow the ETRS to be used as a mechanism for consumer feedback about EAS accessibility and other test outcomes. The ETRS is a filing system for EAS Participants to facilitate increased understanding and improved analysis of the EAS alert distribution hierarchy, as well as for EAS Participants to identify or report any complications with the receipt or propagation of emergency alerts. As we discuss in further detail below, however, because of the importance of making EAS alerts more accessible, we will monitor all EAS accessibility complaints filed with the Commission through the normal channels. We also direct the Bureau, in coordination with the Consumer and Governmental Affairs Bureau (CGB) and other relevant Commission Bureaus and Offices, to establish a mechanism to receive public feedback on the test.
18. We also do not adopt the suggestion that, because the ETRS database will be used to construct the EAS Mapbook, State Emergency Coordination Committees (SECCs) must be granted access to the ETRS beyond that envisioned by the presumptively confidential nature of ETRS filings. It is not feasible to provide SECCs with such access without compromising the confidentiality of EAS Participant's filings, or risking that the SECC might unintentionally delete or corrupt a filing. Rather, we will, upon request from an SECC, provide the SECC with a report of their state's aggregated data. SECCs can use these reports to remedy monitoring anomalies evident from EAS Participant filings in their state.
19. Finally, we find that the implementation of the ETRS will be best accomplished by the Bureau. Accordingly, we direct the Bureau to implement the ETRS pursuant to the principles and requirements we discuss above. We direct the Bureau to release a subsequent public notice, providing additional information regarding the implementation of the ETRS closer to the launch date of the ETRS, and as subsequently required for future EAS tests and State EAS Plan filings.
20. The EAS provides a critical means of delivering life- and property-saving information to the public. The Commission's rules ensure that this information is delivered to the public in an accessible manner, primarily by requiring that EAS Participants deliver EAS alerts in both audio and visual formats. The visual display of an EAS alert is generally presented as a page of fixed text, but it can also be presented as a video crawl that scrolls along the top of the screen.
21. The EAS visual message that was transmitted during the first nationwide EAS test was inaccessible to some consumers. For example, stakeholders noted that the visual message in some of the video crawls scrolled across the screen too quickly, or the font was otherwise difficult to read. Others stated that both the audio and visual presentation of the national EAS test message were inconsistent.
22. In the
23. Commenters agree that the EAS visual message, at a minimum, must be accessible if the EAS is to fulfill its purpose of informing all Americans, including Americans with disabilities, of imminent dangers to life and property. Commenters suggest, however, that given the complexity of the EAS alert distribution infrastructure, further discussion and collaboration is necessary and that the Commission should refrain from adopting accessibility requirements at this time. We observe that the Commission tasked the CSRIC with examining the operational issues—including recommended methods to improve alert accessibility—identified in the
24. The Commission is committed to public/private partnership, and has consistently sought to collaborate with stakeholders and to provide EAS Participants with the opportunity to suggest (and take action on) solutions to EAS technical issues. However, given the life-saving importance of the EAS, we cannot afford to delay adoption of minimum rules in favor of further collaboration alone. Viewers are entitled to expect that the EAS visual message be legible to the general public, including people with disabilities. Accordingly, we agree with Consumer Groups that we must adopt a set of baseline accessibility requirements to ensure that EAS messages are accessible to all Americans. We will assess compliance with these minimum requirements through careful monitoring of the informal complaint and consumer inquiry processes, followed by enforcement action to the extent necessary.
25.
26. While parties do not agree on a common definition of ideal crawl speed or font size for the EAS video crawl, there is agreement in the record that alert legibility is essential to ensure the effectiveness of the alerts. For the purposes of our rules, we do not mandate a specific crawl speed or font size, nor do we believe such specificity is necessary at this time. Instead, we afford EAS Participants the flexibility to implement this requirement in accordance with their particular best practices and equipment capabilities. We expect EAS Participants to determine and implement effective practices that will ensure alert legibility. While we acknowledge commenters' statements that not all EAS devices are capable of crawling text, EAS Participants that use devices that display block text must nonetheless generate such text in a manner that remains on the screen for a sufficient length of time to be read.
27.
28.
29.
30. The minimum accessibility rules we adopt today establish clear guidelines for the acceptable appearance of an EAS visual message, in order to ensure that EAS Participants offer accessible EAS video crawls and block text. We direct the Bureau to monitor the informal complaint process for complaints pertaining to EAS visual messages and, where appropriate, bring any potential noncompliance to the attention of the Enforcement Bureau for its review. We also note that, subsequent to a nationwide EAS test, EAS Participants must provide information in the ETRS regarding any complications in receiving or propagating the alert test. Such complications would include any failure to comply with the minimum accessibility requirements we adopt today.
31. Finally, we disagree with those commenters who argue that our adaptation of the Commission's minimum accessibility rules in the
32. We expect that the minimal accessibility rules we adopt today should have little impact on the operations of EAS equipment manufacturers whose equipment already produces a legible, complete, and appropriately placed EAS visual message, and on EAS Participants who deploy certified EAS equipment at their facilities. Accordingly, we do not anticipate that our revised rules will impose significant costs and burdens upon the majority of EAS Participants. As Trilithic notes, “[m]any of the proposed requirements for . . . [visual message] accessibility require minimal changes and cost.” Further, we are not dictating the precise formatting of the EAS visual message, but rather, we are adopting rules that provide EAS Participants and equipment manufacturers with flexibility to meet our minimum requirements in the most cost-effective manner for their systems.
33.
34. We note that FEMA has already addressed and corrected the primary audio quality problems experienced during the first nationwide EAS test,
35.
36.
37. In this Section, we conclude that the benefits of the rules we adopt today exceed their associated implementation costs. In the
38. No commenter opposes our analysis of the costs or benefits associated with implementation of our proposed rules. In large part, we adopt the rules proposed in the
39. With regard to benefits, we find that the EAS is a resilient public alert and warning tool that is essential to help save lives and protect property during times of national, state, regional, and local emergencies. Although the EAS, as tested in 2011, works largely as designed, the improvements we adopt today are responsive to operational inconsistencies uncovered by the first nationwide EAS test. These operational inconsistencies, left unaddressed, would adversely affect the continued efficacy of the system. These rules also will enable the Commission to improve its ability to collect, process and evaluate data about EAS alerting pathways, and will lead to higher quality alerts for every American. In sum, the rules we adopt today will preserve safety of life through more effective alerting. We find, therefore, that it is reasonable to expect that the improvements to the EAS that will result from the rules we adopt today will save lives and result in numerous other benefits that are less quantifiable but still advance important public interest objectives.
40.
41. Our goal in this and related rulemakings is to ensure that the EAS is efficient and secure, and we acknowledge that this goal would not be furthered by requiring any EAS Participant to short circuit their testing process for new rules. Accordingly, we provide herein that EAS Participants are granted a period of up to, but no longer than, twelve months in which to come into compliance with the national location code and NPT requirements that are reflected in the rule amendments we adopt today. This twelve-month period will run from the effective date of these rule amendments, which is thirty days after their publication in the
42.
43. We believe it is reasonable for EAS Participants to complete their filings on this timeline because no equipment changes or attendant processes are required in order to achieve compliance with this rule. Furthermore, the electronic filing system should allow EAS Participants to complete their filing obligation even more quickly than they did for the first nationwide test, in which we adopted the same compliance timeline for submitting test data.
44.
45. As required by the Regulatory Flexibility Act of 1980 (RFA),
46. The
47. We note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
48. The Commission will send a copy of this
49. Accordingly,
50.
51.
52.
Radio, Television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:
47 U.S.C. 151, 154 (i) and (o), 303(r), 544(g) and 606.
(a) The State EAS Plan contains procedures for State emergency management and other State officials, the NWS, and EAS Participants' personnel to transmit emergency information to the public during a State emergency using the EAS. EAS State Plans should include a data table, in computer readable form, clearly showing monitoring assignments and the specific primary and backup path for emergency action notification (“EAN”) messages that are formatted in the EAS Protocol (specified in § 11.31), from the PEP to each station in the plan. If a state's emergency alert system is capable of initiating EAS messages formatted in the Common Alerting Protocol (CAP), its EAS State Plan must include specific and detailed information describing how such messages will be aggregated and distributed to EAS Participants within the state, including the monitoring requirements associated with distributing such messages. Consistent with the requirements of § 11.61(a)(3)(iv), EAS Participants shall provide the identifying information required by the EAS Test Reporting System (ETRS) no later than sixty days after the publication in the
(c) The FCC Mapbook is based on the consolidation of the data table required in each State EAS plan with the identifying data contained in the ETRS. The Mapbook organizes all EAS Participants according to their State, EAS Local Area, and EAS designation.
(f) The All U.S., State, Territory and Offshore (Marine Area) ANSI number codes (SS) are as follows. County ANSI numbers (CCC) are contained in the State EAS Mapbook.
(d) Analog and digital television broadcast stations shall transmit a visual message containing the Originator, Event, Location and the valid time period of an EAS message. Effective June 30, 2012, visual messages derived from CAP-formatted EAS messages shall contain the Originator, Event, Location and the valid time period of the message and shall be constructed in accordance with § 3.6 of the “ECIG Recommendations for a CAP EAS
(1) The visual message portion of an EAS alert, whether video crawl or block text, must be displayed:
(i) At the top of the television screen or where it will not interfere with other visual messages
(ii) In a manner (
(iii) That does not contain overlapping lines of EAS text or extend beyond the viewable display (except for video crawls that intentionally scroll on and off of the screen), and
(iv) In full at least once during any EAS message.
(2) The audio portion of an EAS message must play in full at least once during any EAS message.
(g) * * *
(3) Shall transmit a visual EAS message on at least one channel. The visual message shall contain the Originator, Event, Location, and the valid time period of the EAS message. Effective June 30, 2012, visual messages derived from CAP-formatted EAS messages shall contain the Originator, Event, Location and the valid time period of the message and shall be constructed in accordance with § 3.6 of the “ECIG Recommendations for a CAP EAS Implementation Guide, Version 1.0” (May 17, 2010), except that if the EAS Participant has deployed an Intermediary Device to meet its CAP-related obligations, this requirement shall be effective June 30, 2015, and until such date shall be subject to the general requirement to transmit a visual message containing the Originator, Event, Location and the valid time period of the EAS message.
(i) The visual message portion of an EAS alert, whether video crawl or block text, must be displayed:
(A) At the top of the television screen or where it will not interfere with other visual messages;
(B) In a manner (
(C) That does not contain overlapping lines of EAS text or extend beyond the viewable display (except for video crawls that intentionally scroll on and off of the screen), and
(D) In full at least once during any EAS message.
(ii) The audio portion of an EAS message must play in full at least once during any EAS message.
(h) * * *
(3) Shall transmit the EAS visual message on all downstream channels. The visual message shall contain the Originator, Event, Location, and the valid time period of the EAS message. Effective June 30, 2012, visual messages derived from CAP-formatted EAS messages shall contain the Originator, Event, Location and the valid time period of the message and shall be constructed in accordance with § 3.6 of the “ECIG Recommendations for a CAP EAS Implementation Guide, Version 1.0” (May 17, 2010), except that if the EAS Participant has deployed an Intermediary Device to meet its CAP-related obligations, this requirement shall be effective June 30, 2015, and until such date shall be subject to the general requirement to transmit a visual message containing the Originator, Event, Location and the valid time period of the EAS message.
(i) The visual message portion of an EAS alert, whether video crawl or block text, must be displayed:
(A) At the top of the television screen or where it will not interfere with other visual messages
(B) In a manner (
(C) That does not contain overlapping lines of EAS text or extend beyond the viewable display (except for video crawls that intentionally scroll on and off of the screen), and
(D) In full at least once during any EAS message.
(ii) The audio portion of an EAS message must play in full at least once during any EAS message.
(j) * * *
(2) The visual message shall contain the Originator, Event, Location, and the valid time period of the EAS message. Effective June 30, 2012, visual messages derived from CAP-formatted EAS messages shall contain the Originator, Event, Location and the valid time period of the message and shall be constructed in accordance with § 3.6 of the “ECIG Recommendations for a CAP EAS Implementation Guide, Version 1.0” (May 17, 2010), except that if the EAS Participant has deployed an Intermediary Device to meet its CAP-related obligations, this requirement shall be effective June 30, 2015, and until such date shall be subject to the general requirement to transmit a visual message containing the Originator, Event, Location and the valid time period of the EAS message.
(i) The visual message portion of an EAS alert, whether video crawl or block text, must be displayed:
(A) At the top of the television screen or where it will not interfere with other visual messages
(B) In a manner (
(C) That does not contain overlapping lines of EAS text or extend beyond the viewable display (except for video crawls that intentionally scroll on and off of the screen), and
(D) In full at least once during any EAS message.
(ii) The audio portion of an EAS message must play in full at least once during any EAS message.
(m) * * *
(2) Manual interrupt of programming and transmission of EAS messages may be used. EAS messages with the EAN Event code, or the National Periodic Test (NPT) Event code in the case of a nationwide test of the EAS, must be transmitted immediately; Monthly EAS test messages must be transmitted within 60 minutes. All actions must be logged and include the minimum information required for EAS video messages.
(n) EAS Participants may employ a minimum delay feature, not to exceed 15 minutes, for automatic interruption of EAS codes. However, this may not be used for the EAN Event code, or the NPT Event code in the case of a nationwide test of the EAS, which must be transmitted immediately. The delay time for an RMT message may not exceed 60 minutes.
(e) EAS Participants are required to interrupt normal programming either automatically or manually when they receive an EAS message in which the header code contains the Event codes for Emergency Action Notification (EAN), the National Periodic Test (NPT), or the Required Monthly Test (RMT) for their State or State/county location.
(2) Manual interrupt of programming and transmission of EAS messages may be used. EAS messages with the EAN Event code, or the NPT Event code in
(a) Immediately upon receipt of an EAN message, or the NPT Event code in the case of a nationwide test of the EAS, EAS Participants must comply with the following requirements, as applicable:
(a) * * *
(3) * * *
(iv) Test results as required by the Commission shall be logged by all EAS Participants into the EAS Test Reporting System (ETRS) as determined by the Commission's Public Safety and Homeland Security Bureau, subject to the following requirements.
(A) EAS Participants shall provide the identifying information required by the ETRS initially no later than sixty days after the publication in the
(B) “Day of test” data shall be filed in the ETRS within 24 hours of any nationwide test or as otherwise required by the Public Safety and Homeland Security Bureau.
(C) Detailed post-test data shall be filed in the ETRS within forty five (45) days following any nationwide test.
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of six months, the information collection associated with the Commission's
47 CFR 54.503(c)(1) published at 80 FR 5961, February 4, 2015, is effective June 30, 2015.
James Bachtell, Wireline Competition Bureau at (202) 418-2694 or TTY (202) 418-0484.
This document announces that, on June 22, 2015, OMB approved, for a period of six months, the information collection requirements contained in the Commission's
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on June 22, 2015, for the information collection requirements contained in the Commission's rules at 47 CFR 54.503(c)(1).
Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0806.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Office of Personnel Management.
Final rule.
The United States Office of Personnel Management (OPM) is issuing a final rule to amend the system for assessing the annual performance of health plans contracted under the Federal Employees Health Benefits (FEHB) Program. The purpose of this rule is to measure and assess FEHB plan performance (both experience-rated and community-rated plans) through the use of a common, objective, and quantifiable performance assessment.
This final rule is effective July 30, 2015.
Wenqiong Fu, Policy Analyst at (202) 606-0004.
The Federal Employees Health Benefits (FEHB) Program was established in 1960 and provides health insurance to over eight million Federal employees, annuitants, and their family members. Chapter 89 of Title 5 United States Code, which authorizes the FEHB Program, allows OPM to contract with health insurance carriers to provide coverage under certain types of plans. FEHB contracts are either community-rated or experience-rated. In community-rated contracts, the overall premium is based on the carrier's standard rating methodology, taking into account factors in the larger geographic area or “community.” In experience-rated contracts, the FEHB carrier considers actual “experience” or medical costs of the group of covered lives. The two types of contracts are regulated under different sections of the FEHB Acquisition Regulation (FEHBAR). Premiums are determined according to distinct processes and plan performance is evaluated differently.
On December 15, 2014, the Office of Personnel Management (OPM) published a proposed rule inviting comments on amendments to the FEHB Program regulations to amend OPM's assessment of plan performance. The 30-day comment period ended on January 14, 2015. OPM received 8 responses containing multiple comments. The comments are summarized and discussed below.
OPM received several comments requesting additional information on measurement criteria such as specific weighted measurement percentages, evaluation methods, measurement criteria, and measurement timelines, and requested opportunities to comment on these criteria. Commenters requested that OPM clarify the specific weights and measures within the regulation so they can better plan for the assessment period, and to more clearly adhere to the traditional regulatory structure for a weighted guidelines structured approach. Due to the evolving nature of clinical quality measures, and OPM's need to focus performance on policy-driven measures to be determined annually, it is no longer appropriate to retain fixed weights and measures in regulation. As stated in the proposed rule-making, OPM intends to retain the weighted guidelines structured approach as a regulatory framework and to provide applicable measurement criteria through advance carrier letter guidance with opportunity for comment, followed by incorporation of the measurement criteria as a contract amendment. Since 2014, OPM has issued three carrier letters (CL 2014-19, CL 2014-28, and CL 2015-10). Carrier Letter 2015-10 specifically addresses the types of questions about measurement criteria addressed in the comments. OPM intends to provide carriers with transparency which will allow the new performance assessment system to retain flexibility and to mature over time. A number of commenters requested reasonable lead time and turnaround times after release of measures and assigned weights that will be the subject of performance and performance assessments. OPM intends to keep plans informed in a timely manner as we identify measurement criteria for future years so plans can have sufficient time to prepare for performance that will be evaluated in the following assessment cycle. We also highly encourage feedback and communication through our mailbox at
One commenter recommended that OPM seek to improve health care quality by offering enrollees access to high quality, accredited health care networks and prescription benefit managers. Another commenter recommended that OPM add plan accreditation as an element to the clinical quality, customer service, and resource use factors. OPM addressed plan accreditation in Carrier Letter (2014-10). The vast majority of FEHB health plans already meet OPM's accreditation requirement. However, not all health plan accreditors incorporate annual measurement of clinical quality, customer service, or resource use into their accreditation framework. OPM's plan performance assessment system standardizes this component of performance measurement for all FEHB plans. Contract Officers may also take plan performance on accreditation milestones into account in the Contract Oversight section. For these reasons, OPM is not amending the rule in response to this comment.
One commenter requested OPM consider waiving the performance adjustment if a plan exceeds a Medical Loss Ratio threshold. OPM is not amending the rule in response to this comment. We believe it would not be appropriate for OPM to waive the performance expectations for those carriers that do not achieve their margin targets due to higher than expected claim loss. While we understand the performance adjustment is a concern, using it to cover the excess of the Medical Loss Ratio threshold is not the intent of the proposed assessment system.
OPM received a comment recommending that experience rated carriers have the option for a cost plus incentive or fee contract. OPM is not amending the rule in response to this comment. OPM is not proposing to amend the types of contracts with which it contracts. For experience rated carriers, this rulemaking simply amends the performance assessment system used to determine the service charge.
One commenter recommended that the performance assessment system should provide rewards and resources to allow plans to improve. Another commenter noted its understanding that OPM was comparing the quality indicators it proposes to incorporate into its performance assessment system with quality indicators relied upon by other large purchasers to influence payments to plans, and therefore recommended that OPM consider a different performance approach similar to that of Medicare Advantage plans quality rating programs. OPM did not propose to adopt the same mechanism that others use for influencing payments to plans, and declines to adopt these recommendations.
One commenter recommended safeguards for FEHB experience rated contracts that allow them a minimum service charge payment of a negotiated
Several commenters requested additional information on Contract Oversight with concerns about specific components within this performance area and the objectivity of assessment in this performance area compared to the other three quantified performance areas. OPM has issued guidance on this issue in our Carrier Letters (2014-28) and (2015-10). Carrier Letter 2015-10 specifically addresses Contract Oversight measurement. As described in the proposed rule, OPM's purpose is to establish a program-wide assessment system that allows performance-based criteria to be linked to health plan premium disbursements. OPM will assess performance for the Contract Oversight performance area using many sources of information, most of which are used with discretion in the current processes for the service charge and incentive performance criteria. For these reasons, OPM is not amending the rule in response to these comments.
OPM received several comments that the proposed rule omitted group size as an element. The prior group size element under Contract cost risk (1615.404-70(a)(2)) was omitted because OPM is replacing the current profit analysis factors with a new framework. However, OPM has allowed a minimum adjustment methodology for carriers that achieve a performance score that is below a threshold. The methodology is designed based on group size and is described in detail in Carrier Letter (2015-10).
One commenter requested OPM provide quarterly performance reports in order to inform carriers and allow them to make corrections or improvements to ensure better performance each year. OPM plans to use an annual evaluation cycle since many measures are collected annually, and not quarterly. Three of the new performance areas, Clinical Quality, Customer Service, and Resource Use, are based on measures contained in annual evaluation systems. OPM is committed to transparency with regard to the performance assessment system and has plans to make available a dashboard that carriers may use to view their individual performance ratings and overall scores. For these reasons, OPM declines to accept this comment.
We received one comment regarding the use of HEDIS and CAHPS measures to measure performance. The commenter stated that the health carrier does not have direct control to influence the decisions of the patient and their family or their health care providers, and recommended attributing modest weight to these measures. This commenter further asserted that CAHPS is an experience survey which measures perception rather than satisfaction, that HEDIS and CAHPS reflect successful data collection efforts and not necessarily quality improvement, and that CAHPS recently stopped its survey of members for whom Medicare is primary, which will negatively impact FEHB results. Other commenters recommended the use of other measurement tools and voiced their concerns that HEDIS and CAHPS measure the carrier's entire book of commercial business and not just the FEHB program. OPM is not amending the proposed rule in response to these comments. OPM's intention with the proposed performance assessment system is to build on already established requirements for FEHB Carriers to report evaluations by HEDIS and CAHPS. The goal of the new performance assessment system is to build on the quality initiatives OPM has implemented in recent years, such as public reporting of HEDIS scores.
We want to incentivize carriers who achieve high performance in areas such as clinical quality, customer service and resource use. While HEDIS and CAHPS measure the carrier's entire book of business, and may be imperfect measures of customer satisfaction, they are well recognized national measurement systems in the health insurance arena. Our goal is to ensure that FEHB enrollees receive the highest quality services, and we believe the data from HEDIS and CAHPS best serves the purpose of recognizing good health plan performance. In addition, our methodologies for specific measures have been purposefully selected to prioritize those that are most actionable at the health plan level. Therefore, for the initial Performance Assessment year, we believe that using HEDIS and CAHPS reports as our evaluation best reflects our goals of evaluating plan performance against national commercial benchmarks. We welcome feedback and suggestions from carriers on other externally validated measures for consideration in future years.
We received one comment that the proposed change to 1652.232-71 was a drafting error and should be withdrawn. OPM agrees this is a drafting error and withdraws the proposed language. OPM is not changing the current procedure that allows an experience-rated plan to draw down the service charge from the Contingency Reserve through its Letter of Credit Account. We are simply changing the calculation of that service charge based on the plan's performance assessment.
One individual recommended that the new assessment system include a measure that requires FEHB to provide services comparable to those available under Medicare. This rule-making is intended to address plan performance, not the types of services available under health plans. All FEHB plans provide essential health benefits identified by the Affordable Care Act. Therefore, OPM is not amending the proposed rule in response to this comment.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation affects only health insurance carriers under the Federal Employees Health Benefits Program.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.
Government employees, Government procurement, Health insurance.
For the reasons set forth in the preamble, OPM amends chapter 16 of title 48 CFR (FEHBAR) as follows:
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
(a) When the pricing of FEHB Program contracts is determined by cost analysis (experience-rated) or by a combination of cost and price analysis (community rated), OPM will determine a performance based percentage of the price using a weighted guidelines structured approach based on the profit analysis factors described in 1615.404-70. For experience-rated plans, OPM will use the performance based percentage so determined to develop the profit or fee prenegotiation objective, which will be the total profit (service charge) negotiated for the contract. For community-rated plans, OPM will use the performance based percentage so determined to develop an adjustment to net-to-carrier premiums, (performance adjustment) to be made during the first quarter of the following contract period.
(a) OPM Contracting Officers will apply a weighted guidelines method in developing the performance based percentage for FEHB Program contracts. For experience-rated plans, the performance based percentage will be applied to projected incurred claims and allowable administrative expenses. For community-rated plans, the performance based percentage will be applied to subscription income and will be used to calculate a performance adjustment to net-to-carrier premiums, as described at 48 CFR 1632.170(a)(2), to be made during the first quarter of the following contract period. In the context of the factors outlined in FAR 15.404- 4(d), OPM will assess performance of FEHB carriers according to four factors.
(1)
(2)
(3)
(4)
(b) The sum of the maximum scores for the profit analysis factors will be 1 percent.
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
(a) * * *
(2) The difference between one percent and the performance based percentage of the contract price described at 1615.404-4 will be multiplied by the carrier's subscription income for the year of performance and the resulting amount (performance adjustment) will be withheld from the net-to-carrier premium disbursement during the first quarter of the following contract period unless an alternative payment arrangement is made with the carrier's Contracting Officer. Amounts withheld from a community rated plan's premium disbursement will be deposited into the plan's Contingency Reserve.
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
As prescribed in 1632.171, the following clause shall be inserted in all community-rated FEHBP contracts:
(a) OPM will pay to the Carrier, in full settlement of its obligations under this contract, subject to adjustment for error or fraud, the subscription charges received for the plan by the Employees Health Benefits Fund (hereinafter called the Fund) less the amounts set aside by OPM for the Contingency Reserve and for the administrative expenses of OPM, amounts for obligations due pursuant to paragraph (b) of this clause and the performance adjustment described at 1615.404-4, plus any payments made by OPM from the Contingency Reserve.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) for commercial snowy grouper in the exclusive economic zone (EEZ) of the South Atlantic. NMFS projects
This rule is effective 12:01 a.m., local time, June 30, 2015, until 12:01 a.m., local time, January 1, 2016.
Catherine Hayslip, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes snowy grouper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The commercial ACL (equivalent to the commercial quota) for snowy grouper in the South Atlantic is 82,900 lb (37,603 kg), gutted weight, for the current fishing year, January 1 through December 31, 2015, as specified in 50 CFR 622.190(a)(1).
Under 50 CFR 622.193(b)(1), NMFS is required to close the commercial sector for snowy grouper when the commercial ACL (commercial quota) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS projects that commercial landings of South Atlantic snowy grouper, as estimated by the Science and Research Director, will reach the commercial ACL by June 30, 2015. Accordingly, the commercial sector for South Atlantic snowy grouper is closed effective 12:01 a.m., local time, June 30, 2015, until 12:01 a.m., local time, January 1, 2016.
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having snowy grouper on board must have landed and bartered, traded, or sold such snowy grouper prior to 12:01 a.m., local time, June 30, 2015. During the commercial closure, harvest and possession of snowy grouper in or from the South Atlantic EEZ is limited to the bag and possession limits, as specified in § 622.187(b)(2)(ii) and (c)(1). Also during the commercial closure, the sale or purchase of snowy grouper taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of snowy grouper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, June 30, 2015, and were held in cold storage by a dealer or processor.
For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and the sale and purchase provisions of the commercial closure for snowy grouper would apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of snowy grouper and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(b)(1) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act, because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the commercial sector for snowy grouper constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect snowy grouper since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL (commercial quota). Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL (commercial quota).
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; quota transfer.
NMFS announces that the State of North Carolina is transferring a portion of its 2015 commercial summer flounder quota to the Commonwealth of Virginia. These quota adjustments are necessary to comply with the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan quota transfer provision. This announcement is intended to inform the public of the revised commercial quota for each state involved.
Effective June 29, 2015, through December 31, 2015.
Reid Lichwell, Fishery Management Specialist, 978-281-9112.
Regulations governing the summer flounder fishery are in 50 CFR 648.100 through 50 CFR 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.10(c)(1)(i).
The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan provided a mechanism for summer flounder quota to be transferred from one state to another (December 17, 1993; 58 FR 65936). Two or more states, under mutual agreement and with the
North Carolina has agreed to transfer 7,340 lb (3,329 kg) of its 2015 commercial summer flounder quota to Virginia. This transfer was prompted by landings of a North Carolina vessel that was granted safe harbor in Virginia due to mechanical failure on May 3, 2015. As a result of these landings, a quota transfer is necessary to account for an increase in Virginia landings that would have otherwise accrued against the North Carolina quota.
The Regional Administrator has determined that the criteria set forth in § 648.102(c)(2)(i) have been met. The transfer is consistent with the criteria because it will not preclude the overall annual quota from being fully harvested, the transfer addresses an unforeseen variation or contingency in the fishery, and the transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act. The revised summer flounder commercial quotas for calendar year 2015 are: Virginia, 2,401,568 lb (1,089,330 kg); and North Carolina, 2,976,243 lb (1,350,001 kg).
This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule implements approved management measures contained in the Standardized Bycatch Reporting Methodology Omnibus Amendment to the fishery management plans of the Greater Atlantic Region, developed and submitted to NMFS by the Mid-Atlantic and New England Fishery Management Councils. This amendment is necessary to respond to a remand by the U.S. District of Columbia Court of Appeals decision concerning observer coverage levels specified by the SBRM and to add various measures to improve and expand on the Standardized Bycatch Reporting Methodology previously in place. The intended effect of this action is to implement the following: A new prioritization process for allocation of observers if agency funding is insufficient to achieve target observer coverage levels; bycatch reporting and monitoring mechanisms; analytical techniques and allocation of at-sea fisheries observers; a precision-based performance standard for discard estimates; a review and reporting process; framework adjustment and annual specifications provisions; and provisions for industry-funded observers and observer set-aside programs.
This rule is effective July 30, 2015. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 30, 2015.
Copies of the Standardized Bycatch Reporting Methodology (SBRM) Omnibus Amendment, and of the Environmental Assessment (EA), with its associated Finding of No Significant Impact (FONSI) and the Regulatory Impact Review (RIR), are available from the Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, DE 19901; and from the New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The SBRM Omnibus Amendment and EA/FONSI/RIR is also accessible via the Internet at:
Douglas Potts, Fishery Policy Analyst, 978-281-9341.
This final rule implements the SBRM Omnibus Amendment management measures developed and submitted by the New England and Mid-Atlantic Regional Fishery Management Councils, which were approved by NMFS on behalf of the Secretary of Commerce on March 13, 2015. A proposed rule for this action was published on January 21, 2015 (80 FR 2898), with public comments accepted through February 20, 2015.
Section 303(a)(11) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that all Fishery Management Plans (FMPs) “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” The purpose of the amendment is to: Address the Appellate Court's remand by minimizing the discretion allowed in prioritizing allocation of observers when there are insufficient funds; explain the methods and processes by which bycatch is currently monitored and assessed for fisheries in the region; determine whether these methods and processes need to be modified and/or supplemented; establish standards of precision for bycatch estimation for these fisheries; and, thereby, document the SBRM established for all fisheries managed through the FMPs of the Greater Atlantic Region. Extensive background on the development of the SBRM Omnibus Amendment, including the litigation history that precipitated the need for the amendment, is provided in the proposed rule and supporting environmental assessment. For brevity, that information is not repeated here.
As detailed below (in the sections titled Bycatch Reporting and Monitoring Mechanisms and Analytical Techniques and Allocation of At-sea Fisheries Observers), this action incorporates by reference provisions of the SBRM Omnibus Amendment and EA/FONSI/RIR, identified formally as the
This final rule for the SBRM Omnibus Amendment establishes an SBRM for all FMPs administered by the Greater Atlantic Regional Fisheries Office comprised of seven elements: (1) The methods by which data and information on discards are collected and obtained; (2) the methods by which the data obtained through the mechanisms identified in element 1 are analyzed and utilized to determine the appropriate allocation of at-sea observers; (3) a performance measure by which the effectiveness of the SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days; (4) a process to provide the Councils with periodic reports on discards occurring in fisheries they manage and on the effectiveness of the SBRM; (5) a measure to enable the Councils to make changes to the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments; (6) a description of sources of available funding for at-sea observers and a formulaic process for prioritizing at-sea observer coverage allocations to match available funding; and (7) measures to implement consistent, cross-cutting observer service provider approval and certification procedures and to enable the Councils to implement either a requirement for industry-funded observers or an observer set-aside program through a framework adjustment rather than an FMP amendment. These measures are described in detail as follows.
This final rule incorporates by reference the SBRM Omnibus Amendment's use of the status quo methods by which data and information on discards occurring in Greater Atlantic Region fisheries are collected and obtained. The SBRM uses sampling designs developed to minimize bias to the maximum extent practicable. The Northeast Fisheries Observer Program (NEFOP) is the primary mechanism to obtain data on discards in all Greater Atlantic Region commercial fisheries managed under one or more of the regional FMPs. All subject FMPs require vessels permitted to participate in Federal fisheries to carry an at-sea observer upon request. All data obtained by the NEFOP under this SBRM are collected according to the techniques and protocols established and detailed in the Fisheries Observer Program Manual and the Biological Sampling Manual, which are available online (
This final rule incorporates by reference the SBRM Omnibus Amendment's use of the existing methods by which the data obtained through the mechanisms included above are analyzed and utilized to determine the appropriate allocation of at-sea observers across the subject fishing modes, including all managed species and all relevant fishing gear types in the Greater Atlantic Region. At-sea fisheries observers will, to the maximum extent possible and subject to available resources, be allocated and assigned to fishing vessels according to the procedures established through the amendment. All appropriate filters identified in the amendment will be applied to the results of the analysis to determine the observer coverage levels needed to achieve the objectives of the SBRM. These filters are designed to aid in establishing observer sea day allocations that are more meaningful and efficient at achieving the overall objectives of the SBRM.
This action incorporates by reference the intention of the SBRM Omnibus Amendment to ensure that the data collected under the SBRM are sufficient to produce a coefficient of variation (CV) of the discard estimate of no more than 30 percent. This standard is designed to ensure that the effectiveness of the SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days. Each year, the Regional Administrator and the Science and Research Director will, subject to available funding, allocate at-sea observer coverage to the applicable fisheries of the Greater Atlantic Region sufficient to achieve a level of precision (measured as the CV) no greater than 30 percent for each applicable species and/or species group, subject to the use of the filters noted above.
This final rule incorporates by reference the SBRM Omnibus Amendment's requirements for NMFS to prepare an annual report for the Councils on discards occurring in Greater Atlantic Region fisheries, and to work with the Councils to develop a report every 3 years that evaluates the effectiveness of the SBRM. Once each year, the Science and Research Director will present to the Councils a report on catch and discards occurring in fisheries in the Region. Details about the information to be included in the annual discard reports are included in the amendment. The specific elements of the discard report may change over time to adjust to the changing needs of the Councils. Every 3 years, the Regional Administrator and the Science and Research Director will appoint appropriate staff to work with staff appointed by the executive directors of the Councils to obtain and review available data on discards and to prepare a report assessing the effectiveness of the SBRM.
This rule implements regulations to enable the Councils to make changes to specific elements of the SBRM through framework adjustments and/or annual
This rule incorporates by reference the SBRM Omnibus Amendment process to identify the funds that will be made available annually for SBRM, and how to prioritize the available observer sea-days if the funding provided to NMFS for such purposes is insufficient to fully implement the SBRM across all fishing modes. This measure is intended to limit the discretion the agency has in determining when funds are insufficient and how to reallocate observers under insufficient funding scenarios to address the concerns raised by the Court of Appeals in
Under the new prioritization process, the amount of money available for the SBRM will be the funding allocated to the Region under four specific historically-appropriated observer funding lines (less deductions for management and administrative costs). Of these, the funds made available by Congressional appropriation through the Northeast Fisheries Observers funding line must be dedicated to fund the proposed SBRM. In fiscal years 2011-2014, the Northeast Fisheries Observers funding line made up 53 percent to 59 percent of all observer funds for the Greater Atlantic Region under these four funding lines. Amounts from three of the funding lines are allocated among the fisheries in the five NMFS regions, including the Greater Atlantic Region, to meet national observer program needs. The total amount of the funds allocated for the Greater Atlantic Region from these three funding lines will constitute the remainder of the available SBRM funds. In fiscal year 2014, the amount appropriated under the Northeast Fisheries Observers funding line was $6.6 million, and another $5.9 million was made available for fisheries in the Greater Atlantic region under the other three funding lines. Funding in fiscal year 2015 for the Greater Atlantic Region under the other three funding lines is expected to be consistent with past allocations of these funds. Historically, the available funding has been insufficient to fully fund the SBRM to meet the performance standard. If the available funding continues to be insufficient to fully fund the SBRM, the amendment establishes a non-discretionary formulaic processes for prioritizing how the available observer sea-days would be allocated to the various fishing modes to maximize the effectiveness of bycatch reporting and bycatch determinations.
This final rule implements regulatory changes to establish consistent, cross-cutting observer service provider approval and certification procedures and measures to enable the Councils to implement either a requirement for industry-funded observers and/or an observer set-aside program through a framework adjustment, rather than an FMP amendment.
This final rule also makes minor modifications to the regulations under authority granted the Secretary under section 305(d) of the Magnuson-Stevens Act to ensure that FMPs are implemented as intended and consistent with the requirements of the Magnuson-Stevens Act. This action corrects the list of framework provisions under the Atlantic Surfclam and Ocean Quahog FMP at § 648.79(a)(1) to also include, “the overfishing definition (both the threshold and target levels).” This text was inadvertently removed from the regulations by the final rule to implement annual catch limits and accountability measures for fisheries managed by the Mid-Atlantic Fishery Management Council (76 FR 60606, September 29, 2011). The regulations at § 648.11(h)(5)(vii) are revised to remove reference to the requirement that observer service providers must submit raw data within 72 hours. The final rule to implement Framework 19 to the Atlantic Sea Scallop FMP (73 FR 30790, May 29, 2008) incorrectly stated the time an observer service provider has to provide raw data collected by an observer to NMFS, and this correction better reflects the Council's intent for that action.
This action also implements a consistent deadline for payment of industry-funded observers in the scallop fishery. Previously, there was not a specific due date for payment of industry-funded observers following an observed trip. We are implementing a deadline of 45 days after the end of an observed fishing trip as a due date for payment for all industry-funded observer services rendered in the scallop fishery.
A minor change has been made to the proposed regulatory text. As stated in the proposed rule, this amendment proposed to implement consistent, cross-cutting observer service provider and certification procedures and measures. To do this, several paragraphs within § 648.11(h) were proposed to be revised for consistency and to remove references that were specific to the current industry-funded scallop observer program. However, the specific provision at § 648.11(h)(5)(viii)(A) only applies to the industry-funded scallop observer program, and the reference to scallop vessels in that paragraph should not have been removed. Therefore, this final rule clarifies that this paragraph applies specifically to scallop vessels.
A total of 11 individual comment letters with 15 distinct categories of comments were received on the proposed rule and SBRM Omnibus Amendment.
The groundfish sector at-sea monitoring program is separate from the SBRM and is specific to the Northeast Multispecies FMP. The at-sea monitoring program provides supplemental monitoring within this fishery to address specific management objectives of the New England Fishery Management Council. The SBRM Omnibus Amendment does not specifically modify the groundfish sector at-sea monitoring program or its objectives, including the requirement for the groundfish industry to pay for its portion of costs for at-sea monitors if the Federal government does not. The groundfish at-sea monitoring provisions were developed by the Council and have been in place since 2010. To date, we have been able to provide sufficient funding for the groundfish sector at-sea monitoring program such that industry did not have to pay for at-sea monitoring. With the constraints imposed by this final rule, funds previously used to cover groundfish sector at-sea monitoring will now be required to fund SBRM. It may be necessary for the Council to develop alternatives to ensure accountability with sector annual catch entitlements when there are funding shortages that reduce available at-sea monitoring coverage below the rates needed to ensure a CV of 30 percent.
Electronic monitoring has been viewed as one possible means of addressing observer funding shortages. In recent years, NMFS has worked with groundfish sectors to develop and evaluate monitoring alternatives, including electronic monitoring. While electronic monitoring is not currently sufficiently developed or suitable to be a viable replacement for at-sea observers for the purpose of the SBRM for fisheries administered by the Greater Atlantic Regional Fisheries Office, there are circumstances where it may be appropriate to address other monitoring purposes. NMFS is committed to working with our industry partners to continue development and implementation of electronic monitoring to the extent that it meets management objectives and funding is available. The SBRM can be amended at any time in the future to incorporate other monitoring means such as electronic monitoring.
In recent years, the Northeast Multispecies FMP has authorized mid-water trawl vessels to fish in the groundfish closed areas if they carried observers. The SBRM Omnibus Amendment may result in the unavailability of the funds previously used for this coverage because the funds must first go to the SBRM requirements. The requirement for midwater trawl vessels to have an observer to fish in the groundfish closed areas, however, is not changed by this amendment. Accordingly, without funds to provide this supplemental observer coverage, fewer midwater trawl trips will have access to these areas.
Oceana presented these same contentions before the Court in its challenge to the 2007 SBRM amendment (
While some components of the amendment remain essentially unchanged from the 2007 SBRM amendment, several components, including the affected environment and cumulative impacts analyses have been updated to account for changes since 2007. NMFS asserts that the amendment continues to meet all legal requirements, including NEPA.
NMFS disagrees with the commenters' assertion that alternatives were improperly listed as considered but rejected. When the Councils initiated this action, they explicitly supported the previous Council decisions regarding the range of alternatives, including the alternatives considered but rejected. Both Councils directed the plan development team for this action specifically to focus on the legal deficiencies identified by the Court of Appeals and some minor revisions suggested by the 3-year review report. Given the primary scope of this action to specifically focus on the Court's remand, alternatives previously considered but rejected in the 2007 amendment were deemed considered and rejected for this action. Chapter 6.8 of the SBRM Omnibus Amendment reiterates the discussion of why each alternative was considered but rejected in the prior action, and explains how each does not meet the purpose and need of the SBRM Omnibus Amendment. The commenters offer no new information or circumstances that show these alternatives should have not been rejected from further consideration for this action.
Oceana cites the Agency's analysis of at-sea monitoring requirements for the Northeast multispecies sector fishery,
Oceana made similar claims of potential bias about the 2007 SBRM amendment, but the U.S. District Court found that the amendment contained an extensive consideration of bias, precision, and accuracy. Commenters do not add any additional information or analysis that contradicts the finding of the District Court. NMFS, nevertheless, supports continued analysis of potential sources of bias, and the SBRM can be modified in the future to address any shortcomings that are identified.
NMFS disagrees with the commenters' contention that the choice of a 30-percent CV performance standard is inappropriate. The rationale for a 30-percent CV performance standard is explained in Chapters 5 and 6.3 of the SBRM Omnibus Amendment and in the 2004 NMFS technical memorandum “Evaluating bycatch: A national approach to standardized bycatch monitoring programs” (NMFS-F/SPO-66). The commenters' cite a technical review of the 2007 SBRM amendment to argue that this level of precision would not be suitable for stock assessments. However, the cited section of the technical review refers to a level of variability in estimates of total catch, while the SBRM is addressing the variability in estimated discards of a species group in a single fishing mode. For most fisheries in the Greater Atlantic Region, discards are a relatively small portion of total catch, and the subdivision by different fishing modes would result in estimates of total discards with much lower total variability. This error on the part of the commenters about relevant scale is a common and understandable confusion about precision. Oceana made a similar argument before the U.S. District Court in its challenge to the 2007 SBRM Amendment. In that case, the Court found that NMFS's decision to use a 30-percent CV, and the agency's response to the technical review, was reasonable and did not violate the Magnuson-Stevens Act or any other applicable law. In its most recent comments, Oceana provides no new information or analysis that contradicts the Court's conclusion.
The Agency is not contending that it has no discretion in how to spend any other funding lines, or that there are no other funding lines that may be available to support other monitoring priorities in the Region. NMFS must maintain some flexibility to use appropriated funding to respond to appropriations changes and changes in conditions and priorities within the Region and across the country. To do otherwise would be irresponsible and could be counter to legal requirements and jeopardize the Agency's mission. NMFS acknowledges that Congressional appropriations may change over time. The SBRM Amendment does not speculate about potential future changes in existing or potential future funding lines. The provisions of the SBRM prioritization process may be adjusted to incorporate future changes through an FMP framework action. Framework adjustment development would occur through established Council public participation processes. NMFS has developed annual agency-wide guidance that further explains how and why specific funding decisions are made for SBRM programs and other observer needs throughout the country.
Oceana expresses confusion regarding the meaning of the phrase “consistent with historic practice” used in the amendment. To provide context, this phrase is intended to reflect that not every dollar allocated to the Region through the specified funding lines will necessarily be converted into observer sea-days. All funding lines to regional offices and science centers are subject to standard overhead deductions that are used to support shared resources and infrastructure that do not receive their own appropriation of funds, such as building rent and maintenance, utilities, shared information technology, etc. In addition, the cost of the SBRM includes more than just observer sea-days. Additional costs include, but are not limited to, shore-side expenses to support the observer program, training
NMFS rejects Oceana's contention that the amendment must include an alternative for the fishing industry to pay for any funding shortfall. Industry-funded monitoring programs are complex and must be carefully tailored to each specific fishery as a management/policy decision in each specific FMP. As stated in Chapter 1 of the SBRM Omnibus Amendment, the SBRM is a methodology to assess the amount and type of bycatch in the fisheries and not a management plan for how each fishery operates. It is not necessary or practicable to develop such programs for all of the fisheries in the Region through this action. The Councils have the flexibility to consider industry-funded programs, to meet SBRM or other monitoring priorities, on a case by case basis, depending on the needs and circumstances of each fishery.
NMFS disagrees with Oceana's repeated assertions that the anticipated precision of estimated discards must be directly tied to changes in the uncertainty buffers around catch limits. Each data source has a certain degree of uncertainty associated with it. The specific amount of uncertainty can only be estimated and cannot be parsed into specific amounts at different catch levels of different species in different fisheries. NMFS' National Standard 1 guidelines recommend the use of buffers around catch thresholds to account for these various sources of management and scientific uncertainty (74 FR 3178; January 16, 2009). The Councils have adopted control rules and/or make use of scientific and technical expertise so that these buffers address numerous sources of potential uncertainty that may be present in these catch limits into a single value. Each source of uncertainty may vary and the buffers are set conservatively to account for this variability and the complex interplay that may exist between sources of uncertainty. To propose adjusting these buffers to automatically account for changes in the precision estimate for one component of the total catch, in this case discards of a specific species in a specific fishing mode, misunderstands the general nature of these buffers and the complexities they are intended to address. The precision of a discard estimate does not necessarily reflect the magnitude or importance of that estimate. A very small amount of estimated discards could be very imprecise without having a significant impact on total catch. Similarly, if a species is discarded by several fishing modes, a change in precision in one mode may not significantly affect the precision of the total estimated discards for that stock. How the variability in discard estimates impacts the scientific uncertainty of overall catch estimates is outside the scope of this action and is best considered on a case by case basis, through the Councils' acceptable biological catch (ABC) control rules and Scientific and Statistical Committees. NMFS acknowledges that, in certain cases, the magnitude or importance of estimated discards may be cause for ABC control rules and/or Scientific and Statistical Committees to specifically consider discard estimate precision and underlying uncertainty when recommending an ABC, but not formulaically as the commenter suggests.
NMFS disagrees with Oceana's claim that the SBRM Omnibus Amendment fails to mandate that data be reported in a rational manner useful for fisheries management. As described in Chapter 1 of the SBRM amendment, the SBRM is a general, over-arching methodology for assessing bycatch in all fisheries managed by the New England and Mid-Atlantic Fishery Management Councils to meet the requirements of the Magnuson-Stevens Act. It is not designed as a specific, real-time quota monitoring process. The amendment specifies minimum components to include in the annual discard reports, and anticipates that the format and content of these reports will evolve over time. The 2007 SBRM amendment was very prescriptive of the detailed information to be included in the annual discard reports. However, this resulted in annual discard reports with over 1,000 pages of tables. While these reports contained a lot of information, they were not as useful for management as intended. The revised SBRM Omnibus Amendment calls for annual discard reports to contain more summarized data that could be presented in different ways. We intend to work with the Councils on an ongoing basis to ensure these reports continue to provide the information fishery managers need in a format that is useful in their work. As explained in Chapters 1 and 2 of the Omnibus Amendment, fishing modes are used as the operational unit for assigning observer coverage because it reflects information that is available when a vessel leaves the dock. While data may be collected by fishing mode, the calculated discards can be reported in multiple ways. NMFS looks forward to working with the Councils to prepare annual discard reports that provide needed information to support their management decisions.
NMFS acknowledges the commenter's concern that the agency may not be able to fully fund the government's costs associated with a future industry-funded monitoring program. One of the goals of another initiative, the Industry-Funded Monitoring Omnibus Amendment, currently under development by the Councils is to create
NMFS disagrees with the commenter's assertion that the implications of how the SBRM impacts at-sea observer coverage in other fisheries were first discussed in August 2014. NMFS staff gave a special presentation about the funding of the Northeast Fisheries Observer Program at both the New England and Mid-Atlantic Council meetings in April 2014. These presentations highlighted the sources of funding and potential effect of the proposed SBRM funding trigger on available SBRM coverage and other monitoring programs previously funded by the effected funding lines. This message was then reiterated during the presentation of the SBRM Omnibus Amendment at the same meetings, before the Councils voted to take final action on the amendment.
NMFS disagrees with the commenter's contention that the SBRM Omnibus Amendment does not adequately consider adverse effects to endangered species. As discussed in Chapter 5 of the amendment, the SBRM applies the 30-percent CV performance standard to species afforded protection under the Endangered Species Act, as it does for species managed under a FMP. This has been the case since the implementation of the 2007 SBRM Amendment. Since that time, the agency has continued to effectively use discard estimates for these species for management purposes, including monitoring incidental take limits, and there is no information indicating these estimates are inadequate. The SBRM Omnibus Amendment is primarily administrative in nature and is not expected to result in any changes in fishing effort or behavior, fishing gears used, or areas fished, and therefore will not adversely affect endangered and threatened species in any manner not considered in prior consultations.
The requirement to submit electronic observer data within 24 hours reflects the current regulations. NMFS acknowledges that current practice is to allow 48 hours for electronic submission of observer data. The proposed rule did not specifically propose addressing this inconsistency, and as a result there was no opportunity for public comment. Therefore, NMFS is not changing this regulation in this rule. There may be other areas within this section of the regulations where current practice has evolved away from the specific provisions in the regulations. NMFS may address these inconsistencies in a future rulemaking.
The team that conducted the 3-year review of the SBRM in 2011 included staff from the Northeast Fisheries Science Center, the Greater Atlantic Regional Fisheries Office, the New England and Mid-Atlantic Fishery Management Councils, and the Atlantic States Marine Fisheries Commission. Because much of the data analyzed as part of the 3-year review are confidential under the Magnuson-Stevens Act, the team was limited to individuals authorized to access such information. The annual discard reports as well as the final 3-year review report present information in a format consistent with data confidentiality requirements and are all publically available. NMFS and the Councils will consider how additional stakeholders might be included in the next review in a way that could allow their input without compromising the confidentiality of catch and discard data.
The Administrator, Greater Atlantic Region, NMFS, determined that the SBRM Omnibus Amendment is necessary for the conservation and management of Greater Atlantic fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.
Fisheries, Fishing, Reporting and recordkeeping requirements, Incorporation by reference.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(g) * * *
(5) * * *
(iii) Owners of scallop vessels shall pay observer service providers for observer services within 45 days of the end of a fishing trip on which an observer deployed.
(h)
(3) * * *
(iv) A statement, signed under penalty of perjury, from each owner or owners, board members, and officers, if a corporation, describing any criminal conviction(s), Federal contract(s) they have had and the performance rating they received on the contracts, and previous decertification action(s) while working as an observer or observer service provider.
(vi) A description of the applicant's ability to carry out the responsibilities and duties of a fishery observer services provider as set out under paragraph (h)(5) of this section, and the arrangements to be used.
(viii) Proof that its observers, whether contracted or employed by the service provider, are compensated with salaries that meet or exceed the U.S. Department of Labor (DOL) guidelines for observers. Observers shall be compensated as Fair Labor Standards Act (FLSA) non-exempt employees. Observer providers shall provide any other benefits and personnel services in accordance with the terms of each observer's contract or employment status.
(ix) The names of its fully equipped, NMFS/NEFOP certified, observers on staff or a list of its training candidates (with resumes) and a request for an appropriate NMFS/NEFOP Observer Training class. The NEFOP training has a minimum class size of eight individuals, which may be split among multiple vendors requesting training. Requests for training classes with fewer than eight individuals will be delayed until further requests make up the full training class size.
(4)
(ii) If NMFS approves the application, the observer service provider's name will be added to the list of approved observer service providers found on the NMFS/NEFOP Web site specified in paragraph (h)(1) of this section, and in any outreach information to the industry. Approved observer service providers shall be notified in writing and provided with any information pertinent to its participation in the fishery observer program.
(iii) An application shall be denied if NMFS determines that the information provided in the application is not complete or the evaluation criteria are not met. NMFS shall notify the applicant in writing of any deficiencies in the application or information submitted in support of the application. An applicant who receives a denial of his or her application may present additional information to rectify the deficiencies specified in the written
(5)
(ii) An observer service provider must provide to each of its observers:
(A) All necessary transportation, including arrangements and logistics, of observers to the initial location of deployment, to all subsequent vessel assignments, and to any debriefing locations, if necessary;
(B) Lodging, per diem, and any other services necessary for observers assigned to a fishing vessel or to attend an appropriate NMFS/NEFOP observer training class;
(C) The required observer equipment, in accordance with equipment requirements listed on the NMFS/NEFOP Web site specified in paragraph (h)(1) of this section, prior to any deployment and/or prior to NMFS observer certification training; and
(D) Individually assigned communication equipment, in working order, such as a mobile phone, for all necessary communication. An observer service provider may alternatively compensate observers for the use of the observer's personal mobile phone, or other device, for communications made in support of, or necessary for, the observer's duties.
(iii)
(iv)
(B) Unless alternative arrangements are approved by NMFS, an observer provider must not deploy any observer on the same vessel for more than two consecutive multi-day trips, and not more than twice in any given month for multi-day deployments.
(v)
(vi)
(vii)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(I)
(J)
(viii)
(B) An observer service provider may refuse to deploy an observer on a requesting fishing vessel if the observer service provider has determined that the requesting vessel is inadequate or unsafe pursuant to the reasons described at § 600.746 of this chapter.
(C) The observer service provider may refuse to deploy an observer on a fishing vessel that is otherwise eligible to carry an observer for any other reason, including failure to pay for previous observer deployments, provided the observer service provider has received prior written confirmation from NMFS authorizing such refusal.
(7)
(i)
(2)
(3) * * *
(ii) Be physically and mentally capable of carrying out the responsibilities of an observer on board fishing vessels, pursuant to standards established by NMFS. Such standards are available from NMFS/NEFOP Web site specified in paragraph (h)(1) of this section and shall be provided to each approved observer service provider;
(v) Accurately record their sampling data, write complete reports, and report accurately any observations relevant to conservation of marine resources or their environment.
(4)
(5)
NMFS shall comply with the Standardized Bycatch Reporting Methodology (SBRM) provisions established in the following fishery management plans by the
(c) * * *
(13) Changes, as appropriate, to the SBRM, including the coefficient of variation (CV) based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs.
(a) * * *
(1)
(a)
(1) Allow for Atlantic salmon aquaculture projects in the EEZ, provided such an action is consistent with the goals and objectives of the Atlantic Salmon FMP; and
(2) Make changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs.
(f) * * *
(39) Adjusting EFH closed area management boundaries or other associated measures;
(40) Changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set-aside programs; and
(41) Any other management measures currently included in the FMP.
(a) * * *
(1)
(a) * * *
(2)
(iii) Based on this review, the PDT shall recommend ACLs and develop options necessary to achieve the FMP goals and objectives, which may include a preferred option. The PDT must demonstrate through analyses and documentation that the options they develop are expected to meet the FMP goals and objectives. The PDT may review the performance of different user groups or fleet sectors in developing options. The range of options developed by the PDT may include any of the management measures in the FMP, including, but not limited to: ACLs, which must be based on the projected fishing mortality levels required to meet the goals and objectives outlined in the FMP for the 12 regulated species and ocean pout if able to be determined; identifying and distributing ACLs and other sub-components of the ACLs among various segments of the fishery; AMs; DAS changes; possession limits; gear restrictions; closed areas; permitting restrictions; minimum fish sizes; recreational fishing measures; describing and identifying EFH; fishing gear management measures to protect EFH; designating habitat areas of particular concern within EFH; and changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs. In addition, the following conditions and measures may be adjusted through future framework adjustments: Revisions to DAS measures, including DAS allocations (such as the distribution of DAS among the four categories of DAS), future uses for Category C DAS, and DAS baselines, adjustments for steaming time, etc.; modifications to capacity measures, such as changes to the DAS transfer or DAS leasing measures; calculation of area-specific ACLs, area management boundaries, and adoption of area-specific management measures; sector allocation requirements and specifications, including the establishment of a new sector, the disapproval of an existing sector, the allowable percent of ACL available to a sector through a sector allocation, and the calculation of PSCs; sector administration provisions, including at-sea and dockside monitoring measures; sector reporting requirements; state-operated permit bank administrative provisions; measures to implement the U.S./Canada Resource Sharing Understanding, including any specified TACs (hard or target); changes to administrative measures; additional uses for Regular B DAS; reporting requirements; the GOM Inshore Conservation and Management Stewardship Plan; adjustments to the Handgear A or B permits; gear requirements to improve selectivity, reduce bycatch, and/or reduce impacts of the fishery on EFH; SAP modifications; revisions to the ABC control rule and status determination criteria, including, but not limited to, changes in the target fishing mortality rates, minimum biomass thresholds, numerical estimates of parameter values, and the use of a proxy for biomass may be made either through a biennial adjustment or framework adjustment; changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs; and any other measures currently included in the FMP.
(b) * * *
(1) * * *
(ii) The Whiting PDT, after reviewing the available information on the status of the stock and the fishery, may recommend to the Council any measures necessary to assure that the specifications will not be exceeded; changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs; as well as changes to the appropriate specifications.
(c) * * *
(1) * * *
(i) After a management action has been initiated, the Council shall develop and analyze appropriate management actions over the span of at least two Council meetings. The Council shall provide the public with advance notice of the availability of both the proposals and the analyses and opportunity to comment on them prior to and at the second Council meeting. The Council's recommendation on adjustments or additions to management measures, other than to address gear conflicts, must come from one or more of the following categories: DAS changes; effort monitoring; data reporting; possession limits; gear restrictions; closed areas; permitting restrictions; crew limits; minimum fish sizes; onboard observers; minimum hook size and hook style; the use of crucifer in the hook-gear fishery; sector requirements;
(ii) The Council's recommendation on adjustments or additions to management measures pertaining to small-mesh NE multispecies, other than to address gear conflicts, must come from one or more of the following categories: Quotas and appropriate seasonal adjustments for vessels fishing in experimental or exempted fisheries that use small mesh in combination with a separator trawl/grate (if applicable); modifications to separator grate (if applicable) and mesh configurations for fishing for small-mesh NE multispecies; adjustments to whiting stock boundaries for management purposes; adjustments for fisheries exempted from minimum mesh requirements to fish for small-mesh NE multispecies (if applicable); season adjustments; declarations; participation requirements for any of the Gulf of Maine/Georges Bank small-mesh multispecies exemption areas; OFL and ABC values; ACL, TAL, or TAL allocations, including the proportions used to allocate by season or area; small-mesh multispecies possession limits, including in-season AM possession limits; changes to reporting requirements and methods to monitor the fishery; and biological reference points, including selected reference time series, survey strata used to calculate biomass, and the selected survey for status determination; and changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs.
(a) * * *
(3) * * *
(ii) The range of options developed by the Councils may include any of the management measures in the Monkfish FMP, including, but not limited to: ACTs; closed seasons or closed areas; minimum size limits; mesh size limits; net limits; liver-to-monkfish landings ratios; annual monkfish DAS allocations and monitoring; trip or possession limits; blocks of time out of the fishery; gear restrictions; transferability of permits and permit rights or administration of vessel upgrades, vessel replacement, or permit assignment; measures to minimize the impact of the monkfish fishery on protected species; gear requirements or restrictions that minimize bycatch or bycatch mortality; transferable DAS programs; changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs; changes to the Monkfish Research Set-Aside Program; and other frameworkable measures included in §§ 648.55 and 648.90.
(a) * * *
(10) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs.
(a) * * *
(1)
(a) * * *
(13) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs.
(a) * * *
(1)
(a) * * *
(12) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs.
(a) * * *
(9) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs; and
(a) * * *
(1)
(b)
(b) * * *
(29) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs;
(a) * * *
(6) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs;
(a) * * *
(1)
(a) * * *
(1) The Red Crab PDT shall meet at least once annually during the intervening years between Stock Assessment and Fishery Evaluation (SAFE) Reports, described in paragraph (b) of this section, to review the status of the stock and the fishery. Based on such review, the PDT shall provide a report to the Council on any changes or new information about the red crab stock and/or fishery, and it shall recommend whether the specifications for the upcoming year(s) need to be modified. At a minimum, this review shall include a review of at least the following data, if available: Commercial catch data; current estimates of fishing mortality and catch-per-unit-effort (CPUE); discards; stock status; recent estimates of recruitment; virtual population analysis results and other estimates of stock size; sea sampling, port sampling, and survey data or, if sea sampling data are unavailable, length frequency information from port sampling and/or surveys; impact of other fisheries on the mortality of red crabs; and any other relevant information.
(a) * * *
(1) In response to an annual review of the status of the fishery or the resource by the Red Crab PDT, or at any other time, the Council may recommend adjustments to any of the measures proposed by the Red Crab FMP, including the SBRM. The Red Crab Oversight Committee may request that the Council initiate a framework adjustment. Framework adjustments shall require one initial meeting (the agenda must include notification of the impending proposal for a framework adjustment) and one final Council meeting. After a management action has been initiated, the Council shall develop and analyze appropriate management actions within the scope identified below. The Council may refer the proposed adjustments to the Red Crab Committee for further deliberation and review. Upon receiving the recommendations of the Oversight Committee, the Council shall publish notice of its intent to take action and provide the public with any relevant analyses and opportunity to comment on any possible actions. After receiving public comment, the Council must take action (to approve, modify, disapprove, or table) on the recommendation at the Council meeting following the meeting at which it first received the recommendations. Documentation and analyses for the framework adjustment shall be available at least 2 weeks before the final meeting.
(a)
(a) * * *
(1) * * *
(xviii) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs;
(a) * * *
(5) * * *
(ii) In-season possession limit triggers for the wing and/or bait fisheries;
(iii) Required adjustments to in-season possession limit trigger percentages or the ACL-ACT buffer, based on the accountability measures specified at § 648.323; and
(iv) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs.
(b) * * *
(22) Reduction of the baseline 25-percent ACL-ACT buffer to less than 25 percent;
(23) Changes to catch monitoring procedures; and
(24) Changes, as appropriate, to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes. This proposed AD was prompted by reports of cracked forward door members of the inboard main landing gear (MLG) doors. This proposed AD would require repetitive inspections of the inboard MLG doors, repairs if necessary, and replacement of the inboard MLG doors. This proposed AD also would provide optional terminating action for the door replacement. We are proposing this AD to prevent loss of an MLG door during flight, which could result in damage to the airplane.
We must receive comments on this proposed AD by August 14, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email
You may examine the AD docket on the Internet at
Aziz Ahmed, Aerospace Engineer, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone 516-228-7329; fax 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-42, dated December 12, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes. The MCAI states:
Cases of inboard MLG doors with cracked door forward members were found. A cracked inboard MLG door forward member could result in door departure from the aeroplane. Loss of an MLG door during flight could result in damage to the aeroplane and injury to persons on the ground.
This [Canadian] AD mandates the repetitive inspection [and corrective actions if necessary] and replacement of the inboard MLG doors.
The repetitive inspection is a detailed inspection for damage (including deformation, pulled or missing fasteners on the inner and outer skin, cracks, and deformation) on the forward member of the inboard MLG door inner skins, outer skin, and the forward member.
Corrective actions include repairing, removing, or replacing the inboard MLG door. You may examine the MCAI in the AD docket on the Internet at
Bombardier has issued the following service information.
• Bombardier Modification Summary Package IS670528200033, Revision A-2, dated October 11, 2005. This service information describes procedures for enlarging the forward and aft hinge cutouts of the MLG inboard and outboard doors.
• Bombardier Service Bulletin 670BA-32-040, Revision D, dated July 2, 2014, including Appendix A, Revision A, dated July 2, 2014, and Appendix B, Revision B, dated July 2, 2014. This service information describes procedures for increasing the clearances between the MLG fairing and the MLG doors.
• Bombardier Service Bulletin 670BA-32-040, Revision E, dated
• Bombardier Service Bulletin 670BA-32-042, Revision A, dated July 2, 2014, including Appendices A and B, both dated November 5, 2013. This service information describes procedures for inspecting and repairing the inboard MLG door inner skins, outer skin, and the forward member.
• Bombardier Service Bulletin 670BA-32-043, Revision A, dated November 13, 2014. This service information describes procedures for replacing the inboard MLG doors.
• Bombardier Service Bulletin 670BA-32-043, dated July 2, 2014. This service information describes procedures for replacing the inboard MLG doors.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
AD 2010-23-19, Amendment 39-16508 (75 FR 68695, November 9, 2010), requires repetitive inspections for damage of the MLG inboard doors and fairing, and corrective actions if necessary. AD 2010-23-19 applies to Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes having serial numbers (S/Ns) 10003 and subsequent; and Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes having S/Ns 15001 and subsequent.
We estimate that this proposed AD affects 269 airplanes of U.S. registry.
We estimate that it would take about 16 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work hour. Required parts would cost about $31,000 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $8,704,840, or $32,360 per product.
In addition, we estimate that any necessary follow-on actions would take up to 44 work-hours and require parts costing up to $31,000, for a cost of up to $34,740 per product. We have no way of determining the number of aircraft that might need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by August 14, 2015.
None.
This AD applies to Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, certificated in any category, serial numbers 10002 and subsequent, as identified in Bombardier Service Bulletin 670BA-32-042, Revision A, dated July 2, 2014.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by reports of cracked forward door members of the inboard main landing gear (MLG) doors. We are issuing this AD to prevent loss of an MLG door during flight, which could result in damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 660 flight hours or 12 months after the effective date of this AD, whichever occurs first: Do a detailed inspection for damage (including deformation, pulled or missing fasteners on the inner and outer skin, cracks, and deformation) on the outer skin, and the forward member, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-042, Revision A, dated July 2, 2014, including
For the purposes of this AD, a detailed inspection is an intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.
(1) If any damage is found on the inner or outer skin of the inboard MLG door during any inspection required by paragraph (g) of this AD: Before further flight, do the actions specified in paragraph (i)(1)(i), (i)(1)(ii), or (i)(1)(iii) of this AD.
(i) Remove the damaged inboard MLG door, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-042, Revision A, dated July 2, 2014, including Appendices A and B, both dated November 5, 2013.
(ii) Repair the door as specified in paragraph (i)(1)(i)(A) or (i)(1)(i)(B) of this AD, as applicable.
(A) If repair of the inboard MLG door is possible: Repair and reinstall the door, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-042, Revision A, dated July 2, 2014, including Appendices A and B, both dated November 5, 2013.
(B) If it is not possible to repair the inboard MLG door in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-042, Revision A, dated July 2, 2014, including Appendices A and B, both dated November 5, 2013: Repair using a method approved by the Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO).
(iii) Replace the inboard MLG door, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-043, Revision A, dated November 13, 2014.
(2) If any damage is found on the forward member of the inboard MLG door during any inspection required by paragraph (g) of this AD: Before further flight, replace the inboard MLG door, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-043, Revision A, dated November 13, 2014.
Within 6,600 flight hours or 36 months after the effective date of this AD, whichever occurs first, except as provided by paragraph (l) of this AD: Replace the inboard MLG door, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-043, Revision A, dated November 13, 2014; except, where Bombardier Service Bulletin 670BA-32-043, Revision A, dated November 13, 2014, specifies to contact the manufacturer for certain instructions, this AD requires accomplishing those actions using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(1) Doing the MLG door replacement required by paragraph (j) of this AD terminates the inspections required by paragraph (g) of this AD for that MLG door. (2) Doing the actions required by this paragraph does not terminate the actions required by AD 2010-23-19, Amendment 39-16508 (75 FR 68695, November 9, 2010).
Doing any of the actions specified in paragraph (k)(1), (k)(2), (k)(3), or (k)(4) of this AD is acceptable for compliance with the requirements of paragraph (j) of this AD.
(1) Replacement of the inboard MLG door, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-043, Revision A, dated November 13, 2014; and enlargement of the forward and aft hinge cutouts, in accordance with the procedures specified in Bombardier Modification Summary Package (MoDSum) IS670528200033, Revision A-2, dated October 11, 2005.
(2) Installation of an inboard MLG door assembly with a part number listed in the “Post SB Part Number” column of Section M, Relationship Chart, of Bombardier Service Bulletin 670BA-32-043, dated July 2, 2014, in accordance with the Accomplishment instructions of Bombardier Service Bulletin 670BA-32-043, dated July 2, 2014; or Bombardier Service Bulletin 670BA-32-043, Revision A dated November 13, 2014; or using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(3) Doing the actions specified in “PART C—Installation of the Inboard MLG Door Part Number CC670-10520-15 and Increase of the Clearance Between the Left MLG Inboard-Door and the MLG Fairing” and “PART D—Installation of the Inboard MLG Door Part Number CC670-10520-16 and Increase of the Clearance Between the Right MLG Inboard-Door and the MLG Fairing” of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-040, Revision E, dated November 13, 2014, including Appendix A, Revision A, dated July 2, 2014, and Appendix B, Revision B, dated July 2, 2014.
(4) Doing the actions specified in paragraphs (k)(4)(i) and (k)(4)(ii) of this AD.
(i) Doing the actions specified in “PART C—Installation of the Inboard MLG Door Part Number CC670-10520-15 and Increase of the Clearance Between the Left MLG Inboard-Door and the MLG Fairing” and “PART D—Installation of the Inboard MLG Door Part Number CC670-10520-16 and Increase of the Clearance Between the Right MLG Inboard-Door and the MLG Fairing” of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-040, Revision D, dated July 2, 2014, including Appendix A, Revision A, dated July 2, 2014, and Appendix B, Revision B, dated July 2, 2014.
(ii) Enlargement of the forward and aft hinge cutouts specified in Bombardier Modsum IS670528200033, Revision A-2, dated October 11, 2005.
If an MLG door is removed, the replacement required by paragraph (j) of this AD can be delayed until the MLG door is reinstalled. When the removed MLG door is replaced, the actions required by paragraph (j) of this AD must be done at the time specified in paragraph (j) of this AD.
Upon completion of the actions specified in paragraph (j) or (k) of this AD, no person may install an inboard MLG door assembly with a part number listed in the “Pre SB Part Number” column of Section M, Relationship Chart, of Bombardier Service Bulletin 670BA-32-043, dated July 2, 2014, on any airplane.
The following provisions also apply to this AD:
(1)
(2)
Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are not allowed.
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2014-42, dated December 12, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Bombardier, Inc., 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514 855-7401; email
Coast Guard, DHS.
Notice of Proposed Rulemaking.
The Coast Guard is proposing to establish a temporary safety zone on the Ohio River Mile from mile 25.2 to mile 25.8. The proposed safety zone will be effective from 8:45 p.m. to 11:15 p.m. on August 22, 2015. This safety zone is needed to protect persons and vessels from the potential safety hazards associated with the Beaver County Regatta Fireworks. Entry into this zone will be prohibited to all vessels, mariners, and persons unless specifically authorized by the Captain of the Port (COTP), Pittsburgh or a designated representative.
Comments and related material must be received by the Coast Guard on or before July 15, 2015.
You may submit comments identified by docket number using any one of the following methods:
(1) Federal eRulemaking Portal:
(2) Fax: 202-493-2251.
(3) Mail or Delivery: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries accepted between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. The telephone number is 202-366-9329.
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, call or email MST1 Jennifer Haggins, Marine Safety Unit Pittsburgh Waterways Management Division, U.S. Coast Guard; telephone (412)221-0807, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the methods specified under
The Coast Guard has a long history working with local, state, and federal agencies in areas to improve emergency response, to prepare for events that call for swift action, and to protect our nation. The Coast Guard is proposing to establish this safety zone on the waters of the Ohio River for the Beaver County Regatta fireworks. The marine event is scheduled to take place from 8:45 p.m. to 11:15 p.m. on August 22, 2015. This proposed rule is necessary to protect the safety of the participants, spectators, commercial traffic, and the general public on the navigable waters of the United States during the event.
The legal basis and authorities for this proposed rule are found in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1; 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to propose, establish, and define regulatory safety zones. The purpose of this proposed safety zone is to protect public boaters and their vessels from potential safety hazards associated with the Beaver County Regatta Fireworks on the Ohio River, including falling embers and debris.
This proposed rule is necessary to establish a safety zone that will encompass all waters of the Ohio River in New Brighton, Pennsylvania. The proposed safety zone will be enforced from approximately 8:45 p.m. to 11:15 p.m., for approximately 2 hour 30 minutes on August 22, 2015. As proposed, the safety zone would be a complete closure of the Ohio River from mile 25.2 to mile 25.8 from 8:45 p.m. to 11:15 p.m. on August 22, 2015. All persons and vessels, except those persons and vessels participating in the marine fireworks event and those vessels enforcing the areas, would be prohibited from entering, transiting through, anchoring in, or remaining within the proposed safety zone area.
Persons and vessels may request authorization to enter, transit though, anchor in, or remain within the enforcement areas by contacting the Captain of the Port Pittsburgh by telephone at (412)221-0807, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the enforcement areas is granted by the Captain of the Port Pittsburgh or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Pittsburgh or a designated representative.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The temporary safety zone listed in this proposed rule will restrict vessel traffic from entering, transiting, or anchoring within a portion of the Ohio River. The effect of this proposed regulation will not be significant for several reasons: (1) The amount of time the Ohio River will be closed, and (2) the impacts on routine navigation are expected to be minimal because notifications to the marine community will be made through local notice to mariners (LNM) and broadcast notice to mariners (BNM). Therefore, these notifications will allow the public to plan operations around the proposed safety zone and its enforcement times.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
This proposed rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the Ohio River from mile 25.2 to mile 25.8 effective from 8:45 p.m. to 11:15 p.m. on August 22, 2015. This proposed safety zone will not have a significant economic impact on a substantial number of small entities because this proposed rule will impede navigational traffic for a short period of time. Traffic in this area is almost entirely limited to recreational vessels and commercial towing vessels. Notifications to the marine community will be made through BNMs and electronic mail. Notices of changes to the proposed safety zone and scheduled effective times and enforcement periods will also be made. Deviation from the proposed restrictions may be requested from the COTP or designated representative and will be considered on a case-by-case basis.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing a temporary safety zone. The safety zone will be on the Ohio River mile 25.2 to mile 25.8 from 8:45 p.m. to 11:15 p.m. on August 22, 2015. This action is necessary to protect persons and property during the Beaver County Regatta Fireworks. This proposed rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Spectator vessels may safely transit outside the safety zones at a minimum safe speed, but may not anchor, block, loiter, or impede participants or official patrol vessels.
(3) Vessels requiring entry into or passage through the safety zones must request permission from the COTP Pittsburgh or a designated representative. They may be contacted by telephone at (412) 412-0807.
(4) All vessels shall comply with the instructions of the COTP Pittsburgh and designated personnel. Designated personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.
(d)
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of North Dakota. On April 8, 2013, the Governor of North Dakota submitted to EPA an alternative monitoring plan for the Milton R. Young Station (MRYS). The plan relates to continuous opacity monitoring for Unit 1 at MRYS. The intended effect of this action is to approve a state plan established to address minimum emission monitoring requirements. The EPA is proposing approval of this SIP revision in accordance with the requirements of section 110 of the Clean Air Act (CAA).
Written comments must be received on or before July 30, 2015.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2015-0026, by one of the following methods:
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•
•
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•
Please see the direct final rule which is located in the Rules Section of this
Gail Fallon, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, (303) 312-6218,
In the “Rules and Regulations” section of this
If EPA receives no adverse comments, EPA will not take further action on this proposed rule. If EPA receives adverse comments, EPA will withdraw the direct final rule and it will not take effect. EPA will address all public comments in a subsequent final rule based on this proposed rule.
EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the
Please note that if EPA receives adverse comment on a distinct provision of the rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations Section of this
42 U.S.C. 7401
Federal Communications Commission.
Notice of proposed rulemaking.
In this document, the Federal Communications Commission (Commission) will revise its Schedule of Regulatory Fees in order to recover an amount of $339,844,000 that Congress has required the Commission to collect for fiscal year 2015.
Submit comments on or before June 22, 2015, and reply comments on or before July 6, 2015.
You may submit comments, identified by MD Docket No. 15-121, by any of the following methods:
• Federal eRulemaking Portal:
• Federal Communications Commission's Web site:
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Roland Helvajian, Office of Managing Director at (202) 418-0444.
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), Report and Order, and Order, FCC 15-59, MD Docket No. 15-121, adopted on May 20, 2015 and released May 21, 2015. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Room CY-A257, Portals II, Washington, DC 20554, and may also be purchased from the Commission's copy contractor, BCPI, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via their Web site,
1. The
2.
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
3.
4.
5. This
6. An initial regulatory flexibility analysis (“IRFA”) is contained in Attachment E. Comments to the IRFA must be identified as responses to the IRFA and filed by the deadlines for comments on the
7. In this
8. The Commission is required by Congress to assess regulatory fees each year in an amount that can reasonably be expected to equal the amount of its appropriation.
9. Section 9 of the Communications Act requires the Commission to make certain changes (
10. The Commission continues to improve the regulatory fee process by ensuring a more equitable distribution of the regulatory fee burden among categories of Commission licensees under the statutory framework in section 9 of the Communications Act. For example, in 2013, the Commission updated the FTE allocations to more accurately align regulatory fees with the costs of Commission oversight and regulation,
11. We propose to collect $339,844,000 in regulatory fees for FY 2015, pursuant to section 9 of the Communications Act.
12. These regulatory fees are mandated by Congress and are collected “to recover the costs of . . . enforcement activities, policy and rulemaking activities, user information services, and international activities.”
13. This proposed fee schedule in Table C includes a new regulatory fee for DBS (a subcategory in the cable television and IPTV category) adopted in the
14. The proposed fee schedule also includes fees for toll free numbers (a subcategory in the ITSP category) adopted in our
15. In addition, the annual regulatory fees eliminated in the
16. We also seek comment on revising the apportionment between International Bureau licensees to reduce the proportion paid by the submarine cable/terrestrial and satellite bearer circuits fee categories by approximately five percent. In the
17. We also seek comment on whether the Commission should review the apportionment of regulatory fees among broadcasters. First, we expect to collect $28,356,435 from radio broadcasters and $23,650,250 from television broadcasters in fiscal year 2015. We estimate that 10,226 radio broadcasters and 4,754 television broadcasters will pay these regulatory fees
18. In addition, we seek comment generally on other regulatory fee reform measures we can adopt.
19. On December 10, 2014, PRBA filed a letter seeking regulatory fee relief for the radio broadcasters in the Commonwealth of Puerto Rico. PRBA requests that the Commission take into consideration significant population declines and economic factors when determining the regulatory fees owed by radio station operators in Puerto Rico. In particular, PRBA requests that the Commission use more recent figures to determine the radio station population
20. Every ten years the Commission updates its radio station population counts to reflect nationwide changes in the population using the “block level census data” from the U.S. Census. PRBA asks the Commission to examine population data every five years instead of every 10 years to increase the accuracy of the population counts in Puerto Rico. We are unable to adopt PRBA's suggestion because the “block level census data” is only available from the U.S. Census Bureau every 10 years. Further, even if such figures were available every five years, they would be unlikely to provide a basis for fee relief for radio stations in Puerto Rico because fees on AM and FM radio stations are not assessed at granular levels but instead over a wide strata of the population.
21. PRBA requests that the Commission provide relief through the reduction of regulatory fees for Puerto Rico radio broadcasters due to economic hardship, unique geography, and declining population. We seek comment on this proposal and on whether the unique circumstances described by PRBA should result in one of the following actions: (i) Moving the Puerto Rico market stations to a different rate (
22. We recognize that fee relief is ordinarily processed through a waiver request.
23. In accordance with U.S. Treasury Announcement No. A-2014-04 (July 2014), the amount that can be charged on a credit card for transactions with federal agencies has been reduced to $24,999.99.
24. Customers who owe an amount on a bill, debt, or other obligation due to the federal government are prohibited from splitting the total amount due into multiple payments. Splitting an amount owed into several payment transactions violates the credit card network and Fiscal Service rules. An amount owed that exceeds the Fiscal Service maximum dollar amount, $24,999.99, may not be split into two or more payment transactions in the same day by using one or multiple cards. Also, an amount owed that exceeds the Fiscal Service maximum dollar amount may not be split into two or more transactions over multiple days by using one or more cards.
25. Regulatees whose total FY 2015 regulatory fee liability, including all categories of fees for which payment is due, is $500 or less, are exempted from payment of FY 2015 regulatory fees. The
26. The Commission will accept fee payments made in advance of the window for the payment of regulatory fees. The responsibility for payment of fees by service category is as follows:
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• The first eight regulatory fee categories in our Schedule of Regulatory Fees (
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In order to calculate individual service fees for FY 2015, we adjusted FY 2014 payment units for each service to more accurately reflect expected FY 2015 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System (CDBS) and Cable Operations and Licensing System (COALS), as well as reports generated within the Commission such as the Wireless Telecommunications Bureau's
We sought verification for these estimates from multiple sources and, in all cases, we compared FY 2015 estimates with actual FY 2014 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated with sufficient accuracy. These include an unknown number of waivers and/or exemptions that may occur in FY 2015 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical, or other reasons. When we note, for example, that our estimated FY 2015 payment units are based on FY 2014 actual payment units, it does not necessarily mean that our FY 2015 projection is exactly the same number as in FY 2014. We have either rounded the FY 2015 number or adjusted it slightly to account for these variables.
1. As required by the Regulatory Flexibility Act (RFA),
2. The
3. This action, including publication of proposed rules, is authorized under Sections (4)(i) and (j), 9, and 303(r) of
4. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.
5. Small Entities. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive small entity size standards that could be directly affected by the proposals under consideration.
6. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.”
7. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS Code category is for Wired Telecommunications Carriers as defined in paragraph 6 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees.
8. Incumbent LECs. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers, as defined in paragraph 6 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees.
9. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, as defined in paragraph 6 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees.
10. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 6 of this IRFA. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees.
11. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate NAICS Code category for prepaid calling card providers is Telecommunications Resellers. This industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Mobile virtual networks operators (MVNOs) are included in this industry.
12. Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
13. Toll Resellers. The Commission has not developed a definition for Toll Resellers. The closest NAICS Code Category is Telecommunications Resellers, and the SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
14. Other Toll Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS Code category is for Wired Telecommunications Carriers, as defined in paragraph 6 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees.
15. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, such as cellular services, paging services, wireless internet access, and wireless video services.
16. Cable Television and other Subscription Programming.
17. Cable Companies and Systems. The Commission has developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide.
18. All Other Telecommunications. “All Other Telecommunications” is defined as follows: This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.
19. This
20. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
21. This
22. None.
23. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, and 303(r), this Report and Order, Notice of Proposed Rulemaking, and Order IS HEREBY ADOPTED.
24. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this
Forest Service, USDA.
Notice of intent to renew the charter for the Forest Resource Coordinating Committee and call for nominations.
The Secretary of Agriculture (Secretary) intends to renew the charter for the Forest Resource Coordinating Committee (Committee) pursuant to section 8005 of the Food, Conservation, and Energy Act of 2008 (Act) (Pub. L. 110-246), and the Federal Advisory Committee Act (FACA), (5 U.S.C. App. 2). The Act passed into law as an amendment to the Cooperative Forestry Assistance Act of 1978 on June 18, 2008. The Committee is being renewed to continue coordinating non-industrial private forestry activities within the U.S. Department of Agriculture (USDA), State Agencies, and the private sector. The Secretary has determined that the work of the Committee is in the public interest and relevant to the duties of the USDA. Therefore, the Secretary is seeking nominations to fill vacancies on the Committee. Additional information concerning the Committee can be found on the Committee's Web site at:
Written nominations must be received on or before August 14, 2015. Nominations must contain a completed application packet that includes the nominee's name, resume, and a completed Form AD-755 (Advisory Committee or Research and Promotion Background Information). The package must be sent to the address below.
Laurie Schoonhoven, USDA Forest Service, Cooperative Forestry Staff, 201 14th Street SW., Mail Stop 1123, Washington, DC 20024; by express mail or overnight courier service. Nominations sent via the U.S. Postal Service must be sent to the following address: USDA Forest Service; Cooperative Forestry Staff, State & Private Forestry; Mail Stop 1123; 1400 Independence Avenue SW., Washington, DC 20250-1123.
Laurie Schoonhoven, Committee Coordinator, by phone at 202-205-0929 or Andrea Bedell-Loucks, Designated Federal Officer (DFO), by phone at 202-205-1190. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 5 p.m., Eastern Standard Time, Monday through Friday.
In accordance with the provisions of the FACA, the Secretary is renewing the Committee to continue providing direction and coordination of actions within the USDA, State Agencies, and the private sector; to effectively address the national priorities for private forest conservation, with specific focus on owners of non-industrial private forest land, as described in section 8005 of the Act. These priorities include:
1. Conserving and managing working forest landscapes for multiple values and use;
2. Protecting forests from threats, including catastrophic wildfires, hurricanes, tornadoes, windstorms, snow or ice storms, flooding, drought, invasive species, insect or disease outbreak, or development, and restoring appropriate forest types in response to such threats; and
3. Enhancing public benefits from private forests, including air and water quality, soil conservation, biological diversity, carbon storage, forest products, forestry-related jobs, production of renewable energy, wildlife, wildlife corridors and wildlife habitat, and recreation.
The Committee will continue meeting on an annual basis and its primary duties will include:
1. Providing direction and coordination of actions within the USDA, State Agencies, and the private sector; to effectively address the national priorities, with specific focus on non-industrial private forest land;
2. Clarifying individual agency responsibilities of each represented on the Committee concerning the national priorities with specific focus on non-industrial private forest land;
3. Providing advice on the allocation of funds, including the competitive funds set-aside for Competitive Allocation of Funds Innovation Projects (sections 8007 and 8008 of the Act); and
4. Assisting the Secretary in developing and reviewing the report to Congress required by section 8001(d) of the Act.
The Committee is comprised of not more than 20 members. The members appointed to the Committee will be fairly balanced in terms of points of view represented, functions to be performed, and will represent a broad array of expertise and relevancy to a membership category. The Committee composition is as follows:
(a) Chief of the Forest Service;
(b) Chief of the Natural Resources Conservation Service;
(c) Director of the Farm Service Agency;
(d) Director of the National Institute of Food and Agriculture;
(e) Three State foresters or equivalent State officials from geographically diverse regions of the United States;
(f) A representative of a State Fish and Wildlife Agency;
(g) Three owners of non-industrial private forest land;
(h) A forest industry representative;
(i) Three representatives from conservation organizations;
(j) A land-grant university or college representative;
(k) A private forestry consultant;
(l) A representative from a State Technical Committee;
(m) A representative of an Indian Tribe; and
(n) A representative from a Conservation District.
The Committee members will serve staggered terms up to three years and will meet annually, or as often as necessary, at the times designated by the DFO. The appointment of members to the Committee will be made by the Secretary.
Representatives from the following categories will be appointed by the Secretary with staggered terms up to 3 years:
1. Conservation Organization;
2. State Fish and Wildlife agency;
3. Tribal; and
4. Non-industrial Private Forest Landowner.
The nominees must be associated with such an organization and be willing to represent that sector as it relates to non-industrial private forestry. Vacancies will be filled in the manner in which the original appointment was made.
The appointment of members to the Committee is made by the Secretary. Any individual or organization may nominate one or more qualified persons to represent the above vacancy on the Committee. To be considered for membership, nominees must submit:
1. Resume describing your qualifications to represent the vacancy;
2. Cover letter with a rationale for serving on the Committee and what you can contribute; and
3. A completed Form AD-755, Advisory Committee or Research and Promotion Background Information. The form AD-755 may be obtained from the Forest Service contacts or from the following Web site:
4. Letters of recommendation are welcome.
All nominations will be vetted by the USDA. Individuals may also nominate themselves. A list of qualified applicants from which the Secretary shall appoint to the Committee will be prepared. Applicants are strongly encouraged to submit nominations via overnight mail or delivery to ensure timely receipt by the USDA.
Members of the Committee will serve without compensation, but may be reimbursed for travel expenses while performing duties on behalf of the Committee, subject to approval by the DFO.
Equal opportunity practices, in line with USDA policies, will be followed in all appointments to the Committee. To ensure that the recommendation of the Committee have taken into account the needs of the diverse groups served by the Department, membership includes to the extent practicable, individuals with demonstrated ability to represent the needs of all racial and ethnic groups, women and men, and persons with disabilities.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Regional Industrial Development Corporation of Southwestern Pennsylvania, grantee of FTZ 33, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the FTZ Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the FTZ Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on June 23, 2015.
FTZ 33 was approved by the FTZ Board on November 9, 1977 (Board Order 124, 42 FR 59398, 11/17/1977) and expanded on March 16, 1981 (Board Order 172, 46 FR 18063, 3/23/1981); May 14, 1998 (Board Order 981, 63 FR 29179, 5/28/1998); February 23, 2010 (Board Order 1667, 75 FR 13488-13489, 3/22/2010); and, November 5, 2012 (Board Order 1867, 77 FR 69591, 11/20/2012).
The current zone includes the following sites:
The grantee's proposed service area under the ASF would be Allegheny, Armstrong, Beaver, Butler, Fayette, Greene, Indiana, Lawrence, Somerset, Washington and Westmoreland Counties, Pennsylvania, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Pittsburgh Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its zone to include existing Sites 1, 2 and 18 as “magnet” sites and existing Sites 3, 4, 5 and 10 as “usage-driven” sites. The applicant is requesting that Sites 1, 3 and 10 be modified to reduce the sites' boundaries. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that Site 1 be so exempted. The application would have no impact on FTZ 33's previously authorized subzones.
In accordance with the FTZ Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is August 31, 2015. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to September 14, 2015.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On December 16, 2014, the Department of Commerce (Department) initiated a changed circumstance review (CCR) of the antidumping duty (AD) order on fresh garlic from the People's Republic of China (PRC) in response to a request from Jining Yongjia Trade Co., Ltd. (Yongjia), an exporter of fresh and peeled garlic from the People's Republic of China (PRC), on behalf of its garlic supplier, Jinxiang County Shanfu Frozen Co., Ltd. (Shanfu II).
Effective date June 30, 2015.
Hilary E. Sadler, Esq., AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4340.
On November 16, 1994, the Department published the AD order on fresh garlic from the PRC in the
The Department initiated this CCR regarding Yongjia and Shanfu II on December 16, 2014.
The merchandise covered by this order is all grades of garlic, whether whole or separated into constituent cloves. The subject merchandise is currently classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 0703.20.0000, 0703.20.0010, 0703.20.0020, 0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, 0711.90.6500, 2005.90.9500, 2005.90.9700, 0703.20.0005, 2005.99.9700 and 0703.20.0015. Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description is dispositive.
A complete description of the scope of the order is contained in the Preliminary Decision Memorandum.
In accordance with section 751(b)(1) of the Act, we are conducting this changed circumstances review based upon the information contained in Yongjia's submissions.
Based on the evidence reviewed, we preliminarily determine that Shanfu II is not the successor-in-interest to Shanfu I. Specifically, we find that material changes occurred after Shanfu I dissolved and Shanfu II was registered. These were changes in management, business scope, production facilities, supplier relationships, and ownership/legal structure with respect to the production and sale of the subject merchandise.
If the Department upholds these preliminary results in the final results, Yongjia and Shanfu will be assigned the cash deposit rate currently assigned to the PRC-wide entity with respect to the subject merchandise (
Interested parties may submit written comments by no later than 30 days after the date of publication of these preliminary results of review in the
Any interested party may submit a request for a hearing to the Assistant Secretary of Enforcement and Compliance using ACCESS within 30 days of publication of this notice in the
In accordance with 19 CFR 351.216(e), the Department intends to issue the final results of this changed circumstances review not later than 270 days after the date on which the review is initiated.
The Department issues and publishes these results in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216 and 351.221.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Myrna Lobo at (202) 482-2371 (the People's Republic of China, and the Republic of Korea); Matt Renkey or Jerry Huang at (202) 482-2312 and (202) 482-4047, respectively (India); Robert Palmer at (202) 482-9068 (Italy); Kristen Johnson at (202) 482-4793 (Taiwan), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On June 3, 2015, the Department of Commerce (Department) received countervailing duty (CVD) petitions concerning imports of certain corrosion-resistant steel products (corrosion-resistant steel) from the People's Republic of China (PRC), India, Italy, the Republic of Korea (Korea), and Taiwan, filed in proper form on behalf of United States Steel Corporation, Nucor Corporation, Steel Dynamics, Inc., ArcelorMittal USA, LLC, AK Steel Corporation, and California Steel Industries, (collectively, Petitioners). The CVD petitions were accompanied by antidumping duty (AD) petitions also concerning imports of corrosion-resistant steel from all of the above countries.
On June 9 and 10, 2015, the Department requested information and clarification for certain areas of the Petitions.
In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that the Governments of the PRC (GOC), India (GOIn), Italy (GOIt), and Korea (GOK) and the Taiwan Authorities (TA) are providing countervailable subsidies (within the meaning of sections 701 and 771(5) of the Act) to imports of corrosion-resistant steel from the PRC, India, Italy, Korea and Taiwan, respectively, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 702(b)(1) of the Act, the Petitions are accompanied by information reasonably available to Petitioners supporting their allegations.
The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because Petitioners are interested parties as defined in section 771(9)(C) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the CVD investigations that Petitioners are requesting.
The period of investigations is January 1, 2014, through December 31, 2014.
The product covered by these investigations is corrosion-resistant steel from the PRC, India, Italy, Korea and Taiwan. For a full description of the scope of these investigations,
During our review of the Petitions, the Department issued questions to, and received responses from, Petitioners pertaining to the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the preamble to the Department's regulations,
The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of the PRC, India, Italy, Korea, and Taiwan CVD investigations, as well as the concurrent PRC, India, Italy Korea, and Taiwan AD investigations.
All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). An electronically-filed document must be received successfully in its entirety by the time and date it is due. Documents excepted from the electronic submission requirements must be filed manually (
Pursuant to section 702(b)(4)(A)(i) of the Act, the Department notified representatives of the GOC, GOIn, GOIt, GOK, and TA of the receipt of the Petitions. Also, in accordance with section 702(b)(4)(A)(ii) of the Act, the Department provided representatives of the GOC, GOIn, GOIt, GOK, and TA the opportunity for consultations with respect to the Petitions.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that corrosion-resistant steel constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.
In determining whether Petitioners have standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. Petitioners provided their shipments of the domestic like product in 2014, and estimated total shipments of the domestic like product for the entire domestic industry using data from the American Iron and Steel Institute and the ITC.
On June 12, 2015, we received a submission from Thomas Steel Strip Corporation (Thomas) and Apollo Metals, Ltd. (Apollo), domestic producers of corrosion-resistant steel. In the submission, Thomas and Apollo state that they support the Petitions for the imposition of antidumping and countervailing duties on corrosion-resistant steel from the PRC, Korea, Italy and Taiwan. Thomas and Apollo do not express a view with respect to the Petitions for the imposition of antidumping and countervailing duties on corrosion-resistant steel from India. In addition, Thomas and Apollo provide their 2014 production of the domestic like product.
We have relied on the data provided by Petitioners, Thomas, and Apollo for purposes of measuring industry support.
Our review of the data provided in the Petitions, General Issues supplement, the submission from Thomas and Apollo, and other information readily available to the Department indicates that Petitioners have established industry support for all of the Petitions.
The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the CVD investigations that they are requesting the Department initiate.
Because the PRC, India, Italy, Korea, and Taiwan are “Subsidies Agreement Countries” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to these investigations. Accordingly, the ITC must determine whether imports of the subject merchandise from the PRC, India, Italy, Korea, and/or Taiwan materially injure, or threaten material injury to, a U.S. industry.
Petitioners allege that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. Petitioners allege that subject imports exceed the negligibility threshold of three percent provided for under section 771(24)(A) of the Act.
Petitioners contend that the industry's injured condition is illustrated by reduced market share; underselling and price suppression or depression; lost sales and revenues; oversupply and inventory overhang in the U.S. market; and adverse impact on domestic industry performance.
Section 702(b)(1) of the Act requires the Department to initiate a CVD investigation whenever an interested party files a CVD petition on behalf of an industry that: (1) Alleges the elements necessary for an imposition of a duty under section 701(a) of the Act; and (2) is accompanied by information reasonably available to Petitioners supporting the allegations.
Petitioners allege that producers/exporters of corrosion-resistant steel in the PRC, India, Italy, Korea, and Taiwan benefited from countervailable subsidies bestowed by the governments/authorities of these countries, respectively. The Department examined the Petitions and finds that they comply with the requirements of section 702(b)(1) of the Act. Therefore, in accordance with section 702(b)(1) of the Act, we are initiating CVD investigations to determine whether manufacturers, producers, or exporters of corrosion-resistant steel from the PRC, India, Italy, Korea, and Taiwan receive countervailable subsidies from the governments/authorities of these countries, respectively.
Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 47 of the 48 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program,
Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 52 of the 53 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program,
Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 12 of the 14 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program,
Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 39 of the 41 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program,
Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 20 of the 22 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program,
A public version of the initiation checklist for each investigation is available on ACCESS.
In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 65 days after the date of this initiation.
Petitioners named 146 companies as producers/exporters of corrosion-resistant steel from the PRC, 26 from India, 7 from Italy, 11 from Korea, and 35 from Taiwan.
Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by ACCESS, by 5 p.m. ET by the date noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice. Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on the Department's Web site at
In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the GOC, GOIn, GOIt, GOK and TA
We will notify the ITC of our initiation, as required by section 702(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of corrosion-resistant steel from the PRC, India, Italy, Korea, and Taiwan are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). The regulation requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Parties should review the regulations prior to submitting factual information in these investigations.
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to sections 702 and 777(i) of the Act.
The products covered by this investigation are certain flat-rolled steel products, either
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels and high strength low alloy (HSLA) steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum.
Furthermore, this scope also includes Advanced High Strength Steels (AHSS) and Ultra High Strength Steels (UHSS), both of which are considered high tensile strength and high elongation steels.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
The products subject to the investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0091, 7210.49.0095, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, and 7212.60.0000.
The products subject to the investigation may also enter under the following HTSUS item numbers: 7210.90.1000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090, 7225.91.0000, 7225.92.0000, 7225.99.0090, 7226.99.0110, 7226.99.0130, 7226.99.0180, 7228.60.6000, 7228.60.8000, and 7229.90.1000.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Julia Hancock or Susan Pulongbarit at (202) 482-1394 and (202) 482-4031, respectively (Italy), Alexis Polovina at (202) 482-3927 (India); David Lindgren at (202) 482-3870 (the People's Republic of China (PRC)); David Lindgren at (202) 482-3870 (the Republic of Korea (Korea)); or Brendan Quinn or Paul Stolz at (202) 482-5848 and (202) 482-4474, respectively (Taiwan), AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On June 3, 2015, the Department of Commerce (the Department) received antidumping duty (AD) petitions concerning imports of certain corrosion-resistant steel products (corrosion-resistant steel) from Italy, India, the PRC, Korea, and Taiwan, filed in proper form on behalf of United States Steel Corporation, Nucor Corporation, ArcelorMittal USA, AK Steel Corporation, Steel Dynamics, Inc., and California Steel Industries, Inc., (Petitioners).
On June 9, 2015, and June 10, 2015, the Department requested additional information and clarification of certain areas of the Petitions.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that imports of corrosion-resistant steel from Italy, India, the PRC, Korea, and Taiwan, are being, or are likely to be, sold in the United States at less-than-fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to Petitioners supporting their allegations.
The Department finds that Petitioners filed these Petitions on behalf of the domestic industry because Petitioners are interested parties as defined in section 771(9)(C) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the AD investigations that Petitioners are requesting.
Because the Petitions were filed on June 3, 2015, the periods of investigation (POI) are, pursuant to 19 CFR 351.204(b)(1), as follows: April 1, 2014, through March 31, 2015, for Italy, India, Korea, and Taiwan, and October 1, 2014, through March 31, 2015, for the PRC.
The product covered by these investigations is corrosion-resistant steel from Italy, India, the PRC, Korea, and Taiwan. For a full description of the scope of these investigations,
During our review of the Petitions, the Department issued questions to, and received responses from, Petitioners pertaining to the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope). The period for scope comments is intended to provide the Department with ample opportunity to consider all comments and to consult with parties prior to the issuance of the preliminary determination. If scope comments include factual information (
The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.
All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).
The Department requests comments from interested parties regarding the appropriate physical characteristics of corrosion-resistant steel to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors and costs of production accurately as well as to develop appropriate product-comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe corrosion-resistant steel, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all comments must be filed by 5:00 p.m. EDT on Tuesday, July 14, 2015, which is 21 calendar days from the signature date of this notice. Any rebuttal comments must be filed by 5:00 p.m. EDT on Tuesday, July 21, 2015. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the records of the Italy, India, the PRC, Korea, and Taiwan less-than-fair-value investigations.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that corrosion-resistant steel constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.
In determining whether Petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. Petitioners provided their shipments of the domestic like product in 2014, and estimated total shipments of the domestic like product for the entire domestic industry using data from the American Iron and Steel Institute and the ITC.
On June 12, 2015, we received a submission from Thomas Steel Strip Corporation (Thomas) and Apollo Metals, Ltd. (Apollo), domestic producers of corrosion-resistant steel. In the submission, Thomas and Apollo state that they support the Petitions for the imposition of antidumping and countervailing duties on corrosion-resistant steel from the PRC, Korea, Italy and Taiwan. Thomas and Apollo do not express a view with respect to the Petitions for the imposition of antidumping and countervailing duties on corrosion-resistant steel from India. In addition, Thomas and Apollo provide their 2014 production of the domestic like product.
We have relied on the data provided by Petitioners, Thomas, and Apollo for purposes of measuring industry support.
Our review of the data provided in the Petitions, General Issues Supplement, submission from Thomas and Apollo, and other information readily available to the Department indicates that Petitioners have established industry support for all of the Petitions.
The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the AD investigations that they are requesting the Department initiate.
Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, Petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The following is a description of the allegations of sales at less-than-fair value upon which the Department based its decision to initiate investigations of imports of corrosion-resistant steel from Italy, India, the PRC, Korea, and Taiwan. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the country-specific initiation checklists.
For Italy, India, Korea, the PRC and Taiwan, Petitioners based EP U.S. prices on price quotes/offers for sales of corrosion-resistant steel produced in, and exported from, the subject country.
For Italy, India, Korea, and Taiwan Petitioners provided home market price information obtained through market research for corrosion-resistant steel produced in and offered for sale in each of these countries.
With respect to the PRC, Petitioners stated that the Department has long treated the PRC as a non-market economy (NME) country.
Petitioners claim that South Africa is an appropriate surrogate country because it is a market economy that is at a level of economic development comparable to that of the PRC, it is a significant producer of the merchandise under consideration, and the data for valuing FOPs, factory overhead, selling, general and administrative (SG&A) expenses and profit are both available and reliable.
Based on the information provided by Petitioners, we believe it is appropriate to use South Africa as a surrogate country for initiation purposes. Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.
Petitioners based the FOPs for materials, labor, and energy on a petitioning U.S. producer's consumption rates for producing corrosion-resistant steel as they did not have access to the consumption rates of PRC producers of the subject
Petitioners valued the FOPs for raw materials (
Petitioners valued labor using South African labor data published by the International Labor Organization (ILO).
Petitioners used public information, as compiled by Eskom (a South African electricity producer), to value electricity.
Petitioners calculated surrogate financial ratios (
For Italy, Korea, and Taiwan, Petitioners provided information demonstrating reasonable grounds to believe or suspect that sales of corrosion-resistant steel in the respective home markets were made at prices below the fully-absorbed COP, within the meaning of section 773(b) of the Act, and requested that the Department conduct country-wide sales-below-cost investigations.
With respect to sales-below-cost allegations in the context of investigations, the Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act states that an allegation of sales below COP need not be specific to individual exporters or producers.
Finally, the SAA provides that section 773(b)(2)(A) of the Act retains the requirement that the Department have “reasonable grounds to believe or suspect that below-cost sales have occurred before initiating such an investigation.”
Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (COM); SG&A expenses; financial expenses; and packing expenses. Petitioners calculated COM based on Petitioners' experience adjusted for known differences between their industry in the United States and the industries of the respective country (
Based upon a comparison of the prices of the foreign like product in the home market to the calculated COP of the most comparable product, we find reasonable grounds to believe or suspect that sales of the foreign like products were made at prices that are below the COP, within the meaning of section
For Italy, Korea, and Taiwan, because they alleged sales below cost, pursuant to sections 773(a)(4), 773(b), and 773(e) of the Act, Petitioners calculated NV based on constructed value (CV). Petitioners calculated CV using the same average COM, SG&A, and financial expenses, to calculate COP.
Based on the data provided by Petitioners, there is reason to believe that imports of corrosion-resistant steel from Italy, India, the PRC, Korea, and Taiwan, are being, or are likely to be, sold in the United States at less-than-fair value. Based on comparisons of EP to NV in accordance with section 773(a) of the Act, the estimated dumping margin(s) for corrosion-resistant steel range from: (1) Italy range from 119.68 to 126.75 percent;
Based on comparisons of EP to NV, in accordance with section 773(c) of the Act, the estimated dumping margins for corrosion-resistant steel from the PRC range from 114.06 to 126.34 percent.
Based upon the examination of the AD Petitions on corrosion-resistant steel from Italy, India, the PRC, Korea, and Taiwan, we find that Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of corrosion-resistant steel from Italy, India, the PRC, Korea, and Taiwan, are being, or are likely to be, sold in the United States at less-than-fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.
Petitioners named seven companies from Italy, 26 companies from India, 11 companies from Korea, and eight companies from Taiwan, as producers/exporters of corrosion-resistant steel.
We invite interested parties to comment on this issue. Parties wishing to comment must do so within five days of the publication of this notice in the
With respect to the PRC, Petitioners named 147 companies as producers/exporters of corrosion-resistant steel.
Exporters/producers of corrosion-resistant steel from the PRC that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy from the Enforcement and Compliance Web site. The Q&V response must be submitted by all PRC exporters/producers no later than July 7, 2015, which is two weeks from the signature date of this notice. All Q&V responses must be filed electronically via ACCESS.
In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME Investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the Taiwan Authorities and the governments of Italy, India, the PRC, and Korea via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).
We have notified the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of corrosion-resistant steel from Italy, India, the PRC, Korean, and/or Taiwan are materially injuring or threatening material injury to a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). The regulation requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Please review the regulations prior to submitting factual information in these investigations.
Parties may request an extension of time limits before the expiration of a time limit established under Part 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under Part 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to section 777(i) of the Act.
The products covered by these investigations are certain flat-rolled steel products, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished, laminated, or coated with plastics or other non-metallic substances in addition to the metallic coating. The products covered include coils that have a width of 12.7 mm or greater, regardless of form of coil (
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of these investigations are products in which: (1) Iron predominates, by weight, over each
• 2.50 percent of manganese, or
• 3.30 percent of silicon, or
• 1.50 percent of copper, or
• 1.50 percent of aluminum, or
• 1.25 percent of chromium, or
• 0.30 percent of cobalt, or
• 0.40 percent of lead, or
• 2.00 percent of nickel, or
• 0.30 percent of tungsten (also called wolfram), or
• 0.80 percent of molybdenum, or
• 0.10 percent of niobium (also called columbium), or
• 0.30 percent of vanadium, or
• 0.30 percent of zirconium
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels and high strength low alloy (HSLA) steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum.
Furthermore, this scope also includes Advanced High Strength Steels (AHSS) and Ultra High Strength Steels (UHSS), both of which are considered high tensile strength and high elongation steels.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of these investigations unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of these investigations:
• Flat-rolled steel products either plated or coated with tin, lead, chromium, chromium oxides, both tin and lead (“terne plate”), or both chromium and chromium oxides (“tin free steel”), whether or not painted, varnished or coated with plastics or other non-metallic substances in addition to the metallic coating;
• Clad products in straight lengths of 4.7625 mm or more in composite thickness and of a width which exceeds 150 mm and measures at least twice the thickness; and
• Certain clad stainless flat-rolled products, which are three-layered corrosion-resistant flat-rolled steel products less than 4.75 mm in composite thickness that consist of a flat-rolled steel product clad on both sides with stainless steel in a 20%-60%-20% ratio.
The products subject to the investigations are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0091, 7210.49.0095, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, and 7212.60.0000.
The products subject to the investigations may also enter under the following HTSUS item numbers: 7210.90.1000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090, 7225.91.0000, 7225.92.0000, 7225.99.0090, 7226.99.0110, 7226.99.0130, 7226.99.0180, 7228.60.6000, 7228.60.8000, and 7229.90.1000.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigations is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comment on permit amendment.
Notice is hereby given that NMFS is considering an amendment to Permit No. 15337 issued to the Institute for Marine Mammal Studies (IMMS), P.O. Box 207, Gulfport, MS 39502 (Dr. Moby Solangi, Responsible Party). This permit authorizes the acquisition of stranded, releasable California sea lions (
Written, telefaxed, or email comments must be received on or before July 30, 2015.
The current permit and related documents are available for review online at
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Jennifer Skidmore or Amy Sloan, (301) 427-8401.
The permit was issued on October 5, 2011, under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Condition B.2: This permit does not guarantee that the Permit Holder will be able to obtain any releasable sea lions from rehabilitation facilities, and does not require NMFS to direct any rehabilitation facilities to provide the Permit Holder with releasable sea lions. Thus, NMFS will not make arrangements for animals to be provided to IMMS, and rehabilitation facilities are under no obligation to provide animals to fulfill this permit. And Condition B.3: The Permit Holder is solely responsible for entering into cooperative agreements with partnering rehabilitation facilities, and must work directly with the facilities to be notified of any potential candidate animals to be acquired under this Permit.
After NMFS issued the permit, IMMS challenged the above provisions in U.S. District Court. As described in the Court's opinion, the Court remanded the permit to NMFS for reconsideration.
Condition B.2: This permit does not guarantee that the Permit Holder will be able to obtain any releasable sea lions from rehabilitation facilities, and does not require NMFS to direct or make arrangements for any rehabilitation facilities to provide the Permit Holder with releasable sea lions. Since NMFS does not maintain real-time information regarding releasable sea lions in the stranding network, the Permit Holder should work initially with the rehabilitation facilities to be notified of any potential candidate animals to be acquired under this Permit. Final decisions with respect to use of rehabilitated marine mammals for public display purposes in lieu of take from the wild are at the ultimate discretion of the Office Director in accordance with 50 CFR 216.27(b)(4).
In accordance with NMFS' Memorandum in Opposition to Motion to Alter or Amend the Court's Judgment
In compliance with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321
National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of membership solicitation for Hydrographic Services Review Panel.
In accordance with the Hydrographic Service Improvements Act of 1998, as amended (33 U.S.C. 892
The Act states that “voting members of the Panel shall be individuals who, by reason of knowledge, experience, or training, are especially qualified in one or more of the disciplines and fields relating to hydrographic data and hydrographic services, marine transportation, port administration, vessel pilotage, coastal and fishery management, and other disciplines as determined appropriate by the Administrator.” As such, the NOAA Administrator welcomes applications from individuals with expertise in marine navigation, port administration, marine shipping or other intermodal transportation industries, cartography and geographic information systems, geospatial data management, geodesy, physical oceanography, coastal resource management, including coastal resilience and emergency response, and other related fields. As a Federal Advisory Committee, NOAA seeks to balance the HSRP composition to ensure a range of membership viewpoints, expertise, and geographic representation.
To apply for membership on the Panel, applicants are asked to provide: (1) A cover letter that responds to the five “Short Response Questions” listed below as a statement of interest to serve on the Panel, and to highlight specific areas of expertise relevant to the purpose of the Panel; (2) the nominee's area(s) of expertise from the list above; (3) a current resume; and (4) the nominee's full name, title, institutional affiliation, and contact information. Applications should be submitted electronically to the email address specified below or use the nomination form at the following address,
(1) List the area(s) of expertise, as listed above, which you would best represent on this Panel.
(2) List the geographic region(s) of the country with which you primarily associate your expertise.
(3) Describe your leadership or professional experiences which you believe will contribute to the effectiveness of this Panel.
(4) Describe your familiarity and experience with NOAA navigation data, products, and services.
(5) Generally describe the breadth and scope of stakeholders, users, or other groups whose views and input you believe you can represent on the Panel.
Cover letter, responses, and current resume materials should be submitted electronically or sent to the address specified below under further contact information. All materials must be received by August 10, 2015.
Submit your cover letter, responses, and current resume materials electronically to
Lynne Mersfelder-Lewis, HSRP Program Manager, NOAA National Ocean Service, Office of Coast Survey, NOAA (N/CS), 1315 East West Highway, SSMC3 Rm 6864, Silver Spring, Maryland 20910; Telephone: 301-713-2705 x199, Email:
Under 33 U.S.C. 883a,
(a) Hydrographic surveying;
(b) shoreline surveying;
(c) nautical charting;
(d) water level measurements;
(e) current measurements;
(f) geodetic measurements;
(g) geospatial measurements;
(h) geomagnetic measurements; and
(i) other oceanographic/marine related sciences.
The Panel has fifteen voting members appointed by the NOAA Administrator in accordance with 33 U.S.C. 892c. Members are selected on a standardized basis, in accordance with applicable Department of Commerce guidance. In addition, there are four non-voting members that serve on the Panel: The Co-Directors of the NOAA-University of New Hampshire Joint Hydrographic Center/Center for Coastal and Ocean
This solicitation requests applications to fill five voting member vacancies on the Panel as of January 1, 2016. Additional appointments may be made to fill vacancies left by any members who choose to resign during 2016. Some voting members whose terms expire January 1, 2016, may be reappointed for another full term if eligible.
Full-time officers or employees of the United States may not be appointed as a voting member. Any voting member of the Panel who is an applicant for, or beneficiary of (as determined by the Administrator) any assistance under 33 U.S.C. 892c shall disclose to the Panel that relationship, and may not vote on any matter pertaining to that assistance.
Voting members of the Panel serve a four-year term, except that vacancy appointments are for the remainder of the unexpired term of the vacancy. Members serve at the discretion of the Administrator and are subject to government ethics standards. Any individual appointed to a partial or full term may be reappointed for one additional full term. A voting member may continue to serve until his or her successor has taken office. The Panel selects one voting member to serve as the Chair and another to serve as the Vice Chair. Meetings occur at least twice a year, and at the call of the Chair or upon the request of a majority of the voting members or of the Administrator. Voting members receive compensation at a rate established by the Administrator, not to exceed the maximum daily rate payable under section 5376 of title 5, United States Code, when engaged in performing duties for the Panel. Members are reimbursed for actual and reasonable expenses incurred in performing such duties.
Upon selection and agreement to serve on the HSRP, individuals who are appointed will become Special Government Employees (SGE) of the United States Government. According to 18 U.S.C. 202(a), an SGE is an officer or employee of an agency who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, not to exceed 130 days during any period of 365 consecutive days, either on a fulltime or intermittent basis. Please be advised that applicants selected to serve on the Panel must complete the following actions before they can be appointed as a Panel member:
(a) Background Security Check and fingerprinting conducted through NOAA Workforce Management); and
(b) Confidential Financial Disclosure Report—As an SGE, you are required to file a Confidential Financial Disclosure Report to avoid involvement in a real or apparent conflict of interest. You may find the Confidential Financial Disclosure Report at the following Web site.
Consumer Financial Protection Bureau.
Notice and request for information.
The Consumer Financial Protection Bureau (“Bureau”) established under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), maintains the Consumer Complaint Database (“Database”) as a part of its efforts to provide consumers with timely and understandable information to help enable them to make responsible financial decisions and to enhance market efficiency and transparency.
The purpose of this request for information is to solicit and collect input from the public on how data are presented in the Database.
The Bureau is requesting feedback on best practices for “normalizing” the raw complaint data it makes available via the Database so they are easier for the public to use and understand. To normalize data is to transform “raw” data so that they may be compared in meaningful ways. This transformation increases the interoperability of “raw” data—that is, the extent to which different users can share and make use of the data because they have a common understanding of its meaning. Commenters offered various suggestions on how to approach normalization during the public comment period leading up to the establishment of the Database; the comments' variety highlighted differing and sometimes conflicting perspectives and concerns. In an effort to continue dialogue on easier ways to compare complaint handling performance, the Bureau requests specific suggestions from market participants, consumers, and other stakeholders on data normalization and its proper implementation within the Database.
Written comments are encouraged and must be received on or before August 31, 2015 to be assured of consideration.
You may submit responsive information and other comments, identified by Docket No. CFPB-2015-0030, by any of the following methods:
•
•
•
All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or Social Security numbers, should not be included. Submissions will not be edited to remove any identifying or contact information.
For submission process questions please contact Monica Jackson, Office of Executive Secretary, at 202-435-7275. For inquires related to the substance of this request, please contact Christopher Johnson, Acting Assistant Director of the Office of Consumer Response at 202-435-7455 or
12 U.S.C. 5511(c).
The Bureau hears directly from the American public about their experiences with the nation's consumer financial marketplace. An important aspect of the Bureau's mission is the handling of individual consumer complaints about financial products and services. Indeed, “collecting, investigating, and responding to consumer complaints,” is one of six statutory “primary functions” of the Bureau as prescribed in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”).
The Bureau considers consumer complaints and gathers information as it monitors markets for risks to consumers and, subject to certain legal constraints, may publish information of which it is made aware.
In its initial proposed policy statement to launch the Database with credit card complaint data, the Bureau expressed the benefits of normalization for both consumers and other stakeholders.
In the same issue of the
In the proposed policy statement regarding the expansion of the Database to include consumer narratives, the Bureau again received feedback on the issue of normalization. Several companies, trade associations, and consumer groups submitted comments that reiterated the request for normalization to provide context to the available data. Both large and small institutions expressed concern that failure to indicate the relative share of complaints would cause confusion for consumers, resulting in unfair reputational harm. Commenters requested that complaint data and narratives be normalized to reflect institution size as measured by volume of customers or total transactions.
The Bureau now requests specific suggestions for metrics it might implement in the Database to assist in normalizing the complaint data. Specifically, the Bureau is interested in responses to the general questions below:
1. Is data normalization worthwhile, if so, how should the Bureau normalize data?
2. How should “categories” be defined for the purpose of normalizing consumer complaint data? Should we normalize by product, sub-product, issue, geography, or another category?
3. How should a “market” be defined for the purpose of normalizing consumer complaint data? How can “market share” be adequately evaluated and framed? What metrics should be used to evaluate market share? What factors within those metrics are we trying to normalize for,
4. Would normalized data allow for meaningful company-to-company comparisons within a market?
5. Do the answers to the questions above differ based on the various categories reflected in the Database?
6. What metrics would be required to normalize the data,
The Bureau does not anticipate publishing a proposed policy statement
Department of the Army, DoD.
Notice of open committee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the USMA Board of Visitors (BoV). This meeting is open to the public. For more information about the BoV, its membership and its activities, please visit the BoV Web site at
The USMA BoV will meet from 2:00 p.m. until 5:00 p.m. on Monday, July 20, 2015. Members of the public wishing to attend the meeting will be required to show a government photo ID upon entering West Point in order to gain access to the meeting location. All members of the public are subject to security screening.
West Point Club, 603 Cullum Road, Hudson Room, West Point, NY 10996.
Mrs. Deadra K. Ghostlaw, the Designated Federal Officer for the committee, in writing to: Secretary of the General Staff, ATTN: Deadra K. Ghostlaw, 646 Swift Road, West Point, NY 10996, by email at
The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
The committee Designated Federal Official and Chairperson may choose to invite certain submitters to present their comments verbally during the open portion of this meeting or at a future meeting. The Designated Federal Officer, in consultation with the committee Chairperson, may allot a specific amount of time for submitters to present their comments verbally.
Department of the Army, DoD.
Notice of intent.
In compliance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i), the Department of the Army hereby gives notice of its intent to grant to Nano-C, Inc.; a corporation having its principle place of business at 33 Southwest Park, Westwood, MA 02090, exclusive license relative to the following U.S. Patent Application Titled ” Optically Transparent, Radio Frequency, Planar Transmission Lines”: United States Utility Patent Application Serial No. US 14/247,380.
The prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the U.S. Army Research Laboratory receives written objections including evidence and
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Send written objections to U.S. Army Research Laboratory Technology Transfer Office, RDRL-DPP/Thomas Mulkern, Building 321 Room 110, Aberdeen Proving Ground, MD 21005-5425.
Thomas Mulkern, (410) 278-0889, Email:
None.
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by August 31, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of Family Readiness Policy, ATTN: Program Manager, Spouse Education & Career Opportunities Program, 4800 Mark Center Drive Suite 03G15, Alexandria, VA 22350-2300.
The DoD Spouse Education and Career Opportunities (SECO) Program is the primary source of education, career and employment counseling for all military spouses who are seeking post-secondary education, training, licenses and credentials needed for portable career employment. The SECO system delivers the resources and tools necessary to assist spouses of service members with career exploration/discovery, career education and training, employment readiness, and career connections at any point within the spouse career lifecycle.
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by August 31, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Naval Health Research Center, Deployment Health Research Department, ATTN: LCDR Rachel Lee, 140 Sylvester Rd., San Diego, CA 92106-3521 or call (619) 553-8983.
Eligible respondents are civilians who are former Active Duty or active Guard/Reserve in the U.S. Military that received the ACACM2000® smallpox vaccine while in the military and subsequently developed signs or symptoms of myopericarditis. The information collected will illuminate the natural history of post-vaccine myopericarditis and evaluate factors that may influence disease prognosis. Inclusion of civilians who were formerly in the military in addition to current military members is imperative in order to obtain information on those who may have separated from the military due to their medical condition. Conducting this Registry will ensure the continued licensure of this military relevant vaccine.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 15-41 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
*As defined in Section 47(6) of the Arms Export Control Act.
The Government of Australia has requested possible sale of up to fourteen (14) AGM-88B High Speed Anti-Radiation Missiles (HARM) Tactical Missiles, sixteen (16) AGM-88E Advanced Anti-Radiation Guided Missiles (AARGM) Tactical Missiles, four (4) CATM-88B Captive Air Training Missiles, eight (8) CATM-88E Advanced Anti-Radiation Guided Missiles (AARGM) Captive Air Training Missiles, six (6) AARGM Guidance Sections, five (5) AARGM Control Sections, and two (2) AARGM Tactical Telemetry Missiles (for live fire testing), containers, spares and repair parts, support equipment, publications and technical documentation, personnel training and training equipment, U.S. Government and contractor engineering, technical, and logistics support services, and other elements of logistics and program support. The estimated cost is $69 million.
This sale will contribute to the foreign policy and national security of the United States by helping to improve the security of Australia, a major contributor to political stability, security, and economic development in Southeast Asia. Australia is an important ally and partner that contributes significantly to peacekeeping and humanitarian operations around the world. It is vital to the U.S. national interest to assist our ally in developing and maintaining a strong and ready self-defense capability. This proposed sale is consistent with those objectives and facilitates burden sharing with a key ally.
The proposed sale will improve Australia's capability in current and future coalition efforts. Australia will use this capability as a deterrent to regional threats and to strengthen its homeland defense. Australia will have no difficulty absorbing these missiles into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor will be Orbital ATK Defense Electronics Systems in Northridge, California. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of contractor representatives to Australia.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The AGM-88E Advanced Anti-Radiation Guided Missile (AARGM) weapon system is an air-to-ground missile intended to suppress or destroy land or sea-based radar emitters associated with enemy air defenses and provides tactical air forces with a lethal countermeasure to enemy radar directed, surface-to-air missiles, and air defense artillery weapons systems. Destruction or suppression of enemy radars denies the enemy the use of air defense systems, thereby improving the survivability of our tactical aircraft. It uses a multimode seeker that incorporates global positioning system/inertial measurement unit (GPS/IMU) midcourse guidance, a radio frequency (RF) radiation homing receiver, an active millimeter wave seeker, an Integrated Broadcast Service Receiver (IBS-R) and a Weapons Impact Assessment (WIA) transmitter. The AARGM AGM-88E when assembled is classified Secret. The AARGM Guidance Section (seeker hardware) and Control Section with the Target Detector is classified Confidential.
2. The AGM-88 High Speed Anti-Radiation Missiles (HARM) weapon system is an air-to-ground missile intended to suppress or destroy land or sea-based radar emitters associated with enemy air defenses and provides tactical air forces with a lethal countermeasure to enemy radar directed, surface-to-air missiles, and air defense artillery weapons systems. Destruction or suppression of enemy radars denies the enemy the use of air defense systems, thereby improving the survivability of our tactical aircraft. The AGM-88B HARM when assembled is classified Confidential. The HARM Guidance Section (seeker hardware), and Control Section with the Target Detector are classified Confidential. The HARM Control Section with the Target Detector is classified Confidential.
3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements of this possible sale, the information could be used to develop countermeasures which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
4. A determination has been made that the Government of Australia can provide substantially the same degree of protection for the technology being released as the US Government. The sale is necessary in furtherance of the US foreign policy and national security objectives as outlined in the policy justification of the notification.
5. All defense articles and services listed in this transmittal have been authorized for release and export to Australia.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 29, 2015.
Fred Licari, 571-372-0493.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD,
You may also submit comments, identified by docket number and title, by the following method:
• Federal eRulemaking Portal:
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before August 31, 2015.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Institutions that choose to submit alternate earnings appeal information will survey all Title IV funded students who graduated from GE programs during the same period that the Department used to calculate the D/E ratios, or a comparable period as defined in 668.406(b)(3) of the regulations. The survey will provide an additional source of earnings data for the Department to consider before determining final D/E ratios for programs subject to the gainful
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Paducah. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, July 16, 2015 6:00 p.m.
Barkley Centre, 111 Memorial Drive, Paducah, Kentucky 42001.
Jennifer Woodard, Deputy Designated Federal Officer, Department of Energy Paducah Site Office, Post Office Box 1410, MS-103, Paducah, Kentucky 42001, (270) 441-6825.
• Call to Order, Introductions, Review of Agenda.
• Administrative Issues.
• Public Comments (15 minutes).
• Adjourn.
Breaks Taken As Appropriate.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before July 30, 2015.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2003-0034, to (1) EPA online using
Sally Rand, Climate Change Division, Office of Atmospheric Programs (6207J), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-343-9739; fax number: 202-343-2202; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On February 16, 2012 (77 FR 9233), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments during the comment period. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2003-0034, which is available for online viewing at
Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NESHAP for Polyvinyl Chloride and Copolymer Production Area Sources (40 CFR part 63, subpart DDDDDD) (Renewal)” (EPA ICR No. 2454.02, OMB Control No. 2060-0684) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before July 30, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0104, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NESHAP for Nine Metal Fabrication and Finishing Sources (40 CFR part 63, subpart XXXXXX) (Renewal)” (EPA ICR No. 2298.04, OMB Control No. 2060-0622), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before July 30, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0098, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NSPS for Other Solid Waste Incineration Units (40 CFR part 60, subpart EEEE) (Renewal)” (EPA ICR No. 2163.05, OMB Control No. 2060-0563) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before July 30, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0094, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA) to publish in the
Comments identified by the specific PMN number or TME number, must be received on or before July 30, 2015.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2015-0183, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action.
1.
2.
This document provides receipt and status reports, which cover the period from May 1, 2015 to May 29, 2015, and consists of the PMNs and TMEs both pending and/or expired, and the NOCs to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Section 5 of TSCA requires that EPA periodical publish in the
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the TMEs received by EPA during this period: The EPA case number assigned to the TME, the date the TME was received by EPA, the projected end date for EPA's review of the TME, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the TME, and the chemical identity.
In Table III. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit III to access additional non-CBI information that may be available.
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NESHAP for Coke Oven Batteries (40 CFR part 63, subpart L) (Renewal)” (EPA ICR No. 1362.10, OMB Control No. 2060-0253) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before July 30, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0044, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
In general, all NESHAP standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NESHAP. Any owner/operator subject to the provisions of this part shall maintain a file of these measurements, and retain the file for at least five years following the date of such measurements, maintenance reports, and records. All reports are sent to the delegated state or local authority. In the event that there is no such delegated authority, the reports are sent directly to the United States Environmental Protection Agency (EPA) regional office.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Fuel Use Requirements for Great Lakes Steamships” (EPA ICR No. 2458.02, OMB Control No. 2060-0679) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before August 31, 2015.
Submit your comments, referencing the Docket ID Number listed above online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Alan Stout, Office of Transportation and Air Quality, Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 48105; telephone number: 734-214-4805; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Environmental Protection Agency (EPA).
Notice of availability for comment.
The Environmental Protection Agency (EPA) Region 8 is providing for comment the draft 2015 National Pollutant Discharge Elimination System (NPDES) lagoon general permits for
Comments must be received, in writing, on or before July 30, 2015.
Submit your comments, identified by Docket ID No. EPA-R08-OW-2015-0346, by one of the following methods:
•
•
•
VelRey Lozano, Wastewater Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-W-WW, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6128,
1.
2.
a. Identify the public notice and docket number and other identifying information (subject heading,
b. Follow directions—Organize comments by referencing the part of the permit or fact sheet by section number.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
These draft permits are similar to the current permits and will authorize the discharge of wastewater in accordance with the terms and conditions described therein. The fact sheet for the permits is provided for download concurrently with the permits and provides detailed information on; the decisions used to set limitations, the specific geographic areas covered by the permits, information on monitoring schedules, inspection requirements, and other regulatory decisions or requirements.
Issuance of the general permits will cover discharges from wastewater lagoon systems located in Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming. The general permits are grouped geographically by state, with the permit coverage being for specified Indian reservations located within a state boundary [specific permit coverage areas below]; any land held in trust by the United States for an Indian tribe; and any other areas which are Indian country within the meaning of 18 U.S.C. 1151.
This permit covers the Southern Ute Reservation and the Ute Mountain Reservation, including those portions of the Reservation located in New Mexico and Utah.
This permit covers the Blackfeet Indian Reservation of Montana; the Crow Indian Reservation; the Flathead Reservation; the Fort Belknap Reservation of Montana; the Fort Peck Indian Reservation; the Northern Cheyenne Indian Reservation; and, the Rocky Boy's Reservation.
This permit covers the Fort Berthold Reservation; the Spirit Lake Indian Reservation; the Standing Rock Sioux Reservation; and, the Turtle Mountain Reservation.
This permit includes that portion of the Standing Rock Sioux Reservation and associated Indian country located within the State of South Dakota. It does not include any land held in trust by the United States for the Sisseton-Wahpeton Oyate or any other Indian country associated with that Tribe, which is covered under general permit SDG589###.
This permit covers the Cheyenne River Reservation; Crow Creek Reservation; the Flandreau Santee Sioux Indian Reservation; the Lower Brule Reservation; the Pine Ridge Reservation (including the entire Reservation, which is located in both South Dakota and Nebraska); the Rosebud Sioux Indian Reservation; and, the Yankton Sioux Reservation.
This permit includes any land in the State of North Dakota that is held in trust by the United States for the Sisseton-Wahpeton Oyate or any other Indian country associated with that Tribe. It does not include the Standing Rock Sioux Reservation or any associated Indian country, which is covered under general permit NDG589###.
This permit covers the Northwestern Band of Shoshoni Nation of Utah Reservation (Washakie); the Paiute Indian Tribe of Utah Reservation; the Skull Valley Indian Reservation; and Indian country lands within the Uintah & Ouray Reservation. It does not include any portions of the Navajo Nation or the Goshute Reservation.
This permit covers the Wind River Reservation.
Coverage under the general permits will be limited to lagoon systems treating primarily domestic wastewater and will include two categories of coverage; discharging lagoons (DIS), and lagoons expected to have no discharge (NODIS). The effluent limitations for discharging lagoons are based on the Federal Secondary Treatment Regulation (40 CFR part 133) and best professional judgement (BPJ). If more stringent and/or additional effluent limitations are considered necessary to comply with applicable water quality standards, etc., those limitations and their basis are explained in the permit fact sheets and will be imposed by written notification to the permittee. Lagoon systems under the no discharge category are required to have no discharge except in accordance with the bypass provisions of the permit. Self-monitoring requirements and routine inspection requirements are included in the permits.
Where the Tribes have Clean Water Act section 401(a)(1) certification authority; Flathead Indian Reservation, the Fort Peck Indian Reservation, Northern Cheyenne Indian Reservation, and the Ute Mountain Indian Reservation; EPA has requested certification that the permits comply with the applicable provisions of the Clean Water Act and tribal water quality standards.
Clean Water Act, 33 U.S.C. 1251,
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NESHAP for Pesticide Active Ingredient Production (40 CFR part 63, subpart MMM) (Renewal)” (EPA ICR No. 1807.08, OMB Control No. 2060-0370) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before July 30, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0062, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S. C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before August 31, 2015. If you anticipate that you will submit comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The following is a description of the information collection requirements for which the Commission seeks OMB approval:
Section 96.17(d) requires that FSS Earth Station licensees register annually with the SAS to receive interference protection.
Section 96.21(a)(3) requires that existing commercial wireless broadband licensees operating in the band register in order to receive interference protection.
Sections 96.23(b); 96.33(b); 96.39(a)(1) and (c)-(e); 96.43(b); 96.45(d) require that the Citizens Broadband Radio Services Devices (CBSDs), which will operate on the Citizens Broadband Radio Service, must be registered with an SAS before use, provide specified information to the SAS, and adhere to certain operating parameters.
Section 96.35(e) requires that users operating Category B CBSDs must coordinate among each other and resolve interference through technological solutions or other agreements.
Sections 96.39(a) and (b) require that CBSDs report their geographic coordinates to an SAS automatically through the device or by a professional installer.
Sections 96.39(f) and (g) require that CBSDs incorporate sufficient security measures so that they are only able to communicate with the SAS and approved users and devices.
Section 96.41(d)(1) requires that licensees must report the use of an alternative Received Signal Strength Limit (RSSL) to the SAS.
Section 96.51 requires that manufacturers include a statement of compliance with the Commission's Radio Frequency (RF) safety rules with equipment authorization applications.
Sections 96.57(a)-(c); 96.59(a); 96.61 require that the SAS be capable of receiving registration and technical information from CBSDs, SASs, and ESCs, as well as employ secure communication protocols.
Section 96.63 requires that SAS Administrator applicants must demonstrate to the Commission that they are qualified to manage an SAS.
Section 96.67 requires that an Environmental Sensing Capability (ESC), used to protect federal radar systems from interference, may only operate after receiving Commission approval and be able to communicate information about the presence of a federal system and maintain security of the detected signals.
These rules which contain information collection requirements are designed to provide for flexible use of this spectrum, while managing three tiers of users in the band, and create a low-cost entry point for a wide array of users. The rules will encourage innovation and investment in mobile broadband use in this spectrum while protecting incumbent users. Without this information, the Commission would not be able to carry out its statutory responsibilities.
Federal Communications Commission.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 24, 2015.
A. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than July 15, 2015.
A. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
1.
Board of Governors of the Federal Reserve System,
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order— embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before July 24, 2015.
Interested parties may file a comment at
Christine Tasso, Bureau of Competition, (202-326-2232), 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for June 24, 2015), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before July 24, 2015. Write “Zimmer Holdings, Inc. and Biomet, Inc.—Consent Agreement; File No. 141-0144” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Zimmer Holdings, Inc. and Biomet, Inc.—Consent Agreement; File No. 141-0144” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“Commission”) has accepted from Zimmer Holdings, Inc. (“Zimmer”), subject to final approval, an Agreement Containing Consent Order (“Consent Agreement”), which is designed to remedy the anticompetitive effects likely to result from Zimmer's proposed acquisition of Biomet, Inc. (“Biomet”). Under the terms of the proposed Decision and Order (“Order”) contained in the Consent Agreement, Zimmer and Biomet must divest Zimmer's Unicompartmental High Flex Knee System (“ZUK”) business in the United States to Smith & Nephew, Inc. (“Smith & Nephew”) and divest Biomet's Discovery Elbow and Cobalt Bone Cement businesses in the United States to DJO Global, Inc. (“DJO”).
The Consent Agreement has been placed on the public record for 30 days to solicit comments from interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission
Pursuant to an agreement signed on April 24, 2014, Zimmer plans to acquire Biomet for approximately $13.35 billion (the “Proposed Acquisition”). The Commission's Complaint alleges that the Proposed Acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by substantially lessening competition in the U.S. markets for: (1) Unicondylar knee implants; (2) total elbow implants; and (3) bone cement. The proposed Consent Agreement will remedy the alleged violations by preserving the competition that would otherwise be eliminated by the Proposed Acquisition.
Zimmer, headquartered in Warsaw, Indiana, is the third-largest musculoskeletal medical device company in the United States and worldwide, specializing in the design, development, manufacture, and marketing of orthopedic reconstructive products. In 2013, Zimmer generated U.S. revenues of $2.42 billion.
Biomet, also headquartered in Warsaw, Indiana, is the fourth-largest musculoskeletal medical device company in the United States and the fifth-largest globally. In 2013, Biomet generated U.S. revenues of $1.86 billion.
Unicondylar knee implants are medical devices that replace damaged bone and cartilage in only one of the knee's three condyles. The most common indication for a unicondylar knee implant is osteoarthritic damage in the medial condyle. In comparison to a total knee implant, which replaces all three condyles, a unicondylar knee implant requires less invasive surgery and allows a patient to have a more natural feeling knee upon recovery from surgery.
Unicondylar knee implants vary in a number of ways; however, one of the most important differences among the implants is whether they have a fixed or mobile bearing. In a fixed bearing implant, a plastic piece is fixed permanently to the end of the tibia. In a mobile bearing knee, the plastic piece moves and glides over the tibia as the knee moves. The mobile bearing places less stress on the bearing surface and may extend the longevity of the implant. Despite these differences, fixed bearing and mobile bearing implants are in the same product market because surgeons regularly substitute between them as they achieve comparable functional outcomes for the same indications.
The market for unicondylar knee implants is highly concentrated. Biomet, which markets the Oxford implant, is the market leader, with a share of at least 44%. Biomet's Oxford is the only mobile bearing knee implant currently on the market. Zimmer, the second-leading supplier of unicondylar knee implants, controls at least 23% of the market with its fixed bearing implant, ZUK. Stryker Corporation (“Stryker”) offers two unicondylar knee implants with fixed bearings: The Triathlon PKR and MAKOPlasty, a robotic-assisted surgery option. Stryker's market share is approximately 8%. Johnson & Johnson, through its DePuySynthes Companies (“J&J DePuy”), and Smith & Nephew both offer fixed bearing knee implants and are distant fourth and fifth competitors, maintaining approximately 6% and 3% shares of the market, respectively. Additionally, a number of small, fringe competitors each control a small share of the market, but individually and collectively have limited competitive significance. Absent a remedy, the Proposed Acquisition would produce a single firm controlling at least 67% of the unicondylar knee implant market and substantially increase market concentration.
Total elbow implants are medical devices that replace damaged bone and cartilage in the elbow joint caused by osteoarthritis or a severe elbow fracture. Total elbow implants replace the elbow joint with a metal hinge that affixes to stems implanted into the humerus and the ulna. There are two types of total elbow implants: Linked and unlinked. Linked total elbow implants connect the humeral stem to the ulnar stem with a pin and locking device, providing extra stability where the ligaments surrounding the elbow joint are weak. Unlinked total elbow implants do not connect the humeral stem to the ulnar stem mechanically; instead, they use the patient's natural ligaments to secure the implant. Linked and unlinked total elbow implants are viewed as reasonably interchangeable by health care providers because they treat the same indications and are priced similarly.
The market for total elbow implants is highly concentrated today, and the Proposed Acquisition would increase concentration in this market substantially. Zimmer and Biomet are the two largest suppliers of total elbow implants. Apart from the merging parties, Tornier, Inc. (“Tornier”) is the only other significant supplier of total elbow implants. Zimmer offers two products—the Coonrad/Morrey Total Elbow and the Nexel Total Elbow. The Coonrad/Morrey Total Elbow, developed at the Mayo Clinic, is a cemented, linked total elbow implant with twenty-four years of clinical history. In late 2013, Zimmer launched the Nexel Total Elbow, which updated the Coonrad/Morrey Total Elbow with, among other things, a revised linkage system and instrumentation, and an improved bearing surface. Biomet's Discovery Total Elbow is also a cemented, linked implant supported by over ten years of clinical history. Tornier launched its Latitude EV implant, a cemented total elbow system capable of converting between a linked and unlinked prosthesis, in the United States in 2013.
Surgeons use bone cement in a wide variety of joint arthroplasties to affix implants to bones, including the vast majority of knee and elbow implants, as well as many hip and shoulder procedures. Bone cement is available in high, medium, and low viscosities and in non-antibiotic and antibiotic formulations. Surgeons select bone cement based on its viscosity, whether it has an antibiotic component, supporting clinical data, and familiarity. Because surgeons generally use the more expensive antibiotic bone cement only for patients with a high risk of infection, it may be appropriate to analyze the Proposed Acquisition in separate relevant markets for antibiotic and non-antibiotic bone cement. Most customers, however, purchase both types of bone cement through a single contract with a single vendor, and the market participants, competitive dynamics, and entry barriers are the same for both antibiotic and non-antibiotic bone cement. Thus, for convenience and efficiency, it is appropriate to analyze the impact of the Proposed Acquisition in a relevant market for all bone cement products.
Four primary suppliers serve the U.S. bone cement market: Stryker, Zimmer, J&J DePuy, and Biomet, which together account for approximately 98% of all bone cement sales in the United States. Stryker's Simplex is the market leader, with a share of approximately 40% of the market. Zimmer, the second-largest bone cement supplier, has a market share of approximately 30%. Zimmer
The United States is the relevant geographic market in which to analyze the effects of the Proposed Acquisition. Medical devices sold outside of the United States are not viable alternatives for U.S. consumers, as they cannot turn to these products even in the event of a price increase for products currently available in the United States. Further, the U.S. Food and Drug Administration (“FDA”) must approve any medical device before it is sold in the United States, a process that generally takes a significant amount of time. Thus, suppliers of medical devices outside the United States cannot shift their product into the U.S. market quickly enough to be considered current market participants.
Entry or expansion into the markets for unicondylar knee implants, total elbow implants, and bone cement would not be timely, likely, or sufficient to counteract the likely anticompetitive effects of the Proposed Acquisition. To enter or effectively expand in any of these markets successfully, a supplier would need to design and manufacture an effective product, obtain FDA approval, and develop clinical history supporting the long-term efficacy of its product. The new entrant or putative expanding firm also would need to develop and foster product loyalty and establish a nationwide sales network capable of marketing the product and providing on-site service at hospitals throughout the country. Such development efforts are difficult, time-consuming, and expensive, and often fail to result in a competitive product reaching the market.
Zimmer's acquisition of Biomet would likely result in substantial anticompetitive effects in the unicondylar knee implant market by eliminating substantial head-to-head competition between the two most successful implants. Zimmer's ZUK and Biomet's Oxford are particularly close competitors because of their well-documented clinical success records. As close competitors, customers currently leverage the Oxford and ZUK against each other to obtain better pricing. Additionally, Zimmer and Biomet continually improve features of their unicondylar knee implants in order to win business from physicians. Therefore, absent a remedy, the Proposed Acquisition would likely result in unilateral price effects and reduced innovation.
The Proposed Acquisition would also eliminate substantial competition between Zimmer and Biomet in the market for total elbow implants. Market participants indicate that Zimmer and Biomet total elbow implants are each other's next best alternative based upon design similarities and comparable clinical outcomes. As close substitutes, Zimmer and Biomet currently compete directly, including on price and service.
Zimmer's Palacos and Biomet's Cobalt Bone Cement products are particularly close substitutes that currently compete aggressively against each other. Absent a remedy, the Proposed Acquisition would result in the loss of substantial price competition between Zimmer and Biomet for the sales of their products.
The Consent Agreement eliminates the competitive concerns raised by the Proposed Acquisition by requiring Zimmer and Biomet to divest all U.S. assets and rights related to Zimmer's ZUK unicondylar knee implant to Smith & Nephew and all U.S. assets and rights related to Biomet's Discovery Total Elbow implant and Cobalt Bone Cement to DJO. This divestiture will preserve the competition that currently exists in each of the relevant markets.
Smith & Nephew is a global specialty pharmaceutical company headquartered in London, United Kingdom. Smith & Nephew employs more than 14,000 employees worldwide with approximately 6,225 employees in the United States. In 2014, Smith & Nephew generated worldwide revenues of approximately $5.8 billion, of which approximately $1.5 billion came from its orthopedic reconstruction business.
DJO develops, manufactures, and distributes a wide range of medical devices, including orthopedic implants. Headquartered in Vista, California, DJO employs 5,200 people, and had revenues of approximately $1.2 billion in 2014. DJO's orthopedic implant business had approximately $100 million in 2014 revenues.
Pursuant to the Order, Smith & Nephew will receive all U.S. assets and rights related to the ZUK unicondylar knee product, including intellectual property, manufacturing technology, and existing inventory. Zimmer is also required to waive any non-compete employment clauses and assist in facilitating employment interviews between key employees and sales representatives from Zimmer distributors who currently sell the ZUK. The Order further requires Zimmer to provide transitional services to Smith & Nephew to assist them in establishing their manufacturing capabilities and securing all necessary FDA approvals.
The Order requires Biomet to divest all U.S. assets and rights necessary to enable DJO to become an independently viable and effective competitor in the total elbow implant and bone cement markets. Biomet is required to divest to DJO all of its U.S. assets and rights to research, develop, manufacture, market, and sell its total elbow implant and bone cement products, including all related intellectual property, manufacturing technology, and existing inventory. Biomet will also divest all U.S. assets and rights to its bone cement accessories, which consist of mixing and delivery systems that allow surgeons to control the bone cement ingredients to ensure a complete and consistent bone cement mixture and to apply cement onto an implant accurately. Hospitals and group purchasing organizations frequently purchase bone cement and bone cement accessories together. Further, the Order facilitates DJO's hiring of the Biomet sales representatives and employees whose responsibilities are related to bone cement and total elbow implants.
The Order requires Zimmer and Biomet to divest their respective U.S. assets and rights to the divested products no later than ten days after the Proposed Acquisition is consummated or on the date the Order becomes final, whichever is earlier. If the Commission determines that Smith & Nephew or DJO is not an acceptable acquirer, or that the manner of the divestiture is not acceptable, the Order requires Zimmer and Biomet to unwind the sale and divest the products within six months of the date the Order becomes final to another Commission-approved acquirer or acquirers. In that circumstance, the Commission may appoint a trustee to accomplish the divestiture if the parties fail to divest the products.
The Commission has agreed to appoint an interim monitor to ensure that Zimmer and Biomet comply with all of their obligations pursuant to the Consent Agreement and to keep the Commission informed about the status of the transfer of the assets and rights to Smith & Nephew and DJO.
The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way.
Commission to Eliminate Child Abuse and Neglect Fatalities, General Services Administration.
Meeting Cancellation.
The Commission to Eliminate Child Abuse and Neglect Fatalities (CECANF), a Federal Advisory Committee established by the Protect Our Kids Act of 2012, published a
Visit the CECANF Web site at
The Commission to Eliminate Child Abuse and Neglect Fatalities (CECANF) published a
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), and pursuant to the requirements of 42 CFR 83.15(a), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
*Please note that the public comment period may end before the time indicated, following the last call for comments. Members of the public who wish to provide public comments should plan to attend the public comment session at the start time listed.
In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to the CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, and will expire on August 3, 2015.
The agenda is subject to change as priorities dictate.
In the event an individual cannot attend, written comments may be submitted to the contact person below well in advance of the meeting. Any written comments received will be provided at the meeting in accordance with the redaction policy provided below.
(2) If an individual in making a statement reveals personal information (
(3) If a commenter reveals personal information concerning a living third party, that information will be reviewed by the NIOSH FOIA coordinator, and upon determination, if deemed appropriated, such information will be redacted, unless the disclosure is made by the third party's authorized representative under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) program.
(4) In general, information concerning a deceased third party may be disclosed; however, such information will be redacted if (a) the disclosure is made by an individual other than the survivor claimant, a parent, spouse, or child, or the authorized representative of the deceased third party; (b) if it is unclear whether the third party is living or deceased; or (c) the information is unrelated or irrelevant to the purpose of the disclosure.
The Board will take reasonable steps to ensure that individuals making public comment are aware of the fact that their comments (including their name, if provided) will appear in a transcript of the meeting posted on a public Web site. Such reasonable steps include: (a) A statement read at the start of each public comment period stating that transcripts will be posted and names of speakers will not be redacted; (b) A printed copy of the statement mentioned in (a) above will be displayed on the table where individuals sign up to make public comments; (c) A statement such as outlined in (a) above will also appear with the agenda for a Board Meeting when it is posted on the NIOSH Web site; (d) A statement such as in (a) above will appear in the
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on “Prevent Hepatitis Transmission among Persons Who Inject Drugs”. The purpose of this study is to address the high prevalence of HCV infection by developing an integrated approach for detection, prevention, care and treatment of infection among persons aged 18-30 years who reside in non-urban counties.
Written comments must be received on or before August 31, 2015.
You may submit comments, identified by Docket No. CDC-2015-0047 by any of the following methods:
•
•
All public comment should be submitted through the Federal eRulemaking portal (
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of
Hepatitis C virus (HCV) infection is the most common chronic blood borne infection in the United States; approximately 3 million persons are chronically infected. Identifying and reaching persons at risk for HCV infection is critical to prevent transmission and treat and cure if infected. CDC monitors the national incidence of acute hepatitis C through passive surveillance of acute, symptomatic cases of laboratory confirmed hepatitis C cases. Since 2006, surveillance data have shown a trend toward reemergence of HCV infection mainly among young persons who inject drugs (PWID) in nonurban counties. Of the cases reported in 2013 with information on risk factors 62% indicated injection drug use as the primary risk for acute hepatitis C. The prevention of HCV infection among PWIDs requires an integrated approach including harm reduction interventions, substance abuse treatment, prevention of other blood borne infections, and care and treatment of HCV infection.
The purpose of the proposed study is to address the high prevalence of HCV infection by developing and implementing an integrated approach for detection, prevention, care and treatment of infection among persons aged 18-30 years who reside in non-urban counties. Awardees will develop and implement a comprehensive strategy to enroll young non-urban PWID, collect epidemiological information, test for HCV infection and provide linkage to primary care services, prevention interventions, and treatment for substance abuse and HCV infection. In addition to providing HCV testing, participants will be offered testing for the presence of co-infections with hepatitis B virus (HBV) and HIV. Rates of HCV infection or re-infection will be evaluated through follow-up blood tests. Furthermore, adherence to prevention services and retention in care will be assessed through follow up interviews.
The project will recruit an estimated total of 1,500 young PWIDs to enroll 1,000. The participants will be recruited from settings where young PWIDs obtain access to care and treatment services. Recruitment will be direct and in-person by partnering with local harm reduction sites. Recruiters will enroll subjects across recruitment sites primarily through drug treatment programs and syringe exchange programs, as well as persons referred to these sites as a result of referral from other programs and respondent driven sampling. Those who consent to participate will be administered an eligibility interview questionnaire by trained field staff. If found eligible, the participant will take an interviewer-administered survey that includes information on initiation of drug use, injection practices, HCV and HIV infection status, access to prevention and medical care, desire to receive and barriers to receiving HCV treatment, and missed opportunities for hepatitis prevention. Participants will receive counselling regarding adherence to medical and/or drug treatment services and prevention services. Participants will be interviewed for a maximum of 5 times within any 12-month interval during the course of the study: Consent and interview at enrollment/baseline for an estimated 60 minutes, and 30-minute follow-up interviews every 3 months thereafter. Participants who are recruited early in the study have more follow-up interviews than those who are recruited in the later part of the study during the 3-year project. However, recruitment will be spread over 2 years and on average, the duration of follow-up is estimated to be one year.
Participation in interviews and responses to all study questions are totally voluntary and there is no cost to respondents other than their time. The maximum burden is 3,375 hours.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the National Healthcare Safety Network (NHSN). NHSN is a
Written comments must be received on or before August 31, 2015.
You may submit comments, identified by Docket No. CDC-2015-0048 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
National Healthcare Safety Network (NHSN)—Revision—National Center for Emerging and Zoonotic Infection Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The National Healthcare Safety Network (NHSN) is a system designed to accumulate, exchange, and integrate relevant information and resources among private and public stakeholders to support local and national efforts to protect patients and promote healthcare safety. Specifically, the data is used to determine the magnitude of various healthcare-associated adverse events and trends in the rates of these events among patients and healthcare workers with similar risks. The data will be used to detect changes in the epidemiology of adverse events resulting from new and current medical therapies and changing risks. The NHSN currently consists of five components: Patient Safety, Healthcare Personnel Safety, Biovigilance, Long-Term Care Facility (LTCF), and Dialysis. The Outpatient Procedure Component is on track to be released in NHSN in 2016/2017. The development of this component has been previously delayed to obtain additional user feedback and support from outside partners.
Changes were made to seven facility surveys. Based on user feedback and internal reviews of the annual facility surveys it was determined that questions and response options be amended, removed, or added to fit the evolving uses of the annual facility surveys. The surveys are being increasingly used to help intelligently interpret the other data elements reported into NHSN. Currently the surveys are used to appropriately risk adjust the numerator and denominator data entered into NHSN while also guiding decisions on future division priorities for prevention.
Additionally, minor revisions have been made to 27 forms within the package to clarify and/or update surveillance definitions. Two forms are being removed as those forms will no longer be added to the NHSN system. The previously approved NHSN package included 54 individual collection forms; the current revision request removes two forms for a total of 52 forms. The reporting burden will increase by 583,825 hours, for a total of 4,861,542 hours.
Centers for Medicare and Medicaid Services (CMS), HHS.
Notice of Hearing: Reconsideration of Disapproval.
This notice announces an administrative hearing to be held on August 6, 2015, at the Department of Health and Human Services, Centers for Medicare and Medicaid Services, Division of Medicaid & Children's Health, Dallas Regional Office, 1301 Young Street, Room 714, Dallas, TX 75202, to reconsider CMS' decision to disapprove Texas' Medicaid SPA 14-25.
Benjamin R. Cohen, Presiding Officer, CMS, 2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 21244; Telephone: (410) 786-3169.
This notice announces an administrative hearing to reconsider CMS' decision to disapprove Texas' Medicaid SPA 14-25, which was submitted to the Centers for Medicare and Medicaid Services (CMS) on August 26, 2014 and disapproved on April 7, 2015. In part, this SPA requested CMS approval to revise the methodology for calculating the hospital-specific limit for the Disproportionate Share Hospital (DSH) program. Specifically, SPA 14-25 proposed to exclude from the calculation, the portion of a Medicare payment for an individual who is dually-eligible for Medicare and Medicaid that exceeds the Medicaid allowable cost for the service provided to the recipient. This exclusion would permit the state to make Medicaid DSH payments that are above and beyond hospitals' reported uncompensated costs of providing services to Medicaid and uninsured individuals.
The issue to be considered at the hearing is:
• Whether Texas SPA 14-25 is inconsistent with Medicaid DSH requirements of sections 1902(a)(13)(A)(iv) and 1923 of the Social Security Act (Act) because it would provide for payment to disproportionate share hospitals of amounts that exceed the hospital's uncompensated costs which cannot be considered consistent with DSH requirements pursuant to the hospital-specific limit under section 1923(g)(1) of the Act.
Section 1116 of the Act and federal regulations at 42 CFR part 430, establish Department procedures that provide an administrative hearing for reconsideration of a disapproval of a state plan or plan amendment. CMS is required to publish a copy of the notice
Any individual or group that wants to participate in the hearing as a party must petition the presiding officer within 15 days after publication of this notice, in accordance with the requirements contained at 42 CFR 430.76(b)(2). Any interested person or organization that wants to participate as
The notice to Texas announcing an administrative hearing to reconsider the disapproval of its SPA reads as follows:
I am responding to your request for reconsideration of the decision to disapprove Texas' State Plan amendment (SPA) 14-25, which was submitted to the Centers for Medicare & Medicaid Services (CMS) on August 26, 2014, and disapproved on April 7, 2015. I am scheduling a hearing on your request for reconsideration to be held on August 6, 2015, at the Department of Health and Human Services, Centers for Medicare & Medicaid Services, Division of Medicaid & Children's Health, Dallas Regional Office, 1301 Young Street, Room 714, Dallas, TX 75202.
I am designating Mr. Benjamin R. Cohen as the presiding officer. If these arrangements present any problems, please contact Mr. Cohen at (410) 786-3169. In order to facilitate any communication that may be necessary between the parties prior to the hearing, please notify the presiding officer to indicate acceptability of the hearing date that has been scheduled and provide names of the individuals who will represent the State at the hearing. If the hearing date is not acceptable, Mr. Cohen can set another date mutually agreeable to the parties. The hearing will be governed by the procedures prescribed by federal regulations at 42 CFR part 430.
In part, this SPA requested CMS approval to revise the methodology for calculating the hospital-specific limit for the Disproportionate Share Hospital (DSH) program. Specifically, SPA 14-25 proposed to exclude from the calculation, the portion of a Medicare payment for an individual who is dually-eligible for Medicare and Medicaid that exceeds the Medicaid allowable cost for the service provided to the recipient. This exclusion would permit the state to make Medicaid DSH payments that are above and beyond hospitals' reported uncompensated costs of providing services to Medicaid and uninsured individuals.
The issue to be considered at the hearing is:
• Whether Texas SPA 14-25 is inconsistent with Medicaid DSH requirements at sections 1902(a)(13)(A)(iv) and 1923 of the Social Security Act (Act) because it would provide for payment to disproportionate share hospitals of amounts that exceed the hospital's uncompensated costs which cannot be considered consistent with DSH requirements pursuant to the hospital-specific limit under section 1923(g)(1) of the Act.
In the event that CMS and the State come to agreement on resolution of the issues which formed the basis for disapproval, this SPA may be moved to approval prior to the scheduled hearing. I am responding to your request for reconsideration of the decision to disapprove Texas' Medicaid state plan amendment (SPA) 14-025, which was submitted to the Centers for Medicare and Medicaid Services (CMS) on August 26, 2014, and disapproved on April 7, 2015. I am scheduling a hearing on your request for reconsideration to be held on August 6, 2015, at the Department of Health and Human Services, Centers for Medicare and Medicaid Services, Division of Medicaid & Children's Health, Dallas Regional Office, 1301 Young Street, Room 714, Dallas, TX 75202.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled, “Export Certificates for FDA Regulated Products” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
On February 10, 2015, the Agency submitted a proposed collection of information entitled, “Export Certificates for FDA Regulated Products” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0498. The approval expires on March 31, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by July 30, 2015.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd.; COLE-14526, Silver Spring, MD 20993-0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection is associated with requirements under 21 CFR 501.22(k) in which animal food manufacturers must declare the presence of certified and noncertified color additives in their animal food products on the product label. The Agency issued this regulation in response to the Nutrition Labeling and Education Act of 1990 (Pub. L. 101-535) to make animal food regulations consistent with the regulations regarding the declaration of color additives on human food labels and to provide animal owners with information on the colors used in animal food.
Respondents to this collection are manufacturers of pet food that contain color additives. Manufacturers of certain food or food ingredients do not have products that contain color additives requiring certification (
In the
FDA estimates the burden of this collection of information as follows:
Having become effective November 18, 2013, the Agency estimates that the burden associated with the labeling requirements under § 501.22(k) apply only to new product labels. Because the vast majority of animal food products that contain certified color additives are pet foods, we limit our burden estimate to reviewing labels for the use of certified color additives to pet food manufacturers subject to this regulation.
Based on A.C. Nielsen Data, FDA estimates that the number of animal food product units subject to § 501.22(k) for which sales of the products are greater than zero is 25,874. Assuming that the flow of new products is 10 percent per year, then 2,587 new animal food products subject to § 501.22(k) will come on the market each year. FDA also estimates that there are about 3,120 manufacturers of pet food subject to either § 501.22(k)(1) or (k)(2). Assuming the approximately 2,587 new products are split equally among the firms, then each firm would prepare labels for approximately 0.83 new products per year (2,587 new products/3,120 firms is approximately 0.83 labels per firm).
The Agency expects that firms prepare the required labeling for their products in a manner that takes into account at one time all information required to be disclosed on their product labels. Based on our experience with reviewing pet food labeling, FDA estimates that firms would require less than 0.25 hour (15 minutes) per product to comply with the requirement to include the color additive information pursuant to § 501.22(k). The total burden of this activity is 647 hours (2,587 labels × 0.25 hour/label is approximately 647 hours).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish a notice in the
Submit either electronic or written comments on the collection of information by August 31, 2015.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The 2009 Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111-31) amends the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to grant FDA authority to regulate the manufacture, marketing, and distribution of tobacco products to protect public health and to reduce tobacco use by minors. Section 1003(d)(2)(D) of the FD&C Act (21 U.S.C. 393(d)(2)(D)) supports the development and implementation of FDA public education campaigns related to tobacco use. Accordingly, FDA is currently developing and implementing public education campaigns to help prevent and reduce tobacco use among lesbian, gay, bisexual and transgender (LGBT) young adults and thereby reduce the public health burden of tobacco. Overall the campaigns will feature events; advertisements on television and radio and in print; digital communications including social media; and other forms of media.
In support of the provisions of the Tobacco Control Act that require FDA to protect the public health and to reduce tobacco use, FDA requests OMB approval to collect information needed to evaluate FDA's campaign to reduce tobacco use among LGBT young adults. Comprehensive evaluation of FDA's public education campaigns is needed to ensure campaign messages are effectively received, understood, and accepted by those for whom they are intended. Evaluation is an essential organizational practice in public health and a systematic way to account for and improve public health actions.
FDA plans to conduct two studies to evaluate the effectiveness of its LGBT young adult tobacco prevention campaign: (1) An outcome evaluation study to evaluate the effectiveness of its LGBT young adult tobacco prevention campaign, and (2) a media tracking questionnaire to assess awareness of and receptivity to campaign messages. The timing of these studies will be designed to follow the multiple, discrete waves of media advertising planned for the campaigns.
The outcome evaluation study begins with a baseline survey of LGBT young adults aged 18 to 24 before the campaign launch. The baseline will be followed by three follow-up surveys of the target audience of young adults at approximately 6-month intervals after the campaign's launch. Information will be collected about young adult awareness of and exposure to campaign events and advertisements and about tobacco-related knowledge, attitudes, beliefs, intentions and use, as well as use of other tobacco products (e-cigarettes, hookah, cigars, smokeless tobacco), marijuana and alcohol. Information will also be collected on demographic variables including sexual orientation, age, sex, race/ethnicity, education, and primary language.
All information will be collected through in-person and web-based questionnaires. Young adult respondents will be recruited in 30 U.S. cities (15 campaign and 15 comparison cities) from two sources: (1) Intercept surveys in LGBT social venues (
The media tracking survey consists of assessments of LGBT young adults aged 18 to 24 conducted once yearly post campaign launch—timing that complements the outcome evaluation's timing. The media tracking survey will assess awareness of the campaign and receptivity to campaign messages. These data will provide critical evaluation feedback to the campaigns and will be conducted with sufficient frequency to match the cyclical patterns of events and media advertising and variation in exposure to allow for mid-campaign refinements. For the media tracking surveys, we will recruit LGBT young adults aged 18 to 24 from all campaign cities through social media.
The information collected is necessary to inform FDA's efforts and measure the effectiveness and public health impact of the campaigns. Data from the media tracking surveys will be used to estimate awareness of and exposure to the campaigns among young adults in target markets where the campaigns are active. Data from the outcome evaluation study will be used to examine statistical associations between awareness of and exposure to the campaigns and subsequent changes in specific outcomes of interest, which will include knowledge, attitudes, beliefs and intentions related to tobacco use.
FDA's burden estimate is based on prior experience with in-person studies similar to the Agency's plan presented in this document, as well as previous
To obtain the target number of completed questionnaires (“completes”) for the outcome evaluation study, 18,376 young adults (11,810 recruited in person and 6,566 recruited via social media) will participate in a screening process (“screener”). The estimated burden per screener is 5 minutes (0.083), for a total of 1,525 hours (980 hours for participants recruited in person and 545 hours for persons recruited via social media). A total of 12,600 LGBT young adults (9,448 of those screened in person and 3,152 of those screened through social media) will complete questionnaires in 4 rounds of data collection (baseline and three post-campaign rounds). The estimated burden per complete is 30 minutes (0.5 hour) for the baseline questionnaire and 40 minutes (0.667 hour) for each follow up complete, for a total of 7,878 hours (5,906 hours for those recruited in person and 1,972 hours for those recruited via social media).
To obtain the target number of completes for the media tracking survey, 5,000 young adults will be recruited via social media ads to complete a screener for all three waves of the media tracking survey. The estimated burden per screener response is 5 minutes (0.083 hour), for a total of 414 hours for all waves of media tracking screener. An estimated 500 LGBT young adults will complete each of the three waves of the media tracking survey (assuming a 30 percent response rate to screeners via social media). The estimated burden per completed media tracking questionnaire is 40 minutes (0.667 hour), for a total of 1,002 hours for the three waves. The total burden for the media tracking survey (screeners and completes) is 1,416 hours.
The target number of completed campaign questionnaires (screeners and questionnaires for both the outcome evaluation and media tracking survey) for all respondents is 37,477. The total estimated burden is 10,819 hours.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing the availability of additional draft and revised draft product-specific bioequivalence (BE) recommendations. The recommendations provide product-specific guidance on the design of BE studies to support abbreviated new drug applications (ANDAs). In the
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comments on these draft and revised draft guidances before it begins work on the final versions of the guidances, submit either electronic or written comments on the draft and revised draft product-specific BE recommendations listed in this notice by August 31, 2015.
Submit written requests for single copies of the individual BE guidances to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Bldg., 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft product-specific BE recommendations to
Xiaoqiu Tang, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 75, Rm. 4730, Silver Spring, MD 20993-0002, 301-796-5850.
In the
As described in that guidance, FDA adopted this process as a means to develop and disseminate product-specific BE recommendations and provide a meaningful opportunity for the public to consider and comment on those recommendations. Under that process, draft recommendations are posted on FDA's Web site and announced periodically in the
FDA is announcing the availability of a new draft guidance for industry on product-specific BE recommendations for drug products containing the following active ingredients:
FDA is announcing the availability of a revised draft guidance for industry on product-specific BE recommendations for drug products containing the following active ingredients:
For a complete history of previously published
These draft and revised draft guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). These guidances represent the Agency's current thinking on product-specific design of BE studies to support ANDAs. They do not establish any rights for anyone and are not binding on FDA or the public. You may use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either electronic comments on any of the
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the draft guidance entitled “Premarket Notification Requirements Concerning Gowns Intended for Use in Health Care Settings.” FDA is issuing this draft guidance to describe the Agency's premarket regulatory requirements and the performance testing needed to support liquid barrier claims for gowns intended for use in health care settings. This draft guidance is being issued in light of the public health importance of personal protective equipment in health care settings and the recognition that terminology used to describe gowns has evolved, including by industry, the standards community, and health care professionals. This draft guidance is not final nor is it in effect at this time.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment of this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by August 31, 2015.
An electronic copy of the guidance document is available for download from the Internet. See the
Submit electronic comments on the draft guidance to
Elizabeth Claverie, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2508, Silver Spring, MD 20993-0002, 301-796-6298.
FDA issued a final rule on June 24, 1988 (53 FR 23874), defining “surgical apparel” under 21 CFR 878.4040. Under this 1988 final rule, surgical gowns and surgical masks were classified as Class II subject to premarket review under section 510(k) (21 U.S.C. 351) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act), and surgical apparel other than surgical gowns and surgical masks were classified as Class I also subject to 510(k) premarket review requirements. On January 14, 2000, FDA issued a final rule (65 FR 2318) to designate as exempt from premarket notification requirements surgical apparel other than surgical gowns and surgical masks, subject to the limitations of exemptions under 21 CFR 878.9, which includes requiring a premarket notification for devices intended for a use different from the intended use of a legally marketed device in that generic type of device.
Since the original 1988 final rule, a number of terms have been used to refer to gowns intended for use in health care settings including, but not limited to, surgical gowns, isolation gowns, surgical isolation gowns, nonsurgical gowns, procedural gowns, and operating room gowns. In 2004, FDA recognized the consensus standard American National Standards Institute/Association of the Advancement of Medical Instrumentation (ANSI/AAMI) PB70:2003, “Liquid barrier performance and classification of protective apparel and drapes intended for use in health care facilities.” ANSI/AAMI PB 70 utilized new terminology for barrier performance of gowns. This terminology described and assessed the barrier protection levels of gowns and other protective apparel intended for use in health care facilities, by specifying test methods and performance results necessary to verify and validate the newly defined levels of barrier protection. The definitions and terminology used in this standard are inconsistent with FDA's historical definitions of these terms and thus have added confusion in the marketplace. The purpose of this draft guidance is to clarify and describe the premarket regulatory requirements pertaining to gowns regulated under § 878.4040 and the performance testing needed to support liquid barrier claims for gowns intended for use in health care settings.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance represents the Agency's current thinking on performance testing to support liquid barrier claims for gowns intended for use in health care settings. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the guidance may do so by downloading an electronic copy from the Internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subparts A through D have been approved under OMB control number 0910-0625; the collections of information in 21 CFR part 807, subpart E have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 803 have been approved under OMB control number 0910-0437; the collections of information in 21 CFR part 820 have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR part 801 have been approved under OMB control number 0910-0485.
Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see
National Institute on Drug Abuse (NIDA), the National Institutes of Health (NIH), Department of Health and Human Services.
In compliance with the requirements of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Institute on Drug Abuse (NIDA), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total annualized burden hours are 2,400.
National Heart, Lung and Blood Institute (NHLBI), National Institutes of Health (NIH), Department of Health and Human Services.
Under the provisions of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
To obtain a copy of the data collection plans and instruments or request more information on the proposed project contact: Simone Glynn, MD, Project Officer/ICD Contact, Two Rockledge Center, Suite 9142, 6701 Rockledge Drive, Bethesda, MD 20892, or call 301- 435-0065, or Email your request, including your address to:
New information gathered from these enrollees will serve the three aims proposed for this proposed study. The first aim of this study will be to analyze the actual percentage of blood donors who are successfully notified of their infection testing results. In this aim, we will expand the notification focus to include all infections that blood centers in Brazil test for because differences in rates of notification by type of infection are unknown. The second aim will assess the effectiveness of HIV notification and counseling. HIV-positive donors will be interviewed to evaluate their follow-up activities with regard to HIV infection treatment and infection transmission prevention behavior after notification by the blood center. This will be accomplished using a new audio computer-assisted structured interview (ACASI) (See Attachment 1, Brazil HIV Follow up ACASI Survey). The third aim will consist of asking HIV-positive blood donors about ways to improve the disclosure of HIV risks during donor eligibility assessment to better understand the motivating factors that
Because our study will build off the routine blood donor procedures in four large blood banks in Brazil, it may lead to more informed conversations around and possible changes in donor screening, notification and counseling policies in Latin America. Results of these three aims may also help to better integrate blood centers within the context of broader HIV testing, counseling and treatment sites in Brazil. Similarly, in the US little is known about donor behavior after notification of testing results by blood centers. The results from this study can be used to develop insights and hypotheses focused on developing improved strategies for notification and counseling of HIV-positive (or hepatitis C or B-positive) donors in the U.S.
This proposed study's findings will also yield insights into improved methods for donor self-selection and qualification post donation, which will serve to decrease the frequency of higher-risk persons acting as donors. Our findings on improved methods for Brazilian donor notification and linkage to health care services may also be applicable to developed countries, including the US. Results of the Brazil Notification Study will identify how to improve notification and counseling strategies that increase the number of HIV-positive donors seeking prompt medical care. This might ultimately boost strategies to prevent secondary HIV transmission and reduce the risk of transfusion-transmission.
In addition to the traditional route of scientific dissemination through peer reviewed scientific publication, previous REDS and REDS-II study data were the subject of numerous requested presentations by Federal and non-Federal agencies, including the FDA Blood Products Advisory Committee, the HHS Advisory committee on Blood Safety and Availability, the AABB Transfusion-Transmitted Diseases Committee, and the Americas Blood Centers (ABC). We anticipate similar requests for results generated from this study. Data collected in this proposed HIV Notification study of donors will be of practical use to the blood banking and infectious disease communities in the US and internationally.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 229.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Cancer Institute (NCI), National Institutes of Health (NIH), Department of Health and Human Services.
In compliance with the requirements of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Cancer Institute (NCI), National Institutes of Health (NIH), will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 80.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Nancie-Ann Bodell, Acting Director, Office of Asset Management and Portfolio Oversight, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This Notice is soliciting comments from members of the public and affected agencies concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Lead Hazard Control and Healthy Homes, HUD.
Announcement of funding awards.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in competitions for funding under the Office of Lead Hazard Control and Healthy Homes (OLHCHH) Grant Program Notices of Funding Availability. This announcement contains the name and address of the award recipients and the amounts of awards under the Consolidated Appropriations Act, 2014, and prior-year appropriations.
Matthew E. Ammon, Department of Housing and Urban Development, Office of Lead Hazard Control and Healthy Homes, 451 Seventh Street SW., Room 8236, Washington, DC 20410, telephone 202-402-4337. Hearing- and speech-
HUD announced the FY 2014 awards on September 30, 2014. These awards were the result of competitions published on May 23, 2014 at 79 FR 29791-29792 for Lead Based Paint Hazard Control and for Lead Hazard Reduction Demonstration Program (FR-5800-N-04). The purpose of the competitions was to award funding for grants for the Office of Lead Hazard Control and Healthy Homes Grant Programs.
Applications were scored and selected on the basis of selection criteria contained in these Notices. A total of $108,702,967 was awarded under the HUD Appropriations Act for FY 2014, namely the Consolidated Appropriations Act, 2014, (Pub. L. 113-76, approved January 17, 2014) and prior year appropriations. In accordance with Section 102(2)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987; 42 U.S.C. 3545), the Department is publishing the names, addresses, and the amount of these as follows:
A total of $55,025,719 was awarded to 20 applicants for the Lead Based Paint Hazard Control Grant Program and an additional $7,003,127 was awarded for the Healthy Homes Supplemental federal funds under the Consolidated Appropriations Act, 2014: City of Phoenix, 200 W. Washington Street, 4th Floor, Phoenix, AZ 85003-1611, $3,400,000; City of San Diego—Environmental Services Department, 9601 Ridgehaven Court Suite 310, San Diego, CA 92123-1636, $3,400,000; California Department of Community Services and Development, 2389 Gateway Oaks Drive, Suite 100, Sacramento, CA 95833-4246, $3,400,000; County of Alameda, 2000 Embarcadero, Suite #300, Oakland, CA 94606-5334, $3,400,000; Delaware Department of Health and Social Services, Division of Public Health, 417 Federal Street, Dover, DE 19901-3635, $3,288,728; City of Atlanta, 55 Trinity Avenue, Atlanta, GA 30303-3520, $2,500,000; City of Marshalltown, 24 North Center Street, Marshalltown, IA 50158-4911, $3,400,000.; City of Kankakee, 850 North Hobbie Ave, Kankakee, IL 60901-2617, $3,183,395; City of Lewiston, 27 Pine Street, Lewiston, ME 04240-7204, $3,395,159; County of Muskegon, 900 Terrace, Muskegon, MI 49442-3357, $1,100,000; City of Minneapolis, 250 S 4th St., Room 414, Minneapolis, MN 55415-1316, $3,400,000; Kansas City Missouri Health Department, 2400 Troost Ave, Suite 3400, Kansas City, MO 64108-2666, $3,216,136; County of St. Louis, 41 S. Central Avenue, 5th floor, Clayton, MO 63105-1725, $2,496,364; City of Nashua, NH, 229 Main Street, Nashua, NH 03060-2938, $3,400,000; New Hampshire Housing Finance Authority, 32 Constitution Drive, Bedford, NH 03110-6062, $3,400,000; Erie County, 95 Franklin Street, Buffalo, NY 14202-3904, $3,400,000; Monroe County Department of Public Health, 111 Westfall Road, Room 908, Rochester, NY 14620-4647, $3,270,000; City of Cincinnati, 3301 Beekman Street, Cincinnati, OH 45225-1205, $3,400,000; City of Roanoke, 215 Church Ave, Rm 310 North, Roanoke, VA 24011-1518, $2,179,064; City of Burlington, 149 Church Street, City Hall, Room 32, Burlington, VT 05401-8400, $3,400,000.
A total of $42,274,281was awarded to 13 applicants for the Lead Hazard Reduction Demonstration Grant Program and an additional $4,399,840 was awarded to 11 out of these 13 applicants for Healthy Homes Supplemental federal funds, under the Consolidated Appropriations Act, 2014: City of Los Angeles, 1200 W. 7th Street, 9th Floor, Los Angeles, CA 90017-2349, $3,900,000; City of Hartford, 131 Coventry Street, Hartford, CT 06112-1548, $3,900,000; Government of the District of Columbia, 1800 Martin Luther King Jr. Ave. SE., Suite 300, Washington, DC 20020-6900, $3,746,551; City of Chicago Department of Public Health, 333 South State Street, Room 200, Chicago, IL 60604-3946, $3,900,000; City of Detroit, 65 Cadillac Square Suite 2300, Detroit, MI 48226-2858, $3,637,000; City of St. Louis, 1520 Market Street, Suite 2000, St. Louis, MO 63101-2630, $2,500,000; Onondaga County Community Development Division, 1100 Mulroy Civic Center, Syracuse, NY 13202-2923, $3,900,000; City of Schenectady,105 Jay Street, Schenectady, NY 12305-1905, $3,190,570; City of Columbus, Department of Development, 50 West Gay Street 3rd Floor, Columbus, OH 43215-6005, $3,900,000; City of Providence, 444 Westminster Street, Providence, RI 02903-3206, $3,900,000; City of Fort Worth, 1000 Throckmorton Street, Fort Worth, TX 76102-6312, $2,400,000; City of Milwaukee Health Department, 841 North Broadway Room 118, Milwaukee, WI 53202-3653, $3,900,000; Kenosha County Division of Health, 8600 Sheridan Road, Suite 600, Kenosha, WI 53143-6515, $3,900,000.
The 2014 Healthy Homes Technical Studies (HHTS) and Lead Technical Studies Program (LTS) pre-application Notice of Funding Availability (NOFA) was published on Grants.gov on June 2, 2014. The 2014 HHTS and LTS full-application NOFA was published on Grants.gov on July 30, 2014.
Applications were scored and selected on the basis of selection criteria contained in these Notices. A total of $3,611,050 was awarded under the Consolidated Appropriations Act, 2014 and prior year appropriations:
A total of $2,797,033 was awarded to 4 applicants for Healthy Homes Technical Studies Program under the Consolidated Appropriations Act, 2014: Purdue University, 155 S. Grant Street, West Lafayette, IN 47907-2114, $659,050; President and Fellows of Harvard College, 677 Huntington Avenue, Boston, MA 02115-6028, $724,726; Washington University, Campus Box 1054, One Brookings Drive, St. Louis, MO 63130-4862, $724,996; University of Cincinnati, 51 Goodman Drive, University Hall Suite 530, P.O. Box 210222, Cincinnati, OH 45221-0222, $688,261.
A total of $814,017 was awarded to 2 applicants for Lead Technical Studies (LTS) under the Consolidated Appropriations Act, 2014: Quan Tech,
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Anna Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Anna Guido at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
The
(1) Provide More Transportation Choices.
(2) Promote equitable, affordable housing.
(3) Enhance Economic Competitiveness.
(4) Support Existing Communities.
(5) Coordinate Policies and Leverage Investment.
(6) Value Communities and Neighborhoods.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of Community Planning and Development, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Stanley Gimont, Director, Office of Block Grant Assistance, at (202) 708-3587. Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The following tables demonstrate the estimated paperwork burden for recipients in the reporting processes. The deadline for the expenditure of NSP2 funds equivalent to the original award amount is February 11, 2013. Following the expenditure deadline, grantees will have the option of requesting closeout of their grant. Post-closeout, grantees will be required to report annually on affordability restriction certifications and program income (PI), if more than $250,000 of PI is generated in a program year. The following three tables show burden hours based on HUD's estimates of grantees requesting and completing closeout, and thus, reflect different burden hours for each of the three fiscal years covered by this collection. The total annualized burden hours requested are 6,082.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Fish and Wildlife Service, Interior.
Notice of intent; request for comments.
We, the U.S. Fish and Wildlife Service (Service), intend to prepare a Programmatic Draft Environmental Impact Statement (PDEIS) to analyze the impacts of, and alternatives to, using integrated pest management (IPM) to control or eradicate invasive rodents and mongooses on U.S. Pacific Islands within the National Wildlife Refuge System (Refuge System) and in native ecosystems in Hawaii and to protect native wildlife and plants, including federally listed threatened and endangered species and designated critical habitats. The PDEIS is for informational and planning purposes to improve and facilitate rodent and mongoose control on Federal, State, and private lands through the IPM process; it does not initiate any specific action or project. The PDEIS will be prepared in accordance with the requirements of the National Environmental Policy Act (NEPA) and in compliance with the State of Hawaii's environmental review process. The lead agencies for preparing the PDEIS are the Service and the State of Hawaii Department of Land and Natural Resources (DLNR), Division of Forestry and Wildlife (DOFAW). With this notice, the Service and DOFAW request comments, recommendations, and advice on the scope of issues, alternatives, and mitigation to be addressed in the PDEIS.
At a later date, DOFAW will be publishing an Environmental Impact Statement preparation notice, as defined by Chapters 201N and 343 of the Hawaii Revised Statutes and title 11, chapter 200 of the Hawaii Administrative Rules, in
Send your comments regarding the proposed action and the proposed PDEIS by one of the following methods:
•
•
We request that you send comments by only one of the methods described above. We will post all comments on
Kristi Young, Acting Field Supervisor,
We, the Service, intend to prepare a PDEIS to analyze the impacts of, and alternatives to, using IPM to control or eradicate invasive rodents and mongooses on U.S. Pacific Islands within the Refuge System and in native ecosystems in Hawaii and to protect native wildlife and plants, including federally listed threatened and endangered species and designated critical habitats. The intent of this proposal is threefold: (1) To increase the effectiveness of rodent and mongoose management in the main Hawaiian Islands and make more efficient use of limited financial resources; (2) to develop techniques for an IPM approach to eradicate rodents from uninhabited islands within the main Hawaiian Islands and from other U.S. Pacific Islands within the Refuge System; and (3) to avoid adverse impacts to human health and safety and the environment.
IPM as a concept would assess whether rodents and mongooses are negatively affecting native species and interfering with management goals for native species; identify methods of control/or eradication; evaluate the merits and impacts of available control/eradication methods; implement the selected method(s) of control or eradication and use monitoring of the target pest species, selected non-target species, and native species to determine the effectiveness of the method(s); and use that information to adjust implementation of the methods, if needed.
The PDEIS will be prepared in accordance with the requirements of the National Environmental Policy Act (NEPA) (40 CFR 1508.22) and in compliance with the State of Hawaii's environmental review process. The lead agencies for preparing the PDEIS are the Service and the State of Hawaii Department of Land and Natural Resources (DLNR), Division of Forestry and Wildlife (DOFAW). With this notice, the Service and DOFAW request comments, recommendations, and advice on the scope of issues, alternatives, and mitigation to be addressed in the PDEIS.
There are no native rodent species in Hawaii. Introduced mammalian species on the Hawaiian Islands include the Norway rat (
A number of management techniques targeting rodents and mongooses are used to protect crops, human health, and native species throughout the world. Many of these techniques have been used historically in Hawaii by State and Federal agencies, private landowners, nongovernmental organizations (NGOs), and other entities to manage rodents and mongooses to protect native species. Management efforts have been conducted on both private and public lands, using private and public funds. Control efforts and eradications have been undertaken as routine management, to minimize or mitigate the take of native species listed under the ESA, to fulfill responsibilities under Executive Order 13186 (Responsibilities of Federal Agencies to Protect Migratory Birds), as restoration actions under the Natural Resource Damage Assessment and Restoration (NRDAR) process, and to improve the chances of survival of critically rare native species. These methods currently used will be considered as part of the IPM approach proposed in the PDEIS.
In effective control situations, the rate of removal of pest individuals must exceed the reproductive rate of the pest population and the rate of in-migration of new individuals of the pest into the control area. Even then, the reduction in pest numbers is temporary; once control efforts cease, the numbers begin to return to pre-control levels. Eradication of a pest, which is the removal of every individual, is possible in areas where natural or human-made barriers prevent reinvasion by other individuals of the pest species. Such areas include islands offshore of the main Hawaiian Islands, islands within the Papahanaumokuakea Marine National Monument (Monument), or in limited areas on the main Hawaiian Islands that are surrounded by predator-resistant fencing, such as the Kaena Point Natural Area Reserve on Oahu. Where pest eradication is achieved, the ecosystem can recover from many of the problems that the pest had caused.
To identify and develop the issues described in this notice, the Service and DOFAW held meetings with other State and Federal agencies, private landowners, NGOs, Native Hawaiian organizations, and members of the community.
Rats are believed to have caused the extinctions, local extirpations, and continuing declines of many of Hawaii's endemic forest birds and seabirds. Rats and mongooses also are considered to be a threat to all four of Hawaii's federally endangered waterbird species. Hawaii's federally endangered endemic snails have been decimated and continue to be negatively affected by rats. Impacts by rodents have also been documented to 135 federally listed threatened and endangered plant species in Hawaii. Federal and State agencies have invested considerable resources on rodent and mongoose management and control because of the species' devastating impacts on native ecosystems and on federally and State-
Eradication techniques need to be available for uninhabited offshore islands, the Monument, and other U.S. Pacific Islands within the Refuge System, such as Wake and Johnston Atolls, to quickly respond to new rodent introductions as well as to eradicate existing rat and mouse populations.
The goal of the Service and DOFAW is to identify an IPM approach to rodent and mongoose control and eradication that not only results in documentable benefits to native species, but which also is compatible with maintaining other resource uses, such as fresh water, hunting and fishing, and cultural practices. Resource management in Hawaii is often evaluated within the context of the ahupuaa, the pre-Western-contact system of land division typically extending from the mountains into the sea, including the nearshore marine environment. Under this ecosystem model, actions taken anywhere within an ahupuaa are understood to have the potential to affect the entire ahupuaa and even other ahupuaa as well.
We are proposing to develop an IPM approach that would allow land managers to increase the effectiveness of rodent and mongoose control on a landscape scale as necessary in a programmatic fashion, because the number of native species affected by rodents and mongooses is so high, and the total area over which native species are distributed on the main Hawaiian Islands is so large. The IPM approach should incorporate methods to assess the effectiveness of the control and to detect and quantify indirect and cumulative effects resulting from the control. In New Zealand, these concepts are successfully used to protect native plant and animal species from rodents: The population dynamics of native species are first modeled in relation to different levels (indices) of rodent control, as measured by footprint-tracking tunnels or snap-traps placed throughout the treatment area; levels of reproductive success, survival, and population growth of the native species are then correlated with specific indices of rodent activity; and rodent control efforts are adjusted to meet the target indices of rodent activity that yield the desired effect on the native species' populations. These concepts linking native species success to predator control could be adapted to be used successfully in Hawaiian ecosystems. Examining and analyzing the use of these methods is part of our purpose and need for this PDEIS.
This approach is consistent with Integrated Pest Management (IPM). Federal law (7 U.S.C. 136r-1) directs Federal agencies to use IPM techniques in carrying out pest management activities. Department of the Interior and Service policies (517 DM 1 and 569 FW 1) require that all pest management activities conducted, approved, or funded by the Service, on or off Service lands, be conducted using IPM. IPM is described by the U.S. Environmental Protection Agency (EPA), the National Park Service (NPS), and the Service as a process that relies on knowledge of the pest's population dynamics and behavior to design the most effective combination of methods for managing the pest. These can include cultural, mechanical, chemical, and/or biological control tools. IPM incorporates flexibility of the methods in order to match the most effective tools with the goals established for the pest control. A fundamental principle of IPM, as stated in the Service's Guidance for Preparing and Implementing Integrated Pest Management Plans (2004), is to “. . . select those methods, or combination of methods, that are feasible, efficacious, and yet most protective of non-target resources, including wildlife, personnel, and the public.” It is distinguished from other pest management approaches by its emphasis on establishing action thresholds, monitoring, and ongoing evaluation of the effectiveness and the risks of the control methods selected. The target pest activity must be monitored within the treatment area, and, following principles of adaptive management, the methods may be adjusted or changed to respond to pest behavior, pest population levels, and non-target impacts. The IPM process directly lends itself to informing adaptive management decisions.
The use of pesticides is regulated under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (7 U.S.C. 136
The purpose of this proposal is to develop an effective, comprehensive, and landscape-level IPM approach to rodent and mongoose management based on sound ecological principles, and in compliance with State and Federal pesticide laws and regulations for conservation entities in Hawaii. The specific objectives of this approach will be to:
(1) Protect native species in Hawaii and on other specified U.S. Pacific islands from the impacts of rodents and mongooses;
(2) Increase populations of native species important to Native Hawaiian culture;
(3) Identify effective methods for rodent and mongoose control and eradication which are compatible with and safe for all natural resources and the human environment;
(4) Provide the framework for effective and cost-effective use of these methods in Hawaii and on other specified U.S. Pacific islands (
(5) Comply with the Endangered Species Act, the Migratory Bird Treaty Act, the National Wildlife Refuge System Administration Act of 1966, the National Wildlife Refuge System Improvement Act of 1997, and other Federal and State laws, regulations, and policy.
In accordance with this approach, the PDEIS process would:
(1) Summarize existing information, including quantitative and qualitative documentation, on rodent and mongoose impacts to native species in Hawaii; and then assess specific needs for rodent and mongoose management;
(2) Evaluate the effectiveness of past and current rodent and mongoose control and eradication projects;
(3) Evaluate the suitability of rodent and mongoose control methods not previously used in Hawaii;
(4) Identify impacts on the human environment (interpreted
(5) Identify consistent standards for rodent and mongoose management project implementation, including standards for monitoring, and for thresholds and triggers requiring remedial action for any significant impacts on the human environment caused by these projects; and
(6) To develop the components required of an adaptive management approach (per the Department of the Interior's Guidance on Coordinating Adaptive Management and NEPA Processes (OEPC ESM 13-11; January 7, 2013)).
All future projects proposing to tier from this PDEIS may be subject to site-specific NEPA and/or Hawaii Revised Statutes Chapter 343 analyses consistent with Federal and State procedures. The ability to tier from the PDEIS would provide efficiencies for the site-specific NEPA compliance process. Site-specific projects would also need to comply with all other applicable legal requirements for such projects.
The joint lead agencies for this action are the Service and DOFAW. Cooperating agencies on the PDEIS are the EPA; NPS; National Oceanic and Atmospheric Administration; the U.S. Army Garrison Hawaii; the U.S. Army Garrison Pohakuloa; the U.S. Department of Defense, Naval Facilities Pacific Area Command; the U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services; and the U.S. Geological Survey, Pacific Island Ecosystems Research Center. These agencies have been identified as funding, permitting, having technical expertise with, and/or implementing rodent and mongoose control within the State of Hawaii and Pacific islands under U.S. jurisdiction. Other agencies may request to be Cooperating Agencies during the scoping period.
The PDEIS is for informational and planning purposes to improve and facilitate rodent and mongoose control on Federal, State, and private lands through the IPM process; it does not initiate any specific action or project.
The Service may use this IPM approach on the National Wildlife Refuges it administers in Hawaii and elsewhere in the Pacific, and in habitat restoration projects it funds. The Service may also recommend that it be incorporated into habitat conservation plans and other applications for ESA permits, as appropriate.
In analyzing the proposed action and alternatives, we will explore the following in the PDEIS: (1) Approaches that use IPM in accordance with the Department of the Interior and Service IPM policies, and that are in compliance with FIFRA and State of Hawaii pesticide laws and regulations; and (2) particular methods of rodent and mongoose control or eradication that could be used. The PDEIS will compile research and experience-based data on rodent and mongoose management from Hawaii, other Pacific islands, and elsewhere, and information on rodent and mongoose management from the public, other agencies, Native Hawaiian organizations, NGOs, and other interested parties. All of the compiled data and information will be used to evaluate the proposed action and alternatives.
(1) How effective the proposed methods are at increasing populations of native species;
(2) The ability to measure the effectiveness of the proposed methods through monitoring;
(3) The ability for wildlife managers to effectively implement the proposed methods;
(4) The safety of the proposed methods for non-target species, humans, and the environment;
(5) The cost-effectiveness of the proposed methods;
(6) The level of support from communities, wildlife managers, Native Hawaiian organizations, and regulatory agencies for implementation of the proposed methods;
(7) The compatibility of the proposed methods with Federal and State laws and regulations, including Federal and State pesticide laws and regulations; and
(8) The humaneness to the target animals of the proposed methods, in terms of animal welfare.
Preliminary scoping has identified the no action alternative, a possible proposed action, and other potential alternatives summarized in the following Table:
The proposed action would rely on the principles of IPM as adapted for application under the unique circumstances associated with Hawaii and other U.S. Pacific islands. The first step for use of any methods at a site would be to identify the natural resource management goals and conduct qualitative and quantitative assessments to determine if the targeted pests are
The PDEIS will analyze the effectiveness of, and environmental impacts from, a number of specific methods that could be applied under an IPM approach. These include: (1) Mechanical traps and multi-kill devices; and (2) the application of vertebrate toxicants, including the rodenticides diphacinone, chlorophacinone, and brodifacoum. Rodenticide application methods to be discussed will include bait stations, hand-broadcast, aerial-broadcast, and other techniques described on the labels such as bola-baiting trees. The specific methods, or combinations thereof, that could be applied under site-specific projects would be determined based on the consistency with the IPM protocol discussed above and the analyses of effectiveness and impacts in the PEIS, and any other site-specific analysis that is necessary, such as a site-specific NEPA analysis.
At this time, we anticipate that the PDEIS will also analyze the following alternatives:
The following issues have been identified through preliminary scoping for consideration in the PDEIS. Criteria for determining the significance of impacts for each of these issues will be developed, and each issue will be evaluated for direct, indirect, and cumulative impacts, and for short-term and long-term effects on the human environment. With this notice, the Service requests comments, recommendations, and advice on issues, alternatives, and mitigation to be addressed in the PDEIS, including but not limited to:
• The potential to increase or decrease populations of native species, especially those that are rare;
• The potential to impact species protected under the Federal and State Endangered Species Acts, the Marine Mammal Protection Act, and the Migratory Bird Treaty Act, and other terrestrial species;
• The potential to impact populations of other non-target invasive species;
• The potential to impact game animals;
• The humaneness of rodent and mongoose control or eradication methods on target and non-target species;
• The potential to impact Native Hawaiian religious cultural rights and practices;
• The potential to impact the ability of Native Hawaiians to exercise their traditional and customary gathering rights for subsistence;
• The potential to impact archaeological and cultural resources; and
• The potential to counteract declines in population levels of native species that are also declining due to the effects of climate change.
• The potential for the use of rodenticides to impact soils, surface waters, and groundwater, including movement of rodenticides through water-based (
• The potential for the use of rodenticides to impact freshwater fish and invertebrates;
• The potential for the use of rodenticides to impact marine species, including, but not limited to, fish, invertebrates, and corals;
• The potential for the use of rodenticides to impact essential fish habitat; and
• The potential for the use of rodenticides to cause human health impacts from consumption of meat from mammals, birds, fish and shellfish, and from drinking water.
The PDEIS will propose and analyze standards to be established for mitigation measures, as well as propose and analyze specific mitigation measures that have been identified through the scoping process for the PDEIS. The standards for use of mitigation measures will be based upon the nature of the anticipated impacts, the probability of the impacts occurring, and the characteristics of the areas where the impacts may occur. The standards for mitigation measures will be developed with regulatory agency and community input. The standards will address monitoring to determine the effectiveness of the mitigation measures and to identify any impacts that result from the implementation of the mitigation measures. The standards will require the identification of thresholds and triggers for requiring remedial measures as part of an adaptive management approach.
Site-specific projects will be subject to additional NEPA compliance, which may rely on and tier to the analyses presented in the PEIS, including those related to mitigation measures and standards. Mitigation measures may also be developed to reflect site-specific circumstances, as long as they meet the standards set in the PEIS. The PEIS will identify impacts that would not require mitigation and impacts that cannot be mitigated without compromising the effectiveness of the rodent and mongoose control or eradication method. Under the latter circumstances, the Service and DOFAW could decide in the PEIS not to include such methods in our preferred alternative; or we could analyze whether there are different control methods with lesser impacts that could be used. Even if we ultimately include such methods as options in our proposed action, subsequent site-specific NEPA compliance would evaluate the site-specific impacts.
The PDEIS will also evaluate the needs for any appropriate mitigation measures to protect archaeological and cultural resources during implementation of rodent and mongoose control or eradication projects pursuant to section 106 of the National Historic Preservation Act. Such mitigation would be developed in consultation with the Hawaii State Historic Preservation Division. In addition, impacts to religious cultural rights and practices will be evaluated pursuant to the American Indian Religious Freedom Act (1996).
The analysis of the proposed action and alternatives in the PDEIS will include consideration of the need to implement rodent and mongoose control and eradication in compliance with applicable Federal and State laws and regulations such as the ESA, the Clean Water Act, section 106 of the National Historic Preservation Act, the American Indian Religious Freedom Act, the Coastal Zone Management Act, DLNR's Hawaii State Comprehensive Wildlife Conservation Plan (Mitchell 2005), DLNR's watershed protection initiative, the Service's Pacific Islands Fish and Wildlife Office Strategic Plan (Service 2012), and the 2008 Management Plan for the Papahanaumokuakea Marine National Monument. The PDEIS will support a phased decision-making process that provides compliance for some of the statutory and regulatory requirements listed above at the programmatic level, and will attempt to identify and describe other requirements that must be deferred until a subsequent site-specific proposal is developed. Each implementing entity would be responsible for ensuring that all applicable statutory and regulatory requirements are met for a specific project.
We are seeking comments, information and suggestions from the public, interested government agencies, Native Hawaiian organizations, the scientific community, and other interested parties regarding the objectives, proposed action, and alternatives that we have identified and described above. When submitting comments or suggestions, explaining your reasoning will help us evaluate your comment or suggestion. We are particularly interested in information related to the following questions:
(1) What do you think about protecting native species and ecosystems from introduced rodents and mongooses?
(2) Under what circumstances do you think they should be controlled and eradicated?
(3) Are there additional criteria for evaluating methods for rodent and mongoose control and eradication that we have not considered?
(4) Should the criteria for evaluating methods for rodent and mongoose control and eradication be modified in any way?
(5) How would you balance these criteria when evaluating the methods?
(6) What recommendations or suggestions would you make regarding the methods that are proposed for evaluation?
(7) Are there any other methods for rodent and mongoose control that should be included? If so, please describe them in sufficient detail so that they can be evaluated.
(8) Should any of the identified alternatives be modified?
(9) Are there any other alternatives that should be considered? If so, please describe them in sufficient detail so that they can be evaluated.
(10) Are there issues not included in the list above that should be addressed?
(11) The process of determining the significance of impacts to resources is unique to each resource, and is based upon the context and intensity of the impacts. The context refers to the setting of where the proposed action may occur, the affected areas or locations, the resource affected, and the proposed action's short and long-term effects. The intensity refers to the severity of the impact. The evaluation of significance will rely upon information received during scoping, and may be modified as information is revealed through the analyses. Are there resources for which you can identify criteria that should be used to begin to determine the significance of the impacts to these resources? Please include your thoughts on the context and intensity of the effects.
You may request to be added to the Service and DOFAW contact list for distribution of any related public documents. Information on the PDEIS is also available on the Web at
All comments and materials we receive, as well as supporting documentation we use in preparing the draft PEIS, will become part of the public record and will be available for public inspection by appointment, during regular business hours, at the Service's Pacific Islands Fish and Wildlife Office (see
The environmental review of this project will be conducted in accordance with the requirements of the NEPA of 1969, as amended (42 U.S.C. 4321
U.S. Geological Survey, Interior.
Notice of Charter Renewal.
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. Appendix 2, notice is hereby given that the Charter for the Advisory Committee on Climate Change and Natural Resource Science is renewed for an additional two-year period. In doing so, the Committee will obtain input from Federal, state, tribal, local government, nongovernmental organizations, private sector entities, and academic institutions.
Mr. Robin O'Malley, Designated Federal Officer, Policy and Partnership Coordinator, National Climate Change and Wildlife Science Center, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 400, Reston, Virginia 20192,
Established in May 2013, the Advisory Committee on Climate Change and Natural Resource Science advises the Secretary of the Interior on the establishment and operations of the U.S. Geological Survey National Climate Change and Wildlife Science Center and the Department of the Interior Climate Science Centers. Members represent Federal, state, tribal, local governments, nongovernmental organizations, private sector entities, and academic institutions.
U.S. Geological Survey (USGS), Interior.
Notice of a new information collection: Assessing Public Views of Waterfowl-Related Topics to Inform the North American Waterfowl Management Plan.
We (the U.S. Geological Survey) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the
To ensure that your comments are considered, we must receive them on or before August 31, 2015.
You may submit comments on this information collection to the Information Collection Clearance Officer, U.S. Geological Survey, 12201 Sunrise Valley Drive MS 807, Reston, VA 20192 (mail); (703) 648-7197 (fax); or
Holly Miller, Social Scientist, at (970) 226-9133 or
The North American Waterfowl Management Plan (NAWMP) is an international agreement signed by the United States Secretary of the Interior, the Canadian Minister of the Environment, and the Mexican Secretary of the Environment and Natural Resources. NAWMP lays out a strategy to restore waterfowl populations in North America through habitat protection, restoration, and enhancement. The 2012 revised goals of NAWMP focused for the first time on people as well as waterfowl and their habitats. Specifically, the plan states that “The needs and desires of people [as they relate to waterfowl] must be clearly understood and explicitly addressed” and calls for more human dimensions research with waterfowl hunters, viewers, and the general public. The plan recognizes the interconnectedness of waterfowl, their habitat, and stakeholders. Without human dimensions information, NAWMP objectives may not reflect stakeholder and societal values, and management and policy decisions may lead to actions that could be either irrelevant or counter to stakeholder and societal expectations.
To meet the goals set forth in the 2012 NAWMP revision, the NAWMP Human Dimensions Working Group has asked the USGS to conduct a mail survey to assess the general public's awareness and perceptions of waterfowl and wetlands, as well as measure participation in recreational activities, conservation behaviors, how people obtain information on nature-related issues, and demographics. Demographics collected on the survey will include voluntarily provided personally identifiable information (PII) such as gender, education, income, and race/ethnicity. Additionally, a representative sample of names and mailing addresses from the general public will be purchased from a survey sampling company which uses publically available information to construct sample lists.
To protect the confidentiality and privacy of survey respondents, the voluntarily provided PII from the survey will not be associated with any respondent's name or mailing address at any time and will only be analyzed and reported in aggregate. All files containing PII will be password-protected, housed on secure USGS servers, and only accessible to the research team.
PII collected on the survey will be used to understand if any segments of the American public hold differing views on waterfowl and waterfowl-related topics. For example, there may be differences in awareness and perceptions of waterfowl and wetlands or in participation in recreational activities between men and women. This will enable waterfowl managers and policymakers to better understand and be more responsive to the varied stakeholders they are serving. The data from the survey will be aggregated and statistically analyzed and the results will be published in publically available USGS reports.
The USGS Ecosystems Mission Area is conducting this effort as it aligns with their mission to “work with others to provide the scientific understanding and technologies needed to support the sound management and conservation of our Nation's biological resources.” Specifically, the Ecosystems Mission Area “enters into partnerships with scientific collaborators to produce high-quality scientific information and partnerships with the users of scientific information to ensure this information's relevance and application to real problems.”
We are soliciting comments as to: (a) Whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, usefulness, and clarity of the information to be collected; and (d) how to minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology.
Please note that the comments submitted in response to this notice are a matter of public record. Before including your personal mailing address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment, including your personally identifiable information, may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifiable information from public view, we cannot guarantee that we will be able to do so.
Bureau of Indian Affairs, Interior.
Notice of approved Tribal-State Class III gaming compact; correction.
The Bureau of Indian Affairs (BIA) published a notice in the
Effective Date: June 4, 2015.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
In the
Bureau of Indian Affairs, Interior.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) is seeking comments on the renewal of Office of Management and Budget (OMB) approval for the collection of information titled “Reindeer in Alaska,” authorized by OMB Control Number 1076-0047. This information collection expires September 30, 2015.
Submit comments on or before August 31, 2015.
You may submit comments on the information collection to David Edington, Bureau of Indian Affairs, Office of Trust Services, 1849 C Street NW., MS-4637-MIB, Washington, DC 20240; email:
David Edington, phone: (202) 513-0886.
The Bureau of Indian Affairs (BIA) is seeking renewal of the approval for the information collection conducted under 25 CFR part 243, Reindeer in Alaska, which is used to monitor and regulate the possession and use of Alaskan reindeer by non-Natives in Alaska. The information to be provided includes an applicant's name and address, and where an applicant will keep the reindeer. The applicant must fill out an application for a permit to get a reindeer for any purpose, and is required to report on the status of reindeer annually or when a change occurs, including changes prior to the date of the annual report. This information collection utilizes four forms. This renewal request does not include any changes to the burden hours.
The BIA requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
Office of the Secretary, Department of the Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of the Secretary, Department of the Interior has submitted a request for renewal of approval of this information collection to the Office of Management and Budget (OMB), and requests public comments on this submission.
OMB has up to 60 days to approve or disapprove the information collection request, but may respond after 30 days; therefore, public comments should be submitted to OMB by July 30, 2015, in order to be assured of consideration.
Send your written comments by facsimile (202) 395-5806 or email (
To request a copy of the information collection request, any explanatory information and related forms, see the contact information provided in the
This information collection received emergency approval from OMB on December 16, 2014. This approval was good for six months and we are now requesting comments as part of the standard review process.
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Federal land management agencies are authorized to work with volunteers, youth programs, and partner organizations to plan, develop, maintain, and manage projects and service activities on public lands and adjacent projects throughout the nation. Agencies and partners may recruit, train, and accept the services of volunteers, youth programs, and partners to aid in interpretive functions, visitor services, conservation measures and development, research and development, recreation, and/or other activities in nearly all areas of service. Volunteers, youth programs, and partners can be an efficient, effective, and cost-beneficial use of public resources. The participants of these efforts, especially youth, benefit from skill development and service learning that enhances their capacity to find meaningful employment opportunities and be stewards for public lands.
In order to effectively engage hundreds of thousands of volunteers, youth participants, and partners in meaningful service activities at multiple locations, participating agencies and non-federal organizations, we must collect information from youth program participants and volunteers who are interested in participating, supporting, and managing programs on public lands. The information collected from individuals includes contact information, demographic data including ethnicity and veterans and disability status. Information from partner organizations includes agreement, costs incurred, contact information, IRS status, public financial reports, and supporting documentation such as project completion reports, pictures, and hours contributed.
The information will be collected through a web based platform that consists of seven modules including: The National Park Service (NPS) Volunteer-In-Parks (VIP) Reporting Module, Volunteer Time Tracking Portal, U.S. Fish & Wildlife Service Volunteer Tracker module, Youth Partner Tracking Module, Outreach Recruitment Resume Module, Partnerships Module, and the Cooperating Association Module. The NPS Volunteer-In-Parks (VIP) Reporting Module allows partners to provide information on the annual volunteer efforts they manage independently on behalf of the federal agencies in communities and federal lands through assistance programs. The Volunteer Time Tracking Portal captures the hours and volunteers engaged on public lands for providing America the Beautiful Volunteer Passes for those individuals that have contribute more than 250 hours. The U.S. Fish & Wildlife Service Volunteer Tracker module provides volunteers and volunteer managers in the field the ability to share recruitment, selection, orientation, project, and recognition information locally and nationally in a friendly web-based format. The Youth Partner Tracking module will collect data from individuals between the ages of 16 and 35 which is considered the eligibility age for youth programs under the 16 U.S.C. 1722
This request for comments on the information collection is being published by the Office of the Secretary, Department of the Interior and includes the use of common forms that can be leveraged by other Federal Agencies. The burden estimates reflected in this notice is only for the Department of the Interior. Other federal Agencies wishing to use the common forms must submit their own burden estimates and provide notice to the public accordingly.
As required under 5 CFR 1320.8(d), a
The Department of the Interior invites comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection and the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
“Burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
All written comments, with names and addresses, will be available for public inspection. If you wish us to withhold your personal information, you must prominently state at the beginning of your comment what personal information you want us to withhold. We will honor your request to the extent allowable by law. If you wish to view any comments received, you may do so by scheduling an appointment with the Office of the Secretary at the contact information provided in the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes to offer 33 parcels of public land totaling 625.52 acres in the Las Vegas Valley by competitive sale, at not less than the appraised fair market values (FMV). The BLM is proposing to offer the parcels for sale pursuant to the Southern Nevada Public Land Management Act of 1998 (SNPLMA), as amended. The sale will be subject to the applicable provisions of Section 203 of the Federal Land Policy and Management Act of 1976 (FLPMA) and BLM land sale regulations.
Interested parties may submit written comments regarding the sale until August 14, 2015. The sale by sealed bid and oral public auction will occur on November 17, 2015, at the City Hall, City of North Las Vegas, 2250 Las Vegas Boulevard North, Council Chambers, North Las Vegas, Nevada 89030 at 10 a.m., Pacific Time. The FMV for the parcels will be available 30 days prior to the sale. The BLM will accept sealed bids beginning November 2, 2015. Sealed bids must be received by the BLM, Las Vegas Field Office (LVFO) no later than 4:30 p.m. Pacific Time, on November 10, 2015. The BLM will open sealed bids on the day of the sale just prior to oral bidding.
Mail written comments and submit sealed bids to the BLM LVFO, Assistant Field Manager, 4701 North Torrey Pines Drive, Las Vegas, NV 89130.
Jill Pickren by email:
The BLM proposes to offer 33 parcels of public land in the southwest Las Vegas Valley. The subject public lands are legally described as:
N-93581, 25.93 acres:
N-93582, 50.84 acres:
N-93584, 40.00 acres:
N-93585, 65.00 acres:
N-93587, 10.00 acres:
N-93588, 10.00 acres:
N-93589, 10.00 acres:
N-93590, 10.00 acres:
N-93591, 20.00 acres:
N-93592, 30.00 acres:
N-93593, 25.00 acres:
N-93594, 15.00 acres:
N-93595, 98.75 acres:
N-93596, 2.50 acres:
N-93597, 2.50 acres:
N-93598, 2.50 acres:
N-93599, 17.50 acres:
N-93600, 37.50 acres:
N-93601, 15.00 acres:
N-93602, 5.00 acres:
N-93603, 17.50 acres:
N-93604, 7.50 acres:
N-93605, 1.25 acres:
N-93606, 3.75 acres:
N-93607, 5.00 acres:
N-93608, 12.50 acres:
N-93609, 42.50 acres:
N-93610, 2.50 acres:
N-93611, 2.50 acres:
N-93612, 2.50 acres:
N-93613, 15.00 acres:
N-93721, 5.00 acres:
N-93722, 15.00 acres:
The areas described contain 625.52 acres.
A sales matrix is available on the BLM Web site at:
This competitive sale is in conformance with the BLM Las Vegas Resource Management Plan and decision LD-1, approved by Record of Decision on October 5, 1998, and complies with Section 203 of FLPMA. The Las Vegas Valley Disposal Boundary Environmental Impact Statement analyzed the sale parcels and the suitability for sale of these parcels was approved by Record of Decision on December 23, 2004. A parcel-specific Determination of National Environmental Policy Act Adequacy document numbered DOI-BLM-NV-S010-2015-0052-DNA was prepared in connection with this Notice of Realty Action.
Submit comments on this sale Notice to the address in the
Sale procedures: Registration for oral bidding will begin at 8 a.m. Pacific Time and will end at 10 a.m. Pacific Time at the City of North Las Vegas, 2250 Las Vegas Boulevard North, Council Chambers, North Las Vegas, Nevada 89030, on the day of the sale. There will be no prior registration before the sale date. To participate in the competitive sale, all registered bidders must submit a bid guarantee deposit in the amount of $10,000 by certified check, postal money order, bank draft, or cashier's check made payable to the Department of the Interior-Bureau of Land Management on the day of the sale or submit the bid guarantee deposit along with the sealed bids. The public sale auction will be through sealed and oral bids. Sealed bids will be opened and recorded on the day of the sale to determine the high bids among the qualified bids received. Sealed bids above the FMV will set the starting point for oral bidding on a parcel. Parcels that receive no qualified sealed bids will begin oral bidding at the established FMV. Bidders who are participating and attending the oral auction on the date of the sale are not
Sealed-bid envelopes must be clearly marked on the lower front left corner with the parcel number and name of the sale, for example: “N-XXXXX, 33-parcel SNPLMA Fall Sale 2015.” Sealed bids must include an amount not less than 20 percent of the total amount bid and the $10,000 bid guarantee by certified check, postal money order, bank draft, or cashier's check made payable to the “Department of the Interior-Bureau of Land Management.” The bid guarantee and bid deposit may be combined into one form of deposit; the bidder must specify the amounts of the bid deposit and the bid guarantee. The BLM will not accept personal or company checks. The sealed-bid envelope
All funds submitted with unsuccessful bids will be returned to the bidders or their authorized representative upon presentation of acceptable photo identification at the BLM-LVFO or by certified mail. If the apparent high bidder so chooses, the bid guarantee may be applied towards the required deposit. Failure to submit the deposit following the close of the sale under 43 CFR 2711.3-1(d) will result in forfeiture of the bid guarantee. If the successful bidder offers to purchase more than one parcel and fails to submit the 20 percent bid deposit resulting in default on any single parcel following the sale, the BLM will retain the $10,000.00 bid guarantee, and may cancel the sale of all the parcels to that bidder. If a high bidder is unable to consummate the transaction for any reason, the BLM may offer the parcel to the second highest bidder for the amount of their bid. If there are no acceptable bids, a parcel may remain available for sale at a future date in accordance with competitive sale procedures without further legal notice.
Federal law requires that bidders must be: (1) A citizen of the United States 18 years of age or older; (2) A corporation subject to the laws of any State or of the United States; (3) A State, State instrumentality, or political subdivision authorized to hold property; or (4) An entity legally capable of conveying and holding lands or interests therein under the laws of the State of Nevada.
Evidence of United States citizenship is a birth certificate, passport, or naturalization papers. Failure to submit the above requested documents to the BLM within 30 days from receipt of the high-bidder letter will result in cancellation of the sale and forfeiture of the bid deposit. The successful bidder is allowed 180 days from the date of the sale to submit the remainder of the full purchase price.
Publication of this Notice in the
Terms and Conditions: All minerals for the sale parcels will be reserved to the United States. The patents will contain a mineral reservation to the United States for all minerals. The BLM refers interested parties to the regulation at 43 CFR 3601.71(b), which provides that the owner of the surface estate of lands with reserved Federal minerals may “use a minimal amount of mineral materials for personal use” within the boundaries of the surface estate without a sales contract or permit. The regulation provides that all other use, absent statutory or other express authority, requires a sales contract or permit. We refer interested parties to the explanation of this regulatory language in the preamble to the final rule published in the
The parcels are subject to limitations by law and regulation, and certain encumbrances in favor of third parties. Prior to patent issuance, a holder of any right-of-way (ROW) within the sale parcels will have the opportunity to amend the ROW for conversion to a new term, including perpetuity, if applicable, or conversion to an easement. The BLM will notify valid existing ROW holders of record of their ability to convert their compliant rights-of-way to perpetual rights-of-way or easement. In accordance with Federal regulations at 43 CFR 2807.15, once notified, each valid holder may apply for the conversion of their current authorization.
The following numbered terms and conditions will appear on the conveyance documents for the sale parcels:
1. All minerals deposits in the lands so patented, and to it, or persons authorized by it, the right to prospect for, mine, and remove such deposits from the same under applicable law and regulations to be established by the Secretary of the Interior are reserved to the United States, together with all necessary access and exit rights;
2. A right-of-way is reserved for ditches and canals constructed by authority of the United States under the Act of August 30, 1890 (43 U.S.C. 945);
3. The parcels are subject to valid existing rights;
4. The parcels are subject to reservations for road, public utilities and flood control purposes, both existing and proposed, in accordance
5. An appropriate indemnification clause protecting the United States from claims arising out of the lessees/patentee's use, occupancy, or occupations on the leased/patented lands.
Pursuant to the requirements established by Section 120(h) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9620(h) (CERCLA), as amended, notice is hereby given that the lands have been examined and no evidence was found to indicate that any hazardous substances have been stored for one year or more, nor had any hazardous substances been disposed of or released on the subject property.
No warranty of any kind, express or implied, is given by the United States as to the title, whether or to what extent the land may be developed, its physical condition, future uses, or any other circumstance or condition. The conveyance of a parcel will not be on a contingency basis. However, to the extent required by law, the parcel is subject to the requirements of section 120(h) of the CERCLA.
Unless the BLM authorized officer approved other satisfactory arrangements in advance, conveyance of title will be through escrow. Designation of the escrow agent will be through mutual agreement between the BLM and the prospective patentee, and costs of escrow will be borne by the prospective patentee.
The BLM-LVFO must receive the request for escrow instructions prior to 30 days before the prospective patentee has scheduled a closing date. There are no exceptions.
All name changes and supporting documentation must be received at the BLM-LVFO 30 days from the date on the high-bidder letter by 4:30 p.m. Pacific Time. There are no exceptions. To submit a name change, the apparent high bidder must submit the name change in writing on the Certificate of Eligibility form to the BLM-LVFO.
The remainder of the full bid price for the parcel must be received no later than 4:30 p.m. Pacific Time, within 180 days following the day of the sale. Payment must be submitted in the form of a certified check, postal money order, bank draft, cashier's check, or made available by electronic fund transfer made payable in U.S. dollars to the “Department of the Interior—Bureau of Land Management” to the BLM-LVFO. The BLM will not accept personal or company checks.
Arrangements for electronic fund transfer to the BLM for payment of the balance due must be made a minimum of two weeks prior to the payment date. Failure to pay the full bid price prior to the expiration of the 180th day will disqualify the high bidder and cause the entire 20 percent bid deposit to be forfeited to the BLM. Forfeiture of the 20 percent bid deposit is in accordance with 43 CFR 2711.3-1(d). No exceptions will be made. The BLM cannot accept the remainder of the bid price after the 180th day of the sale date.
The BLM will not sign any documents related to 1031 Exchange transactions. The timing for completion of such an exchange is the bidder's responsibility. The BLM cannot be a party to any 1031 Exchange.
In accordance with 43 CFR 2711.3-1(f), within 30 days the BLM may accept or reject any or all offers to purchase, or withdraw any parcel of land or interest therein from sale if the BLM authorized officer determines consummation of the sale would be inconsistent with any law, or for other reasons as may be provided by applicable law or regulations. No contractual or other rights against the United States may accrue until the BLM officially accepts the offer to purchase and the full bid price is paid.
The parcel may be subject to land use applications received prior to publication of this Notice if processing the application would have no adverse effect on the marketability of title, or the FMV of the parcel. Information concerning the sale, encumbrances of record, appraisals, reservations, procedures and conditions, CERCLA, and other environmental documents that may appear in the BLM public files for the proposed sale parcels are available for review during business hours, 7:30 a.m. to 4:30 p.m. Pacific Time, Monday through Friday, at the BLM-LVFO, except during Federal holidays.
In order to determine the FMV through appraisal, certain extraordinary assumptions and hypothetical conditions may have been made concerning the attributes and limitations of the lands and potential effects of local regulations and policies on potential future land uses. Through publication of this Notice, the BLM advises that these assumptions may not be endorsed or approved by units of local government.
It is the buyer's responsibility to be aware of all applicable Federal, State, and local government laws, regulations and policies that may affect the subject lands, including any required dedication of lands for public uses. It is also the buyer's responsibility to be aware of existing or prospective uses of nearby properties. When conveyed out of Federal ownership, the lands will be subject to any applicable laws, regulations, and policies of the applicable local government for proposed future uses. It is the responsibility of the purchaser to be aware through due diligence of those laws, regulations, and policies, and to seek any required local approvals for future uses. Buyers should make themselves aware of any Federal or State law or regulation that may affect the future use of the property. Any land lacking access from a public road or highway will be conveyed as such, and future access acquisition will be the responsibility of the buyer.
Any comments regarding the proposed sale will be reviewed by the BLM Nevada State Director or other authorized official of the Department of the Interior, who may sustain, vacate, or modify this realty action in response to such comments. In the absence of any comments, this realty action will become the final determination of the Department of the Interior.
43 CFR 2711.1-2.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part an initial determination (“ID”) (Order No. 34) of the presiding administrative law judge (“ALJ”) granting complainants' motion for summary determination of violation of section 337 and, on review, to modify certain portions of the ID. The Commission also requests written submissions on remedy, public interest,
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3115. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“Section 337”), on June 12, 2014, based on a complaint filed by Canon Inc. of Tokyo, Japan; Canon U.S.A., Inc. of Melville, New York; and Canon Virginia, Inc. of Newport News, Virginia (collectively, “Canon”). 79 FR 33777-78 (Jun. 12, 2014). The complaint alleges a violation of section 337 by reason of infringement of certain claims of U.S. Patent Nos. 8,280,278 (“the ‘278 patent”); 8,630,564 (“the ‘564 patent”); 8,682,215 (“the ‘215 patent”); 8,676,090 (“the ‘090 patent”); 8,369,744 (“the ‘744 patent”); 8,565,640 (“the ‘640 patent”); 8,676,085 (“the ‘085 patent”); 8,135,304 (“the ‘304 patent”); and 8,688,008 (“the ‘008 patent”).
The ALJ issued initial determinations terminating the investigation based on consent orders as to fifteen respondents: Print-Rite Holdings Ltd.; Print-Rite N.A., Inc.; Union Technology Int'I (M.C.O.) Co. Ltd.; Print-Rite Unicorn Image Products Co. Ltd.; Innotex Precision Ltd.; Ninestar Image Tech Limited; Zhuhai Seine Technology Co., Ltd.; Ninestar Technology Company, Ltd.; Seine Tech (USA) Co., Ltd.; Nano Pacific Corporation; International Laser Group, Inc.; Ink Technologies Printer Supplies, LLC; LD Products, Inc.; Linkyo Corporation; and Katun Corporation.
The ALJ also issued IDs finding the following ten respondents in default: Acecom, Inc.-San Antonio; ACM Technologies, Inc.; Shenzhen ASTA Official Consumable Co., Ltd.; Do It Wiser LLC; Grand Image Inc.; Green Project, Inc.; Nectron International, Inc.; Online Tech Stores, LLC; Printronic Corporation; and Zinyaw LLC.
The remaining five named respondents are Aster Graphics, Inc.; Jiangxi Yibo E-Tech Co., Ltd.; Aster Graphics Co., Ltd.; The Supplies Guys, LLC; and American Internet Holdings, LLC. These respondents are no longer actively participating in the investigation, but have neither been terminated from the investigation nor found to be in default. Each of them has acknowledged and stipulated that it has failed to act within the meaning of Commission Rule 210.17, at least because it failed to file a prehearing statement and brief in accordance with the Procedural Schedule (Order No. 9), and that it therefore has no standing to contest Canon's evidence and arguments that it has violated section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337.
On March 10, 2015, Canon filed a Motion for Summary Determination of Violations by the Defaulting Respondents and Non-Participating Respondents and Recommended Determination on Remedy and Bonding. The Commission investigative attorney filed a response in support of the motion. The Non-Participating Respondents filed a response (“Aster Resp.”) to the motion in which they state,
On May 12, 2015, the ALJ issued an ID (Order No. 34) granting Canon's motion for summary determination of violation and recommending the issuance of a general exclusion order and several cease and desist orders. No party petitioned for review of the ID.
The Commission has determined to review the portion of the ID titled “Establishing Violations Of Section 337 Through Uncontested Allegations” on pages 46-50 of the ID and, on review, to strike the above-referenced portion of the ID, as well as any language referring to that stricken portion (
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or are likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action. During this period, the subject articles would be entitled to enter the United States under bond, in an amount determined by the Commission and prescribed by the Secretary of the Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed if a remedy is ordered.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337-TA-918”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Notice is hereby given that, on May 29, 2015, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Trustworthy Accountability Group, Inc., New York, NY. The nature and scope of TAG's standards development activities are: to address systemic market issues in four core areas: fraudulent digital advertising traffic, ad-supported Internet piracy, business transparency and malware. TAG will establish standards to address fraudulent digital advertising in the supply chain and will connect those standards to tools for identifying legitimate companies (
Notice is hereby given that, on May 20, 2015, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 15, 2004, ASME filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on November 6, 2014. A notice was published in the
Notice of registration.
Insys Therapeutics, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Insys Therapeutics, Inc. registration as a manufacturer of those controlled substances.
By notice dated February 5, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Insys Therapeutics, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed:
The company plans to manufacture bulk synthetic active pharmaceutical ingredients (APIs) for product development and distribution to its customers. No other activity for this drug code is authorized for this registration.
On June 24, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of New Mexico in the lawsuit entitled
In this civil enforcement action under the federal Clean Air Act (“Act”), the United States alleges that Arizona Public Service Company, El Paso Electric Company, Public Service Company of New Mexico, Salt River Project Agricultural Improvement and Power District, Tucson Electric Power Company, and Southern California Edison Company (collectively the “Defendants”), failed to comply with certain requirements of the Act intended to protect air quality at the Four Corners Power Plant located near Shiprock, New Mexico. The complaint seeks injunctive relief and civil penalties for violations of the Clean Air Act's Prevention of Significant Deterioration (“PSD”) provisions, 42 U.S.C. 7470-92, and various Clean Air Act implementing regulations. The complaint alleges that Defendants failed to obtain appropriate permits and failed to install and operate required pollution control devices to reduce emissions of sulfur dioxide (“SO
The proposed Consent Decree would resolve violations for certain provisions of the Act at the Four Corners Power Plant, and would require the Defendants to reduce harmful SO
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $23.50 (25 cents per page reproduction cost) payable to the United States Treasury.
On June 25, 2015, the Department of Justice lodged a proposed Joint Stipulation to Modify Consent Decree with the United States District Court for the Northern District of Alabama in the lawsuit entitled
In this civil enforcement action under the federal Clean Air Act (“Act”), the United States alleged that Alabama Power Company failed to comply with certain requirements of the Act intended to protect air quality at coal-fired electric generating stations located in Alabama. Specifically, the complaint requested injunctive relief and civil penalties for violations of the Clean Air Act's Prevention of Significant Deterioration provisions, 42 U.S.C. 7470-92, and various Clean Air Act implementing regulations. On April 25, 2006, the District Court entered a partial consent decree settling some of the claims alleged in the complaint. The proposed Joint Stipulation to Modify Consent Decree would modify the partial consent decree to settle the remaining claims in the litigation to secure additional reductions in emissions of sulfur dioxide and nitrogen oxides through the operation of emissions controls and unit retirements and conversions to natural gas operation. Alabama Power will also pay a civil penalty of $100,000 and pay $1,500,000 to fund environmental mitigation projects that will further reduce emissions and benefit communities in Alabama.
The publication of this notice opens a period for public comment on the proposed Joint Stipulation to Modify Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Joint Stipulation to Modify Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $ 6.25 (25 cents per page reproduction cost) payable to the United States Treasury.
By application dated December 3, 2014, a worker requested administrative reconsideration of the negative determination regarding workers' eligibility to apply for worker adjustment assistance applicable to workers and former workers of Unimin Corporation, Gleason, Tennessee (subject firm). The determination was issued on November 7, 2014. The Department's Notice of Determination was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The initial investigation resulted in a negative determination based on the findings that the subject firm did not increase imports or shift production abroad.
The request for reconsideration asserts that increased imports of articles directly competitive with the “slurry” articles produced at the subject firm contributed to worker separations and, consequently, that the Department's initial investigation was too limited in scope.
The Department of Labor has carefully reviewed the request for reconsideration and the existing record, and has determined that the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
Petitions have been filed with the Secretary of Labor under section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under title II, chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than July 10, 2015.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than July 10, 2015.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on July 25, 2013, applicable to workers from Bausch & Lomb Incorporated, North Goodman Street Facility, a subsidiary of Valeant Pharmaceuticals International, Inc., including on-site leased workers from Kelly Services and Aerotek, Rochester, New York (TA-W-82,963) and Bausch & Lomb Incorporated, Bausch & Lomb Place Facility, a subsidiary of Valeant Pharmaceuticals International, Inc., including on-site leased workers from Kelly Services, Rochester, New York (TA-W-82,963A). The Department's Notice of Determination was published in the
At the request of a State Workforce Official, the Department reviewed the certification for workers of the subject firm. The workers' firm is engaged in the production of contact lenses.
The investigation confirmed that workers from Computech Corp. were employed on site at the Bausch & Lomb Incorporated facilities. The workers were sufficiently under the operational control of Bausch & Lomb Incorporated to be considered leased workers.
Based on these findings, the Department is amending this certification to include the on-site leased workers from Computech Corp.
The amended notice applicable to TA-W-82,963 is hereby issued as follows:
“All workers of Bausch & Lomb Incorporated, North Goodman Street Facility, a subsidiary of Valeant Pharmaceuticals International, Inc., including on-site leased workers from Kelly Services Aerotek and Computech Corp., Rochester, New York (TA-W-82,963) and Bausch & Lomb Incorporated, Bausch & Lomb Place Facility, a subsidiary of Valeant Pharmaceuticals International, Inc., including on-site leased workers from Kelly Services and Computech Corp., Rochester, New York (TA-W-82,963A), who became totally or partially separated from employment on or after August 7, 2012 through December 2, 2015, and all workers in the group threatened with total or partial separation from employment on the date of certification through December 2, 2015, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.”
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S. C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on July 2, 2014, applicable to workers and former workers of United States Steel Corporation, Lorain Tubular Operations, Lorain, Ohio. The workers are engaged in activities related to the production of steel tubular products such as pipes.
Information obtained by the Department reveals that the following units operate in conjunction with each other in the production of United States Steel Corporation's tubular products: Lorain Tubular Operations, Lorain, Ohio (TA-W-85,286); Fairfield Works-Flat Roll Operations and Tubular Operations, Fairfield, Alabama (TA-W-85,286A); East Chicago, Indiana (TA-W-85,286B); Lorain Northern Railroad, Lorain, Ohio (TA-W-85,286C); Wheeling Machine Products Division, Pine Bluff, Arkansas (TA-W-85,286D); Gary, Indiana (TA-W-85,286E); Ecorse, Michigan (TA-W-85,286F); and Fairfield Southern Company, Fairfield, Alabama (TA-W-85,286G).
The worker groups include those who are engaged in activities related to production, such as maintenance, administrative support, and safety/security. All buildings, structures, and facilities (such as furnaces and mills)
Based on these findings, the Department is amending this certification to clarify that workers at the above facilities are included. The amended notice applicable to TA-W-85,286 is hereby issued as follows:
“All workers of United States Steel Corporation, Lorain Tubular Operations, Lorain, Ohio (TA-W-85,286); United States Steel Corporation, Fairfield Works-Flat Roll Operations and Fairfield-Tubular Operations, Fairfield, Alabama (TA-W-85,286A); United States Steel Corporation, East Chicago, Indiana (TA-W-85,286B); Lorain Northern Railroad, Lorain, Ohio (TA-W-85,286C); United States Steel Corporation, Wheeling Machine Products Division, Pine Bluff, Arkansas (TA-W-85,286D); United States Steel Corporation, Gary, Indiana (TA-W-85,286E); United States Steel Corporation, Ecorse, Michigan (TA-W-85,286F); and Fairfield Southern Company, Fairfield, Alabama (TA-W-85,286G), who became totally or partially separated from employment on or after May 2, 2013 through July 2, 2016 are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.”
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on March 12, 2015, applicable to workers and former workers of U.S. Steel Tubular Products, Inc., Lone Star Tubular Operations, a subsidiary of United States Steel Corporation, Lone Star, Texas. The Department's Notice of Determination was published in the
Information obtained from United States Steel Corporation reveals that the following locations operate in conjunction with each other in the production of steel tubular products Lone Star, Texas (TA-W-85,796); Keewatin, Minnesota (TA-W-85,796A); Mt. Iron, Minnesota (TA-A-85,796B); Granite City, Illinois (TA-W-85,796C); and West Mifflin, Pennsylvania (TA-W-85,796D).
The Keewatin and Mt. Iron, Minnesota worker groups include on-site leased workers. The Granite City, Illinois worker group includes all workers at Granite City Works, not limited to workers at the coke batteries and the furnaces. The West Mifflin, Pennsylvania worker group includes all workers at Mon Valley Works, which consists of the Irvin and Thompson Plants. The worker groups include those who support production, including but not limited to logistics, maintenance, personnel, safety, and health workers.
Based on these findings, the Department is amending this certification to clarify that workers at the above facilities are included. The amended notice applicable to TA-W-85,796 is hereby issued as follows:
“All workers of U.S. Steel Tubular Products, Inc., Lone Star Tubular Operations, a subsidiary of United States Steel Corporation, including on-site leased workers from Delta, Alliance Group Technologies, and Good Shepherd Medical Center, Lone Star, Texas (TA-W-85,796); United States Steel Corporation, Minnesota Ore Operations—Keetac, including on-site leased workers of Securitas, Cleaning Specialists, and Alliance Group Technologies, Keewatin, Minnesota (TA-W-85,796A); United States Steel Corporation, Minnesota Ore Operations—Minntac, including on-site leased workers of Securitas, Essentia Health, Cleaning Specialists, and Alliance Group Technologies, Mt. Iron, Minnesota (TA-W-85,796B); United States Steel Corporation, Granite City Works, Granite City, Illinois (TA-W-85,796C); and United States Steel Corporation, Mon Valley Works, West Mifflin, Pennsylvania (TA-W-85,796D), who became totally or partially separated from employment on or after January 27, 2014 through March 12, 2017, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.”
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on October 2, 2014, applicable to workers of Modine Manufacturing Company, Ringwood, Illinois, including on-site leased workers from Masterson, Working World, and Aerotek. The Department's notice of determination was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of aluminum oil coolers, condensers, and radiators for automotive, on-highway, off-highway, recreational vehicles, military and heavy duty semi-trucks.
The company reports that workers leased from ReEmploy (SEEK Professionals, LLC, and Lucas Group were employed on-site at the Ringwood, Illinois location of Modine Manufacturing Company. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from ReEmploy (SEEK Professionals,
The amended notice applicable to TA-W-85,533 is hereby issued as follows:
“All workers of Masterson, Working World, Aerotek, ReEmploy (SEEK Professionals, LLC), and Lucas Group, reporting to Modine Manufacturing Company, Ringwood, Illinois, who became totally or partially separated from employment on or after September 11, 2013, through October 2, 2016, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.”
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on February 10, 2015, applicable to workers and former workers of U.S. Steel Tubular Products, Inc., Tubular Processing Houston Operations, a subsidiary of United States Steel Corporation, Houston, Texas (subject firm). Workers of the subject firm are engaged in activities related to the production of steel tubular products.
Information obtained from United States Steel Corporation reveals that U.S. Steel Oilwell Services, LLC, Offshore Operations—Houston, Houston, Texas (TA-W-85,753A) operates in conjunction with the subject firm.
Based on this finding, the Department is amending this certification to clarify that workers at U.S. Steel Oilwell Services, LLC, Offshore Operations—Houston, Houston, Texas are included. The amended notice applicable to TA-W-85,753 is hereby issued as follows:
All workers of U.S. Steel Tubular Products, Inc., Tubular Processing Houston Operations, a subsidiary of United States Steel Corporation, Houston, Texas (TA-W-85,753) and U.S. Steel Oilwell Services, LLC, Offshore Operations—Houston, Houston, Texas (TA-W-85,753A), who became totally or partially separated from employment on or after January 6, 2014 through February 10, 2017, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on March 12, 2015, applicable to workers from General Mills, Bakery Division, including on-site leased workers from Randstad Temp Agency and Aerotek, Inc., New Albany, Indiana. The Department's Notice of Determination was published in the
At the request of a State Workforce Official, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of refrigerated dough products.
The investigation confirmed that workers of Sonoco were employed on-site at General Mills, New Albany, Indiana and may be considered leased workers.
The amended notice applicable to TA-W-85,888 is hereby issued as follows:
“All workers of General Mills, Bakery Division, including on-site leased workers from Randstad Temp Agency Aerotek, Inc., and Sonoco, New Albany, Indiana, who became totally or partially separated from employment on or after March 18, 2014 through April 14, 2017, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.”
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on August 14, 2014, applicable to workers of Autoliv ASP, Inc., Autoliv Electronics Division, Production Operations Department, Lowell, Massachusetts, including on-site leased workers from Technical Needs. The Department's Notice of Determination was published in the
At the request of a State Workforce Official, the Department reviewed the certification for workers of the subject firm. The workers were engaged in activities related to the production of radar sensors.
A review of the determination revealed that the amended certification
Based on these findings, the Department is amending this certification to clarify that on-site leased workers from Aerotek are eligible to apply for alternative trade adjustment assistance.
The amended notice applicable to TA-W-85,379 is hereby issued as follows:
All workers of Autoliv ASP, Inc., Autoliv Electronics Division, Production Operations Department, including on-site leased workers from Technical Needs, Lowell, Massachusetts (TA-W-85,379), who became totally or partially separated from employment on or after June 5, 2013, through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.
All workers of Aerotek, reporting to Autoliv ASP, Inc., Autoliv Electronics Division, Production Operations Department, Lowell, Massachusetts (TA-W-85,379A), who became totally or partially separated from employment on or after June 5, 2013, through August 14, 2016, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.
In accordance with section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the period of May 11, 2015 through May 29, 2015.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. the sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. there has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. the country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. there has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of section 222(b) of the Act must be met.
(1) significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of section 222(a)(2)(A) (increased imports) and
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) (employment decline) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The workers' firm does not produce an article as required for certification under section 222 of the Trade Act of 1974.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of May 11, 2015 through May 29, 2015. These determinations are available on the Department's Web site www.tradeact/taa/taa_search_form.cfm under the searchable listing of determinations or by calling the Office of Trade Adjustment Assistance toll free at 888-365-6822.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on March 10, 2015, applicable to workers of Brayton International, a subsidiary of Steelcase, Inc., High Point, North Carolina. The worker group includes on-site leased workers from Manpower Group, Experis, Bradley Personnel Inc., Graham Personnel Services, Aerotek, WorkForce Unlimited, Experis, and imPact Business Group, High Point, North Carolina. The Department's Notice of Determination was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers were engaged in activities related to production of office furniture.
The investigation confirmed that workers leased from Bradley Personnel Inc., Graham Personnel Services, Aerotek, Workforce Unlimited, Experis, imPact Business Group, and Century Employer Organization LLC were employed on-site at the High Point,
Based on these findings, the Department is amending this certification to include leased workers from Century Employer Organization LLC working on-site at the High Point, North Carolina location of Brayton International.
The amended notice applicable to TA-W-85,779 is hereby issued as follows:
“All workers of Brayton International, a subsidiary of Steelcase, Inc., including on-site leased workers from Manpower Group, Experis, Bradley Personnel Inc., Graham Personnel Services, Aerotek, Workforce Unlimited, Experis, imPact Business Group, Century Employer Organization LLC, High Point, North Carolina, who became totally or partially separated from employment on or after March 12, 2015 through March 10, 2017, and all workers in the group threatened with total or partial separation from employment on the date of certification through March 11, 2015, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.”
Notice.
On June 30, 2015, the Department of Labor (DOL) will submit the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Permit-Required Confined Spaces in General Industry Standard,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before July 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Permit-Required Confined Spaces in General Industry Standard information collection requirements codified in regulations 29 CFR 1910.146. The purpose of the information collection is to ensure an Occupational Safety and Health Act (OSH Act) covered employer subject to the Standard systematically evaluates the dangers in permit spaces before entry is attempted and takes adequate measures to make the spaces safe for entry. The major information collection requirements in this Standard require the employer to: Post danger signs; develop and implement a written permit-space program; verify the space is safe for entry with a written certification; exchange information with employees, authorized entrants, attendants, contractors, and rescue services or teams; document the completion of measures the Standard requires by preparing an entry permit; make the completed permit available at the time of entry to all authorized entrants by posting the permit at the entry portal or by any other equally effective means; retain each canceled entry permit for at least one year; prepare training certification records; make the Safety Data Sheet (SDS) or written information available to the treating medical facility, if an injured entrant is exposed to a substance for which a SDS or other similar written information is required to be kept at the worksite; consult with affected employees and their authorized representatives on the development and implementation of all aspects of the permit space program; and make records developed under standard, including the results of any testing, available for inspection by employees and their authorized representatives. OSH Act sections 2(b)(9), 6, and 8(c) authorize this information collection. See 29 U.S.C. 651(b)(9), 655, and 657(c).
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on June 30, 2015. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Legal Services Corporation's Finance Committee will meet telephonically on July 9, 2015. The meeting will commence at 4 p.m., EDT, and will continue until the conclusion of the Committee's agenda.
John N. Erlenborn Conference Room, Legal Services Corporation Headquarters, 3333 K Street NW., Washington, DC 20007.
Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below.
• Call toll-free number: 1-866-451-4981;
• When prompted, enter the following numeric pass code: 5907707348;
• When connected to the call, please immediately “MUTE” your telephone.
Members of the public are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold if doing so will trigger recorded music or other sound. From time to time, the Chair may solicit comments from the public.
Open.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295-1500. Questions may be sent by electronic mail to
LSC complies with the Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities. Individuals needing other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295-1500 or
9:30 a.m., Tuesday, July 14, 2015.
NTSB Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594.
The two items are open to the public.
Telephone: (202) 314-6100.
The press and public may enter the NTSB Conference Center one hour prior to the meeting for set up and seating.
Individuals requesting specific accommodations should contact Rochelle Hall at (202) 314-6305 or by email at
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Schedule updates, including weather-related cancellations, are also available at
Candi Bing at (202) 314-6403 or by email at
Eric Weiss, (202) 314-6100 or by email at
Nuclear Regulatory Commission.
Design-specific review standard; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comment on the Design-Specific Review Standard (DSRS) and Safety Review Matrix for the NuScale Power, LLC, design (NuScale DSRS Scope and Safety Review Matrix). The purpose of the NuScale DSRS is to provide guidance to NRC staff in performing safety reviews where existing NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition,” Standard Review Plans (SRP) have been modified by the staff specifically for the NuScale design, or do not address unique features of the NuScale design. The DSRS also allows NRC staff to more fully integrate the use of design-specific risk insights into the review of the NuScale design certification application (DC) or an early site permit (ESP) or combined license (COL) application that references the NuScale design.
Submit comments by August 31, 2015. Comments received after this date will be considered, if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Jenny Gallo, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7367; email:
Please refer to Docket ID NRC-2015-0160 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC-2015-0160 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In the Staff Requirements Memorandum (SRM) COMGBJ-10-0004/COMGEA-10-0001, “Use of Risk Insights to Enhance the Safety Focus of Small Modular Reactor Reviews,” dated August 31, 2010 (ADAMS Accession No. ML102510405), the Commission provided direction to the NRC staff on the preparation for, and review of, small modular reactor (SMR) applications, with a near-term focus on integral pressurized-water reactor designs. The Commission directed the NRC staff to more fully integrate the use of risk insights into pre-application activities and the review of applications and, consistent with regulatory requirements and Commission policy statements, to align the review focus and resources to risk-significant structures, systems, and components and other aspects of the design that contribute most to safety in order to enhance the effectiveness and efficiency of the review process. The Commission directed the NRC staff to develop a design-specific, risk-informed review plan for each SMR design to address pre-application and application review activities. An important part of this review plan is the DSRS. The DSRS for the NuScale design is the result of the implementation of the Commission's direction.
The NuScale DSRS reflects current NRC staff safety review methods and practices which integrate risk insights and, where appropriate, lessons learned from the NRC's reviews of DC and COL applications completed since the last revision of the NUREG-0800, SRP Introduction, Part 2, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: Light-Water Small Modular Reactor Edition,” January 2014 (ADAMS Accession No. ML13207A315). The NuScale DSRS Scope and Safety Matrix provides a complete list of SRP sections and identifies which SRP sections will be used for DC, COL, or ESP reviews concerning the NuScale design; which SRP sections are not applicable to the
The NRC staff is soliciting public comment on the NuScale DSRS Scope and Safety Review Matrix and the individual NuScale-specific DSRS sections referenced in the table below. Specifically, the NRC requests comment on the sufficiency of the scope of the proposed NuScale review, as encompassed by the Safety Review Matrix, and on the technical content of the individual NuScale-specific DSRS sections identified in the table below. These sections were revised from the relative SRP sections or developed to incorporate design-specific review guidance based on features of the NuScale design. The NRC is not soliciting general comments on NUREG-0800 sections that are designated with the applicability “A) Use SRP Section” in the Safety Review Matrix, but specific comments on the adequacy of these NUREG-0800 sections for use in the review of the NuScale design certification application will be considered.
For the Nuclear Regulatory Commission.
June 29, July 6, 13, 20, 27, August 3, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of June 29, 2015.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of July 13, 2015.
There are no meetings scheduled for the week of July 20, 2015.
There are no meetings scheduled for the week of July 27, 2015.
This meeting will be webcast live at the Web address—
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Glenn Ellmers at 301-415-0442 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 23, 2015, it filed with the Postal Regulatory Commission a
Postal Service.
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 23, 2015, it filed with the Postal Regulatory Commission a
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, July 1, 2015 at 10:00 a.m., in the Auditorium, Room L-002.
The subject matter of the Open Meeting will be:
• The Commission will consider whether to propose amendments under Section 10D of the Exchange Act, as added by Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, to require the national securities exchanges and national securities associations to prohibit the listing of any security of an issuer that is not in compliance with Section 10D's requirements for the recovery of incentive-based compensation.
The duty officer determined no earlier notice of this Meeting was practicable.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted, or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1)
The Exchange proposes to: (1) amend the Eighth Amended and Restated Operating Agreement of the Exchange (“Operating Agreement”) to establish a Regulatory Oversight Committee (“ROC”) as a committee of the board of directors of the Exchange (the “Board”) and make certain conforming amendments to Rules 0 [sic], 1, 46, 46A and 497; (2) terminate the delegation agreement (the “Delegation Agreement”) among the Exchange, NYSE Market (DE), Inc. (“NYSE Market (DE)”), and NYSE Regulation, Inc. (“NYSE Regulation”), delete Rule 20, which sets forth the terms of the delegation, and make certain conforming amendments to Section 4.05 of the Operating Agreement and Rules 0, 1, 22, 36, 37, 46, 48, 49, 54, 70, 103, 103A, 103B, 104, 422, 476A, and 497; (3) remove from the Exchange rules certain organizational documents of NYSE Regulation and NYSE Market (DE) in connection with the proposed termination of the Delegation Agreement; (4) amend the Operating Agreement to establish a Director Candidate Recommendation Committee (“DCRC”) as a committee of the Board and change the process by which non-Affiliated Director candidates are named; (5) amend the Operating Agreement to establish a Committee for Review as a sub-committee of the ROC and make conforming changes to Rules 308, 475, 476, 476A and 9310; and (6) replace references to the Chief Executive Officer of NYSE Regulation in Rules 48, 49 and 86 with references to the Chief Regulatory Officer of the Exchange. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to: (1) amend the Operating Agreement to establish a ROC as a Board committee and make certain conforming amendments to Rules 1, 46, 46A and 497; (2) terminate the Delegation Agreement, delete Rule 20, which sets forth the delegation from the Exchange to NYSE Market (DE) and NYSE Regulation,
The Exchange proposes that creation of the ROC, termination of the Delegation Agreement, and the above rule changes would be operative simultaneously. The Exchange would effect the changes described herein following approval of this rule filing no later than June 30, 2016, on a date determined by its Board.
In connection with its proposal to terminate the Delegation Amendment, which is discussed below, the Exchange proposes to establish a ROC. The proposed ROC would have the responsibility to independently monitor the Exchange's regulatory operations. To effect this change, the Exchange proposes to amend Section 2.03(h) of the Operating Agreement to add a subsection (ii) providing for a ROC and delineating its composition and functions. The proposed new Section 2.03(h)(ii) of the Operating Agreement would be substantially similar to the recently approved changes by the Exchange's affiliates NYSE Arca and NYSE MKT to establish ROCs
In particular, Section 2.03(h)(ii) would provide that the Board shall appoint a ROC on an annual basis. Proposed Section 2.03(h)(ii) would describe the composition of the ROC. Proposed Section 2.03(h)(ii) would also describe the functions and authority of the ROC. The proposed ROC's responsibilities would be to:
• oversee the Exchange's regulatory and self-regulatory organization responsibilities and evaluate the adequacy and effectiveness of the Exchange's regulatory and self-regulatory organization responsibilities;
• assess the Exchange's regulatory performance; and
• advise and make recommendations to the Board or other committees of the Board about the Exchange's regulatory compliance, effectiveness and plans.
In furtherance of these functions, the proposed new subsection of the Operating Agreement would provide the ROC with the authority and obligation to review the regulatory budget of the Exchange and specifically inquire into the adequacy of resources available in the budget for regulatory activities. Under the proposed amendment, the ROC would be charged with meeting regularly with the CRO in executive session and, in consultation with the Exchange's Chief Executive Officer, establishing the goals, assessing the performance, and recommending the CRO's compensation. Finally, under the proposed rule, the ROC would be responsible for keeping the Board informed with respect to the foregoing matters.
The Exchange proposes that the ROC would consist of at least three members, each of whom would be a director of the Exchange that satisfies the independence requirements of the Exchange.
Further, proposed Section 2.03(h)(ii) would provide that the Board may, on affirmative vote of a majority of directors, at any time remove any member of the ROC for cause. Proposed Section 2.03(h)(ii) would also provide that a failure of the member to qualify as independent under the independence policy would constitute a basis to remove a member of the ROC for cause. Similar authority is found in the bylaws governing the ROCs of other SROs.
The Exchange believes that the proposed rule change creating an independent Board committee to oversee the adequacy and effectiveness of the performance of its self-regulatory responsibilities is consistent with previously approved rule changes for other SROs and would enable the Exchange to undertake its regulatory responsibilities under a corporate governance structure that is consistent with its industry peers.
The Exchange also proposes to make the following conforming amendments to Rules 1, 46, 46A and 497:
• The Exchange proposes to amend Rule 1, which defines the “Exchange”, to replace a reference to the “Board of Directors of NYSER” with the “Exchange's Regulatory Oversight Committee”, which would be the successor to the regulatory responsibilities of the NYSE Regulation board of directors.
• The Exchange proposes to amend Rule 46(b), which governs the
• Similarly, the Exchange proposes to amend Rule 46A, which governs the appointment of Executive Floor Governors, to replace the “Board of Directors of NYSE Regulation” with the proposed ROC as the entity that the Board would consult with on those appointments.
• Finally, Rule 497 sets forth certain requirements that securities issued by Intercontinental Exchange, Inc., or its affiliates must meet before they can be listed on the Exchange. The Exchange proposes to replace “NYSE Regulation Board of Directors” in Rule 497(b) and (c)(1) with “Exchange's Regulatory Oversight Committee”. Following approval of this rule filing, the ROC would be the entity that would approve regulatory findings that the security to be listed satisfies Exchange listing rules under Rule 497(b) and that would receive the reports specified in Rule 497(c).
The Exchange proposes to terminate the Delegation Agreement and delete Rule 20, which sets forth the delegation to its subsidiaries NYSE Regulation and NYSE Market (DE) of the Exchange's regulatory and market functions, respectively.
The Delegation Agreement was executed in 2006 following the merger of New York Stock Exchange, Inc. (“NYSE, Inc.”), with Archipelago Holdings, Inc. As noted, as part of that transaction NYSE Regulation became a separate not-for-profit entity and the NYSE Regulation board of directors assumed the ROC's oversight functions and responsibilities.
The Exchange proposes to terminate the Delegation Agreement and re-integrate its regulatory and market functions. The proposed ROC would provide independent oversight of the regulatory function of the Exchange. As the Commission has noted, a complete structural separation of the regulatory and market functions of an SRO is only one of a “variety” of ways to ensure the independence of the regulatory process.
The Exchange proposes to functionally separate its regulatory function from its business lines. The Exchange's CRO would head the proposed regulatory department and continue to manage the Exchange's regulatory function, under the oversight of the proposed ROC. The regulatory staff supporting the NYSE's regulatory functions would continue to report to the CRO.
Similarly, following termination of the Delegation Agreement, NYSE Market (DE)'s delegated market responsibilities would once again be performed by the Exchange. In a corporate structure such as the one the Exchange is proposing, where there is not a complete structural separation of the Exchange's regulatory and market functions, a CRO reporting to an independent ROC adds a “significant degree of independence” that should “insulate” regulatory activity from economic pressures and potential conflicts of interest.
In light of the foregoing, the Exchange believes it appropriate to terminate the Delegation Agreement and delete Rule 20.
The Exchange proposes to make certain conforming amendments to its Rules to reflect the termination of Delegation Agreement and the re-integration of its regulatory operations. In particular, the Exchange proposes to make the following conforming amendments:
• The Exchange proposes to amend Section 4.05 of the Operating Agreement to remove references to “NYSE Regulation, Inc.” and replace one reference with “the Exchange's regulatory staff”. The Exchange also proposes to delete the references to NYSE Regulation “assets” to reflect the proposed reintegration of the regulatory function. The crux of the provision would continue to require the Exchange to ensure that any fees, fines or penalties collected by Exchange regulatory staff would not be used for commercial purposes or distributed to NYSE Group, Inc. (which is the “Member” for purposes of the Operating Agreement) or any other entity. The proposed revision does not in any way alter previous commitments with respect to the use of fine income;
• The Exchange proposes to amend Rule 0 (Definitions of Terms), which describes the regulatory services agreement between the NYSE and FINRA, to remove references to “NYSE Regulation, Inc., NYSE Regulation staff or departments”, retaining the existing reference in Rule 0 to Exchange staff, which reference would encompass the Exchange's regulatory staff;
• The Exchange proposes to amend Rule 1, which defines the term the “Exchange”, to replace references to “officer of NYSER” and “employee of NYSER” with “Exchange officer” and “Exchange employee”, respectively;
• The Exchange proposes to amend Rule 22 (Disqualification Because of Personal Interest), which disqualifies member [sic] of certain Exchange boards and committees from considering a matter if there are certain types of indebtedness between the board or committee member and a member organization's affiliate or other related parties, to remove references to “NYSE Market” and “NYSE Regulation” board of directors;
• The Exchange proposes to amend Supplementary Material .30 of Rule 36 (Communications Between Exchange and Members' Offices), which governs communications between the Exchange and member offices and requires records to “be maintained in a format prescribed NYSE Regulation” (sic) to remove the reference to “NYSE Regulation” and replace it with “the Exchange”. The Exchange also proposes to correct the typographical error and add the word “by” before “the Exchange”.
• The Exchange proposes to amend Rule 37 (Visitors), governing admittance of visitors to the Exchange trading Floor, to remove the reference to “an Officer of NYSE Market or NYSE Regulation”;
• The Exchange proposes to amend Rule 46 (Floor Officials—Appointment) to replace the reference to “employees of NYSE Regulation, Inc.” with a reference to the “Exchange's regulatory employees”;
• The Exchange proposes to amend Rule 48 (Exemptive Relief—Extreme Market Volatility Condition), which sets forth the procedures for invoking an extreme market volatility condition, to replace the reference to “officers of NYSE Market and NYSE Regulation” with “Exchange regulatory and market operational employees that are officers of the Exchange”;
• The Exchange proposes to amend Rule 49 (Emergency Powers), which addresses the Exchange's emergency powers, to replace “NYSE Regulation, Inc.” with “the Exchange” in the definition of “qualified Exchange officer”.
• The Exchange proposes to amend subpart (b) of Rule 54 (Dealings on Floor—Persons) to replace “NYSE Regulation, Inc. (“NYSER”)” with “the Exchange's regulatory staff”. Rule 54(b) permits approval of appropriately registered and supervised booth staff of member organizations who are not “members” to process orders sent to the booth in the same manner that a sales trader in an “upstairs office” is allowed to process orders.
• The Exchange proposes to amend subparts (1) & (7) of Supplementary Material .40 of Rule 70 (Execution of Floor Broker Interest), which provides that a member organization will be permitted to operate a booth premise similar to the member organization's “upstairs” office, to replace “the Exchange's regulatory staff” for “NYSE Regulation, Inc. (“NYSER”)”;
• The Exchange proposes to amend Rule 103 (Registration and Capital Requirements of Designated Market Makers (“DMM”) and DMM Units), which governs registration and capital requirements for DMMs, to replace “the Exchange” for NYSE Regulation”;
• The Exchange proposes to amend 103A (Member Education), which governs the continuing education requirement for members active on the Exchange trading Floor, to replace “NYSE Regulation, Inc. (“NYSER”)” and “NYSE Regulation, Inc.” with “the Exchange”;
• The Exchange proposes to amend 103B (Security Allocation and Reallocation), which governs the security allocation and reallocation process, to replace “staff of NYSE Regulation” with “Exchange regulatory” staff in Policy Note (G);
• The Exchange proposes to amend 104 (Dealings and Responsibilities of DMMs), which describes DMM functions and responsibilities, to replace “NYSE Regulation's Division of Market Surveillance” with “Exchange regulatory staff” in subdivision (k);
• The Exchange proposes to amend 422 (Loans of and to Directors, etc.), which prohibits unsecured loans between members of the board of directors or any committee of ICE, ICE Holdings, NYSE Holdings, the Exchange, NYSE Market (DE), and NYSE Regulation or an officer or employee the foregoing without the prior consent of the NYSE Board, to remove references to “NYSE Market” and “NYSE Regulation”;
• The Exchange proposes to amend 476A (Imposition of Fines for Minor Violation(s) of Rules), which sets forth the Exchange's Minor Rule Violation Plan, to replace the reference to “NYSE Regulation” with “Exchange regulatory staff” in subpart (d) identifying the parties that can contest a fine imposed under the Rule;
• The Exchange proposes to amend 497 (Additional Requirements for Listed Securities Issued by Intercontinental Exchange, Inc. or its Affiliates), which imposes certain pre-listing approvals and post-listing monitoring requirements on Affiliated Securities (as defined therein) listed on the Exchange, to remove the definition of NYSE Market in Rule 497(a)(4) and the definition of NYSE Regulation in Rule 497(a)(5) and replace references to each with “the Exchange's regulatory staff” or “regulatory staff”.
With the termination of the Delegation Agreement, NYSE Regulation and NYSE Market (DE) would no longer be performing the Exchange's regulatory and market functions, respectively. The Exchange believes that the previously filed constituent documents of NYSE Regulation and NYSE Market (DE) would therefore no longer constitute “rules of the exchange” under Section 3(a)(27) of the Exchange Act.
• Restated Certificate of Incorporation of NYSE Regulation, Inc.
• Seventh Amended and Restated Bylaws of NYSE Regulation, Inc.
• Third Amended and Restated Certificate of Incorporation of NYSE Market (DE), Inc.
• Fourth Amended and Restated Bylaws of NYSE Market (DE), Inc.
• Independence Policy of NYSE Market (DE), Inc.
• Independence Policy of NYSE Regulation, Inc.
Currently, Section 2.03(a)(iii) of the Operating Agreement provides that Non-Affiliated Director Candidates (also known as Fair Representation directors) are nominated by the nominating and governance committee of the ICE board of directors, which must designate as Non-Affiliated Director Candidates the candidates recommended jointly by the NYSE Market (DE) DCRC and NYSE Regulation DCRC. Section 2.03(a)(iv) describes the process whereby member organizations can nominate alternate candidates to those selected by the NYSE Market (DE) and NYSE Regulation DCRCs.
The Exchange proposes to establish a DCRC as a committee of the Board by adding a new section (h)(i) to Section 2.03 of the Operating Agreement and making conforming changes to Section 2.03(a)(iii) and Section 2.03(a)(iv) to substitute the new proposed DCRC for the NYSE Market (DE) DCRC and NYSE Regulation DCRC in the process for nominating Non-Affiliated Director Candidates. The Exchange believes that once the Delegation Agreement is terminated neither the NYSE Market (DE) DCRC nor the NYSE Regulation DCRC should have a role in process for nominating Non-Affiliated Director Candidates, as they will no longer be delegated regulatory and market responsibilities.
Proposed Section 2.03(h)(i) of the Operating Agreement would provide that the Board would appoint the NYSE DCRC on an annual basis and that the NYSE DCRC would be responsible for recommending Non-Affiliated Director Candidates to the ICE NGC.
• Engage in a business involving substantial direct contact with securities customers;
• are registered as a DMM and spend a substantial part of their time on the trading floor; and
• spend a majority of their time on the trading floor of the Exchange and have as a substantial part of their business the execution of transactions on the trading floor of the Exchange for other than their own account or the account of his or her Member Organization, but are not registered as a DMM.
The proposed DCRC would include at least one individual from each of these categories.
Proposed Section 2.03(h)(i) would also provide that the Board would appoint such individuals after appropriate consultation with representatives of member organizations.
Finally, references to the “NYSE Market DCRC” and “NYSE Regulation DCRC” in Section 2.03(a)(iii) and Section 2.03(a)(iv) would be replaced by “NYSE DCRC.”
The Exchange believes that the proposed rule change is consistent with the approach approved for its affiliate NYSE MKT, whose Operating Agreement providing for a DCRC was the model for the NYSE proposal.
The Exchange proposes to establish a Committee for Review (“CFR”) as a sub-committee of the ROC by adding a new section (h)(iii) to Section 2.03 of the Operating Agreement and making conforming changes to Rules 308, 475, 476, 476A, and 9310. The proposed CFR would be the successor to current CFR, which is a committee of the NYSE Regulation board of directors. Proposed Section 2.03(h)(iii) of the Operating Agreement would accordingly incorporate the salient requirements of the current CFR as set forth in Article III, Section 5 of the NYSE Regulation Bylaws.
Section 2.03(h)(iii) of the Operating Agreement would provide that the Board shall annually appoint a CFR as a sub-committee of the ROC. As is currently the case, proposed Section 2.03(h)(iii) would provide that the CFR would be comprised of both Exchange directors that satisfy the independence requirements
Further, proposed Section 2.03(h)(iii) would provide that among the persons on the CFR who are not directors would be included representatives of member organizations that engage in a business involving substantial direct contact with securities customers (upstairs firms), DMMS, and floor brokers. Once again, this is the way the current CFR is structured.
Like the current CFR, proposed Section 2.03(h)(iii) would provide that the CFR would be responsible for reviewing the disciplinary decisions on behalf of the Board and reviewing determinations to limit or prohibit the continued listing of an issuer's securities on the Exchange.
As noted above, the Exchange does not propose to retain a Market Performance Committee or a Regulatory Advisory Committee to act in an advisory capacity regarding trading rules and disciplinary matters and regulatory rules other than trading rules, respectively. Historically, these advisory committees have been composed of persons associated with member organizations and representatives of both those member organizations doing business on the Exchange's trading floor and those who do not do business on the Floor.
The Exchange notes that the same categories of members would be represented on the proposed CFR, whose mandate as set forth in proposed Section 2.03(h)(iii) would include acting in an advisory capacity to the Board with respect to disciplinary matters, the listing and delisting of securities, regulatory programs, rulemaking and regulatory rules, including trading rules. The proposed CFR would therefore serve in the same advisory capacity as the Market Performance and Regulatory Advisory Committees. The Exchange accordingly believes that retaining the Market Performance Committee or Regulatory Advisory Committee would be redundant and unnecessary. Moreover, the Exchange believes that member participation on the proposed CFR would be sufficient to provide for the fair representation of members in the administration of the affairs of the Exchange, including rulemaking and the disciplinary process, consistent with Section 6(b)(3) of the Exchange Act.
Finally, the Exchange proposes to make conforming amendments to Rules 308, 475, 476, 476A and 9310 to replace references to the current NYSE Regulation CFR with references to the “Committee for Review”.
The Exchange believes that the proposed rule change is consistent with the approach approved for the current CFR which, as noted, was the model for the current proposal.
The Exchange also proposes to amend Rule 48 (Exemptive Relief—Extreme Market Volatility Condition), Rule 49 (Emergency Powers) and Rule 86 (NYSE Bonds
Rule 48 currently provides that, for purposes of the rule,
“Chief Executive Officer” of NYSE Regulation is used in these four rules but CRO is used throughout the Exchange's rules to designate the same person.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act
The proposed change would create an independent board committee to oversee the adequacy and effectiveness of the performance of the Exchange's self-regulatory responsibilities. The proposed ROC, similar in composition and functions to the approved ROCs of other SROs, would be designed to oversee the Exchange's regulatory and self-regulatory organization responsibilities and evaluate the adequacy and effectiveness of the Exchange's regulatory and self-regulatory organization responsibilities; assess the Exchange's regulatory performance; and advise and make recommendations to the Board or other committees of the Board about the Exchange's regulatory compliance effectiveness and plans. Accordingly, the Exchange believes that the proposed rule change would contribute to the orderly operation of the Exchange and would enable the Exchange to be so organized as to have the capacity to carry out the purposes of the Exchange Act and comply and enforce compliance by its members and persons associated with its members, with the provisions of the Exchange Act. The Exchange therefore believes that approval of the amendments to the Operating Agreement is consistent with Section 6(b)(1).
The proposal to terminate the Delegation Agreement would allow the Exchange to re-integrate its regulatory and market functions with an independent ROC to undertake the oversight of the Exchange's regulatory responsibilities. The Exchange believes that this proposed structure would adequately ensure sufficient independence in the regulatory process and would have the additional benefit of aligning the Exchange's corporate governance practices with its industry peers. The Exchange therefore believes that termination of the Delegation Agreement and deletion of Rule 20, which sets forth the terms of the Exchange's delegation to its subsidiaries, is consistent with Section 6(b)(1). For the same reasons, the proposal to remove from the Exchange rules certain organizational documents of NYSE Regulation and NYSE Market (DE) in connection with the proposed termination of the Delegation Agreement is also consistent with Section 6(b)(1).
Further, the proposal to create a DCRC that would also be similar in composition and functions to the DCRC of the Exchange's affiliate NYSE MKT would bring the Exchange's process for nominating Non-Affiliated Director Candidates into greater conformity with the process of its affiliate and give the Exchange a more direct role in the appointments of Non-Affiliated Director Candidates. Accordingly, the Exchange believes the proposed creation of a DCRC is consistent with the fair representation requirement of Section 6(b)(3) of the Exchange Act,
Similarly, the proposal to establish a CFR as a sub-committee of the ROC, which, among other things, is charged with hearing appeals of disciplinary determinations, complies with the Exchange Act's requirement to provide for a fair procedure for the disciplining of member and persons associated with members. The proposed ROC [sic] would be composed of both Exchange directors that satisfy the independence requirements (
The Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act
Deletion of certain organizational documents of NYSE Regulation and NYSE Market (DE) from Exchange rules removes impediments to and perfects a national market system because it would reduce potential confusion that may result from having these documents remain Exchange rules following the proposed termination of the Delegation Agreement when NYSE Regulation and NYSE Market (DE) would no longer be performing the Exchange's regulatory and market functions, respectively.
Similarly, the Exchange believes that the proposed creation of a DCRC would carry forward the Exchange's current governance structure and continue to satisfy the fair representation requirements, thereby furthering the objectives of Section 6(b)(5) of the Exchange Act. The Exchange believes that the proposed rule change is therefore consistent with and facilitates a governance and regulatory structure that furthers the objectives of Section 6(b)(5) of the Exchange Act.
The Exchange also believes that having the CFR serve in the advisory capacity of the Market Performance Committee and Regulatory Advisory Committee is consistent with and facilitates a governance and regulatory structure that furthers the objectives of Section 6(b)(5) of the Exchange Act. The Exchange believes that member participation on the proposed CFR would be sufficient to provide for the fair representation of members in the administration of the affairs of the Exchange, including rulemaking and the disciplinary process, consistent with Section 6(b)(3) of the Exchange Act.
The Exchange believes that eliminating references to “Chief Executive Officer” of NYSE Regulation in Rules 48, 49 and 86 and replacing them with CRO, which is used throughout the Exchange's rules, removes impediments to and perfects a national market system because it would reduce potential confusion that may result from retaining different designations for the same individual in the Exchange's rulebook. Removing potentially confusing conflicting designations would also further the goal of transparency and add consistency to the Exchange's rules.
Finally, making conforming amendments to Rules 0, 1, 22, 36, 37, 46, 46A, 48, 49, 54, 70, 103, 103A, 103B, 104, 308, 422, 475, 476, 476A, 497 and 9310 in connection with creation of the proposed ROC and the CFR subcommittee and termination of the Delegation Agreement removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having obsolete references in the Exchange's rulebook. The Exchange further believes that the proposal removes impediments to and perfects the mechanism of a free and open market by ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Exchange's rulebook. The Exchange believes that eliminating obsolete references would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency, thereby reducing potential confusion. Removing such obsolete references will also further the goal of transparency and add clarity to the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with the administration and functioning of the Exchange's board of directors.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 13, 2014, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) advance notice SR-OCC-2014-810 (“Advance Notice”) pursuant to Section 806(e)(1) of the Payment, Clearing, and Settlement Supervision Act of 2010 (“Payment, Clearing and Settlement Supervision Act”)
As described in OCC's Notice,
OCC implements backtesting procedures to test its methodology for determining the amount of margin to collect from clearing members and validate the assumptions and mechanisms inherent in its methodology and to make any necessary changes to the methodology. Each trading day, OCC estimates the risk exposure of accounts and uses this estimate as a basis for each account's margin charge. On the following business day, OCC's current backtesting procedures compare an account's observed profit and loss (“P&L”) with the prior day's estimated risk using a variety of analytical and statistical tools. These daily tests measure the performance of OCC's risk measures for each account, and, therefore, also measure the performance of OCC's underlying margin methodology. OCC's backtesting program enables OCC to assess performance of its margining systems and determine whether financial risks are adequately or inadequately captured by the quantitative models in use.
OCC has conducted daily backtesting of margin accounts since 2006. OCC employs the “traffic light” test published by the Basel Committee on Banking Supervision in 1996 (the “Traffic Light Test”).
OCC analyzed its backtesting program and identified several enhancements to the program, as discussed in more detail below: (1) Enhancement of and increase in the number of statistical tests, (2) data set changes, (3) forecast horizon changes, and (4) root cause analysis changes.
As proposed in the Notice, OCC will enhance an existing statistical test and add three new statistical tests. OCC proposed to enhance its existing Traffic Light Test so that it may be applied to exceedances across all of OCC's margin accounts. Given that exceedances are not independent across margin accounts, OCC will enhance this test to address the dependency of exceedances between accounts.
In addition to the enhanced Traffic Light Test, OCC will implement three other industry standard tests related to exceedances in order to provide a more comprehensive set of tests. First, OCC will add the Kupiec Test,
Second, OCC will add the Christoffersen Independence Test,
In addition to the changes to its backtesting program, as described above, OCC also will make two enhancements to the data sets being backtested to allow for testing against various assumed portfolio and market data scenarios, in addition to the performance of actual portfolios against actual, current market conditions. First, OCC will backtest hypothetical portfolios, allowing for the design and monitoring of portfolios that have magnified sensitivities to particular aspects of the models used in the
Under the second data set enhancement, OCC will backtest current accounts against earlier observation periods. The market data observed over the observation period is used to generate the margin forecasts and P&L and observation periods will be chosen to reflect special market conditions. OCC believes this enhancement should be useful because even though margin coverage might be adequate in the current environment, margin coverage could be inadequate under stressed conditions, such as periods of high volatility. The ability to select specific observation periods will not limit the backtesting to the current environments but rather will highlight performance of margin coverage and model performance in market scenarios other than prevailing market conditions.
Currently, OCC conducts backtesting using a one-day time horizon, which means that it compares calculated margin with realized P&Lthat occur on the business day following the calculation. However, OCC's margin calculations assume that positions will be liquidated over a two-day period, resulting in the test comparing two-day margin numbers to a one-day P&L calculation. This difference requires OCC to make adjustments to its existing backtesting methodology in its testing to account for the difference between the two-day liquidation period used in its margin calculation and the one-day horizon used in the P&L calculation.
Pursuant to the proposal, OCC will revise its backtesting methodology to take into account losses over a two-day time horizon, which will match the two-day liquidation period used in the margin calculation without such adjustments. OCC will implement the necessary functionality into its backtesting system to conduct a two-day time horizon backtest, which will compare calculated margin against a two-day P&L calculation. OCC also will revise its backtesting methodology to compare one-day margin calculations against one-day P&L calculations, and will implement system functionality for such a test. All issues identified in any of these backtesting results will be reported to the ERMC. OCC believes that its adoption of the additional forecast horizons tests will allow it to have a more accurate view of the sufficiency of its margin methodology.
Currently, OCC's backtesting staff conducts investigations, as necessary, in order to identify the root cause of exceedances. The investigation itself is a manual process that is dependent upon the facts and circumstances pertaining to a given exceedance. Pursuant to its proposal, OCC will now make system modifications that will provide OCC's backtesting staff with additional tools to facilitate such investigations. Specifically, OCC will add system functionality that should reveal attribution of losses due to underlying price movements and implied volatility movements. Further, these improvements will allow OCC to incorporate hypothetical accounts and positions into the tests and will allow OCC to identify risk factors that move above or below the projected values. These changes should improve OCC's ability to conduct investigations and root cause analyses that identify the root cause of exceedances by providing OCC with additional automated investigative tools which should, in turn, lead to improving OCC's backtesting methodology and its margin coverage.
Although Title VIII does not specify a standard of review for an advance notice, the Commission believes that the stated purpose of Title VIII is instructive.
Section 805(a)(2) of the Payment, Clearing and Settlement Supervision Act
• Promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission has adopted risk management standards under Section 805(a)(2) of the Payment, Clearing and Settlement Supervision Act (“Clearing Agency Standards”).
The Commission believes that the proposal in this Advance Notice is designed to further the objectives and principles of Section 805(b) of the Payment, Clearing and Settlement Supervision Act.
In addition, the Commission believes that the proposal in this Advance Notice is consistent with Clearing Agency Standards, in particular, Rule 17Ad-22(b)(4) under the Exchange Act,
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Aspire Japan, Inc. (CIK No. 1317838) (“ASJP”
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Market & Research Corp. (n/k/a MRC Group Ltd. (CIK No.) 1009830) (“MTRE”), a void Delaware corporation with its principal place of business in Westport, Connecticut, with stock quoted on OTC Link, because it has not filed any periodic reports since the period ended June 30, 2010. On April 29, 2013, Corporation Finance sent a delinquency letter to MTRE requesting compliance with its periodic reporting obligations at the address shown in its then-most recent filing with the Commission, but MTRE did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of the EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of McIntosh Bancshares Inc. (CIK No. 872545) (“MITB”), a Georgia corporation with its principal place of business in Jackson, Georgia, with stock quoted on OTC Link, because it has not filed any periodic reports since the period ended September 30, 2010. On April 29, 2013, Corporation Finance sent a delinquency letter to MITB requesting compliance with its periodic reporting obligations at the address shown in its then-most recent filing with the Commission, but MITB did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of the EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Pure Minerals, Inc. (f/k/a Pure Pharmaceuticals Corp.) (CIK No. 1364326) (“PPMA”), a revoked Nevada corporation with its principal place of business in Montreal, Quebec, Canada, with stock quoted on OTC Link, because it has not filed any periodic reports since the period ended December 31, 2010. On June 25, 2013, Corporation Finance sent a delinquency letter to PPMA requesting compliance with its periodic reporting obligations at the address shown in its then-most recent filing with the Commission which was delivered.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Salamon Group, Inc. (CIK No. 1274211) (“SLMU”), a revoked Nevada corporation with its principal place of business in Kelowna, British Columbia, with stock quoted on OTC Link because it has not filed any periodic reports since the period ended June 30, 2012. On September 16, 2014, Corporation Finance sent a delinquency letter to SLMU requesting compliance with its periodic reporting obligations at the address shown in its then-most recent filing with the Commission, but SLMU did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of the EDGAR Filer Manual).
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that
By the Commission.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, July 2, 2015 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Aguilar, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Adjudicatory matters; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
On March 20, 2015, NASDAQ OMX PHLX LLC (“Phlx” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend and restate certain Phlx rules that govern PSX in order to provide additional detail and clarity regarding its order type functionality.
While the Exchange believes that its current rules and other public disclosures provide a comprehensive description of the operation of PSX and are sufficient for members and the investing public to have an accurate understanding of its market structure, it also acknowledges that a restatement of certain rules will further clarify the operation of its system.
Currently, Phlx Rule 3301 (Definitions) sets forth most of the rules governing Order Types and Order Attributes, as well as other defined terms that pertain to trading securities on PSX.
Phlx represents that, except where specifically stated otherwise, all proposed rules are restatements of existing rules and are not intended to reflect substantive changes to rule text or the operation of PSX.
In Amendment No. 1, the Exchange proposes to add language further explaining the operation of the following order types: Post-Only Orders, orders with a TIF of IOC, including Routable Orders and Post-Only Orders; Market Maker Peg Orders; orders with Midpoint Pegging, Primary Pegging or Market Pegging; and orders designated with both Pegging and Routing attributes.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission notes that the Exchange believes that the proposal is consistent with section 6(b)(5) of the Act because the reorganized and enhanced descriptions of its Order Types, Order Attributes, and related System functionality should promote just and equitable principles of trade and perfect the mechanisms of a free and open market and the national market system by providing greater clarity concerning certain aspects of the System's operations.
The Commission notes that, according to the Exchange, the proposal does not add any new functionality but instead re-organizes the Exchange's order type rules and provides additional detail regarding the order type functionality currently offered by the Exchange. Based on the Exchange's representation, the Commission believes that the proposed rule change does not raise any novel regulatory considerations and should provide greater specificity, clarity and transparency with respect to the order type functionality available on the Exchange. In addition, the Commission notes that the Exchange's proposed rule changes provide additional detail related to functionality for certain order types and the handling of orders during initial entry and after posting to the PSX Book. Accordingly, the Commission believes that this proposed rule change should provide greater transparency with respect to the Exchange's order type functionality. For these reasons, the Commission believes that the proposal should help to prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
The Commission finds good cause to approve the filing, as amended by Amendment No. 1 to the proposed rule change, prior to the thirtieth day after the date of publication of notice of filing thereof in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2015-029. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Accres Holding, Inc. (CIK No. 1158201) (“ACCE”
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of FirstBank Financial Services, Inc. (CIK No. 1316410) (“FBFS”), a non-compliant Georgia corporation with its principal place of business in McDonough, Georgia, with stock quoted on OTC Link, because it has not filed any periodic reports since the period ended June 30, 2008. On November 22, 2011, Corporation Finance sent a delinquency letter to FBFS requesting compliance with its periodic reporting obligations at the address shown in its then-most recent filing with the Commission, but FBFS did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of the EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of MicroSmart Devices, Inc. (CIK No. 1339225) (“MCMV”), a Nevada corporation with its principal place of business in Litchfield, Connecticut, with stock quoted on OTC Link, because it has not filed any periodic reports since the period ended September 30, 2012. On June 6, 2014, Corporation Finance sent a delinquency letter to MCMV requesting compliance with its periodic reporting obligations at the address shown in its then-most recent filing with the Commission, but MCMV did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of the EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Polymedix, Inc. (CIK No. 1341843) (“PYMXQ”), a void Delaware corporation with its principal place of business in Radnor, Pennsylvania, with stock quoted on OTC Link, because it has not filed any periodic reports since the period ended September 30, 2012. On May 7, 2015, Corporation Finance sent a delinquency letter to PYMXQ requesting compliance with its periodic reporting obligations at the address shown in its then-most recent filing with the Commission, but PYMXQ did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of the EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of RegenoCELL Therapeutics, Inc. (CIK No. 1221749) (“RCLL”), a Florida corporation with its principal place of business in Natick, Massachusetts, with stock quoted on OTC Link because it has not filed any periodic reports since the period ended December 31, 2011. On September 16, 2014, Corporation Finance sent a delinquency letter to RCLL requesting compliance with its periodic reporting obligations at the address shown in its then-most recent filing with the Commission, but RCLL did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of the EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of The
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on June 26, 2015, through 11:59 p.m. EDT on July 10, 2015.
By the Commission.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from rule 12d1-2(a) under the Act.
Applicants request an order to permit open-end management investment companies relying on rule 12d1-2 under the Act to invest in certain financial instruments.
Context Capital Funds (the “Trust”), Context Capital Advisers, LLC (“Context Capital”) and Context Advisers II, L.P. (“Context II”).
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on July 20, 2015 and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants: Context Capital Funds, Three Canal Plaza, Suite 600, Portland, Maine 04101; Context Capital Advisers, LLC and Context Advisers II, L.P., 401 City Avenue, Suite 815, Bala Cynwyd, PA 19004.
Vanessa M. Meeks, Senior Counsel, or Melissa R. Harke, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust is organized under Delaware law as a statutory trust and is registered under the Act as an open-end management investment company. The Trust is a series trust which currently consists of two series. Context Capital is a limited liability corporation organized under the laws of Delaware and is registered as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”). Context Capital currently serves as the investment adviser to the Context Alternative Strategies Fund, a series of the Trust. Context II is a limited partnership organized under the laws of Delaware and is registered as an investment adviser under the Advisers Act. Context II currently serves as the investment adviser to the Context Macro Opportunities Fund.
2. Applicants request an exemption to the extent necessary to permit any existing or future series of the Trust and any other registered open-end management investment company or series thereof that: (a) is advised by Context Capital, Context II or any investment adviser controlling, controlled by, or under common control with Context Capital or Context II (any such adviser, Context Capital or Context II, an “Adviser” and collectively, the “Advisers”);
3. Consistent with each Adviser's respective fiduciary obligations under the Act, each Fund of Funds' board of trustees will review the advisory fees charged by the applicable Fund of Funds' Adviser to ensure that they are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to the advisory agreement of any investment company in which the Fund of Funds may invest.
1. Section 12(d)(1)(A) of the Act provides that no registered investment company (“acquiring company”) may acquire securities of another investment company (“acquired company”) if such securities represent more than 3% of the acquired company's outstanding voting stock or more than 5% of the acquiring company's total assets, or if such securities, together with the securities of other investment companies, represent more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) of the Act provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or cause more than 10% of the acquired company's voting stock to be owned by investment
2. Section 12(d)(1)(G) of the Act provides, in part, that section 12(d)(1) will not apply to securities of an acquired company purchased by an acquiring company if: (i) The acquired company and acquiring company are part of the same group of investment companies; (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, Government securities, and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the Securities Exchange Act of 1934 or by the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end investment companies or registered unit investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
3. Rule 12d1-2 under the Act permits a registered open-end investment company or a registered unit investment trust that relies on section 12(d)(1)(G) of the Act to acquire, in addition to securities issued by another registered investment company in the same group of investment companies, Government securities, and short-term paper: (i) Securities issued by an investment company that is not in the same group of investment companies, when the acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (ii) securities (other than securities issued by an investment company); and (iii) securities issued by a money market fund, when the investment is in reliance on rule 12d1-1 under the Act. For the purposes of rule 12d1-2, “securities” means any security as defined in section 2(a)(36) of the Act.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction from any provision of the Act, or from any rule under the Act, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act. Applicants submit that their request for relief meets this standard.
5. Applicants request an order under section 6(c) of the Act for an exemption from rule 12d1-2(a) to allow the Funds of Funds to invest in Other Investments while investing in Underlying Funds. Applicants state that the Funds of Funds will comply with rule 12d1-2 under the Act, but for the fact that the Funds of Funds may invest a portion of their assets in Other Investments. Applicants assert that permitting the Funds of Funds to invest in Other Investments as described in the application would not raise any of the concerns that the requirements of section 12(d)(1) were designed to address.
Applicants agree that any order granting the requested relief will be subject to the following condition:
Applicants will comply with all provisions of rule 12d1-2 under the Act, except for paragraph (a)(2) to the extent that it restricts any Fund of Funds from investing in Other Investments as described in the application.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Commentary .02 to Exchange Rule 6.72 in order to extend the Penny Pilot in options classes in certain issues (“Pilot Program”) previously approved by the Securities and Exchange Commission (“Commission”) through June 30, 2016. The Pilot Program is currently scheduled to expire on June 30, 2015. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange hereby proposes to amend Commentary .02 to Exchange Rule 6.72 to extend the time period of the Pilot Program,
This filing does not propose any substantive changes to the Pilot Program: all classes currently participating will remain the same and all minimum increments will remain
The proposed rule change is consistent with Section 6(b)
In particular, the proposed rule change, which extends the Penny Pilot Program for one year, allows the Exchange to continue to participate in a program that has been viewed as beneficial to traders, investors and public customers and viewed as successful by the other options exchanges participating in it. Accordingly, the Exchange believes that the proposal is consistent with the Act because it will allow the Exchange to extend the Pilot Program prior to its expiration on June 30, 2015. The Exchange notes that this proposal does not propose any new policies or provisions that are unique or unproven, but instead relates to the continuation of an existing program that operates on a pilot basis.
The Exchange believes that the Pilot Program promotes just and equitable principles of trade by enabling public customers and other market participants to express their true prices to buy and sell options to the benefit of all market participants.
The proposal to extend the Pilot Program is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanisms of a free and open market and a national market system, by allowing the Exchange and the Commission additional time to analyze the impact of the Pilot Program while also allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot Program.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that, by extending the expiration of the Pilot Program, the proposed rule change will allow for further analysis of the Pilot Program and a determination of how the Program should be structured in the future. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Pilot Program is an industry wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot Program will allow for continued competition between Exchange market participants trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot Program.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing with the Commission a proposal to amend Phlx Rule 1034 (Minimum Increments) to extend through June 30, 2016 or the date of permanent approval, if earlier, the Penny Pilot Program in options classes in certain issues (“Penny Pilot” or “Pilot”), and to change the date when delisted classes may be replaced in the Penny Pilot.
The text of the amended Exchange rule is set forth immediately below.
Proposed new language is
(a) Except as provided in sub-paragraphs (i)(B) and (iii) below, all options on stocks, index options, and Exchange Traded Fund Shares quoting in decimals at $3.00 or higher shall have a minimum increment of $.10, and all options on stocks and index options quoting in decimals under $3.00 shall have a minimum increment of $.05.
(i)(A) No Change.
(B) For a pilot period scheduled to expire June 30, [2015]
The Exchange may replace any pilot issues that have been delisted with the next most actively traded multiply listed options classes that are not yet included in the pilot, based on trading activity in the previous six months. The replacement issues may be added to the pilot on the second trading day following
(C) No Change.
(ii)-(v) No Change.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to amend Phlx Rule 1034 to extend the Penny Pilot through June 30, 2016 or the date of permanent approval, if earlier, and to change the date when delisted classes may be replaced in the Penny Pilot. The Exchange believes that extending the Penny Pilot will allow for further analysis of the Penny Pilot and a determination of how the program should be structured in the future.
Under the Penny Pilot, the minimum price variation for all participating options classes, except for the Nasdaq-100 Index Tracking Stock (“QQQQ”), the SPDR S&P 500 Exchange Traded Fund (“SPY”) and the iShares Russell 2000 Index Fund (“IWM”), is $0.01 for all quotations in options series that are quoted at less than $3 per contract and $0.05 for all quotations in options series that are quoted at $3 per contract or greater. QQQQ, SPY and IWM are quoted in $0.01 increments for all options series. The Penny Pilot is currently scheduled to expire on June 30, 2015.
The Exchange proposes to extend the time period of the Penny Pilot through June 30, 2016 or the date of permanent approval, if earlier, and to provide a revised date for adding replacement issues to the Penny Pilot. The Exchange proposes that any Penny Pilot Program issues that have been delisted may be replaced on the second trading day following July 1, 2015 and January 1, 2016. The replacement issues will be selected based on trading activity in the previous six months.
This filing does not propose any substantive changes to the Penny Pilot Program; all classes currently participating in the Penny Pilot will remain the same and all minimum increments will remain unchanged. The Exchange believes the benefits to public customers and other market participants who will be able to express their true prices to buy and sell options have been demonstrated to outweigh the potential increase in quote traffic.
The Exchange believes that its proposal is consistent with section 6(b) of the Act,
In particular, the proposed rule change, which extends the Penny Pilot for an additional twelve months through June 30, 2016 or the date of permanent approval, if earlier, and changes the date for replacing Penny Pilot issues that were delisted to the second trading day following July 1, 2015 and January 1, 2016, will enable public customers and other market participants to express their true prices to buy and sell options for the benefit of all market participants. This is consistent with the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, this proposal is pro-competitive because it allows Penny Pilot issues to continue trading on the Exchange. Moreover, the Exchange believes that the proposed rule change will allow for further analysis of the Pilot and a determination of how the Pilot should be structured in the future; and will serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Pilot is an industry-wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot will allow for continued competition between market participants on the Exchange trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot.
No written comments were either solicited or received.
The Exchange has filed the proposed rule change pursuant to section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Penny Pilot Program (the “Pilot Program”) is scheduled to expire on June 30, 2015. C2 proposes to extend the Pilot Program until June 30, 2016. C2 believes that extending the Pilot Program will allow for further analysis of the Pilot Program and a determination of how the Pilot Program should be structured in the future.
During this extension of the Pilot Program, C2 proposes that it may replace any option class that is currently included in the Pilot Program and that has been delisted with the next most actively traded, multiply listed option class that is not yet participating in the Pilot Program (“replacement class”). Any replacement class would be determined based on national average daily volume in the preceding six months,
C2 is specifically authorized to act jointly with the other options exchanges participating in the Pilot Program in identifying any replacement class.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the
C2 does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that, by extending the expiration of the Pilot Program, the proposed rule change will allow for further analysis of the Pilot Program and a determination of how the Program shall be structured in the future. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. In addition, the Exchange has been authorized to act jointly in extending the Pilot Program and believes the other exchanges will be filing similar extensions.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Penny Pilot Program (the “Pilot Program”) is scheduled to expire on June 30, 2015. CBOE proposes to extend the Pilot Program until June 30, 2016. CBOE believes that extending the Pilot Program will allow for further analysis of the Pilot Program and a determination of how the Pilot Program should be structured in the future.
During this extension of the Pilot Program, CBOE proposes that it may replace any option class that is currently included in the Pilot Program and that has been delisted with the next most actively traded, multiply listed option class that is not yet participating in the Pilot Program (“replacement class”). Any replacement class would be determined based on national average daily volume in the preceding six months,
CBOE is specifically authorized to act jointly with the other options exchanges participating in the Pilot Program in identifying any replacement class.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that, by extending the expiration of the Pilot Program, the proposed rule change will allow for further analysis of the Pilot Program and a determination of how the Program shall be structured in the future. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. In addition, the Exchange has been authorized to act jointly in extending the Pilot Program and believes the other exchanges will be filing similar extensions.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The Exchange proposes to amend Commentary .02 to NYSE Amex Options Rule 960NY in order to extend the Penny Pilot in options classes in certain issues (“Pilot Program”) previously
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange hereby proposes to amend Commentary .02 to Exchange Rule 960NY to extend the time period of the Pilot Program,
This filing does not propose any substantive changes to the Pilot Program: all classes currently participating will remain the same and all minimum increments will remain unchanged. The Exchange believes the benefits to public customers and other market participants who will be able to express their true prices to buy and sell options have been demonstrated to outweigh the increase in quote traffic.
The proposed rule change is consistent with section 6(b)
In particular, the proposed rule change, which extends the Penny Pilot Program for one year, allows the Exchange to continue to participate in a program that has been viewed as beneficial to traders, investors and public customers and viewed as successful by the other options exchanges participating in it. Accordingly, the Exchange believes that the proposal is consistent with the Act because it will allow the Exchange to extend the Pilot Program prior to its expiration on June 30, 2015. The Exchange notes that this proposal does not propose any new policies or provisions that are unique or unproven, but instead relates to the continuation of an existing program that operates on a pilot basis.
The Exchange believes that the Pilot Program promotes just and equitable principles of trade by enabling public customers and other market participants to express their true prices to buy and sell options to the benefit of all market participants.
The proposal to extend the Pilot Program is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanisms of a free and open market and a national market system, by allowing the Exchange and the Commission additional time to analyze the impact of the Pilot Program while also allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot Program.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that, by extending the expiration of the Pilot Program, the proposed rule change will allow for further analysis of the Pilot Program and a determination of how the Program should be structured in the future. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Pilot Program is an industry-wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot Program will allow for continued competition between NYSE Amex Options market participants trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot Program.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Arca Equities Rule 7.25 (“Rule 7.25”) and NYSE Arca Equities Rule 8.800 (“Rule 8.800) in order to (1) allow an issuer to elect for its Exchange Traded Product (“ETP”) listed on the Exchange to participate in the Crowd Participant (“CP”) program (the “CP Program”) or the ETP Incentive Program (the “ETP Incentive Program”), respectively, at the time of listing or thereafter at the beginning of each month, rather than just at the beginning of each quarter; and (2) extend the effectiveness of the CP Program for an additional one-year pilot period, ending June 23, 2016. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend NYSE Arca Equities Rules 7.25 and 8.800 in order to (1) allow an issuer to elect for its ETP
Both the CP Program and the ETP Incentive Program are pilot programs that were designed to incentivize quoting and trading in ETPs and to add competition among existing qualified Market Makers.
Currently, an issuer can elect for an ETP to participate in either the CP Program or the ETP Incentive Program either at the time of listing or thereafter at the beginning of each quarter.
The Exchange also proposes to extend the current operation of the CP Program for an additional year to allow the Commission, the Exchange, LMMs, and issuers to further assess the impact of each program before making it available to other securities and implementing the programs on a permanent basis.
This filing is not otherwise intended to address any other issues and the Exchange is not aware of any problems that Equity Trading Permit Holders or issuers would have in complying with the monthly selection provisions or the proposed extension of the CP Program.
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that increasing the flexibility for issuers with regards to when they can enter an incentive program has the potential to expand the pool of ETP liquidity providers, encourage competitive trading and enhance the quality of the markets in ETPs by tightening quote spreads, increasing depth of liquidity and reducing execution costs for investors. As stated in the CP Program Release,
The Exchange further believes that the ETP Incentive Program is designed to enhance the market quality for ETPs by incentivizing Market Makers to take LMM assignments in certain lower volume ETPs by offering an alternative fee structure for such LMMs that would be funded from the Exchange's general revenues. The ETP Incentive Program is designed to improve the quality of market for lower-volume ETPs, thereby incentivizing them to list on the Exchange. Moreover, as described in the ETP Incentive Program Release, the Exchange believes that the ETP Incentive Program, which is entirely voluntary, encourages competition among markets for issuers' listings and among Market Makers for LMM assignments. Increasing the frequency by which issuers can enter listed ETPs into the ETP Incentive Program would allow ETPs to reap the benefits of the ETP Incentive Program on a more timely basis. The Exchange believes that the proposed amendments to Rules 7.25 and 8.800 to provide that ETPs listed on the Exchange can be added to the CP Program or ETP Incentive Program, respectively, on a monthly basis, by providing more frequent opportunities for issuers to add ETPs to the respective programs, would facilitate enhancements to liquidity and market quality as described in the CP Program Release and the ETP Incentive Program Release.
The Exchange believes that, by providing additional time for issuers to participate in the CP Program, through an extension of the pilot period until June 23, 2016, the CP Program would continue to provide an opportunity for rewarding competitive liquidity-providing Market Makers, with associated requirements for quoting by CPs at the National Best Bid or National Best Offer. The CP Program, therefore, has the potential to enhance competition among liquidity providers and thereby improve execution quality on the Exchange. An extension of such pilot period will permit additional time for the Commission, the Exchange, LMMs, and issuers to assess the impact of the CP Program before making it available to other securities. The Exchange will continue to monitor the efficacy of the CP Program during the extended pilot period.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues, but rather increase the frequency with which issuers of listed ETPs can elect to join either the existing CP Program or ETP Incentive Program and there are no other substantive changes being proposed to the respective programs. Rather, the Exchange believes that permitting issuers to utilize each program on a monthly rather than a quarterly basis, and extending the operation of the CP Program, will enhance competition among liquidity providers and thereby improve execution quality on the Exchange.
The proposed extension to the pilot period for the CP Program is not designed to address any competitive issues but rather to provide additional time for the Commission, the Exchange, LMMs and issuers to assess the impact of the CP Program.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The Exchange proposes to amend Rule 1.1 governing Definitions and various equity trading rules in order to eliminate obsolete references. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 1.1 governing Definitions and various equity trading rules in order to eliminate obsolete references. These proposed rule changes represent current functionality and would not propose any substantive changes to functionality. The Exchange has separately filed proposed rule changes to support the implementation of Pillar, which is an integrated trading technology platform designed to use a single specification for connecting to the equities and options markets operated by NYSE Arca and its affiliates, New York Stock Exchange LLC (“NYSE”) and NYSE MKT LLC (“NYSE MKT”).
In anticipation of the implementation of Pillar, the Exchange has reviewed its rules governing equity trading and has identified a number of rules that could be streamlined both for the current trading platform and for Pillar.
Because these proposed changes are applicable to the current trading platform, the Exchange would implement these changes as soon as this rule filing is effective.
Rule 1.1 sets forth definitions in Exchange rules. The Exchange proposes to amend Rule 1.1 to revise definitions to eliminate obsolete references, make clarifying changes to existing definitions, add new short-hand terms for existing definitions, and propose non-substantive changes to replace the terms “shall refer to” or “shall mean” with the term “means.” The Exchange is not proposing any substantive changes to these rules.
The proposed amendments to Rule 1.1 would be:
• Amend the definition of “BBO” set forth in Rule 1.1(h) to add that the term “BB” would mean the best bid on the NYSE Arca Marketplace and the term “BO” would mean the best offer on the NYSE Arca Marketplace. The Exchange proposes to add these short-hand terms to the definition of BBO because the Exchange would be using these terms in its proposed Pillar rules. These are not novel terms and therefore the Exchange proposes to adopt these terms before the implementation of Pillar.
• Delete the definition of “Limited Price Order” in Rule 1.1(t) as obsolete and replace it with “reserved.” In the 2015 Order Type Filing, the Exchange eliminated use of the term “Limited Price Order” in Rules 7.36 and 7.37.
• Amend the definition of “Marketable” in Rule 1.1(u) to mean for a Limit Order, an order that can be immediately executed or routed. The Exchange believes that this proposed definition better describes the term “marketable,” which is currently defined for Limited Price Orders as when the price matches or crosses the NBBO on the other side of the market. The proposed definition reflects more accurately circumstances of when an order would be marketable, which for a Limit Order, includes if the limit price is equal to or better than the contra-side PBBO or for Inside Limit Orders, includes if the limit price is equal to or better than the contra-side NBBO. The proposed new definition would also include in the definition of marketable if an order would be required to route, because it is priced through the PBBO or NBBO, or if it would be eligible to trade with non-displayed interest that is priced better than the PBBO or NBBO that may be on the NYSE Arca Book. The Exchange also proposes a non-substantive difference to capitalize the term “Market Order.”
• Delete the definition of “NASD” in Rule 1.1(y) as obsolete and replace it with “reserved.”
• Amend the definition of “Nasdaq” in Rule 1.1(z) to update the name of Nasdaq to its current official name, which is “The Nasdaq Stock Market LLC,” instead of “The Nasdaq Stock Market, Inc.”
• Delete the definitions of “Nasdaq Security,” “Nasdaq System,” and “Nasdaq System BBO” in Rules 1.1(aa), 1.1(bb) and 1.1(cc) and replace them with “reserved.” The Exchange no longer uses these terms in its rules and therefore proposes to delete the definitions as obsolete for purposes of Exchange rules.
• Amend the definition of “NBBO, Best Protected Bid, Best Protected Offer, Protected Best Bid and Offer (PBBO)” in Rule 1.1(dd) to add new short-hand defined terms. As proposed, the term “NBB” would mean the national best bid and the term “NBO” would mean the national best offer. The Exchange also proposes to add the short-hand terms of “PBB” to correlate to “Best Protected Bid” and “PBO” to correlate to “Best Protected Offer.” The Exchange proposes to add these terms, which are not novel, because the Exchange would be proposing to use them in its proposed Pillar rules.
The Exchange proposes to amend Rules 7.5 (Trading Units), 7.6 (Trading Differentials), 7.8 (Bid or Offered Deemed Regular Way), 7.12 (Trading Halts due to Extraordinary Market Volatility), and 7.32 (Order Entry) to eliminate obsolete references and streamline the rule text. The Exchange is not proposing any substantive changes to these rules.
The unit of trading in stocks shall be 1 share and the unit of trading in bonds shall be $1,000 in par value thereof unless otherwise designated by the Corporation. For stocks, 100 shares shall constitute a “round lot,” any amount less than 100 shares shall constitute an “odd lot,” and any amount greater than 100 shares that is not a multiple of a round lot shall constitute a “mixed lot.” For bonds, a designated unit of trading shall constitute a “round lot” and any lesser amount shall constitute an “odd lot.”
The Exchange proposes non-substantive amendments to Rule 7.5 to streamline the rule text and eliminate obsolete references to bonds, which do not trade on the Exchange. As proposed, the amended rule would provide:
The Exchange believes that the proposed rule text streamlines the rule and provides greater transparency of what is considered a round lot or an odd lot. In addition, to reflect that a primary listing market may have securities with a trading unit fewer than 100 shares,
The Exchange believes the proposed changes would provide transparency regarding trading units on the Exchange and reduce confusion regarding the types of securities available to trade on the Exchange. Specifically, because the Exchange does not trade bonds, the proposed amendment to delete the reference to bonds represents current functionality.
(a) The Corporation shall determine the trading differentials for equity securities traded on the Corporation.
Commentary:
.01 The Corporation may only change the trading differentials for equity securities traded on the Corporation by filing a rule change proposal with the SEC, pursuant to section 19(b)(3)(A) of the Securities Exchange Act of 1934 (effective upon filing); provided that no change in the trading differentials may be made while the industry wide Decimalization Implementation Plan is in effect.
.02 Notwithstanding Commentary .01, the Corporation may allow trading at smaller increments in order to match bids and offers displayed by other markets for the purpose of preventing Intermarket Trading System trade-throughs.
.03 The minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001, provided, however, that the Corporation shall round the bid down to the next whole penny or the offer up to the next whole penny and display the rounded bid or offer in the consolidated quotation system.
(b)
The Exchange proposes non-substantive amendments to Rule 7.6 to eliminate obsolete references to the Decimalization Implementation Plan, Intermarket Trading System (“ITS”), and bonds, and instead have the rule simply provide what are the Exchange's trading differentials for equity securities.
Because Commentaries .01 and .02 refer to how trading differentials could be set before the industry-wide Decimalization Implementation Plan was in effect and to comply with the now-obsolete ITS requirements, respectively, the Exchange proposes to delete those two commentaries as obsolete text. The Exchange also proposes to delete the text that currently follows paragraph (a) of the Rule because the Exchange does not determine the trading differentials; these are now industry-wide standards. The Exchange also proposes to delete paragraph (b) of the rule, which relates to the MPV for bonds, because the Exchange does not trade bonds.
The Exchange proposes that current Commentary .03 would become the sole rule text, without any subparagraph number. The Exchange would amend the text currently set forth in Commentary .03 to delete the term “equity” as unnecessary, conform the rule text to use the clause “quoting and entry of orders” for securities priced less than $1.00, and delete the last clause in the commentary regarding rounding as an obsolete requirement.
Accordingly, as proposed, amended Rule 7.6 would provide that the MPV for quoting and entry of orders in securities traded on the NYSE Arca Marketplace would be $0.01, with the exception of securities that are priced less than $1.00, for which the MPV for quoting and entry of orders would be $0.0001. The Exchange believes that the proposed streamlined rule would promote transparency in Exchange rules to identify the MPVs applicable to securities trading on the Exchange.
The Exchange proposes non-substantive amendments to Rule 7.8 to eliminate obsolete rule text. Because the Exchange currently only accepts bids and offers made regular way, and does not accept any bids or offers with stated conditions, the Exchange proposes non-substantive amendments to delete text relating to stated conditions or that “regular way” bids or offers have priority over conditional bids or offers. Accordingly, as proposed, amended Rule 7.8 would provide that Bids and offers would be considered “regular way.” The Exchange believes the proposed rule change would reduce confusion by eliminating references to functionality that is not available on the Exchange.
The Exchange proposes to delete the first sentence of the current rule because in order to enter orders at the Exchange, an ETP Holder must have entered into a routing agreement, which is part of the ETP Holder's agreement to become a member of the Exchange. Because there is no possibility of being able to enter any orders at the Exchange without being approved as an ETP Holder and once approved as an ETP Holder, there is no limitation on the types of orders or modifiers that may be entered by that ETP Holder, the Exchange believes that the first sentence of the current rule text is no longer necessary and represents obsolete requirements. The Exchange also believes the proposed rule change would reduce confusion because it would streamline the rule to focus on
With respect to the second sentence of the current rule, the Exchange proposes a non-substantive amendment to change the term “shall” to “will.” As amended, Rule 7.32 would therefore provide that Orders entered that are greater than five million shares in size would be rejected and upon at least 24 hours advance notice to market participants, the Exchange may decrease the maximum order size on a security-by-security basis.
The proposed rule change is consistent with section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed rule changes would remove impediments to and perfect the mechanism of a free and open market because they would not make any substantive changes to Exchange rules, but rather are designed to reduce confusion by eliminating obsolete references and terms and therefore streamline the Exchange's rules. The Exchange further believes that the proposed changes would remove impediments to and perfect a free and open market because the proposed changes would simplify the structure of the Exchange's rules and permit the use of consistent terminology throughout numerous rules, without changing the underlying functionality. The Exchange therefore believes that the proposed rule amendments would promote transparency in Exchange rules by using consistent terminology governing equities trading, thereby ensuring that members, regulators, and the public can more easily navigate the Exchange's rulebook and better understand how equity trading is conducted on the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is not designed to address any competitive issue but rather to make non-substantive changes to streamline the Exchange's rules in order to promote transparency and reduce potential confusion, thereby making the Exchange's rules easier to navigate.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is filing with the Commission a proposal to amend chapter VI, section 5 (Minimum Increments) of the rules of the NASDAQ Options Market (“NOM”) to extend through June 30, 2016 or the date of permanent approval, if earlier, the Penny Pilot Program in options classes in certain issues (“Penny Pilot” or “Pilot”), and to change the date when delisted classes may be replaced in the Penny Pilot.
The text of the amended Exchange rule is set forth immediately below.
Proposed new language is
(a) The Board may establish minimum quoting increments for options contracts traded on NOM. Such minimum increments established by the Board will be designated as a stated policy, practice, or interpretation with respect to the administration of this Section within the meaning of Section 19 of the Exchange Act and will be filed with the SEC as a rule change for effectiveness upon filing. Until such time as the Board makes a change in the increments, the following principles shall apply:
(1)—(2) No Change.
(3) For a pilot period scheduled to expire on June 30, [2015]
The Exchange may replace any pilot issues that have been delisted with the next most actively traded multiply listed options classes that are not yet included in the pilot, based on trading activity in the previous six months. The replacement issues may be added to the pilot on the second trading day following
(4) No Change.
(b) No Change.
The text of the proposed rule change is available from NASDAQ's Web site at
In its filing with the Commission, NASDAQ included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASDAQ has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to amend chapter VI, section 5 to extend the Penny Pilot through June 30, 2016 or the date of permanent approval, if earlier, and to change the date when delisted classes may be replaced in the Penny Pilot. The Exchange believes that extending the Penny Pilot will allow for further analysis of the Penny Pilot and a determination of how the program should be structured in the future.
Under the Penny Pilot, the minimum price variation for all participating options classes, except for the Nasdaq-100 Index Tracking Stock (“QQQQ”), the SPDR S&P 500 Exchange Traded Fund (“SPY”) and the iShares Russell 2000 Index Fund (“IWM”), is $0.01 for all quotations in options series that are quoted at less than $3 per contract and $0.05 for all quotations in options series that are quoted at $3 per contract or greater. QQQQ, SPY and IWM are quoted in $0.01 increments for all options series. The Penny Pilot is currently scheduled to expire on June 30, 2015.
The Exchange proposes to extend the time period of the Penny Pilot through June 30, 2016 or the date of permanent approval, if earlier, and to provide a revised date for adding replacement issues to the Penny Pilot. The Exchange proposes that any Penny Pilot Program issues that have been delisted may be replaced on the second trading day following July 1, 2015 and January 1, 2016. The replacement issues will be selected based on trading activity in the previous six months.
This filing does not propose any substantive changes to the Penny Pilot Program; all classes currently participating in the Penny Pilot will remain the same and all minimum increments will remain unchanged. The Exchange believes the benefits to public customers and other market participants who will be able to express their true prices to buy and sell options have been
The Exchange believes that its proposal is consistent with section 6(b) of the Act,
In particular, the proposed rule change, which extends the Penny Pilot for an additional twelve months through June 30, 2016 or the date of permanent approval, if earlier, and changes the date for replacing Penny Pilot issues that were delisted to the second trading day following July 1, 2015 and January 1, 2016, will enable public customers and other market participants to express their true prices to buy and sell options for the benefit of all market participants. This is consistent with the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, this proposal is pro-competitive because it allows Penny Pilot issues to continue trading on the Exchange. Moreover, the Exchange believes that the proposed rule change will allow for further analysis of the Pilot and a determination of how the Pilot should be structured in the future; and will serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Pilot is an industry-wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot will allow for continued competition between market participants on the Exchange trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission (“Commission”) that there is a lack of current and accurate information concerning the securities of Vantone International Group, Inc. (“VNTI
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EDT on June 26, 2015, through 11:59 p.m. EDT on July 10, 2015.
By the Commission.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend Rule 510, Interpretations and Policies .01 to extend the pilot program for the quoting and trading of certain options in pennies (the “Penny Pilot Program”).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is a participant in an industry-wide pilot program that provides for the quoting and trading of certain option classes in penny increments (the “Penny Pilot Program” or “Program”). Specifically, the Penny Pilot Program allows the quoting and trading of certain option classes in minimum increments of $0.01 for all series in such option classes with a price of less than $3.00; and in minimum increments of $0.05 for all series in such option classes with a price of $3.00 or higher. Options overlying the PowerShares QQQ Trust (“QQQQ”)®, SPDR S&P 500 Exchange Traded Funds (“SPY”), and iShares Russell 2000 Index Funds (“IWM”), however, are quoted and traded in minimum increments of $0.01 for all series regardless of the price. The Penny Pilot Program was initiated at the then existing option exchanges in January 2007 and currently includes more than 300 of the most active option classes. The Penny Pilot Program is currently scheduled to expire on June 30, 2015. The purpose of the proposed rule change is to extend the Penny Pilot Program in its current format through June 30, 2016.
In addition to the extension of the Penny Pilot Program through June 30, 2016, the Exchange will replace any Penny Pilot issues that have been delisted with the next most actively traded multiply listed option classes that are not yet included in the Penny Pilot Program. The replacement issues will be selected based on trading activity in the previous six months and will be added to the Penny Pilot Program on the second trading day following July 1, 2015 and January 1, 2016. Please note, the month immediately preceding a replacement
MIAX believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that, by extending the expiration of the Pilot Program, the proposed rule change will allow for further analysis of the Penny Pilot Program and a determination of how the Program should be structured in the future. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. In addition, consistent with previous practices, the Exchange believes the other options exchanges will be filing similar extensions of the Penny Pilot Program.
Written comments were neither solicited nor received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for the State of TEXAS (FEMA-4223-DR), dated 05/29/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for the State of TEXAS, dated 05/29/2015 is hereby amended to establish the incident period for this disaster as beginning 05/04/2015 and continuing through 06/19/2015.
All other information in the original declaration remains unchanged.
Notice is hereby given that Harbert Mezzanine Partners II SBIC, L.P., 2100 Third Avenue North, Suite 600, Birmingham, Alabama, 35203, Federal Licensees under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under section 312 of the Act and section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). Harbert Mezzanine Partners II SBIC, L.P. provided financing to Optical Experts Manufacturing, Inc., 8500 South Tyron Street, Charlotte, NC 28273. The financing was contemplated for working capital purposes.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because Harbinger Mezzanine Partners, L.P., an Associate of Harbert Mezzanine Partners II SBIC, L.P., owns more than ten percent of Optical Experts Manufacturing, Inc. Therefore, this transaction is considered a financing of an Associate requiring an exemption.
Notice is hereby given that any interested person may submit written comments on the transaction within fifteen days of the date of this publication to the Acting Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Texas (FEMA-4223-DR), dated 05/29/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of TEXAS, dated 05/29/2015, is hereby amended to establish the incident period for this disaster as beginning 05/04/2015 and continuing through 06/19/2015.
All other information in the original declaration remains unchanged.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 2.250 (2
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before July 30, 2015.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205-7030
SBA is required to survey affected disaster areas within a state upon request by the Governor of that state to determine if there is sufficient damage to warrant a disaster declaration. Information is obtained from individuals, businesses, and public officials.
Comments may be submitted on (a) whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to July 30, 2015.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Alice Kottmyer, Office of the Legal Adviser for Management, who may be reached on 202-647-2318 or
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The 60-day
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to July 30, 2015.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Ms. Ismaela Ramirez, Office of the Procurement Executive, 2201 C Street NW., Suite 1060, State Annex Number 15, Washington DC 20522-0602; who may be reached on (703) 516-1693 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice that on May 20, 2015, at the request of the United States, the World Trade Organization (WTO) has established a dispute settlement panel under the
Although USTR will accept any comments received during the course of
Public comments should be submitted electronically at
If (as explained below) the comment contains confidential information, then the comment should be submitted by fax only to Sandy McKinzy at (202) 395-3640.
Arthur Tsao and Kate Hadley, Assistant General Counsels, Office of the United States Trade Representative, (202) 395-6987 and (202) 395-5949, respectively.
Section 127(b) of the Uruguay Round Agreements Act (“URAA”) (19 U.S.C. 3537(b)(1)) requires that notice and opportunity for comment be provided after the United States submits or receives a request for the establishment of a WTO dispute settlement panel. Consistent with this obligation, USTR is providing notice that, at the request of the United States, a dispute settlement panel has been established pursuant to the WTO Dispute Settlement Understanding (“DSU”). The panel will hold its meetings in Geneva, Switzerland.
On March 18, 2015, the United States requested the establishment of a dispute settlement panel to examine Indonesia's wide-ranging import restrictions on fruits and vegetables, animal products, and other agricultural products. These measures include a ban on poultry and certain meat products and Indonesia's trade-restrictive import licensing regimes for horticultural products and animals and animal products.
Specifically, Indonesia: (a) Imposes trade-restrictive import licensing regimes and related requirements on imports of horticultural products and of animals and animal products; (b) imposes prohibitions and restrictions on imports of such products; and (c) prohibits and restricts importation of such products when domestic production is deemed sufficient to fulfill domestic demand.
The legal instruments through which Indonesia imposes and administers these measures include but are not limited to the following instruments:
1. Regulation of the Ministry of Agriculture Number 86/Permentan/OT.140/8/2013 Concerning Import Recommendation of Horticulture Products (“MOA Regulation 86/2013”), which repeals and replaces Regulation of the Minister of Agriculture Number 47/Permentan/OT.140/4/2013 Concerning Recommendation on the Importation of Horticulture Products, which repealed and replaced Regulation of the Minister of Agriculture Number 60/Permentan/OT.140/9/2012;
2. Regulation of the Minister of Trade Number 16/M-DAG/PER/4/2013 Concerning Provisions on Horticulture Product Import (“MOT Regulation 16/2013”), which repeals and replaces Regulation of the Minister of Trade Number 30/M-DAG/PER/5/2012 Concerning the Provisions on Import of Horticultural Products and Regulation of the Minister of Trade Number 60/M-DAG/PER/9/2012 Regarding Second Amendment of Regulation of the Minister of Trade Number 30/M-DAG/PER/5/2012 Regarding Provisions on Import of Horticultural Products;
3. Regulation of the Ministry of Trade Number 47/M-DAG/PER/8/2013 Concerning Amendment of Regulation of the Minister of Trade Number 16/M-DAG/PER/4/2013 Concerning Import Provision of Horticulture Product (“MOT Regulation 47/2013”);
4. Regulation of the Ministry of Agriculture Number 139/Permentan/PD.410/12/2014 (“MOA Regulation 139/2014”) Regarding Importation of Carcass, Meat, and/or Its Derivatives into the Territory of the Republic of Indonesia as amended by Regulation of the Ministry of Agriculture Number 02/Permentan/PD.410/1/2015 Concerning Amendment of Regulation of the Ministry of Agriculture Number 139/Permentan/PD.410/12/2014 Regarding Importation of Carcass, Meat, and/or Its Derivatives into the Territory of the Republic of Indonesia, which repealed and replaced Regulation of the Ministry of Agriculture Number 84/Permentan/PD.410/8/2013 Concerning Importation of Carcass, Meat, Offal and/or Their Derivatives into the Territory of the Republic of Indonesia as amended by Regulations of the Ministry of Agriculture 96/Permentan/PD.410/9/2013 and Regulations of the Ministry of Agriculture 110/Permentan/PD.410/9/2014, which repeals and replaces Regulation of the Minister of Agriculture Number 50/Permentan/OT.140/9/2011 Concerning Recommendation for Approval on Import of Carcasses, Meats, Edible Offals and/or Processed Products Thereof to Indonesian Territory as amended by Regulation of the Minister of Agriculture Number 63/Permentan/OT.140/5/2013 Concerning Amendment of Regulation of the Minister of Agriculture Number 50/Permentan/OT.140/9/2011 Concerning Import Approval Recommendation of Carcass, Meat, Offal, and/or their Derivatives into the Territory of the Republic of Indonesia;
5. Regulation of the Minister of Trade Number 46/M-DAG/PER/8/2013 Concerning Animal and Animal Product Import and Export Provision (“MOT Regulation 46/2013”) as amended by Regulation of the Minister of Trade No. 57/M-DAG/PER/9/2013 and by Regulation of the Minister of Trade 17/M-DAG/PER/3/2014, which repeals and replaces Regulation of the Minister of Trade Number 22/M-DAG/PER/5/2013 Concerning Import and Export of Animals and Animal Products, which repealed and replaced Regulation of the Minister of Trade Number 24/M-DAG/PER/9/2011 Concerning Provisions on the Import and Export of Animal and Animal Product;
6. Law of the Republic of Indonesia Number 13 of Year 2010 Concerning Horticulture;
7. Law of the Republic of Indonesia Number 18/2012 Concerning Food;
8. Law of the Republic of Indonesia Number 19/2013 Concerning Protection and Empowerment of Farmers;
9. Law of the Republic of Indonesia Number 18/2009 on Animal Husbandry and Animal Health, as amended by Law of the Republic of Indonesia Number 41/2014 on Amendment of Law Number 18/2009 on Animal Husbandry and Animal Health;
10. Law of the Republic of Indonesia Number 18/2012 Concerning Food; and
11. Law of the Republic of Indonesia Number 19/2013 Concerning Protection and Empowerment of Farmers.
The legal instruments also include any amendments, related measures, or implementing measures.
Through these measures, Indonesia appears to have acted inconsistently with its obligations under the
1. Article XI:1 of the GATT 1994 as these measures are “prohibitions or restrictions other than duties, taxes or other charges” instituted or maintained on the importation of products into Indonesia.
2. Article 4.2 of the Agreement on Agriculture as these measures are “of the kind which have been required to be converted into ordinary customs duties.”
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons may submit public comments electronically to
To submit comments via
The
A person requesting that information, contained in a comment that he submitted, be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page. Any comment containing business confidential information must be submitted by fax to Sandy McKinzy at (202) 395-3640. A non-confidential summary of the confidential information must be submitted at
USTR may determine that information or advice contained in a comment submitted, other than business confidential information, is confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information or advice may qualify as such, the submitter—
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page; and
(3) Must provide a non-confidential summary of the information or advice.
Any comment containing confidential information must be submitted by fax. A non-confidential summary of the confidential information must be submitted at
Pursuant to section 127(e) of the Uruguay Round Agreements Act (19 U.S.C. 3537(e)), USTR will maintain a docket on this dispute settlement proceeding, docket number USTR-2014-0010, accessible to the public at
The public file will include non-confidential comments received by USTR from the public regarding the dispute. If a dispute settlement panel is convened, or in the event of an appeal from such a panel, the following documents will be made available to the public at
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Second meeting notice of Special Committee 234.
The FAA is issuing this notice to advise the public of the second meeting of the Special Committee 234.
The meeting will be held October 7th—9th from 9:00 a.m.-5:00 p.m.
The meeting will be held at EASA, Ottoplatz 1, Cologne, Germany (CGN), Tel: (202) 330-0680.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a) (2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the Special Committee 234. The agenda will include the following:
1. Continuation of Plenary or Working Group Session
1. Continuation of Plenary or Working Group Session
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Seventh Meeting Notice of Tiger Team 011.
The FAA is issuing this notice to advise the public of the seventh meeting of the Tiger Team 011.
The meeting will be held July 27th-30th from 8:30 a.m.-5:00 p.m.
The meeting will be held at RTCA, 1150 18th Street NW., Suite 910, Washington, DC 20036, Tel: (202) 330-0663.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the Tiger Team 011. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed policy.
The FAA is proposing to revise its policy concerning the provision of Airport Advisory services. Under the proposal, Airport Advisory services would be discontinued in the contiguous United States, Puerto Rico, and Hawaii. The policy would continue to apply to the state of Alaska only.
Submit comments on or before July 30, 2015.
You may send comments identified by docket number FAA-2015-1006 using any of the following methods:
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Alan Wilkes, Manager, Flight Service NAS Initiative Operations/Implementation, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone 202-267-7771; Fax (202) 267-6310; email
The criteria for providing Airport Advisory (AA) services at Flight Service Stations (FSS) is provided in FAA Order 7210.3, Facility Operation and Administration; specifically, paragraph 13-4-5, addresses Local Airport Advisory (LAA), Remote Airport Advisory (RAA) and Remote Airport Information Service (RAIS). Section (b) of that paragraph requires, in part, that Flight Service Stations provide RAA when the employee productivity factor is high enough to justify the cost of providing the service.
to or greater than the number of employees needed to provide the service. Normally about 2.5 employees are factored annually to provide 10 hours of service per day.
In 2005, Lockheed Martin took over flight service operations at 58 locations as part of a 5-year contract covering the Contiguous United States (CONUS), Puerto Rico, and Hawaii. Lockheed Martin subsequently consolidated operations, reducing the number of facilities from 58 to 18 to the current number of 5. Consolidation had previously been recommended by stakeholders, including both the FAA and the Office of Inspector General (OIG), to reduce cost and improve operational efficiency, regardless of whether those services continued to be provided by the FAA, or a contractor.
Today and where available, RAA service is provided upon request by FSS personnel via ground-to-air communication on the common traffic advisory frequency (CTAF) at certain airports without an operating control tower that have certified automated weather reporting via voice capability. The service provides information to pilots as needed, such as, wind direction and speed, favored or designated runway, altimeter setting, information about observed or reported traffic, weather, and appropriate Notice to Airman (NOTAM) information.
Currently, Lockheed Martin provides RAA services at 19 locations. The requirements of the FAA flight service contract with Lockheed Martin have been under review in preparation for the upcoming contract renewal. As part of the FAA review process, the Flight Services Quality Assurance Evaluation Group found low usage at the locations still receiving the service. At 18 of the 19 remaining locations, a sample of historical data reflects that pilots contact the RAA service an average of less than 1 time per day. At Millville Municipal Airport in Millville, NJ, pilots contact the RAA service an average of 14 times per day.
Additionally, pilots are using other information resources, such as, Automated Surface Observing Systems (ASOS), Automated Weather Sensors System (AWSS), Automated Weather Observing System (AWOS), Unicom, and other commercial aviation information services. The combined resources provide the pilot the same or higher level of flight information as RAA service and the service has become redundant.
The FAA proposes to discontinue the requirement for FSSs to provide AA services in the Contiguous United States, Puerto Rico, and Hawaii effective October 1, 2015, which would result in the service no longer being available at the remaining 19 locations. The AA services in the state of Alaska would not be affected by this proposed change. Alaska depends on aviation because of the unique challenges presented by the remote mountainous terrain and weather conditions across the state. By soliciting comment to this notice, the FAA seeks to address public concerns and will consider any comments in determining whether to change the policy.
The FAA proposes to revise the criteria set forth in FAA Order 7110.10, Chapter 4, Section 4; and FAA Order 7210.3, paragraph 13-4-5 to only be applicable to the State of Alaska. The policy would be discontinued at locations within the CONUS, Puerto Rico, and Hawaii. If adopted, RAA service would no longer be provided at the following airports:
The FAA invites interested persons to participate in this notice by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the notice in this document. The most helpful comments reference a specific portion of the notice, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this action. Before acting on this notice, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this notice in light of the comments it receives.
Proprietary or Confidential Business Information: Do not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or amendment number of this notice.
All documents the FAA considered in developing this notice, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Fifteenth meeting notice of Subcommittee 227.
The FAA is issuing this notice to advise the public of the fifteenth meeting of the Subcommittee 227.
The meeting will be held September 14th-18th from 9:00 a.m.-4:30 p.m.
The meeting will be held at RTCA Headquarters, 1150 18th Street NW., Suite 910, Washington, DC 20036, Tel: (202) 330-0663.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the Subcommittee 227. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Twenty ninth meeting notice of Special Committee 213.
The FAA is issuing this notice to advise the public of the twenty ninth meeting of the Special Committee 213.
The meeting will be held July 21st-23rd from 8:30 a.m.-5:00 p.m.
The meeting will be held at Boeing 2-122 Building, Conference Room 102L2, North End of Boeing Field, 7755 East Marginal Way S, Seattle, WA 98108, Tel: (202) 330-0662.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the Special Committee 213. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Highway Administration (FHWA), DOT.
Notice of limitation on claims for judicial review of actions by FHWA.
This notice announces actions taken by the FHWA that are final within the meaning of 23 U.S.C. 139(
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(
Mr. Mack Frost, Planning and Environmental Specialist, Federal Highway Administration, 400 North 8th Street, Richmond, Virginia 23219; telephone: (804) 775-3352; email:
Notice is hereby given that FHWA has taken final agency actions subject to 23 U.S.C. 139(
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; Federal-Aid Highway Act (FAHA) [23 U.S.C. 109 and 23 U.S.C. 128].
2. Air: Clean Air Act [42 U.S.C. 7401-7671(q)].
3. Land: Section 4(f) of the Department of Transportation Act of 1966 [23 U.S.C. 138 and 49 U.S.C. 303].
4. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536].
5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f)
6. Social and Economic: Farmland Protection Policy Act [7 U.S.C. 4201-4209].
23 U.S.C 139(
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of Buy America waiver; request for comment.
This notice provides NHTSA's finding that a public interest waiver of the Buy America requirements is appropriate for any manufactured product whose purchase price is $5,000 or less, excluding a motor vehicle, when such product is purchased using Federal grant funds administered under Chapter 4 of Title 23 of the United States Code; and requests public comment.
The effective date of this waiver is July 30, 2015. Written comments regarding this notice may be submitted to NHTSA and must be received on or before July 30, 2015.
Written comments may be submitted using any one of the following methods:
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Andrew DiMarsico, Office of Chief Counsel, NHTSA (phone: 202-366-1834). You may send mail to Mr. DiMarsico at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
The statutory requirement (“Buy America”) states that the Secretary “shall not obligate any funds authorized to be appropriated to carry out the Surface Transportation Assistance Act of 1982 (96 Stat. 2097) or [title 23 of the United States Code] and administered by the Department of Transportation, unless steel, iron, and manufactured products used in such project are produced in the United States.” 23 U.S.C. 313(a). The Secretary of Transportation has delegated the authority to administer Buy America for NHTSA programs to the Administrator of NHTSA. 49 CFR 1.95; 49 CFR 501. Buy America provides that NHTSA may waive those requirements if “(1) their application would be inconsistent with the public interest; (2) such materials and products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) the inclusion of domestic material will increase the cost of the overall project contract by more than 25 percent.” 23 U.S.C. 313(b).
Buy America establishes a preference for domestically produced goods for use in Federally sponsored projects. The first Buy America legislation conditioning the expenditure of Federal funds by NHTSA grant recipients was enacted in 1978 as part of the Surface Transportation Assistance Act of 1978. Pub. L. 95-599, 92 Stat. 2689. The focus of that Buy America provision was on large procurements, such as bridge replacement projects, and not on smaller, routine purchases.
In 1983, Congress repealed that Buy America provision and substituted section 165 of the Surface Transportation Assistance Act of 1982. Pub. L. 97-424, 96 Stat. 2067.
Agencies are permitted to waive the Buy America requirement when they determine that “it is inconsistent with the public interest.” 23 U.S.C. 313(b)(1). In consideration of this authority and consistent with the purposes of NHTSA's grant programs to reduce accidents and resulting fatalities and injuries, the agency has determined that it is appropriate to issue a public interest waiver for small, routine purchases by States under the highway safety grant programs. In making this decision and arriving at a reasonable threshold for waiver, NHTSA remains mindful of the overarching purposes of Buy America, while evaluating all relevant facts, including administrative burden, delay and impact on the congressionally authorized State grant programs.
NHTSA's mission is to reduce deaths, injuries and economic losses resulting from motor vehicle crashes. This is accomplished by setting and enforcing safety performance standards for motor vehicles and motor vehicle equipment, and through grants to States to enable them to conduct effective State and local highway safety programs. NHTSA's State highway safety programs are codified in Chapter 4 of Title 23, United States Code. Chief among these programs is section 402, which provides formula grants to States to administer a comprehensive highway safety program designed to reduce traffic accidents and resulting deaths, injuries and property damage. 23 U.S.C. 402. Section 402 authorizes State programs related to speeding, occupant protection, impaired driving, accident prevention, school bus safety, unsafe driving behavior (aggressive, fatigued and distracted driving), traffic safety law enforcement, driver education, pedestrian and bicycle safety, and traffic administration (record systems, accident investigation and emergency services). In addition to the core section 402 grants, NHTSA also administers other grants to the States, which Congress from time to time authorizes to address specific highway safety needs. Most recently, under the “Moving Ahead for Progress in the 21st Century Act” (Pub. L. 112-141), Congress authorized the “National Priority Safety Programs,” providing additional grants to States in the areas of occupant protection, State traffic safety information system improvements, distracted driving, motorcyclist safety, and State graduated driver licensing laws.
In general, States may expend Federal section 402 or 405 funds for any item or service that is necessary and reasonable for proper and efficient performance and administration of their highway safety programs and activities, subject to the statutory requirements and implementing regulations.
State grantees incur significant burdens when required to submit waivers for small, routine purchases of items that are increasingly not manufactured in the United States. As part of a waiver request, a State must demonstrate through a market analysis that the item for which it seeks a waiver is not available in the United States or will cost 25 percent more than a comparable non-domestic item. For each waiver request, the agency must, in the exercise of due diligence, perform
It is important to consider these constraints and burdens in the historical context of Buy America. During the many years Buy America has been in place, a significant statutory focus has been on purchases of materials used in construction and large-scale fabrication. Its application to the grants of transportation agencies such as the Federal Highway Administration (for road and bridge building materials) and the Federal Transit Administration (for acquisition of rolling stock and manufactured end products) is plain, because those materials are of central importance to those grants. However, by statute, NHTSA grant funds may not be used for construction. 23 U.S.C. 402(g)(1)(A). As a result, while steel and iron purchases are not implicated in NHTSA's grant programs, Buy America's reach to include the small amount of manufactured products used in NHTSA's programs does not have any effect on the manufacturer of those items. Under NHTSA's State grant programs, purchases of small manufactured products that are largely ancillary rather than central to the purposes of the highway safety grants (
Based upon the foregoing discussion, NHTSA believes that a public interest waiver is appropriate to address these delays and burdens and thereby promote the success of State highway safety programs. NHTSA concludes that it is in the public interest to waive the Buy America requirements for a manufactured product whose purchase price is $5,000 or less, with one exception—the purchase of a motor vehicle, as defined in 49 U.S.C. 30102.
A threshold of $5,000 for this waiver is in step with government-wide requirements and procedures applicable to grantee purchases of equipment, where the Federal interest starts at the $5,000 level. Under the Uniform Administrative Requirements, Cost principles, and Audit Requirements for Federal Awards, equipment is defined as an item having a per unit cost of $5,000 or more. 2 CFR 200.33. At levels of $5,000 and above, grantees are required to obtain prior approval and account for equipment purchases.
Moreover, NHTSA's chosen threshold is very conservative when compared to small purchase waivers or exclusions under Buy America within the jurisdiction of other operating modes of the U.S. Department of Transportation. For example, the Federal Transit Administration issued a general public interest waiver for small purchases, as defined in DOT's grants management common rule at 49 CFR 18.36(d).
In light of the above discussion, and pursuant to 23 U.S.C. 313(b)(1), NHTSA finds that it is appropriate to waive Buy America requirements for a manufactured product, excluding a motor vehicle, whose cost per unit is $5,000 or less. Therefore, in accordance with the provisions of Section 117 of the SAFFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572), NHTSA is providing this notice of its finding that a waiver of the Buy America requirements is appropriate. Written comments on this finding may be submitted through any of the methods discussed above. This waiver is consistent with the general government initiatives that promote streamlined government contracting by Federal agencies and use of Federal funds by grantees to reduce administrative burdens and increase efficiency to accomplish agency missions.
23 U.S.C. 313; Pub. L. 110-161.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Currently, the IRS is soliciting comments concerning information reporting for qualified tuition and related expenses, magnetic media filing requirements for information returns, information reporting for payments of interest on qualified education loans, and magnetic media filing requirements for information.
Written comments should be received on or before August 31, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulations should be directed to LaNita Van Dyke, or at Internal Revenue Service, Room 6517, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The burden is reflected in the burdens for Form 1098-T and Form 1098-E.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before August 31, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to LaNita Van Dyke, or at Internal Revenue Service, Room 6517, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning the Tip Rate Determination Agreement (Gaming Industry).
Written comments should be received on or before August 31, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the revenue procedure should be directed to LaNita Van Dyke, or at Internal Revenue Service, Room 6517, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning information collection requirements related to Clear Reflection of Income in the Case of Hedging.
Written comments should be received on or before August 31, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, PS-105-75 (TD 8348), Limitations on Percentage Depletion in the Case of Oil and Gas Wells (Section 1.613A-3(l)).
Written comments should be received on or before August 31, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to LaNita Van Dyke, Internal Revenue Service, room 6517, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The burden associated with this collection of information is reflected on Forms 1065, 1041, and 706.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Environmental Protection Agency (EPA).
Final rule.
This action finalizes the residual risk and technology review (RTR) conducted for the Ferroalloys Production source category regulated under national emission standards for hazardous air pollutants (NESHAP). These final amendments include revisions to particulate matter (PM) standards for electric arc furnaces, metal oxygen refining processes, and crushing and screening operations, and expand and revise the requirements to control process fugitive emissions from furnace operations, tapping, casting, and other processes. We are also finalizing opacity limits, as proposed in 2014. However, regarding opacity monitoring, in lieu of Method 9, we are requiring monitoring with the digital camera opacity technique (DCOT). Furthermore, we are finalizing emissions standards for four previously unregulated hazardous air pollutants (HAP): Formaldehyde, hydrogen chloride (HCl), mercury (Hg) and polycyclic aromatic hydrocarbons (PAH). Other requirements related to testing, monitoring, notification, recordkeeping, and reporting are included. This rule is health protective due to the revised emissions limits for the stacks and the requirement of enhanced fugitive emissions controls that will achieve significant reductions of process fugitive emissions, especially manganese.
This final action is effective on June 30, 2015. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of June 30, 2015.
The Environmental Protection Agency (EPA) has established a docket for this action under Docket ID No. EPA-HQ-OAR-2010-0895. All documents in the docket are listed on the
For questions about this final action, contact Phil Mulrine, Sector Policies and Programs Division (D243-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 27711; telephone number: (919) 541-5289; fax number: (919) 541-3207; and email address:
We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:
On November 23, 2011, and October 6, 2014, the EPA proposed revisions to the Ferroalloys Production NESHAP based on our RTR. In this action, we are finalizing decisions and revisions for the NESHAP. We summarize some of the more significant comments we timely received regarding the proposed rule and provide our responses in this preamble. A summary of all other public comments on the proposal and the EPA's responses to those comments are available in document titled:
Regulated Entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.
Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in 40 CFR part 63, subpart XXX (National Emission Standards for Hazardous Air Pollutants (NESHAP): Ferroalloys Production). If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding
In addition to being available in the docket, an electronic copy of this final action will also be available on the Internet through the Technology Transfer Network (TTN) Web site, a forum for information and technology exchange in various areas of air pollution control. Following signature by the EPA Administrator, the EPA will post a copy of this final action at:
Additional information is available on the RTR Web site at
Under CAA section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by August 31, 2015. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.
Section 307(d)(7)(B) of the Clean Air Act (CAA) further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to reconsider the rule “[i]f the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding
Section 112 of the CAA establishes a two-stage regulatory process to address emissions of HAP from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems, or techniques, including, but not limited to those that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials, or other modifications; enclose systems or processes to eliminate emissions; collect, capture, or treat HAP when released from a process, stack, storage, or fugitive emissions point; are design, equipment, work practice, or operational standards; or any combination of the above.
For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements, and which may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. For existing sources the MACT standards can be less stringent than the floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor, under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.
In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).
The EPA promulgated the Ferroalloys Production NESHAP on May 20, 1999 (64 FR 27450). The standards are codified at 40 CFR part 63, subpart XXX. The ferroalloys production industry consists of facilities that produce ferromanganese (FeMn) or silicomanganese (SiMn). The source category covered by this MACT standard currently includes two facilities.
The rule applies to ferroalloys production operations that are located at major sources of HAP emissions or are co-located at a major source of HAP emissions. The HAP emission sources at facilities subject to the Ferroalloys Production NESHAP are open, semi-sealed, or sealed submerged arc furnaces, tapping operations, casting operations, metal oxygen refining (MOR) process, crushing and screening operations, other processes, such as ladle treatment and slag raking, and outdoor fugitive dust sources. The 1999 NESHAP regulated these emissions sources through emission limits for PM, opacity limits, and work practices.
On November 23, 2011, the EPA published a proposed rule in the
• Revisions to the numeric emission limits for PM from furnace stacks to reflect the current performance of control devices in place at ferroalloys production facilities to control furnace emissions (primary and tapping), crushing and screening operations, and the MOR operation at one plant;
• Addition of Hg, HCl, PAH, and formaldehyde furnace stack emission standards that reflected the MACT determination for control of these pollutants;
• Requirements to capture process fugitive emissions using full building enclosure with negative pressure building ventilation and duct the captured emissions to a control device; and
• Revisions to the opacity standards to reflect effective capture and control of process fugitive emissions.
On October 6, 2014, the EPA published a supplemental proposed rule in the
• Revisions to the proposed PM furnace stack emission standards based on additional test data submitted by the facilities;
• Revisions to the proposed Hg, HCl, and PAH furnace stack emission standards based on additional test data submitted by the facilities;
• Requirements to capture process fugitive emissions using effective, enhanced local capture, and duct the captured emissions to control devices;
• Revisions to the opacity standards to reflect effective, enhanced capture, and control of process fugitive emissions;
• To demonstrate compliance with the opacity limits, we proposed facilities would need to take opacity readings for an entire furnace cycle once per week per furnace using Method 9 or
• Several minor clarifications and corrections.
This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the Ferroalloys Production source category and amends the existing Ferroalloys Production NESHAP based on those determinations. Among the changes finalized in this action are: The promulgation of MACT-based limits for previously unregulated HAP; requirements to effectively capture and control process fugitive emissions; the removal of startup, shutdown, and malfunction (SSM) exemptions; and the addition of DCOT monitoring. This action also reflects several changes to the November 2011 and October 2014 proposals in consideration of comments received during the public comment periods as described in section IV of this preamble.
This section provides a summary of the final amendments to the Ferroalloys Production NESHAP being promulgated pursuant to CAA section 112(f).
We are promulgating PM emission limits for stacks at the following levels: 4.0 milligrams per dry standard cubic meter (mg/dscm) for new or reconstructed electric arc furnaces; 25 mg/dscm for existing electric arc furnaces; and 4.0 mg/dscm for any new, reconstructed, or existing local ventilation control device. These emission limits are the same as the limits proposed in the 2014 supplemental proposal.
In addition, we are promulgating a PM limit of 3.9 mg/dscm for any new, reconstructed, or existing MOR process and a PM limit of 13 mg/dscm for any new, reconstructed, or existing crushing and screening equipment, which are consistent with what we proposed in our November 23, 2011, proposal.
We are promulgating a requirement that facilities in this source category must achieve effective enhanced capture of process fugitive emissions using a system of primary hoods (that capture process fugitive emissions near the source) and/or secondary capture of fugitives (which would capture remaining fugitive emissions near the roof-line). Facilities must install, operate, and maintain a process fugitives capture system that is designed to capture 95 percent or more of the process fugitive emissions. We are also promulgating an opacity limit of 8-percent to ensure process fugitive emissions are effectively captured. This is what we proposed in the October 6, 2014, supplemental proposal. However, we have revised the rule based on public comment, to provide more flexibility on how facilities achieve 95-percent capture of process fugitive emissions. We also strengthened the monitoring provisions to ensure that the required reductions are achieved.
We determined that there are developments in practices, processes, and control technologies that warrant revisions to the MACT standards for this source category for both stack PM emissions and process fugitive emissions. Therefore, under the authority of CAA section 112(d)(6), we are promulgating the same PM stack emission limits and enhanced fugitive control requirements that we are promulgating under CAA section 112(f), as described in section A above.
We are promulgating emission limits for formaldehyde, HCl, Hg, and PAH, which were previously unregulated HAP, pursuant to CAA section 112(d)(2) and 112(d)(3).
We are promulgating a formaldehyde emission limit of 201 micrograms per dry standard cubic meter (μg/dscm) for any new, reconstructed, or existing electric arc furnace. This is the same limit that we proposed on November 23, 2011.
We are promulgating an HCl emission limit of 180 μg/dscm for new or reconstructed electric arc furnaces and 1,100 μg/dscm for existing electric arc furnaces. This is the same limit that we proposed on October 6, 2014.
For electric arc furnaces producing FeMn, we are promulgating Hg emission limits of 13 μg/dscm for new or reconstructed electric arc furnaces and 130 μg/dscm for existing electric arc furnaces. For electric arc furnaces producing SiMn, we are promulgating Hg emission limits of 4 μg/dscm for new or reconstructed electric arc furnaces and 12 μg/dscm for existing electric arc furnaces. The Hg limit for new SiMn furnaces is the same as in the October 6, 2014, supplemental proposal. The final Hg limits for new and existing FeMn and existing SiMn furnaces are generally consistent with the supplemental proposal; however, there were changes to these three limits due to the inclusion of new emission data we received shortly before or during the supplemental proposal comment period.
For electric arc furnaces producing FeMn, we are promulgating a PAH emission limit of 12,000 μg/dscm for new or reconstructed and existing electric arc furnaces. The FeMn furnace PAH emission limits are significantly higher than what we proposed in the October 6, 2014, supplemental proposal due to the inclusion of new PAH emission data we received a few weeks before signature of the supplemental proposal and during the supplemental proposal comment period. We explained in the supplemental proposal preamble that we received data shortly before that notice and provided the data for comment (i.e., the data were available in the docket). The data received during the comment period were consistent with the data mentioned in the supplemental proposal. For electric arc furnaces producing SiMn, we are promulgating a PAH emission limit of 72 μg/dscm for new or reconstructed electric arc furnaces and 130 μg/dscm for existing electric arc furnaces. The SiMn furnace new PAH emission limit is the same as the limit in the October 6, 2014, supplemental proposal. There was a slight revision to the existing SiMn furnace PAH limit due to the inclusion of new emission data we received during the supplemental proposal comment period.
We are finalizing, as proposed in the supplemental proposal, changes to the Ferroalloys Production NESHAP to eliminate the SSM exemption. Consistent with
This rule also finalizes revisions to several other Ferroalloys Production NESHAP requirements as proposed, or in some cases with some modification as described in this section.
To increase the ease and efficiency of data submittal and data accessibility, we are finalizing, as proposed, a requirement that owners and operators of ferroalloys production facilities submit electronic copies of certain required performance test reports through an electronic performance test report tool called the Electronic Reporting Tool (ERT). This requirement to submit performance test data electronically to the EPA does not require any additional performance testing and applies only to those performance tests conducted using test methods that are supported by the ERT.
We are finalizing the opacity standards, as proposed in the supplemental proposal. However, regarding compliance demonstration, we are requiring that facilities measure opacity using DCOT. In the supplemental proposal, we proposed facilities would need to monitor opacity with Method 9 or DCOT. However, after considering public comments, we decided to require DCOT rather than have it as optional. Regarding monitoring frequency, we proposed facilities would need to do opacity readings weekly per furnace building with no opportunity to reduce frequency overtime. After considering public comments, we have decided to require weekly readings initially, as proposed, but allow a facility an opportunity to decrease frequency of opacity readings to monthly per furnace building after 26 weeks of successful, compliant opacity readings.
In addition, due to the large variation in PAH emissions from furnace stacks during FeMn production, we are requiring quarterly compliance tests for PAHs (i.e., four PAH compliance tests per year) for furnaces while producing FeMn, with an opportunity for facilities to request decreased frequency of such compliance testing from their permit authority after the first year and after four or more successful PAH compliance tests have been completed and submitted electronically.
We are also finalizing other minor changes to the NESHAP in response to comments received during the public comment period for the proposal and supplemental proposal, as described in this preamble.
The revisions to the MACT standards being promulgated in this action are effective on June 30, 2015. The compliance date for existing ferroalloys production sources for all the requirements promulgated in this final rule is June 30, 2017. Facilities must comply with the changes set out in this final rule (which are being promulgated under CAA sections 112(d)(2), 112(d)(3), 112(d)(6), and 112(f)(2) for all affected sources) no later than 2 years after the effective date of the final rule. CAA section 112(f)(4) generally provides that a standard promulgated pursuant to CAA section 112(f)(2) applies 90 days after the effective date, but further provides for a compliance period of up to 2 years when the Administrator determines that such time is necessary for the installation of controls and that steps will be taken during that period to assure protection to health from imminent endangerment. We conclude that 2 years are necessary to complete the installation of the enhanced local capture system and other controls. In the period between the effective date of this rule and the compliance date, existing sources will need to continue to comply with the requirements specified in 40 CFR 63.1650 through 40 CFR 63.1660. New sources must comply with the all of the standards immediately upon the effective date of the standard, June 30, 2015, or upon startup, whichever is later.
As we proposed, the EPA is taking a step to increase the ease and efficiency of data submittal and data accessibility. Specifically, the EPA is finalizing the requirement for owners and operators of ferroalloys production facilities to submit electronic copies of certain required performance test reports.
Data will be collected by direct computer-to-computer electronic transfer using EPA-provided software. This EPA-provided software is an electronic performance test report tool called the ERT. The ERT will generate an electronic report package which will be submitted to the Compliance and Emissions Data Reporting Interface (CEDRI) and then archived to the EPA's Central Data Exchange (CDX). A description and instructions for use of the ERT can be found at
The requirement to submit performance test data electronically to the EPA does not create any additional performance testing and will apply only to those performance tests conducted using test methods that are supported by the ERT. A listing of the pollutants and test methods supported by the ERT is available at the ERT Web site. The EPA believes, through this approach, industry will save time in the performance test submittal process. Additionally, this rulemaking benefits industry by reducing recordkeeping costs as the performance test reports that are submitted to the EPA using CEDRI are no longer required to be kept in hard copy.
State, local, and tribal agencies will benefit from more streamlined and accurate review of performance test data that will become available through WebFIRE. The public will also benefit. Having these data publicly available enhances transparency and accountability. For a more thorough discussion of electronic reporting of performance tests using direct computer-to-computer electronic transfer and using EPA-provided software, see the discussion in the preamble of the proposal.
In summary, in addition to supporting regulation development, control strategy development, and other air pollution control activities, having an electronic database populated with performance test data will save industry, state, local, tribal agencies, and the EPA significant time, money, and effort while improving the quality of emission inventories and air quality regulations and enhancing the public's access to this important information.
For each issue, this section provides a description of what we proposed and what we are finalizing for the issue, the EPA's rationale for the final decisions and amendments, and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document, which is available in the docket.
Pursuant to CAA section 112(f), we conducted a residual risk review and presented the results of this review, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the October 6, 2014, supplemental proposal for the Ferroalloys Production NESHAP (79 FR 60238). The results of the risk assessment for the 2014 supplemental proposal are presented briefly below in Table 2 and in more detail in the residual risk document,
Based on actual emissions estimates for the Ferroalloys Production source category supplemental proposal, the maximum individual risk (MIR) for cancer was estimated to be up to 20-in-1 million driven by emissions of chromium compounds, PAHs, and nickel compounds. The maximum chronic non-cancer target organ-specific hazard index (TOSHI) value was estimated to be up to 4 driven by fugitive emissions of manganese. The maximum off-site acute hazard quotient (HQ) value was estimated to be 1 for arsenic compounds, hydrogen fluoride (HF), and formaldehyde. The total estimated national cancer incidence from this source category, based on actual emission levels, was 0.002 excess cancer cases per year, or one case in every 500 years.
Based on MACT-allowable emissions estimated for the Ferroalloys Production source category supplemental proposal, the MIR was estimated to be up to 100-in-1 million driven by emissions of arsenic and cadmium compounds from the MOR process baghouse outlet. The maximum chronic non-cancer TOSHI value was estimated to be up to 40 driven by emissions of manganese from the MOR process. The total estimated national cancer incidence from this source category, based on MACT-allowable emission levels, was 0.005 excess cancer cases per year, or one case in every 200 years.
We also found there were emissions of four persistent and bioaccumulative HAP (PB-HAP) with an available RTR multipathway screening value, and the reported emissions of these four HAP (cadmium compounds, dioxins/furans, Hg compounds, and PAH) were greater than the Tier 1 multipathway screening values for these compounds for both facilities at the time of the supplemental proposal. We conducted a Tier 2 multipathway screen for both facilities, and conducted a refined multipathway assessment for one facility in the source category. Results of the refined multipathway assessment predict a potential lifetime cancer risk of 10-in-1 million to the maximum exposed individual due to exposure to dioxins and PAHs. The non-cancer HQ was predicted to be below 1 for cadmium compounds and 1 for Hg compounds.
However, as explained in the
Emissions of the four PB-HAP and two environmental HAP (HCl and HF) were reported by ferroalloys facilities. Tier 1 results for PB-HAP indicate that concentrations of cadmium compounds and dioxins are below the ecological benchmarks. Mercury compounds and PAHs concentrations were greater than the benchmark so a Tier 2 screen was conducted. For PAH and methylmercury, none of the individual modeled concentrations for any facility exceeded any of the ecological benchmarks. For mercuric chloride, the weighted average modeled concentrations for all soil parcels were well below the soil benchmarks. For HCl and HF, the average modeled concentrations around each facility did not exceed any ecological benchmarks.
For the supplemental proposal, we weighed all health risk factors in our risk acceptability determination and we proposed that the residual risks from the Ferroalloys Production source category are unacceptable.
As described above, to address the unacceptable risks in the supplemental proposal, we proposed tighter PM emission limits for the stacks, which significantly reduce risks due to allowable emissions. To reduce risks
We then considered whether the Ferroalloys Production NESHAP provides an ample margin of safety to protect public health and whether more stringent standards are necessary to prevent an adverse environmental effect, taking into consideration costs, energy, safety, and other relevant factors. In considering whether the standards should be tightened to provide an ample margin of safety to protect public health, we considered the same risk factors that we considered for our acceptability determination and also considered the costs, technological feasibility, and other relevant factors related to emissions control options that might reduce risks associated with emissions from the source category. Based on our ample margin of safety analysis for the supplemental proposal, we did not identify any additional cost-effective controls to further reduce risks beyond the requirements we proposed to achieve acceptable risks. Therefore, we proposed that additional HAP emissions controls are not necessary to provide an ample margin of safety. Based on the results of our screening analysis for risks to the environment, we also proposed that more stringent standards are not necessary to prevent an adverse environmental effect.
Information received by the EPA shortly before and during the supplemental proposal comment period included additional PAH and Hg test data that were not included in the supplemental proposal risk assessment due to timing and the need to review the data. We described the data in the supplemental proposal and asked for comment on the use of these data. After completion of the data review, these data were included in the risk assessment for the final rule. Therefore, PAH and Hg emissions estimates were revised for the final rule assessment. Some revisions were also made for other HAP emissions. These changes are discussed further in section IV of this preamble.
With the exception of the revised emissions described above, the risk assessment supporting the final rule was conducted in the same manner, using the same models and methods, as that conducted for the supplemental proposal. The documentation for the final rule risk assessment can be found in the document titled
The inhalation risk modeling performed to estimate risks based on actual and allowable emissions for the final rule relied primarily on updated emissions estimates based on data received through two Information Collection Requests (ICRs), additional data submitted by the companies voluntarily, and revised calculations as described further in the
The results of the chronic baseline inhalation cancer risk assessment indicate that, based on updated estimates of actual emissions, the cancer MIR posed by the Ferroalloys Production source category is 20-in-1 million, with chromium compounds, PAHs, and nickel compounds from tapping fugitives, furnace fugitives, and furnace stacks accounting for more than 70 percent of the MIR. The total estimated cancer incidence from ferroalloys production sources based on updated actual emission levels is 0.003 excess cancer cases per year, or one case every 333 years, with emissions of PAH, chromium compounds, and cadmium compounds contributing 49 percent, 15 percent, and 12 percent, respectively, to this cancer incidence. In addition, we note that approximately 90 people are estimated to have cancer risks greater than or equal to 10-in-1 million, and approximately 41,000 people are estimated to have risks greater than or equal to 1-in-1 million because of actual emissions from this source category. These results, based on updated actual
When considering the updated MACT-allowable emissions, the maximum individual lifetime cancer risk is estimated to be up to 100-in-1 million, driven by emissions of arsenic and cadmium compounds from the MOR process baghouse outlet. The estimated cancer incidence is estimated to be 0.006 excess cancer cases per year or one excess case in every 167 years. Approximately 3,300 people are estimated to have cancer risks greater than or equal to 10-in-1 million and approximately 120,000 people are estimated to have cancer risks greater than or equal to 1-in-1 million considering updated allowable emissions from ferroalloys facilities. These results, based on updated MACT-allowable emissions, are very similar to those presented in the supplemental proposal.
The maximum modeled chronic non-cancer HI (TOSHI) value for the source category based on updated actual emissions is estimated to be 4, with manganese emissions from tapping fugitives accounting for more than 50 percent of the HI. Approximately 1,300 people are estimated to have exposure to HI levels greater than 1 as a result of updated actual emissions from this source category. When considering updated MACT-allowable emissions, the maximum chronic non-cancer TOSHI is estimated to be 40, driven by manganese emissions from the MOR process baghouse outlet. Approximately 12,000 people are estimated to have potential exposure to TOSHI levels greater than 1 considering updated allowable emissions from these ferroalloys facilities. These results, for both updated actual and MACT-allowable emissions, are very similar to those presented in the supplemental proposal.
All the HAP in this analysis have worst-case acute HQ values of 1 or less, indicating that they carry no potential to pose acute concerns. In characterizing the potential for acute non-cancer impacts of concern, it is important to remember the upward bias of these exposure estimates (
Based on the Tier II screening analysis, no facility emits cadmium compounds above the Tier II screening levels. One facility emits Hg compounds above the Tier II screening levels and exceeds that level by a factor of 8. Both facilities emit chlorinated dibenzodioxins and furans (CDDF) as 2,3,7,8-tetrachlorodibenzo-p-dioxin toxicity equivalent (TEQ) above the Tier II screening levels and the facility with the highest emissions of dioxins exceeds its Tier II screening level by a factor of 10. Both facilities emit POM as benzo(a)pyrene TEQ above the Tier II screening levels and the facility with the highest emissions exceeds its screening level by a factor of 50. These multipathway screening results, based on updated emissions, are very similar to those presented in the supplemental proposal. More information about our multipathway screening approach can be found in the supplemental proposal or in the risk assessment document,
Overall, the refined analysis predicts a potential lifetime cancer risk of 20-in-1 million to the maximum most exposed individual due to exposure to dioxins and PAHs. The non-cancer HQ is predicted to be below 1 for cadmium compounds and 1 for Hg compounds. These results, based on updated emissions, are very similar to those presented in the supplemental proposal.
Further details on the refined multipathway analysis can be found in Appendix 10 of the
In the Tier II screening analysis for PAHs and methylmercury, none of the individual modeled concentrations for any facility in the source category exceeded any of the ecological benchmarks (either the lowest-observed-adverse-effect level or the no-observed-adverse-effect level). For mercuric chloride, soil benchmarks were exceeded for some individual modeled points that collectively accounted for 11 percent of the modeled area. However, the weighted average modeled concentration for all soil parcels was well below the soil benchmarks. For
For HCl, each individual concentration (
The results of the demographic analysis are summarized in Table 4 below. These results, for various demographic groups, are based on the estimated risks from actual emissions levels for the population living within 50 kilometers (km) of the facilities.
The results of the Ferroalloys Production source category demographic analysis indicate that emissions from the source category expose approximately 41,000 people to a cancer risk at or above 1-in-1 million and approximately 1,300 people to a chronic non-cancer TOSHI greater than 1 (we note that many of those in the first risk group are the same as those in the second). The percentages of the at-risk population in each demographic group
Several comments were received regarding the risk assessment for the Ferroalloys Production source category. The following is a summary of some of the more significant comments and our responses to those comments. Other comments received and our responses to those comments can be found in the document titled
Regarding use of the IRIS RfC for manganese in the 2011 proposal risk assessment, commenters stated that the manganese RfC was outdated, did not constitute the best available science (including use of benchmark dose statistical analyses or physiologically-based pharmacokinetic models), and substantial research has been conducted since the 1993 IRIS RfC was last updated. The commenters refer to their own calculations and studies and developed their own reference value for manganese and state that the EPA should use that value. Regarding use of the ATSDR MRL for manganese in the 2014 supplemental proposal risk assessment, the same commenters stated that the manganese MRL was an improvement over the IRIS RfC, but was still not the best available science because, in their review, ATSDR did not apply physiologically-based pharmacokinetic models. The commenters again refer to their own calculations and studies developing a reference value for manganese and state that EPA should use that value. Another commenter disagrees with the use of the ATSDR MRL because the EPA has not provided sufficient rationale for using a less-protective value. Instead, this commenter recommended that we continue to use the IRIS RfC value.
In the risk assessment for the 2011 proposal, we used the IRIS RfC for chronic exposure to manganese and received numerous comments regarding use of that value. In response to those comments, we considered the existing peer-reviewed health effect reference values for chronic inhalation exposure to manganese from other federal, state, and international agencies and organizations. We developed a reference value array document
In our consideration of available reference values, we did not include some values specifically noted in public comments. The level of peer review for non-governmental scientific publications is qualitatively different than the governmental processes used to derive the values described in our tiered prioritized list, and some of the values in the manganese reference value array document. The information provided by these additional references from the commenter(s) may prove useful in an IRIS reassessment for manganese, and we agree that the physiologically-based models, along with all other relevant available peer-reviewed literature, will be considered in any IRIS reassessment of manganese. Yet, a direct application of any of these values instead of an established value in our tiered list of prioritized dose-response values would be inconsistent with the EPA policy as implemented in the RTR Program, and with recommendations from the SAB.
After considering the values in our tiered list of prioritized dose-response values, and consistent with Agency policy supported by SAB, we decided to rely on the 2012 ATSDR MRL value for the 2014 supplemental proposal. Both the 1993 IRIS RfC and the 2012 ATSDR MRL were based on the same study (Roels et al., 1993). In developing their assessment, ATSDR used updated dose-response modeling methodology (benchmark dose approach) and considered recent pharmacokinetic findings to support their selection of uncertainty values in the MRL derivation.
As noted in section II.A.1 of this preamble, the EPA sets standards under CAA section 112(f)(2) using “a two-step standard-setting approach, with an analytical first step to determine an `acceptable risk' that considers all health information, including risk estimation uncertainty and includes a presumptive limit on maximum individual lifetime risk (MIR) of approximately 1 in 10 thousand.”
Based on this post control risk assessment, we conclude that after the requirements described above to address unacceptable risks are implemented, the risks to public health will be substantially reduced.
For example, the results of the post-control chronic inhalation cancer risk assessment indicate that the maximum individual lifetime cancer risk posed by these two facilities, after the implementation of the promulgated controls, will be no higher than 10-in-1 million, with an estimated reduction in cancer incidence to 0.002 cases per year. In addition, the number of people estimated to have a cancer risk greater than or equal to 1-in-1 million would be 26,000. The results of the post-control risk assessment also indicate that the maximum chronic noncancer inhalation TOSHI value would be reduced to 1. The number of people estimated to have a TOSHI greater than 1 would be reduced to 0. We also estimate that after the implementation of controls, the maximum worst-case acute HQ value would be less than 1 (based on REL values).
Considering post-control emissions of multipathway HAP, Hg emissions would be reduced by approximately 3 pounds per year (lbs/yr), lead would be reduced by about 1,600 lbs/yr, polycyclic organic matter (POM) emissions would be reduced by approximately 3,600 lbs/yr, cadmium would be reduced by about 150 lbs/yr, and dioxins and furans would be reduced by about 0.002 lbs/yr from the baseline emission rates.
As described above, we estimate that the actions finalized under CAA section 112(f)(2) to address unacceptable risks will reduce the MIR to 10-in-1 million. The cancer incidence will be reduced to 0.002 cases per year and the number of people estimated to have cancer risks greater than 1-in-1 million will be reduced to 26,000 people. The chronic noncancer inhalation TOSHI will be reduced to 1 and the number of people exposed to a TOSHI level greater than 1 will be reduced to 0. In addition, the potential multipathway impacts will be reduced.
Based on all of the above information, we conclude that the risks will be acceptable after implementation of the lower stack limits for PM and the control requirements to reduce process fugitive emissions, as we concluded in the supplemental proposal. Based on our research and analysis, we did not identify any cost-effective controls beyond those described above that would achieve further reduction in risk. While in theory, the 2011 proposed approach of total enclosure with negative pressure would provide some additional risk reduction, the additional risk reduction is minimal and, similar to our assessment and conclusions described in the supplemental proposal, we continue to believe the total enclosure approach would not be economically feasible and may not be technically feasible for these facilities. No other technology advances were identified during the comment period. Therefore, we are not promulgating any additional requirements under the ample margin of safety analysis beyond the requirements being finalized to address unacceptable risks (as described above). We conclude that the controls to achieve acceptable risks will also provide an ample margin of safety to protect public health.
Pursuant to CAA section 112(d)(6), we conducted a technology review, which focused on identifying and evaluating developments in practices, processes, and control technologies for the emission sources in the Ferroalloys Production source category. For the 2011 proposal (76 FR 72508), we
We received additional test data after the 2011 proposal and re-evaluated the PM limit using available PM emissions test data and consideration of variability across these data. Based on this analysis, we determined that it was appropriate to propose a revised PM limit of 25 mg/dscm for existing furnaces. No additional add-on control is expected to be required by the facilities to meet this revised existing source limit. To demonstrate compliance, we proposed these sources would be required to conduct periodic performance testing and develop and operate according to a baghouse operating plan or continuously monitor Venturi scrubber operating parameters. We also proposed that furnace baghouses would be required to be equipped with bag leak detection systems (BLDS).
For the 2011 proposal, the proposed new source PM standard was determined by evaluating the available data from the best performing furnace (which was determined to be furnace #2 at Felman). The proposed new source limit was determined to be 9.3 mg/dscm. We received additional test data after the 2011 proposal and re-evaluated the new source limit using the available test data. The revised new source PM standard for furnaces for the 2014 supplemental proposal was determined by evaluating the available data from the best performing furnace (which was again determined to be furnace #2 at Felman). The new source MACT limit was determined to be 4.0 mg/dscm based on data from furnace #2 and was proposed as the MACT emissions limit for PM from new and reconstructed source furnace stacks in the 2014 supplemental proposal.
The PM emission limit for the local ventilation control device outlet was also re-evaluated using compliance test data and test data from the 2012 ICR. A local ventilation control system is used to capture tapping, casting, or ladle treatment emissions and direct them to a control device other than one associated with the furnace. The 2011 proposal included a proposed PM limit for the local ventilation control device that was based on PM data from the furnaces. After the 2011 proposal, we received test data from three different emissions tests (for a total of nine test runs) specifically for this local ventilation source. We determined these data were more appropriate for the development of a limit for this source than the furnace data we had used for the 2011 proposal. There is currently only one local ventilation control device outlet emissions source in this source category. Using the new data for the one existing local ventilation source, we calculated a revised emissions limit of 4.0 mg/dscm and determined that this was an appropriate emissions limit for this source. Therefore, we proposed an emissions limit of 4.0 mg/dscm for existing, new, and reconstructed local ventilation control device emissions sources in the supplemental proposal.
For crushing and screening operations, we proposed an emission limit of 13 mg/dscm for new and existing crushing and sizing operations in the 2011 proposal. We did not receive any additional data for this emission source and, therefore, made no revisions to this proposed limit in the 2014 supplemental proposal.
The MOR operation is a unique process that is operated by only one facility (Eramet). We calculated a proposed emission limit of 3.9 mg/dscm in the 2011 proposal that would apply to both new and existing MOR operation sources. We did not receive any additional data for this emission source and, therefore, made no revisions to this proposed limit in the 2014 supplemental proposal.
For day-to-day continuous monitoring to demonstrate compliance with the proposed full building enclosure requirements, the 2011 proposal relied mainly on requiring monitoring differential pressure to ensure facilities maintained a negative pressure of at least 0.007 inches of water and that emissions within the facilities would need to be vented to PM control devices. This was to be supplemented by operation and work practice standards that required preparation of a process fugitive emissions ventilation plan for each shop building. In the 2011 proposal, we also proposed a requirement that emissions exiting from a shop building may not exceed more than 10-percent opacity for more than one 6-minute period, to be demonstrated every 5 years as part of the periodic required performance tests.
We received significant comments in response to the 2011 proposal. Commenters claimed that we had significantly underestimated the costs for full building enclosure and that it would not be feasible for these facilities. After reviewing and considering the comments along with other information, we decided to re-evaluate the proposed requirement for negative pressure ventilation and consider other options.
Based on our re-evaluation, for the 2014 supplemental proposal, we concluded that the full-building enclosure option may not be feasible and would have significant economic impacts on the facilities. However, we concluded that an option based on enhanced local capture and control of process fugitive emissions using a combination of primary and secondary hoods is a feasible and cost-effective approach to achieve significant reductions in process fugitive HAP emissions. Therefore, in the 2014 supplemental proposal, we proposed
With the move to the proposed enhanced local capture alternative in the 2014 supplemental proposal, we no longer had a day-to-day continuous requirement of monitoring negative pressure. Instead, in the 2014 supplemental proposal, continuous compliance demonstration would be based mainly on meeting an opacity limit, monitoring ventilation parameters (such as fan speed, amperage, and/or damper positioning), and documenting the design of the system to achieve 95-percent capture. Since opacity monitoring would be a primary method to demonstrate continuous compliance, we proposed that facilities would need to meet an average opacity of 8 percent for an entire furnace cycle (about 90-120 minutes) with a maximum opacity of no more than 20 percent opacity for any 12-minute period. Furthermore, we proposed facilities would need to monitor opacity for a full furnace cycle (about 90-120 minutes) at least once per week per furnace building. We also proposed that, if the average opacity reading from the shop building is greater than 8-percent opacity during an observed furnace process cycle, an additional two more furnace process cycles must be observed such that the average opacity during the entire observation period is less than 7-percent opacity. A furnace process cycle means the period in which the furnace is tapped to the time in which the furnace is tapped again and includes periods of charging, smelting, tapping, casting, and ladle raking.
Regarding the design requirements, in the supplemental proposal, we proposed that the facilities in this source category must install, operate, and maintain a process fugitives capture system that is designed to collect 95 percent or more of the process fugitive emissions from furnace operations, casting MOR process, ladle raking, and slag skimming and crushing and screening operations and convey the collected emissions to a control device that meets specified emission limits and the proposed opacity limits. We proposed that this plan be submitted to the permitting authority, incorporated into the source's operating permit and updated every 5 years or when there is a significant change in variables that affect process fugitive emissions ventilation design. We proposed that this list of design criteria, coupled with the requirement for frequent opacity observations and operating parameter monitoring, would ensure process fugitive emissions are effectively controlled and would result in enforceable requirements.
More information concerning our proposed technology review can be found in the memoranda titled,
For the October 6, 2014, supplemental proposal, we solicited comment regarding the use of new technologies to provide continuous or near continuous long term approaches to monitoring emissions from industrial sources for the Ferroalloy Production source category. After considering comments received and after evaluating the technologies further, we are replacing the weekly Method 9 opacity requirement with a weekly requirement to measure opacity using ASTM D7520-13 and DCOT to demonstrate compliance with the process fugitives standards. The final rule amendments require facilities to use the DCOT to measure opacity at least once per week for each of the furnace and MOR buildings to demonstrate compliance with the opacity limits. However, as mentioned above, facilities will have the opportunity to reduce the frequency of opacity readings to monthly after 26 consecutive weeks of compliant weekly readings. The facilities would still be required to meet an average opacity standard of 8-percent opacity for the furnace cycle (90-120 minutes) and at no time during operation may any two consecutive 6-minute block opacity readings be greater than 20-percent opacity. The cost of implementing the DCOT system is estimated to be approximately $200,000 per year for the source category with weekly readings. However, these costs decrease to about $90,000 per year for the source category if they do monthly readings per furnace building. All other requirements we proposed under CAA section 112(d)(6) in the supplemental proposal have not changed.
Several comments were received regarding the technology review for the Ferroalloys Production source category. The following is a summary of the more significant comments and our responses to those comments. Other comments received and our responses to those comments can be found in the document titled
We reviewed these designs and discussed the designs with ventilation experts. The ventilation experts agreed that the suggested primary system along with secondary capture could achieve 95 percent reduction of process fugitive emissions from the buildings. They noted that many of the designs and improvements were based on the elements of good ventilation systems that are used in other industries to capture and control fugitive emissions. Because these designs have been only partially deployed in this industry, they constitute a relevant development in technology beyond what is required by the current rule. We view the successful deployment of these technologies in other industries and the expert judgement of industrial ventilation experts as establishing that the technologies are technically available for transfer to the Ferroalloy Production source category.
As part of our technology review, we evaluated the costs and effectiveness of a regulatory option that is based on the general emission control scenario suggested by the industry representatives which would include a system of primary and/or secondary hooding designed to capture 95 percent of process fugitive emissions. The process fugitive emissions would be captured by the primary and/or secondary hoods and routed to PM control devices. This option for the control of process fugitive emissions under CAA section 112(d)(6) is exactly the same option that we are promulgating under CAA section 112(f)(2) to capture and control fugitives (described in section IV.A of this preamble). We estimate that the total capital cost including monitoring would be about $40.3 million, the total annualized costs would be about $7.7 million per year, and that it would achieve 77 tpy reduction of HAP, mostly manganese and other HAP metals (e.g., cadmium compounds, chromium compounds, nickel compounds) and also achieve about 229 tpy reduction of PM. Based on our evaluation, we conclude that installing and operating such a system is a feasible and cost-effective approach to achieve significant reductions in process fugitive HAP emissions and will achieve almost as much reductions as the full building enclosure option (229 vs. 252 tons PM reductions). In light of the technical feasibility and cost effectiveness of this enhanced fugitive capture option (that includes a combination of primary capture and/or secondary capture designed to capture and control 95 percent of process fugitive), we are promulgating this option under the authority of section 112(d)(6) of the CAA. The control requirements and compliance requirements under this CAA section 112(d)(6) option are the exact same requirements we are promulgating under CAA section 112(f)(2) to address unacceptable risks for process fugitive emissions (described in section IV.A of this preamble). As described in that section, facilities must install, operate, and maintain a process fugitives capture system that is designed to capture 95 percent or more of the process fugitive emissions. Facilities will also need to meet an average opacity of 8 percent for each furnace cycle (about 90-120 minutes) with a maximum opacity of no more than 20 percent opacity for any two consecutive 6-minute block opacity readings (12-minute period). To demonstrate compliance, facilities will need to initially monitor opacity for a full furnace cycle (about 90-120 minutes) at least once per week per furnace building using the DCOT. Moreover, facilities will need to monitor various control parameters (such as fan speed, amperage, pressure drops, and/or damper positioning) to ensure the fugitive capture system and controls are working properly.
In the case of the PM emissions from the ferroalloy furnaces, we believe if it was appropriate, we could subcategorize based on the size of the furnace or the product being produced in that furnace. However, we determined that there was no statistical difference in PM emissions based on the size of the individual furnaces or by the product being produced in those furnaces. Therefore, we decided it was not appropriate to subcategorize for PM emissions and instead established a single PM limit for all of the furnaces, regardless of size or product being produced.
Moreover, as described above, representatives from the ferroalloys companies have provided suggestions as to how such a system could be designed, installed and operated to achieve 95-percent capture of fugitives. Therefore, we conclude such a system is technically feasible. Furthermore, as we described above, we conclude these controls would be cost effective ($91,000 per ton of HAP metal reduced). Therefore, we conclude it is appropriate to promulgate this control option under section 112(d)(6) of the CAA.
The PM emissions, used as a surrogate for metal HAP, that were reported by the industry in response to the 2010 ICR, were far below the level specified in the current NESHAP, indicating improvements in the control of PM emissions since promulgation of the current NESHAP. We re-evaluated the data received in 2010, along with additional data received in 2012 and 2013, to determine whether it is appropriate to promulgate revised emissions limits for PM from the furnace process vents. More details regarding the available PM data and this re-evaluation are provided in the
Based on this analysis, we determined it is appropriate to finalize the revised existing source furnace stack PM emissions limit of 25 mg/dscm, which is the same limit we proposed in the supplemental proposal. No additional add-on controls are expected to be required by the facilities to meet the revised existing source limit of 25 mg/dscm. However, this revised limit will result in significantly lower “allowable” PM emissions from the source category compared to the level of emissions allowed by the 1999 MACT rule and would help prevent any emissions increases. To demonstrate compliance, these sources will be required to conduct periodic performance testing and develop and operate according to a baghouse operating plan or continuously monitor Venturi scrubber operating parameters. Also furnace baghouses will be required to be equipped with BLDS.
The final PM standard for new and reconstructed furnaces is 4.0 mg/dscm and was determined by evaluating the available data from the best performing furnace (which was determined to be furnace #2 at Felman).
As described above, the PM emission limit for the local ventilation control device outlet was re-evaluated for the supplemental proposal using compliance test data and test data from the 2012 ICR. We did not receive any additional data since the supplemental proposal for this source. Using all the available data for the one existing local ventilation source, we calculated an emissions limit of 4.0 mg/dscm, which is the exact same limit we proposed in the supplemental proposal. We conclude that this is still an appropriate emissions limit for this source. Therefore, we are promulgating this emissions limit of 4.0 mg/dscm for existing, new, and reconstructed local ventilation control device emissions sources. In addition, we are promulgating a PM limit of 3.9 mg/dscm for any new, reconstructed, or existing MOR process, and a PM limit of 13 mg/dscm for any new, reconstructed, or existing crushing and screening equipment, which are consistent with what we proposed in our November 23, 2011, proposal.
Furthermore, as mentioned in section III of this preamble, we are promulgating a PM limit of 3.9 mg/dscm for any new, reconstructed, or existing MOR process, and a PM limit of 13 mg/dscm for any new, reconstructed, or existing crushing and screening equipment.
In the 2011 proposal, we proposed a requirement for sources to enclose the furnace building, collect fugitive emissions such that the furnace building is maintained under negative pressure, and duct those emissions to control devices. As described above, commenters on the 2011 proposal disagreed with our assessment.
Commenters also raised concerns about worker safety and comfort in designing and operating full enclosure systems. We believe that such issues can be overcome with proper ventilation design and installation of air conditioning systems and other steps to ensure these issues are not a problem. However, after further review and evaluation, we conclude that it would be quite costly for these facilities to become fully enclosed with negative pressure and achieve the appropriate ventilation and conditioning of indoor air.
We re-evaluated the costs and operational feasibility associated with the full building enclosure with negative pressure. We consulted with ventilation experts who have worked with hot process fugitives similar to those found in the ferroalloys industry (
As mentioned above, for the supplemental proposal, we also evaluated another option based on enhanced capture of the process fugitive emissions using a combination of effective local capture with primary hooding close to the emissions sources and/or secondary capture of remaining fugitives with roof-line capture hoods and control devices. These buildings are currently designed such that fugitive emissions that are not captured by the primary hoods flow upward with a natural draft to the open roof vents and are vented to the atmosphere uncontrolled. Under our enhanced control scenario, the primary capture close to the emissions sources would be significantly improved with effective local hooding and ventilation and the remaining fugitive emissions (that are not captured by the primary hoods) would be drawn up to the roof-line and
In cases where additional collection of fugitives from the roof areas is needed to comply with the rule, fume collection areas may be isolated via baffles (so the area above the furnace where fumes collect may be kept separated from “empty” spaces in large buildings) and roof openings over fume collection areas can be sealed and fumes directed to control devices. The fugitive emission capture system should achieve inflow at the building floor, but outflow toward the roof where most of the remaining fugitives would be captured by the secondary hooding. We concluded that a rigorous, systematic examination of the ventilation requirements throughout the building is the key to developing a fugitive emission capture system (consisting of primary hoods, secondary hoods, enclosures, and/or building ventilation ducted to PM control devices) that can be designed and operated to achieve very low levels of fugitive emissions. Such an evaluation considers worker health, safety, and comfort and it is designed to optimize existing ventilation options (fan capacity and hood design). Thus, we concluded that an enhanced capture system based on these design principles does represent an advancement in technology. We estimate that this type of control system could capture 95 percent of the process fugitive emissions and vent those emissions to PM control devices. This enhanced local capture option is described in more detail in the
Under this control option, the cost elements vary by plant and furnace and include the following:
• Curtains or doors surrounding furnace tops to contain fugitive emissions;
• Improvements to hoods collecting tapping emissions;
• Upgrade fans to improve the airflow of fabric filters controlling fugitive emissions;
• Addition of “secondary capture” or additional hoods to capture emissions from tapping platforms or crucibles;
• Addition of fugitives capture for casting operations;
• Improvement of existing control devices or addition of fabric filters; and
• Addition of rooftop ventilation, in which fugitive emissions escaping local capture are collected in the roof canopy over process areas through addition of partitions, hoods, and then directed through ducts to control devices.
We estimate the total capital costs of installing the required ductwork, fans and control devices under the enhanced capture option (which is described above and in more detail in the
As described in the supplemental proposal, we also re-evaluated the option based on full building enclosure with negative pressure.
Based on those analyses, we concluded in the supplemental proposal and conclude again in this action that the full-building enclosure option with negative pressure may not be feasible and would have significant economic impacts on the facilities (including potential closure for one or more facilities). Therefore, we are not promulgating an option based on full building enclosure with negative pressure.
However, consistent with the supplemental proposal, we conclude that the enhanced local capture option is a feasible and cost-effective approach to achieve significant reductions in fugitive HAP emissions and will achieve almost as much reductions as the full-building enclosure option (229 vs. 252 tons PM reductions) and, thus, achieving most of the emission reductions at significantly lower costs. In light of the technical feasibility and cost effectiveness of the enhanced capture option, we are promulgating the enhanced capture option under the authority of section 112(d)(6) of the CAA.
Regarding monitoring requirements, as described above, in the 2011 proposal, we proposed that facilities would need to conduct day-to-day continuous monitoring of differential pressure to comply with the proposed full building enclosure with negative pressure requirements.
With the move to the enhanced local capture alternative option, there is no longer any requirement to monitor negative pressure. Under this option, the main ongoing compliance requirements will be based on opacity readings and parametric monitoring. Therefore, since opacity is a main method of monitoring compliance for process fugitive emissions controls, we believe that frequent opacity monitoring is necessary, as reflected in the supplemental proposal. Furthermore, as we explained in the supplemental proposal, we believe an average opacity limit of 8 percent is appropriate to ensure effective capture and control of process fugitive emissions over the entire furnace cycles and that a maximum opacity of 20 percent for any 2 consecutive 6-minute periods is appropriate to prevent spikes in fugitive emissions. Therefore, we are promulgating an average opacity limit of 8 percent and a maximum opacity limit of 20 percent for any 2 consecutive 6-minute periods.
Regarding opacity monitoring, we are promulgating a requirement that facilities conduct opacity observations at least once per week for a full furnace cycle for each operating furnace and each MOR operation using the DCOT instead of Method 9. We believe the DCOT is appropriate for the final rule because it provides more objective and better substantiated opacity readings. However, as described above, we are allowing an opportunity for facilities to decrease frequency of opacity monitoring to monthly after 26 compliant weekly readings.
Similar to the supplemental proposal, we are also finalizing the requirement
As mentioned above, we are also promulgating the requirement that at no time during operation may any two consecutive 6-minute block opacity readings be greater than 20-percent opacity.
We believe that the source should demonstrate that the overall design of the ventilation system is adequate to achieve the final standards. Therefore, we are promulgating the requirement that facilities in this source category must install, operate, and maintain a process fugitives capture system that is designed to collect 95 percent or more of the process fugitive emissions from furnace operations, casting MOR process, ladle raking and slag skimming and crushing, and screening operations, and convey the collected emissions to a control device that meets specified emission limits and the opacity limits. We are also requiring continuous monitoring of key ventilation operating system parameters and periodic inspections of the ventilation systems to ensure that the ventilation systems are operating as designed.
We believe that if the facilities design the capture and control systems according to the most recent (at the time of construction) ventilation design principles recommended by the American Conference of Governmental Industrial Hygienists (ACGIH), including detailed schematics of the ventilation system design, addressing variables that affect capture efficiency such as cross drafts and describes protocol or design characteristics to minimize such events and identifies monitoring and maintenance steps, the plan will be capable of ensuring the system is properly designed and continues to operate as designed. Therefore, we are promulgating the requirement that facilities develop such a plan and submit this plan to the permitting authority. The plan must also be incorporated into the source's operating permit and updated every 5 years or when there is a significant change in variables that affect process fugitive emissions ventilation design. This design plan, coupled with the requirement for frequent opacity observations and operating parameter monitoring, will ensure fugitive emissions are effectively controlled and will result in enforceable requirements. We recognize that other design requirements and/or more frequent opacity observations may yield more compliance certainty, but incur greater costs and not result in measurable decreases in emissions.
We believe the additional PM data we received justifies the revised PM stack emission limits we are promulgating under the authority of section 112(d)(6) of the CAA. We also believe the enhanced capture and control is a development in technology that is feasible and cost effective, so we are promulgating the enhanced local capture and control option under the authority of section 112(d)(6) of the CAA. Furthermore, we believe it is appropriate to promulgate the DCOT to ensure adequate furnace capture and control.
In the November 23, 2011, proposal, we proposed a formaldehyde emission limit of 201 μg/dscm for any new, reconstructed, or existing electric arc furnace.
In the October 6, 2014, supplemental proposal, we proposed the following:
• HCL emission limit of 180 μg/dscm for new or reconstructed electric arc furnaces and 1,100 μg/dscm for existing electric arc furnaces;
• Hg emission limit of 17 μg/dscm for new or reconstructed electric arc furnaces producing FeMn, and 170 μg/dscm for existing electric arc furnaces producing FeMn;
• Hg emission limit of 4 μg/dscm for new or reconstructed electric arc furnaces producing SiMn and 12 μg/dscm for existing electric arc furnaces producing SiMn;
• PAH emission limit of 880 mu;g/dscm for new or reconstructed electric arc furnaces producing FeMn and 1,400 μg/dscm for existing electric arc furnaces producing FeMn; and
• PAH emission limit of 72 μg/dscm for new or reconstructed electric arc furnaces producing SiMn and 120 μg/dscm for existing electric arc furnaces producing SiMn.
In mid-August 2014, a few weeks prior to the signature of the supplemental proposal, we received a test report with Hg and PAH data, which we were unable to incorporate into the proposed limits in the supplemental proposal, in part because of the timing and in part because we had not completed our review and technical analysis of the data. We noted receipt of the data and invited comment on it in the supplemental proposal, and made the data available for review. We committed to considering these data in the final rule based on public comment and our technical analysis. In addition to the pre-supplemental proposal data, another Hg and PAH test report was received during the comment period. The new test data for FeMn production received in August 2014 and during the comment period had much higher PAH concentrations than the data that were previously provided. The new PAH test data for SiMn production were only slightly higher than previous data received from the facilities. The new Hg data for both FeMn and SiMn production were comparable to the test data that we used to develop the proposed limits for the supplemental proposal.
For this action, we re-evaluated the PAH and Hg emission limits to include the new test data. The 99-percent upper prediction limit (UPL) calculation using all the available reliable data for PAH emissions results in an emissions limit of 12,000 μg/dscm for existing furnaces producing FeMn and 130 μg/dscm for existing furnaces producing SiMn.
With regard to new source limits, as mentioned previously, there are only two furnaces in the source category that produce FeMn, and both furnaces are located at Eramet. The units are similar in design and process the same types of raw materials, and we, therefore, expect little or no difference in the performance of these units. The available emissions data, which show that the two units mean emissions are only 2-percent different, support this hypothesis. We conclude, based on the similarities in the units and the available data, that these two furnaces achieve the same degree of control of PAH emissions with their current control devices. Accordingly, we consider these two units to be equal performers with regard to PAH emissions and therefore, we used all the data from both units to calculate the new source emissions limit. Using the 99-percent UPL calculation, we derive
For SiMn, there were no changes to the best performing source and the PAH limit of 72 μg/dscm proposed in the supplemental proposal is the same limit selected for the final rule for new furnaces producing SiMn.
The 99-percent UPL for PAHs for FeMn production is about 8 times higher than the proposed PAH limit for FeMn in the supplemental proposal, whereas the 99-percent UPL for PAHs for SiMn production is comparable to the proposed limit in the supplemental proposal. The new data show there is substantial variability in PAH emissions from the furnaces, especially during FeMn production.
As mentioned in section III.E of this preamble, due to the large variation in PAH emissions from furnace stacks during FeMn production, we are requiring quarterly compliance tests for PAHs (i.e., four PAH compliance tests per year) for furnaces while producing FeMn, with an opportunity for facilities to apply for decreased frequency of such compliance testing from their permit authority after the first year and after four or more successful PAH compliance tests have been completed and submitted to the permit authority.
We expect that any application submitted by an affected source to request reduced frequent compliance testing for PAHs should include information regarding the four or more compliant test results and what factors or conditions are contributing to the quantity and variation of PAH emissions. For example, the application could include, among other things, information about the amounts and types of input materials, types of electrodes used, electrode consumption rates, furnace temperature and other furnace, process or product information that may be affecting the PAH emissions.
The re-evaluation of the Hg test data, which includes the new test data, produced a 99-percent UPL of 130 μg/dscm for existing furnaces producing FeMn and 12 μg/dscm for existing furnaces producing SiMn. For new sources, the new test data did not affect the 99-percent UPL of 4 μg/dscm for new furnaces producing SiMn.
With regard to the new source limit in the supplemental proposal for Hg for furnaces producing FeMn, the proposed new source limit was based on BTF controls using activated carbon injection (ACI), and assuming 90-percent reduction. We continue to conclude that it is appropriate to require BTF controls for new FeMn sources consistent with the supplemental proposal (assuming 90-percent reduction). Therefore, we calculate that the new source limit for the final rule for Hg for furnaces producing FeMn will be 13 μ g/dscm (i.e., 130 μ g/dscm minus 90-percent control). These UPL values are generally consistent with, but a bit lower than, the proposed limits in the supplemental proposal.
Several comments were received regarding the CAA section 112(d)(2) & (3) proposed revisions for the Ferroalloys Production source category. The following is a summary of these comments and our responses. Other comments received and our responses can be found in the document titled
The commenters noted the EPA excluded PAH data for both SiMn and FeMn production, that showed higher levels of emissions. They believe the exclusion of these data led to calculation of a proposed MACT floor for PAH that is below the level that can be demonstrably achieved by the best performing sources.
The commenters argued that the EPA should reconsider its decision not to include these data in calculation of the MACT floor. One commenter noted that additional testing to better characterize variability, particularly for PAH, was being performed prior to the comment period for the supplemental proposal and encouraged the EPA to consider these additional data in calculating the MACT floor levels for the final standard.
Even though some of the test data received did not meet the QA/QC requirements for this RTR, we believe we still have a robust set of test data for most of the HAP and the majority of the MACT floor analyses are based on multiple tests from each of the facilities.
If no added cost was involved, lowering Hg emissions might be a worthwhile objective. But, the fact is that cost is a relevant concern under CAA section 112(d)(2) and, as discussed below, achieving the proposed new source standards would be prohibitively expensive.
The commenter states that the EPA justifies its conclusion that ACI is affordable for new sources based on the assumption that any new source will be built with a baghouse. As a threshold matter, the EPA's assertion that ACI is cost effective when applied to baghouse-controlled sources is contradicted by its own supporting memorandum. According to Table 6-3 of the Memorandum from Bradley Nelson, EC/R, Inc. to Phil Mulrine, EPA OAQPS/SPPD/MICG on
Second, the commenter states that the sole economic justification for ACI is the EPA's substantially understated unit cost of $17,600 for each pound of Hg removed. The EPA's cost-per-pound metric is completely untethered to any cost-benefit analysis. To say how much it will cost to remove a pound of Hg provides no practical basis for assessing the relative value of removing that pound of Hg or the relative ability of a ferroalloys producer to absorb that cost. The docket contains no demonstration, much less substantial evidence, that the lower cost would nevertheless be affordable by EMI.
Finally, the commenter notes that the facility is captive to the pricing structure imposed by low-cost foreign ferroalloy producers who will not be subject to the requirements of this rule. Accordingly, foreign producers prevent the facility from passing on costs such as this to customers via higher prices. Before that facility can construct a new furnace, it would have to determine that the new furnace would produce a positive return large enough to cover the cost of constructing and operating that additional furnace, while charging the same price charged by producers not incurring the added costs of ACI. The EPA provides no explanation for why it believes this would be possible and our analysis strongly suggests that it would not be possible.
The commenter states that the net result is that the proposed new source standard effectively prevents EMI from increasing FeMn production in the future via a new furnace and ensures that when the existing furnaces require replacement, they will not be replaced with furnaces capable of producing FeMn. The EPA's proposed new source standard is inconsistent with EPA's recognition in the 2014 proposal that EMI is the sole U.S. source of FeMn for domestic steel production, and its judgment that ACI should not be immediately required, in part, because such a requirement would likely force EMI out of business. The proposed Hg “beyond-the-MACT-floor standard” produces the same result that the EPA agrees should be avoided, only at a later date.
The determination of the Hg limits for new or major reconstructed furnaces is based on the assurance that such sources would be constructed to include a baghouse as the primary PM control device (in order to comply with the proposed lower new source limits for PM) and then they could add ACI after the baghouse for Hg control along with a polishing baghouse and would achieve at least 90-percent reduction of Hg.
In the supplemental proposal, the estimated costs for beyond the floor controls for mercury for new and reconstructed sources were based on the costs of installing and operating brominated ACI and a polishing baghouse. Based on this, in the supplemental proposal, we estimated that the cost effectiveness of BTF controls for a new and major reconstructed FeMn production source would be about $12,000/lb. This cost effectiveness estimate is well within the range of cost effectiveness levels we have decided were reasonable in other rules. Furthermore, no other significant economic factors were identified that would indicate that these limits would be inappropriate or infeasible for new sources. Therefore, in the supplemental proposal, we concluded that BTF controls would be cost-effective and feasible for any new or major reconstructed furnace that produces FeMn.
We received new Hg test data prior to and during the comment period for the supplemental proposal. Using these new test data along with the previous data we re-evaluated the cost of installing ACI to reduce Hg. Similar to the supplemental proposal, we estimated costs for BTF controls for Hg for new and reconstructed sources based on the costs of installing and operating brominated ACI and a polishing baghouse. Based on this re-evaluation, we estimate that the cost effectiveness of installing ACI for a new and major reconstructed FeMn production source would be about $13,600/lb for a furnace producing FeMn 50 percent of the year, and $7,100/lb for a furnace producing FeMn 100 percent of the year.
These cost effectiveness estimates are similar to the estimate we presented in the supplemental proposal for the beyond the floor option for new FeMn furnaces and continue to be within the range of cost effectivenesses we have determined are reasonable for mercury control in other rulemakings. Furthermore, no other significant economic factors were identified that would indicate these limits would be inappropriate or infeasible for new or major reconstructed furnaces that produce FeMn. Therefore, we believe the BTF control option for Hg emissions is economically and technically feasible for new and major reconstructed FeMn furnaces and that these cost effectivenesses are acceptable for any new or major reconstructed furnace that produces FeMn. Additional discussion of the EPA's BTF analyses for mercury are available in the
An assessment of the cost effectiveness of emission reductions, along with other economic factors, is an appropriate method for assessing cost impacts in standard setting when CAA section 112 allows cost to be a factor in EPA's decision-making. Nothing in CAA section 112 compels EPA to use cost-benefit analysis in standard-setting decisions. Moreover, to the extent the commenter bases its position that the new source BTF standard for mercury lacks benefits because it does not address “any existing risk,” the court of appeals has held that risk is not a consideration when setting MACT standards, as in
We evaluated and rejected BTF options for the CAA section 112(d)(2) and (3) revisions in the supplemental proposal and proposed MACT floor emissions limits for formaldehyde, HCl, Hg, and PAH for existing sources. We also evaluated and rejected BTF options for new sources for formaldehyde, HCl, and PAHs. For Hg, we also evaluated BTF options for new furnaces. We rejected BTF for new SiMn furnaces. However, we proposed BTF limits for Hg for FeMn furnaces. See the
We are promulgating MACT floor-based limits for the four HAP described above for existing sources under CAA section 112(d)(2) and (3) as described above, which is the same approach as in the supplemental proposal. Regarding new sources, we are promulgating MACT floor limits for new sources for formaldehyde, HCl, and PAHs, and for Hg for new SiMn furnaces. However, we are promulgating a BTF limit for Hg for FeMn furnaces.
The limits for HCl and formaldehyde are exactly the same as proposed. The Hg limits for FeMn and SiMn production and PAH limits for SiMn production changed slightly due to the inclusion of additional data. The only significant change was for the PAH limit for FeMn production, which is about 8 times higher than what we proposed. In our supplemental proposal, we provided notice of receipt of the highest test data (i.e., the data received in August 2014) which when combined with the other data resulted in a higher PAH limit. While these data had not been completely QA/QCed before the supplemental proposal, both the method for calculating a limit and most of the data on which the final limit was calculated were available and addressed in the supplemental proposal. Furthermore, commenters agreed that the final limit should be based on all available valid data. As we stated previously, any changes to the Hg and PAH emissions limits were a result of using all of the available valid data which resulted in a change to the MACT floor calculations. Additional data received during the comment period confirmed a higher PAH limit was justified.
In the 2014 supplemental proposal, the EPA solicited comment regarding the use of new technologies to provide continuous or near continuous long term approaches to monitoring emissions from industrial sources such as the ferroalloys production facilities within this source category. Specifically, we were seeking comment on the feasibility and practice associated with the use of automated opacity monitoring with ASTM D7520-13, using DCOT at fixed points to interpret visible emissions from roof vents associated with the processes at each facility, and how this technology could potentially be included as part of the requirements in the NESHAP for ferroalloys production sources.
Based on the information we received during the comment period for the supplemental proposal and after further evaluation of the technology, we believe that the use of DCOT can provide opacity readings comparable to Method 9 and reduce the burden of requiring a person to conduct opacity readings over the furnace cycle. Furthermore, the DCOT provides objective and well-substantiated readings of opacity. The DCOT camera provides an image that the facility could access immediately, with QA/QC done within 45 minutes to validate the image and initial readings. In comparison, it would take a field observer roughly 30 minutes to return from the field and average their manually assembled data such that they can report the average that they recorded over the previous 90 minutes of observations. We view the initial visible recording as sufficient evidence to provide the facility enough reason to initiate, investigate, and correct concerns that may create elevated visual emissions observations, and the 45-minute turnaround time on actual opacity values to be quick enough to provide a facility the confirmation they would need to be assured that they have taken appropriate action.
The commenter believes that this explanation overlooks the stringent continuous monitoring that the proposed rule already requires to ensure that the process fugitives control system meets the 95-percent capture requirement. First, the facility must develop a plan to demonstrate 95-percent capture, and that plan must be approved by the permitting authority. Next, the facility must perform an initial compliance demonstration. The facility must then identify specific parameters, either through the engineering assessment or the initial compliance demonstration, that are indicative of compliance with the opacity standard. Finally, on an ongoing basis, the facility must routinely monitor those parameters.
The commenter notes that an initial compliance demonstration and ongoing monitoring is a standard regulatory approach required in any number of MACT standards. However, none of these other standards require weekly testing to confirm that the parameters and limits are still being met and many other standards require re-testing only every 5 years, or at most annually. They believe that nothing in the current proposal demonstrates why it is necessary or appropriate to deviate from this standard approach here.
Two commenters believe that the proposed weekly opacity testing will impose significant ongoing costs on the facilities for no additional environmental benefit. They believe that the ongoing parametric monitoring is sufficient to ensure compliance on an ongoing basis.
These commenters believe that the weekly opacity reading requirement is overly burdensome, especially for Eramet because they have three shop buildings. They estimate 3-5 hours per building opacity reading for a total of 9-15 hours a week for reading opacity.
One commenter adds that the EPA should not allow Method 9 to be used, unless there is a power outage requiring the facility to use Method 9 to assure opacity standard compliance. They also add that instead of Method 9, the EPA should require a source to use either continuous opacity monitor or DCOT.
We are finalizing requirements to measure opacity from the furnace buildings using ASTM D7520-13 and digital camera technology because we conclude this is the best method to ensure reliable and unbiased readings for opacity. We are also finalizing the requirement that facilities need to meet an average opacity standard of no more than 8-percent opacity for each furnace cycle. Furthermore, we are finalizing the requirement that at no time during operation may any two consecutive 6-minute block opacity readings (12-minute period) be greater than 20-percent opacity.
Eramet Marietta Incorporated, in Marietta, Ohio and Felman Production LLC, in Letart West Virginia, are the 2 manganese ferroalloys production facilities currently operating in the United States that will be affected by these amendments. We do not know of any new facilities that are expected to be constructed in the foreseeable future. However, there is one other facility that has a permit to produce FeMn or SiMn in an electric arc furnace, but it is not doing so at present. It is possible, however, that this facility could resume production or another non-manganese ferroalloy producer could decide to commence production of FeMn or SiMn. Given this uncertainty, our impact analysis is focused on the two existing sources that are currently operating.
As noted in the 2011 proposal, emissions of metal HAP from ferroalloys production sources have declined in recent years, primarily as the result of state actions and also due to the industry's own initiative. The final amendments in this rule would cut HAP emissions (primarily particulate metal HAP such as manganese, arsenic, and nickel) by about 60 percent from their current levels. Under the final emissions standards for process fugitives emissions from the furnace building, we estimate that the HAP emissions reductions would be 77 tpy, including significant reductions of manganese.
Under the revised final amendments, each ferroalloys production facility is expected to incur costs for the design, installation and operation of an enhanced local capture system. Each facility also is expected to incur costs associated with the installation of additional control devices to manage the air flows generated by the enhanced
The revised capital costs for each facility were estimated based on the projected number and types of upgrades required. The specific enhancements for each facility were selected for cost estimation based on estimates directly provided by the facilities based on their engineering analyses and discussions with the EPA. The
Cost elements vary by plant and furnace and include the following elements:
• Curtains or doors surrounding furnace tops to contain fugitive emissions;
• Improvements to hoods collecting tapping emissions;
• Upgraded fans to improve the airflow of fabric filters controlling fugitive emissions;
• Addition of “secondary capture” or additional hoods to capture emissions from tapping platforms or crucibles;
• Addition of fugitives capture for casting operations;
• Improvement of existing control devices or addition of fabric filters; and
• Addition of rooftop ventilation, in which fugitive emissions escaping local control are collected in the roof canopy over process areas through addition of partitions and hoods, then directed through roof vents and ducts to control devices.
For purposes of the analysis for the final rule, we assumed that enhanced capture systems and roofline ventilation will be installed for all operational furnaces at both facilities and for MOR operations at Eramet Marietta. The specific elements of the capture and control systems selected for each facility are based on information supplied by the facilities incorporating their best estimates of the improvements to fugitive emission capture and control they would implement to achieve the standards included in the final rule. We estimate the total capital costs of installing the required ductwork, fans, control devices, and monitoring to comply with the enhanced capture system requirements to be $40.3 million and the total annualized cost to be $7.7 million (2012 dollars) for the two plants. We estimate that enhanced capture and control systems required by this rule will reduce metal HAP emissions by 75 tons, resulting in a cost per ton of metal HAP removed to be $106,000 per ton ($53 per pound). The total HAP reduction for the enhanced capture and control systems is estimated to be 77 tpy at a cost per ton of $103,000 per ton ($52 per pound). We also estimate that these systems will achieve PM emission reductions of 229 tpy, resulting in cost per ton of PM removed of $34,600 per ton and achieve PM
As a result of the requirements in this final rule, we estimate that the total capital cost for the Eramet facility will be about $25.4 million and the total annualized costs will be about $5.6 million (in 2012 dollars). For impacts to Felman Production LLC, this facility is estimated to incur a total capital cost of $14.9 million and a total annualized costs of just under $2.1 million (in 2012 dollars). In total, these costs could lead to an increase in annualized cost of about 1.9 percent of sales, which serves as an estimate for the increase in product prices, and a decrease in output of as much as 10.1 percent. For more information regarding economic impacts, please refer to the
The estimated reductions in HAP emissions (
This rulemaking is not an “economically significant regulatory action” under Executive Order 12866 because it is not likely to have an annual effect on the economy of $100 million or more. Therefore, we have not conducted a Regulatory Impact Analysis (RIA) for this rulemaking or a benefits analysis. While we expect that these avoided emissions will result in improvements in air quality and reduce health effects associated with exposure to HAP associated with these emissions, we have not quantified or monetized the benefits of reducing these emissions for this rulemaking. This does not imply that there are no benefits associated with these emission reductions. In fact, our demographic analysis indicates that thousands of people live within 50 kilometers of these two facilities and these people will experience benefits because of the reduced exposure to air toxics due to this rulemaking.
When determining if the benefits of an action exceed its costs, Executive Orders 12866 and 13563 direct the Agency to consider qualitative benefits that are difficult to quantify but essential to consider. Controls installed to reduce HAP would also reduce ambient concentrations of PM
The rulemaking is also anticipated to reduce emissions of other HAP, including metal HAP (arsenic, cadmium, chromium (both total and hexavalent), lead compounds, manganese, and nickel) and PAHs. Some of these HAP are carcinogenic (e.g., arsenic, PAHs) and some are toxic and have effects other than cancer (e.g., kidney disease from cadmium, respiratory, and immunological effects from nickel). While we cannot quantitatively estimate the benefits achieved by reducing emissions of these HAP, qualitative benefits are expected as a result of reducing exposures to these HAP. More information about the health effects of these HAP can be found on the IRIS,
As explained in section IV.A of this preamble, we assessed the impacts to various demographic groups. The methodology and the results of the analyses are described in the
Based on that assessment, we conclude that this final rule will reduce the number of people exposed to elevated risks, from approximately 41,000, to about 26,000 people exposed to a potential cancer risk greater than or equal to 1-in-1 million and from 1,300 to zero people exposed to a potential chronic noncancer hazard level of 1. Based on this analysis, the EPA has determined that these final rule requirements will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations. See Section VI.J of this preamble for more information.
This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because the Agency does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. The report,
This rule is expected to reduce environmental impacts for everyone, including children. This action establishes emissions limits at the levels based on MACT, as required by the CAA. Based on our analysis, we believe that this rule does not present a disproportionate risk to children because it increases the level of environmental protection for all affected populations.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
The information collection activities in this rule have been submitted for approval to the OMB under the PRA. The ICR document that the EPA prepared has been assigned EPA ICR number 2488.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
The information requirements in this rulemaking are based on the notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These notifications, reports, and records are essential in determining compliance, and are specifically authorized by CAA section 114 (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to agency policies set forth in 40 CFR part 2, subpart B.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the agency will announce that approval in the
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are businesses that can be classified as small firms using the Small Business Administration size standards for their respective industries. The agency has determined that neither of the companies affected by this rule is considered to be a small entity. Details of this analysis are presented in the memorandum,
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments, or on the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. There are no ferroalloys production facilities that are owned or operated by tribal governments. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in the
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This final rule involves technical standards. EPA decided to use ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses,” for its manual methods of measuring the oxygen or carbon dioxide content of the exhaust gas. These parts of ASME PTC 19.10-1981 are acceptable alternatives to EPA Method 3B. This standard is available from the American Society of Mechanical Engineers (ASME), Three Park Avenue, New York, NY 10016-5990.
The EPA has also decided to use ASTM D7520-13, Standard Test Method for Determining the Opacity in a Plume in an Outdoor Ambient Atmosphere, for measuring opacity from the shop buildings. This standard is an acceptable alternative to EPA Method 9 and is available from the American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA 19428-2959. See
In addition, the EPA has decided to use California Air Resources Board Method 429, Determination of Polycyclic Aromatic Hydrocarbon (PAH) Emissions from Stationary Sources for measuring PAH emissions from the furnace control device. This method is an acceptable alternative to EPA Method 0010 and is available from the California Air Resources Board (CARB), Engineering and Certification Branch, 1001 I Street, P.O. Box 2815, Sacramento, CA 95812-2815. See
The EPA has also decided to use EPA Methods 1, 2, 3A, 3B, 4, 5, 5D, 10, 26A, 29, 30B, 316 of 40 CFR part 60, appendix A. No applicable VCS were identified for EPA Methods 30B, 5D, 316.
Under 40 CFR 63.7(f) and 40 CFR 63.8(f) of subpart A of the General Provisions, a source may apply to the EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in this final rule.
The EPA has determined that the current health risks posed by emissions from this source category are unacceptable. There are up to 41,000 people living in close proximity to the two facilities that are currently subject to health risks which may not be considered negligible (
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Environmental Protection Agency is amending title 40, chapter I, part 63 of the Code of Federal Regulations (CFR) as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(f) * * *
(1) ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], issued August 31, 1981, IBR approved for §§ 63.309(k), 63.457(k), 63.772(e) and (h), 63.865(b), 63.1282(d) and (g), 63.1625(b), 63.3166(a), 63.3360(e), 63.3545(a), 63.3555(a), 63.4166(a), 63.4362(a), 63.4766(a), 63.4965(a), 63.5160(d), table 4 to subpart UUUU, 63.9307(c), 63.9323(a), 63.11148(e), 63.11155(e), 63.11162(f), 63.11163(g), 63.11410(j), 63.11551(a), 63.11646(a), and 63.11945, table 5 to subpart DDDDD, table 4 to subpart JJJJJ, tables 4 and 5 of subpart UUUUU, and table 1 to subpart ZZZZZ.
(g) * * *
(87) ASTM D7520-13, “Standard Test Method for Determining the Opacity in a Plume in an Outdoor Ambient Atmosphere,” Approved December 1, 2013, IBR approved for §§ 63.1625(b).
(j) California Air Resources Board (CARB), 1001 I Street, P.O. Box 2815, Sacramento, CA 95812-2815, Telephone (916) 327-0900,
(1) Method 429, Determination of Polycyclic Aromatic Hydrocarbon (PAH) Emissions from Stationary Sources, Adopted September 12, 1989, Amended July 28, 1997, IBR approved for § 63.1625(b).
(a) You are subject to this subpart if you own or operate a new or existing ferromanganese and/or silicomanganese production facility that is a major source or is co-located at a major source of hazardous air pollutant emissions.
(b) You are subject to this subpart if you own or operate any of the following equipment as part of a ferromanganese and/or silicomanganese production facility:
(1) Electric arc furnace;
(2) Casting operations;
(3) Metal oxygen refining (MOR) process;
(4) Crushing and screening operations;
(5) Outdoor fugitive dust sources.
(c) A new affected source is any of the equipment listed in paragraph (b) of this section for which construction or reconstruction commenced after June 30, 2015.
(d) Table 1 of this subpart specifies the provisions of subpart A of this part that apply to owners and operators of ferromanganese and silicomanganese production facilities subject to this subpart.
(e) If you are subject to the provisions of this subpart, you are also subject to title V permitting requirements under 40 CFR part 70 or 71, as applicable.
(f) Emission standards in this subpart apply at all times.
(a) Existing affected sources must be in compliance with the provisions specified in §§ 63.1620 through 63.1629 no later than June 30, 2017.
(b) Affected sources in existence prior to June 30, 2015 must be in compliance with the provisions specified in §§ 63.1650 through 63.1661 by November 21, 2001 and until June 30, 2017. As of June 30, 2017, the provisions of §§ 63.1650 through 63.1661 cease to apply to affected sources in existence prior to June 30, 2015. The provisions of §§ 63.1650 through 63.1661 remain enforceable at a source for its activities prior to June 30, 2017.
(c) If you own or operate a new affected source that commences construction or reconstruction after November 23, 2011, you must comply with the requirements of this subpart by June 30, 2015, or upon startup of operations, whichever is later.
Terms in this subpart are defined in the Clean Air Act (Act), in subpart A of this part, or in this section as follows:
(a)
(1)
(ii) You must not discharge exhaust gases from each electric arc furnace operation containing particulate matter in excess of 25 mg/dscm into the atmosphere from any existing electric arc furnace.
(2)
(ii) You must not discharge exhaust gases from each electric arc furnace operation containing mercury emissions in excess of 130 μg/dscm into the atmosphere from any existing electric arc furnace when producing ferromanganese.
(iii) You must not discharge exhaust gases from each electric arc furnace operation containing mercury emissions in excess of 4 μg/dscm into the atmosphere from any new or reconstructed electric arc furnace when producing silicomanganese.
(iv) You must not discharge exhaust gases from each electric arc furnace operation containing mercury emissions in excess of 12 μg/dscm into the atmosphere from any existing electric arc furnace when producing silicomanganese.
(3)
(ii) You must not discharge exhaust gases from each electric arc furnace operation containing polycyclic aromatic hydrocarbon emissions in excess of 12,000 μg/dscm into the atmosphere from any existing electric arc furnace when producing ferromanganese.
(iii) You must not discharge exhaust gases from each electric arc furnace operation containing polycyclic aromatic hydrocarbon emissions in excess of 72 μg/dscm into the atmosphere from any new or reconstructed electric arc furnace when producing silicomanganese.
(iv) You must not discharge exhaust gases from each electric arc furnace operation containing polycyclic aromatic hydrocarbon emissions in excess of 130 μg/dscm into the atmosphere from any existing electric arc furnace when producing silicomanganese.
(4)
(ii) You must not discharge exhaust gases from each electric arc furnace operation containing hydrochloric acid emissions in excess of 1,100 μg/dscm into the atmosphere from any existing electric arc furnace.
(5)
(b)
(2) The determination of the overall capture must be demonstrated as required by § 63.1624(a).
(3) Unless you meet the criteria of paragragh (b)(3)(iii) of this section, you must not cause the emissions exiting from a shop building to exceed an average of 8 percent opacity over a furnace or MOR process cycle.
(i) This 8 percent opacity requirement is determined by averaging the
(ii) An individual opacity reading shall be determined as the average of 24 consecutive images recorded at 15-second intervals with the opacity values from each individual digital image rounded to the nearest 5 percent.
(iii) If the average opacity from the shop building is greater than 8 percent opacity during an observed furnace or MOR process cycle, the opacity of two more additional furnace or MOR process cycles must be observed within 7 days and the average of the individual opacity readings during the three observation periods must be less than 8 percent opacity.
(iv) At no time during operation may the average of any two consecutive individual opacity readings be greater than 20 percent opacity.
(c)
(d)
(e)
(f) At all times, you must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator that may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records and inspection of the source.
(a)
(i) Documentation of engineered hoods and secondary fugitive capture systems designed according to the most recent, at the time of construction, ventilation design principles recommended by the American Conference of Governmental Industrial Hygienists (ACGIH). The process fugitive emissions capture systems must be designed to achieve sufficient air changes to evacuate the collection area frequently enough to ensure process fugitive emissions are effectively collected by the ventilation system and ducted to the control device(s). The required ventilation systems should also use properly positioned hooding to take advantage of the inherent air flows of the source and capture systems that minimize air flows while also intercepting natural air flows or creating air flows to contain the fugitive emissions. Include a schematic for each building indicating duct sizes and locations, hood sizes and locations, control device types, size and locations and exhaust locations. The design plan must identify the key operating parameters and measurement locations to ensure proper operation of the system and establish monitoring parameter values that reflect effective capture.
(ii) List of critical maintenance actions and the schedule to conduct them.
(2) You must submit a copy of the process fugitive emissions ventilation plan to the designated permitting authority on or before the applicable compliance date for the affected source as specified in § 63.1621 in electronic format and whenever an update is made to the plan. The requirement for you to operate the facility according to the written process fugitives ventilation plan and specifications must be incorporated in the operating permit for the facility that is issued by the designated permitting authority under part 70 or 71 of this chapter, as applicable.
(3) You must update the information required in paragraphs (a)(1) and (2) of this section every 5 years or whenever there is a significant change in variables that affect process fugitives ventilation design such as the addition of a new process.
(b)
(2) You must submit a copy of the outdoor fugitive dust control plan to the designated permitting authority on or before the applicable compliance date for the affected source as specified in § 63.1621. The requirement for you to operate the facility according to a written outdoor fugitive dust control plan must be incorporated in the operating permit for the facility that is issued by the designated permitting authority under part 70 or 71 of this chapter, as applicable.
(3) You may use existing manuals that describe the measures in place to control outdoor fugitive dust sources required as part of a state implementation plan or other federally enforceable requirement for particulate matter to satisfy the requirements of paragraph (b)(1) of this section.
(a)
(2) Each performance test in paragraphs (c)(1) and (2) of this section must consist of three separate and complete runs using the applicable test methods.
(3) Each run must be conducted under conditions that are representative of normal process operations.
(4) Performance tests conducted on air pollution control devices serving electric arc furnaces must be conducted such that at least one tapping period, or at least 20 minutes of a tapping period, whichever is less, is included in at least two of the three runs. The sampling time for each run must be at least three times the average tapping period of the tested furnace, but no less than 60 minutes.
(5) You must conduct the performance tests specified in paragraph (c) of this section under such conditions as the Administrator specifies based on representative performance of the affected source for the period being tested. Upon request, you must make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(b)
(1) Method 1 of appendix A-1 of 40 CFR part 60 to select the sampling port location and the number of traverse points.
(2) Method 2 of appendix A-1 of 40 CFR part 60 to determine the volumetric flow rate of the stack gas.
(3)(i) Method 3A or 3B of appendix A-2 of 40 CFR part 60 (with integrated bag sampling) to determine the outlet stack and inlet oxygen and CO
(ii) You must measure CO
(iii) As an alternative to EPA Reference Method 3B, ASME PTC-19-10-1981-Part 10 may be used (incorporated by reference, see § 63.14).
(4) Method 4 of appendix A-3 of 40 CFR part 60 to determine the moisture content of the stack gas.
(5)(i) Method 5 of appendix A-3 of 40 CFR part 60 to determine the particulate matter concentration of the stack gas for negative pressure baghouses and positive pressure baghouses with stacks.
(ii) Method 5D of appendix A-3 of 40 CFR part 60 to determine particulate matter concentration and volumetric flow rate of the stack gas for positive pressure baghouses without stacks.
(iii) The sample volume for each run must be a minimum of 4.0 cubic meters (141.2 cubic feet). For Method 5 testing only, you may choose to collect less than 4.0 cubic meters per run provided that the filterable mass collected (
(6) Method 30B of appendix A-8 of 40 CFR part 60 to measure mercury. Apply the minimum sample volume determination procedures as per the method.
(7)(i) Method 26A of appendix A-8 of 40 CFR part 60 to determine outlet stack or inlet hydrochloric acid concentration.
(ii) Collect a minimum volume of 2 cubic meters.
(8)(i) Method 316 of appendix A of this part to determine outlet stack or inlet formaldehyde.
(ii) Collect a minimum volume of 1.0 cubic meter.
(9) ASTM D7520-13 to determine opacity (incorporated by reference, see § 63.14) with the following conditions:
(i) During the digital camera opacity technique (DCOT) certification procedure outlined in Section 9.2 of ASTM D7520-13, you or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees and mixed backgrounds (clouds and/or a sparse tree stand).
(ii) You must have standard operating procedures in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as outlined in Section 8.1 of ASTM D7520-13.
(iii) You must follow the recordkeeping procedures outlined in § 63.10(b)(1) for the DCOT certification, compliance report, data sheets and all raw unaltered JPEGs used for opacity and certification determination.
(iv) You or the DCOT vendor must have a minimum of four (4) independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 20 percent opacity for any one reading and the average error must not exceed 7.5 percent opacity.
(v) Use of this method does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification and/or training of the DCOT camera, software and operator in accordance with ASTM D7520-13 and these requirements is on the facility, DCOT operator and DCOT vendor.
(10) California Air Resources Board (CARB) Method 429 (incorporated by reference, see § 63.14).
(11) The owner or operator may use alternative measurement methods approved by the Administrator following the procedures described in § 63.7(f).
(c)
(2)
(ii) You must conduct particulate matter tests every 5 years for fabric filter air pollution control devices subject to § 63.1623(a)(1) to demonstrate compliance with the applicable emission standards.
(iii) You must conduct annual mercury performance tests for wet scrubber and fabric filter air pollution control devices or vent stacks subject to § 63.1623(a)(2) to demonstrate compliance with the applicable emission standards.
(iv) You must conduct PAH performance tests for wet scrubber and fabric filter air pollution control devices or vent stacks subject to § 63.1623(a)(3) to demonstrate compliance with the applicable emission standards.
(A) For furnaces producing silicomanganese, you must conduct a PAH performance test every 5 years for each furnace that produces silicomanganese subject to § 63.1623(a)(3).
(B) For furnaces producing ferromanganese, you must conduct a PAH performance test every 3 months or 2,190 cumulative hours of ferromanganese production for each furnace subject to § 63.1623(a)(3).
(C) If a furnace producing ferromanganese demonstrates compliance with four consecutive PAH tests, the owner/operator may petition the permitting authority to request reduced frequency of testing to demonstrate compliance with the PAH emission standards. However, this PAH compliance testing cannot be reduced to less than once per year.
(v) You must conduct ongoing performance tests every 5 years for air pollution control devices or vent stacks subject to § 63.1623(a)(4), (a)(5), (b)(1), and (c) through (e) to demonstrate compliance with the applicable emission standards.
(3) Compliance is demonstrated for all sources performing emissions tests if the average concentration for the three runs comprising the performance test does not exceed the standard.
(4)
(i) For a wet particulate matter scrubber, you must establish the minimum liquid flow rate and pressure drop as your operating limits during the three-run performance test. If you use a wet particulate matter scrubber and you conduct separate performance tests for particulate matter, you must establish one set of minimum liquid flow rate and pressure drop operating limits. If you conduct multiple performance tests, you must set the minimum liquid flow rate and pressure drop operating limits at the highest minimum hourly average
(ii) For a wet acid gas scrubber, you must establish the minimum liquid flow rate and pH, as your operating limits during the three-run performance test. If you use a wet acid gas scrubber and you conduct separate performance tests for hydrochloric acid, you must establish one set of minimum liquid flow rate and pH operating limits. If you conduct multiple performance tests, you must set the minimum liquid flow rate and pH operating limits at the highest minimum hourly average values established during the performance tests.
(iii) For emission sources with fabric filters that choose to demonstrate continuous compliance through bag leak detection systems you must install a bag leak detection system according to the requirements in § 63.1626(d) and you must set your operating limit such that the sum duration of bag leak detection system alarms does not exceed 5 percent of the process operating time during a 6-month period.
(iv) If you choose to demonstrate continuous compliance through a particulate matter CEMS, you must determine an operating limit (particulate matter concentration in mg/dscm) during performance testing for initial particulate matter compliance. The operating limit will be the average of the PM filterable results of the three Method 5 or Method 5D of appendix A-3 of 40 CFR part 60 performance test runs. To determine continuous compliance, the hourly average PM concentrations will be averaged on a rolling 30 operating day basis. Each 30 operating day average will have to meet the PM operating limit.
(d)
(ii) You must conduct the opacity observations according to ASTM D7520-13 (incorporated by reference, see § 63.14), for a period that includes at least one complete furnace process cycle for each furnace.
(iii) For a shop building that contains more than one furnace, you must conduct the opacity observations according to ASTM D7520-13, for a period that includes one tapping period from each furnace located in the shop building.
(iv) You must conduct the opacity observations according to ASTM D7520-13, for a one hour period that includes at least one pouring for each MOR located in the shop building.
(v) You must conduct the opacity observations at least once per week for each shop building containing one or more furnaces or MOR.
(vi) You may reduce the frequency of observations to once per month for each shop building that demonstrates compliance with the weekly 8-percent opacity limit for 26 consecutive complete observations that span a period of at least 26 weeks. Any monthly observation in excess of 8-percent opacity will return that shop building opacity observation to a weekly compliance schedule. You may reduce the frequency of observations again to once per month for each shop building that demonstrates compliance with the weekly 8-percent opacity limit after another 26 consecutive complete observations that span a period of at least 26 weeks.
(2) You must determine shop building opacity operating parameters based on either monitoring data collected during the compliance demonstration or established in an engineering assessment.
(i) If you choose to establish parameters based on the initial compliance demonstration, you must simultaneously monitor parameter values for one of the following: The capture system fan motor amperes and all capture system damper positions, the total volumetric flow rate to the air pollution control device and all capture system damper positions, or volumetric flow rate through each separately ducted hood that comprises the capture system. Subsequently you must monitor these parameters according to § 63.1626(g) and ensure they remain within 10 percent of the value recorded during the compliant opacity readings.
(ii) If you choose to establish parameters based on an engineering assessment, then a design analysis shall include, for example, specifications, drawings, schematics and ventilation system diagrams prepared by the owner or operator or capture or control system manufacturer or vendor that describes the shop building opacity system ventilation design based on acceptable engineering texts. The design analysis shall address vent stream characteristics and ventilation system design operating parameters such as fan amps, damper position, flow rate and/or other specified parameters.
(iii) You may petition the Administrator to reestablish these parameter ranges whenever you can demonstrate to the Administrator's satisfaction that the electric arc furnace or MOR operating conditions upon which the parameter ranges were previously established are no longer applicable. The values of these parameter ranges determined during the most recent demonstration of compliance must be maintained at the appropriate level for each applicable period.
(3) You will demonstrate continuing compliance with the opacity standards by following the monitoring requirements specified in § 63.1626(g) and the reporting and recordkeeping requirements specified in § 63.1628(b)(5).
(e)
(2)
(3)
(a)
(b) You must submit the standard operating procedures manual for baghouses required by paragraph (a) of this section to the Administrator or delegated authority for review and approval.
(c) Unless the baghouse is equipped with a bag leak detection system or CEMS, the procedures that you specify in the standard operating procedures manual for inspections and routine maintenance must, at a minimum,
(1) You must observe the baghouse outlet on a daily basis for the presence of any visible emissions.
(2) In addition to the daily visible emissions observation, you must conduct the following activities:
(i) Weekly confirmation that dust is being removed from hoppers through visual inspection, or equivalent means of ensuring the proper functioning of removal mechanisms.
(ii) Daily check of compressed air supply for pulse-jet baghouses.
(iii) An appropriate methodology for monitoring cleaning cycles to ensure proper operation.
(iv) Monthly check of bag cleaning mechanisms for proper functioning through visual inspection or equivalent means.
(v) Quarterly visual check of bag tension on reverse air and shaker-type baghouses to ensure that the bags are not kinked (kneed or bent) or lying on their sides. Such checks are not required for shaker-type baghouses using self-tensioning (spring loaded) devices.
(vi) Quarterly confirmation of the physical integrity of the baghouse structure through visual inspection of the baghouse interior for air leaks.
(vii) Semiannual inspection of fans for wear, material buildup and corrosion through visual inspection, vibration detectors, or equivalent means.
(d)
(2) The procedures you specified in the standard operating procedures manual for baghouse maintenance must include, at a minimum, a preventative maintenance schedule that is consistent with the baghouse manufacturer's instructions for routine and long-term maintenance.
(3) Each bag leak detection system must meet the specifications and requirements in paragraphs (d)(3)(i) through (viii) of this section.
(i) The bag leak detection system must be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 1.0 milligram per dry standard cubic meter (0.00044 grains per actual cubic foot) or less.
(ii) The bag leak detection system sensor must provide output of relative PM loadings.
(iii) The bag leak detection system must be equipped with an alarm system that will alarm when an increase in relative particulate loadings is detected over a preset level.
(iv) You must install and operate the bag leak detection system in a manner consistent with the guidance provided in “Office of Air Quality Planning and Standards (OAQPS) Fabric Filter Bag Leak Detection Guidance” EPA-454/R-98-015, September 1997 (incorporated by reference, see § 63.14) and the manufacturer's written specifications and recommendations for installation, operation and adjustment of the system.
(v) The initial adjustment of the system must, at a minimum, consist of establishing the baseline output by adjusting the sensitivity (range) and the averaging period of the device and establishing the alarm set points and the alarm delay time.
(vi) Following initial adjustment, you must not adjust the sensitivity or range, averaging period, alarm set points, or alarm delay time, except as detailed in the approved standard operating procedures manual required under paragraph (a) of this section. You cannot increase the sensitivity by more than 100 percent or decrease the sensitivity by more than 50 percent over a 365-day period unless such adjustment follows a complete baghouse inspection that demonstrates that the baghouse is in good operating condition.
(vii) You must install the bag leak detector downstream of the baghouse.
(viii) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(4) You must include in the standard operating procedures manual required by paragraph (a) of this section a corrective action plan that specifies the procedures to be followed in the case of a bag leak detection system alarm. The corrective action plan must include, at a minimum, the procedures that you will use to determine and record the time and cause of the alarm as well as the corrective actions taken to minimize emissions as specified in paragraphs (d)(4)(i) and (ii) of this section.
(i) The procedures used to determine the cause of the alarm must be initiated within 30 minutes of the alarm.
(ii) The cause of the alarm must be alleviated by taking the necessary corrective action(s) that may include, but not be limited to, those listed in paragraphs (d)(4)(ii)(A) through (F) of this section.
(A) Inspecting the baghouse for air leaks, torn or broken filter elements, or any other malfunction that may cause an increase in emissions.
(B) Sealing off defective bags or filter media.
(C) Replacing defective bags or filter media, or otherwise repairing the control device.
(D) Sealing off a defective baghouse compartment.
(E) Cleaning the bag leak detection system probe, or otherwise repairing the bag leak detection system.
(F) Shutting down the process producing the particulate emissions.
(e) If you use a wet particulate matter scrubber, you must collect the pressure drop and liquid flow rate monitoring system data according to § 63.1628, reduce the data to 24-hour block averages and maintain the 24-hour average pressure drop and liquid flow-rate at or above the operating limits established during the performance test according to § 63.1625(c)(4)(i).
(f) If you use curtains or partitions to prevent process fugitive emissions from escaping the area around the process fugitive emission source or other parts of the building, you must perform quarterly inspections of the physical condition of these curtains or partitions to determine if there are any tears or openings.
(g)
(1) If you choose to establish operating parameters during the compliance test as specified in § 63.1625(d)(2)(i), you must meet one of the following requirements.
(i) Check and record the control system fan motor amperes and capture system damper positions once per shift.
(ii) Install, calibrate and maintain a monitoring device that continuously records the volumetric flow rate through each separately ducted hood.
(iii) Install, calibrate and maintain a monitoring device that continuously records the volumetric flow rate at the inlet of the air pollution control device and check and record the capture system damper positions once per shift.
(2) If you choose to establish operating parameters during the compliance test as specified in § 63.1625(d)(2)(ii), you must monitor the selected parameter(s) on a frequency specified in the assessment and according to a method specified in the engineering assessment
(3) All flow rate monitoring devices must meet the following requirements:
(i) Be installed in an appropriate location in the exhaust duct such that reproducible flow rate monitoring will result.
(ii) Have an accuracy ±10 percent over its normal operating range and be calibrated according to the manufacturer's instructions.
(4) The Administrator may require you to demonstrate the accuracy of the monitoring device(s) relative to Methods 1 and 2 of appendix A-1 of part 60 of this chapter.
(5) Failure to maintain the appropriate capture system parameters (e.g., fan motor amperes, flow rate and/or damper positions) establishes the need to initiate corrective action as soon as practicable after the monitoring excursion in order to minimize excess emissions.
(h)
(i)
(1) The performance criteria and design specifications for the monitoring system equipment, including the sample interface, detector signal analyzer and data acquisition and calculations;
(2) Sampling interface location such that the monitoring system will provide representative measurements;
(3) Equipment performance checks, system accuracy audits, or other audit procedures;
(4) Ongoing operation and maintenance procedures in accordance with the general requirements of § 63.8(c)(1) and (3);
(5) Conditions that define a continuous monitoring system that is out of control consistent with § 63.8(c)(7)(i) and for responding to out of control periods consistent with § 63.8(c)(7)(ii) and (c)(8) or Table 1 to this subpart, as applicable; and
(6) Ongoing recordkeeping and reporting procedures in accordance with provisions in § 63.10(c), (e)(1) and (e)(2)(i), and Table 1 to this subpart, as applicable.
(j) If you have an operating limit that requires the use of a CPMS, you must install, operate and maintain each continuous parameter monitoring system according to the procedures in paragraphs (j)(1) through (7) of this section.
(1) The CPMS must complete a minimum of one cycle of operation for each successive 15-minute period. You must have a minimum of four successive cycles of operation to have a valid hour of data.
(2) Except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions and required monitoring system quality assurance or quality control activities (including, as applicable, system accuracy audits and required zero and span adjustments), you must operate the CMS at all times the affected source is operating. A monitoring system malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring system to provide valid data. Monitoring system failures that are caused in part by poor maintenance or careless operation are not malfunctions. You are required to complete monitoring system repairs in response to monitoring system malfunctions and to return the monitoring system to operation as expeditiously as practicable.
(3) You may not use data recorded during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or control activities in calculations used to report emissions or operating levels. You must use all the data collected during all other required data collection periods in assessing the operation of the control device and associated control system.
(4) Except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions and required quality monitoring system quality assurance or quality control activities (including, as applicable, system accuracy audits and required zero and span adjustments), failure to collect required data is a deviation of the monitoring requirements.
(5) You must conduct other CPMS equipment performance checks, system accuracy audits, or other audit procedures specified in your site-specific monitoring plan at least once every 12 months.
(6) You must conduct a performance evaluation of each CPMS in accordance with your site-specific monitoring plan.
(7) You must record the results of each inspection, calibration and validation check.
(k)
(2) Check all mechanical connections for leakage at least every month; and
(3) Perform a visual inspection at least every 3 months of all components of the flow CPMS for physical and operational integrity and all electrical connections for oxidation and galvanic corrosion if your flow CPMS is not equipped with a redundant flow sensor.
(l)
(2) Reduce swirling flow or abnormal velocity distributions due to upstream and downstream disturbances.
(m)
(2) Use a gauge with a minimum tolerance of 1.27 centimeters of water or
(3) Perform checks at least once each process operating day to ensure pressure measurements are not obstructed (
(n)
(2) Check the pH meter's calibration on at least two points every eight hours of process operation.
(o)
(1) You must conduct a performance evaluation of the PM CEMS according to the applicable requirements of § 60.13 of this chapter and Performance Specification 11 at 40 CFR part 60, appendix B.
(2) During each PM correlation testing run of the CEMS required by Performance Specification 11 at 40 CFR part 60, appendix B, PM and oxygen (or carbon dioxide) collect data concurrently (or within a 30- to 60-minute period) by both the CEMS and by conducting performance tests using Method 5 or 5D at 40 CFR part 60, appendix A-3 or Method 17 at 40 CFR part 60, appendix A-6.
(3) Perform quarterly accuracy determinations and daily calibration drift tests in accordance with Procedure 2 at 40 CFR part 60, appendix F. Relative Response Audits must be performed annually and Response Correlation Audits must be performed every 3 years.
(4) Within 60 days after the date of completing each CEMS relative accuracy test audit or performance test conducted to demonstrate compliance with this subpart, you must submit the relative accuracy test audit data and the results of the performance test as specified in § 63.1628(e).
(a) You must comply with all of the notification requirements of § 63.9. Electronic notifications are encouraged when possible.
(b)(1) You must submit the process fugitive ventilation plan required under § 63.1624(a), the outdoor fugitive dust control plan required under § 63.1624(b), the site-specific monitoring plan for CMS required under § 63.1626(i) and the standard operating procedures manual for baghouses required under § 63.1626(a) to the Administrator or delegated authority. You must submit this notification no later than June 30, 2016. For sources that commenced construction or reconstruction after June 30, 2015, you must submit this notification no later than 180 days before startup of the constructed or reconstructed ferromanganese or silicomanganese production facility. For an affected source that has received a construction permit from the Administrator or delegated authority on or before June 30, 2015, you must submit this notification no later than June 30, 2016.
(2) The plans and procedures documents submitted as required under paragraph (b)(1) of this section must be submitted to the Administrator in electronic format and whenever an update is made to the procedure.
(a) You must comply with all of the recordkeeping and reporting requirements specified in § 63.10 of the General Provisions that are referenced in Table 1 to this subpart.
(1) Records must be maintained in a form suitable and readily available for expeditious review, according to § 63.10(b)(1). However, electronic recordkeeping and reporting is encouraged and required for some records and reports.
(2) Records must be kept on site for at least 2 years after the date of occurrence, measurement, maintenance, corrective action, report, or record, according to § 63.10(b)(1).
(b) You must maintain, for a period of 5 years, records of the information listed in paragraphs (b)(1) through (11) of this section.
(1) Electronic records of the bag leak detection system output.
(2) An identification of the date and time of all bag leak detection system alarms, the time that procedures to determine the cause of the alarm were initiated, the cause of the alarm, an explanation of the corrective actions taken and the date and time the cause of the alarm was corrected.
(3) All records of inspections and maintenance activities required under § 63.1626(c) as part of the practices described in the standard operating procedures manual for baghouses required under § 63.1626(a).
(4) Electronic records of the pressure drop and water flow rate values for wet scrubbers used to control particulate matter emissions as required in § 63.1626(e), identification of periods when the 1-hour average pressure drop and water flow rate values are below the established minimum operating limits and an explanation of the corrective actions taken.
(5) Electronic records of the shop building capture system monitoring required under § 63.1626(g)(1) and (2), as applicable, or identification of periods when the capture system parameters were not maintained and an explanation of the corrective actions taken.
(6) Records of the results of quarterly inspections of the furnace capture system required under § 63.1626(h).
(7) Electronic records of the continuous flow monitors or pressure monitors required under § 63.1626(i) and (j) and an identification of periods when the flow rate or pressure was not maintained as required in § 63.1626(e).
(8) Electronic records of the output of any CEMS installed to monitor particulate matter emissions meeting the requirements of § 63.1626(i).
(9) Records of the occurrence and duration of each startup and/or shutdown.
(10) Records of the occurrence and duration of each malfunction of operation (
(11) Records that explain the periods when the procedures outlined in the process fugitives ventilation plan required under § 63.1624(a), the fugitives dust control plan required under § 63.1624(b), the site-specific monitoring plan for CMS required under § 63.1626(i) and the standard operating procedures manual for baghouses required under § 63.1626(a).
(c) You must comply with all of the reporting requirements specified in § 63.10 of the General Provisions that are referenced in Table 1 to this subpart.
(1) You must submit reports no less frequently than specified under § 63.10(e)(3) of the General Provisions.
(2) Once a source reports a violation of the standard or excess emissions, you must follow the reporting format required under § 63.10(e)(3) until a request to reduce reporting frequency is approved by the Administrator.
(d) In addition to the information required under the applicable sections of § 63.10, you must include in the reports required under paragraph (c) of this section the information specified in paragraphs (d)(1) through (7) of this section.
(1) Reports that identify and explain the periods when the procedures outlined in the process fugitives ventilation plan required under § 63.1624(a), the fugitives dust control plan required under § 63.1624(b), the site-specific monitoring plan for CMS required under § 63.1626(i) and the
(2) Reports that identify the periods when the average hourly pressure drop or flow rate of wet scrubbers used to control particulate emissions dropped below the levels established in § 63.1626(e) and an explanation of the corrective actions taken.
(3)
(i) Records of all alarms.
(ii) Description of the actions taken following each bag leak detection system alarm.
(4) Reports of the shop building capture system monitoring required under § 63.1626(g)(1) and (2), as applicable, identification of periods when the capture system parameters were not maintained and an explanation of the corrective actions taken.
(5) Reports of the results of quarterly inspections of the furnace capture system required under § 63.1626(h).
(6) Reports of the CPMS required under § 63.1626, an identification of periods when the monitored parameters were not maintained as required in § 63.1626 and corrective actions taken.
(7) If a malfunction occurred during the reporting period, the report must include the number, duration and a brief description for each type of malfunction that occurred during the reporting period and caused or may have caused any applicable emissions limitation to be exceeded. The report must also include a description of actions taken by the owner or operator during a malfunction of an affected source to minimize emissions in accordance with § 63.1623(f), including actions taken to correct a malfunction.
(e) Within 60 days after the date of completing each CEMS relative accuracy test audit or performance test conducted to demonstrate compliance with this subpart, you must submit the relative accuracy test audit data and the results of the performance test in the method specified by paragraphs (e)(1) and (2) of this section. The results of the performance test must contain the information listed in paragraph (e)(2) of this section.
(1)(i) Within 60 days after the date of completing each performance test (as defined in § 63.2) required by this subpart, you must submit the results of the performance tests, including any associated fuel analyses, following the procedure specified in either paragraph (e)(1)(i)(A) or (B) of this section.
(A) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (
(B) For data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT Web site, you must submit the results of the performance test to the Administrator at the appropriate address listed in § 63.13.
(ii) Within 60 days after the date of completing each CEMS performance evaluation (as defined in § 63.2), you must submit the results of the performance evaluation following the procedure specified in either paragraph (b)(1) or (2) of this section.
(A) For performance evaluations of continuous monitoring systems measuring relative accuracy test audit (RATA) pollutants that are supported by the EPA's ERT as listed on the EPA's ERT Web site, you must submit the results of the performance evaluation to the EPA via the CEDRI. (CEDRI can be accessed through the EPA's CDX.) Performance evaluation data must be submitted in a file format generated through the use of the EPA's ERT. Alternatively, you may submit performance evaluation data in an electronic file format consistent with the XML schema listed on the EPA's ERT Web site, once the XML schema is available. If you claim that some of the performance evaluation information being transmitted is CBI, you must submit a complete file generated through the use of the EPA's ERT or an alternative electronic file consistent with the XML schema listed on the EPA's ERT Web site, including information claimed to be CBI, on a compact disk, flash drive or other commonly used electronic storage media to the EPA. The electronic storage media must be clearly marked as CBI and mailed to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same ERT file or alternate file with the CBI omitted must be submitted to the EPA via the EPA's CDX as described earlier in this paragraph (e)(1)(ii)(A).
(B) For any performance evaluations of continuous monitoring systems measuring RATA pollutants that are not supported by the EPA's ERT as listed on the EPA's ERT Web site, you must submit the results of the performance evaluation to the Administrator at the appropriate address listed in § 63.13.
(2) The results of a performance test shall include the purpose of the test; a brief process description; a complete unit description, including a description of feed streams and control devices; sampling site description; pollutants measured; description of sampling and analysis procedures and any modifications to standard procedures; quality assurance procedures; record of operating conditions, including operating parameters for which limits are being set, during the test; record of preparation of standards; record of calibrations; raw data sheets for field sampling; raw data sheets for field and laboratory analyses; chain-of-custody documentation; explanation of laboratory data qualifiers; example calculations of all applicable stack gas parameters, emission rates, percent reduction rates and analytical results, as applicable; and any other information required by the test method, a relevant standard, or the Administrator.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable state, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to a state, local, or tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this
(b) In delegating implementation and enforcement authority of this subpart to a state, local, or tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the state, local, or tribal agency.
(c) The authorities that cannot be delegated to state, local, or tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to requirements in §§ 63.1620 and 63.1621 and 63.1623 and 63.1624.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90 and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90 and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90 and as required in this subpart.
The revisions read as follows:
(d) Table 1 to this subpart specifies the provisions of subpart A of this part that apply to owners and operators of ferroalloy production facilities subject to this subpart.
(e) * * *
(2) Each owner or operator of a new or reconstructed affected source that commences construction or reconstruction after August 4, 1998 and before November 23, 2011, must comply with the requirements of this subpart by May 20, 1999 or upon startup of operations, whichever is later.
(f) At all times, you must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator that may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records and inspection of the source.
The addition and revisions read as follows:
(a) * * *
(6) You must conduct the performance tests specified in paragraph (c) of this section under such conditions as the Administrator specifies based on representative performance of the affected source for the period being tested. Upon request, you must make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(b) * * *
(7) Method 9 of appendix A-4 of 40 CFR part 60 to determine opacity. ASTM D7520-13, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere” may be used (incorporated by reference, see § 63.14) with the following conditions:
(i) During the digital camera opacity technique (DCOT) certification procedure outlined in Section 9.2 of ASTM D7520-13, the owner or operator or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees and mixed backgrounds (clouds and/or a sparse tree stand).
(ii) The owner or operator must also have standard operating procedures in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as outlined in Section 8.1 of ASTM D7520-13.
(iii) The owner or operator must follow the recordkeeping procedures outlined in § 63.10(b)(1) for the DCOT certification, compliance report, data sheets and all raw unaltered JPEGs used for opacity and certification determination.
(iv) The owner or operator or the DCOT vendor must have a minimum of four (4) independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 15 percent opacity of any one reading and the average error must not exceed 7.5 percent opacity.
(v) Use of this approved alternative does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification and/or training of the DCOT camera, software and operator in accordance with ASTM D7520-13 and these requirements is on the facility, DCOT operator and DCOT vendor.
(e) * * *
(1)
(a) * * *
(6) Failure to monitor or failure to take corrective action under the requirements of paragraph (a) of this section would be a violation of the general duty to operate in a manner consistent with good air pollution control practices that minimizes emissions per § 63.1652(f).
(b) * * *
(3) Failure to monitor or failure to take corrective action under the requirements of paragraph (b) of this section would be a violation of the general duty to operate in a manner consistent with good air pollution control practices that minimizes emissions per § 63.1652(f).
(c) * * *
(7) Failure to monitor or failure to take corrective action under the requirements of paragraph (c) of this section would be a violation of the general duty to operate in a manner consistent with good air pollution control practices that minimizes emissions per § 63.1652(f).
(a) * * *
(4)
The revisions read as follows:
(a) * * *
(2) * * *
(i) Records of the occurrence and duration of each malfunction of operation (
(ii) Records of actions taken during periods of malfunction to minimize emissions in accordance with § 63.1652(f), including corrective actions to restore malfunctioning process and air pollution control and monitoring equipment to its normal or usual manner of operation;
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Mount Charleston blue butterfly (
This rule is effective July 30, 2015.
This final rule is available on the Internet at
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Michael J. Senn, Field Supervisor, U.S. Fish and Wildlife Service, Southern Nevada Fish and Wildlife Office, 4701 North Torrey Pines Drive, Las Vegas, NV 89130-7147; telephone 702-515-5230; facsimile 702-515-5231. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We listed the Mount Charleston blue butterfly as an endangered species on September 19, 2013 (78 FR 57750). On July 15, 2014, we published in the
The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Mount Charleston blue butterfly. In this rule, we are designating approximately 5,214 acres (2,110 hectares) in the Spring Mountains of Clark County, Nevada, as critical habitat for the Mount Charleston blue butterfly.
All previous Federal actions are described in the final rule listing the Mount Charleston blue butterfly as an endangered species (78 FR 57750; September 19, 2013).
We requested written comments from the public on the proposed designation of critical habitat for the Mount Charleston blue butterfly during one comment period. The comment period associated with the publication of the proposed critical habitat rule (79 FR 41225) opened on July 15, 2014, and closed on September 15, 2014. We also requested comments on the associated draft economic analysis during the same comment period. We did not receive any requests for a public hearing. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during the comment period.
During the comment period, we received comment letters directly
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from four knowledgeable individuals with scientific expertise that included familiarity with butterfly biology and ecology, conservation biology, and natural resource management. We received responses from all four of the peer reviewers.
We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the Mount Charleston blue butterfly. Two peer reviewers agreed with our analyses in the proposed rule. A third peer reviewer, while not disagreeing with the designation of critical habitat itself, disagreed with some analyses or application of information. The fourth peer reviewer did not state a position. We received no peer review responses on the DEA. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
(1)
(2)
The evidence that was used to infer that
The evidence to support the conclusion that
In regard to evidence of egg observations of Mount Charleston blue butterflies, we agree with the peer reviewer and Scott (1986, p. 121) that identifying butterfly eggs is difficult, and reported observations should be critically evaluated. However, it is possible to identify eggs of various butterfly species to subfamily, genus, or even species (Scott 1986, p. 121). In addition, the context of how the egg is deposited on the plant and the context of where it is found should be considered. We believe observations of Mount Charleston blue butterfly eggs as reported by Thompson
Based on the preceding discussion, the Service determines that
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for [her] failure to adopt regulations consistent with the agency's comments or petition.” We did not receive official comments or positions on the proposed designation of critical habitat for the Mount Charleston blue butterfly from State of Nevada agencies. One peer reviewer worked for the State of Nevada, Department of Agriculture, and concurred that the proposed critical habitat designation was supported by the data and conclusions.
(15)
(16)
(17)
The Service is committed to working with the Forest Service and LVSSR to implement conservation efforts that protect the Mount Charleston blue butterfly, while also allowing for reasonable expansion and development of the LVSSR compatible with the Mount Charleston blue butterfly, including skiing and snowboarding in the winter and mountain biking and hiking in the summer. The Mount Charleston blue butterfly can coexist with managed recreation when such recreational activities are properly sited, and operation and maintenance of the infrastructure needed to support these activities is appropriately managed. For example, the Mount Charleston blue butterfly historically occurred and currently exists on active ski runs within the LVSSR. In addition, only part of the proposed LVSSR expansion area occurs within the critical habitat designation; future development and expansion of the LVSSR outside of these areas would likely be unaffected by this final rule.
(18)
(19)
(20)
We recognize concerns exist regarding future development plans for the LVSSR SUPA. Areas of the LVSSR SUPA have provided habitat for the Mount Charleston blue butterfly for decades, as described in the final listing of the subspecies (78 FR 57750; September 19, 2013). The Service is committed to working with the Forest Service and LVSSR to allow for reasonable expansion and development of recreational opportunities, including skiing and snowboarding in the winter and mountain biking and hiking in the
(21)
(22)
(23)
Reported acres of habitat in previous
We recognize that habitat is dynamic, the extent of habitat may shift, surveys have not occurred in every area, and butterflies move between patches of habitat. Therefore, we adjusted some of the methodology we used to identify critical habitat in this final rule. We used a 1,000-meter (3,300-foot) distance to approximate potential Mount Charleston blue butterfly movements within critical habitat units. We believe the use of quarter-quarter sections provides an effective boundary and scale that encompasses likely butterfly movements within and between habitat patches, and is easily recognizable by land management agencies and the general public. Therefore, this methodology resulted in the three separate occupied critical habitat units essential to the conservation and recovery of the Mount Charleston blue butterfly that are identified in this final rule.
(24)
(25)
(26)
(27) Comment: We received many public comments that critical habitat should include historical, but unoccupied, areas.
(28)
(29)
(30)
(31)
(32)
We appreciate the work that the Forest Service has done to conserve the Mount Charleston blue butterfly, and we will continue to work with them to implement conservation efforts that protect the Mount Charleston blue butterfly while also consulting on projects that may affect the Mount Charleston blue butterfly in the future.
(33)
In general, we reexamined the criteria used to identify critical habitat as they relate to dispersal for butterflies and the 2,440-m (8,000-ft) buffer distance applied for connectivity and corridors. We originally used dispersal distances reported for the Mission blue butterfly (
Based on reports and descriptions of its movements, we agree that the vagility of the Mount Charleston blue butterfly is likely similar to other related Lycaenidae, and its mobility can be characterized as sedentary or low (10-100 m (33-330 ft)) (Cushman and Murphy 1993, p. 40; Weiss et al. 1997, Table 2; Fleishman
Limited estimates of Mount Charleston blue butterfly movements are available. Distances between patches of habitat for Mount Charleston blue butterfly locations delineated by Andrew
(34)
Based on information we received during the comment period, we made the following changes to the proposed rule:
(1) We have updated the genus from
(2) In response to the comments we received from peer and public reviewers, we have updated the following sections to incorporate literature and information provided or to clarify language based on suggestions made:
(3) We have modified critical habitat boundaries to account for the areas initially proposed for removal, public comments on these proposed removals, and our subsequent review of the data on the proposed removals. In addition to the initial proposed removal areas, we have removed an area within the LVSSR SUPA to be consistent with the criteria, in that the areas are highly disturbed and receive high concentrations of public recreation or recreation management. We have modified the description of the areas removed from critical habitat. We have made changes to maps, units, and the text of this final rule. We have removed 267 ac (108 ha) from proposed Unit 2 and 80 ac (32 ha) from proposed Unit 1. In total, the final critical habitat designation has decreased from the proposed designation by 347 ac (140 ha). The final area of critical habitat designated for the Mount Charleston blue butterfly is approximately 2,228 ac (902 ha) in Unit 1, 2,573 ac (1,041 ha) in Unit 2, and 413 ac (167 ha) in Unit 3, which amounts to a total of 5,214 ac (2,110 ha).
The Mount Charleston blue butterfly is a subspecies of the wider ranging Shasta blue butterfly (
We listed the Mount Charleston blue butterfly as
Based on more recent published scientific data and in keeping with regulations at 50 CFR 17.11(b) to use the most recently accepted scientific name, we will use the name
Data-driven studies undertaken just prior to and just after our listing of the butterfly (Vila
We are recognizing the change in the scientific name of the Mount Charleston blue butterfly to
Weiss
Other than observations by surveyors, little information is available regarding most aspects of the subspecies' biology and the key determinants for the interactions among the Mount Charleston blue butterfly's life history and environmental conditions. Observations indicate that above- or below-average precipitation, coupled with above- or below-average temperatures, influence the phenology of this subspecies (Weiss
Like most butterfly species, the Mount Charleston blue butterfly is dependent on available and accessible nectar plant species for the adult butterfly flight period, when breeding and egg-laying occurs, and for larval development (described under
Like all butterfly species, both the phenology (timing) and number of Mount Charleston blue butterfly individuals that emerge and fly to reproduce during a particular year appear to be reliant on the combination of many environmental factors that may constitute a successful (“favorable”) or unsuccessful (“poor”) year for the subspecies. Specific information regarding diapause of the Mount Charleston blue butterfly is lacking, and while geographic and subspecific variation in life histories can vary, we presume information on the diapause of other Shasta blue butterflies is similar to that of the Mount Charleston blue butterfly. The Shasta blue butterfly is generally thought to diapause at the base of its larval host plant or in the surrounding substrate (Emmel and Shields 1980, p. 132) as an egg the first winter and as a larva near maturity the second winter (Ferris and Brown 1981, pp. 203-204; Scott 1986, p. 411); however, Emmel and Shields (1980, p. 132) suggested that diapause was passed as partly grown larvae, because freshly hatched eggshells were found near newly laid eggs (indicating that the eggs do not overwinter). More recent observations of late summer hatched and overwintering unhatched eggs of the Mount Charleston blue butterfly eggs laid in the Spring Mountains may indicate that it has an environmentally cued and mixed diapause life cycle; however, further observations supporting egg viability are needed to confirm this (Thompson
Prolonged or multiple years of diapause has been documented for several butterfly families, including Lycaenidae (Pratt and Emmel 2010, p. 108). For example, the pupae of the variable checkerspot butterfly (
Most butterfly populations exist as regional metapopulations (Murphy
Based on this information, the likelihood of dispersal more than hundreds of meters (yards) is low for the Mount Charleston blue butterfly, but it may occur. It is hypothesized that the Mount Charleston blue butterfly could diapause for multiple years (more than 2) as larvae and pupae until vegetation conditions are favorable to support emergence, flight, and reproduction
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical or biological features essential for the Mount Charleston blue butterfly from studies of this subspecies' habitat, ecology, and life history as described below. Additional information can be found in the final listing rule published in the
The Mount Charleston blue butterfly is known to occur only in the high elevations of the Spring Mountains, located approximately 40 kilometers (km) (25 miles (mi)) west of Las Vegas in Clark County, Nevada (Austin 1980, p. 20; Scott 1986, p. 410). Historically, the Mount Charleston blue butterfly was detected at elevations as low as 1,830 m (6,000 ft) in the Spring Mountains (Austin 1980, p. 22; Austin 1981, p. 66; Weiss
The Mount Charleston blue butterfly is described to occur on relatively flat ridgetops, gently sloping hills, or meadows, where tree cover is absent to less than 50 percent (Austin 1980, p. 22; Weiss
Therefore, based on the information above, we identify flat or gently sloping areas between 2,500 m (8,200 ft) and 3,500 m (11,500 ft) elevation in the Spring Mountains as a physical or biological feature essential to the Mount Charleston blue butterfly for space for individual and population growth and for normal behavior.
The best scientific information available regarding food, water, air, light, minerals, and other nutritional or physiological requirements of the Mount Charleston blue butterfly's life stages (egg, larva, pupa, adult) result from observations by surveyors, and research to determine the requirements and environmental conditions essential to the Mount Charleston blue butterfly. In general, resources that are thought to fulfill these requirements occur in open areas with exposed soil and rock substrates with short, widely spaced forbs and grasses. These areas allow light to reach the ground in order for adult nectar and larval host plants to grow.
Adult Mount Charleston blue butterflies have been documented feeding on nectar from a number of different flowering plants, but most frequently the species reported are
Based on surveyors' observations, several species appear to be important food plants for the larval life stage of the Mount Charleston blue butterfly. Therefore, we consider those plants on which surveyors have documented Mount Charleston blue butterfly eggs to be larval host or food plants (hereafter, referred to as larval host plants). Based on this,
In addition, the Mount Charleston blue butterfly requires open canopy cover (open forest). Specifically, the Mount Charleston blue butterfly requires areas where tree cover is absent or low. This may be due to ecological requirements of the larval host plants or adult nectar plants or due to the flight behavior of the Mount Charleston blue butterfly. As with most butterflies, the Mount Charleston blue butterfly typically flies during sunny conditions, which are particularly important for this subspecies given the cooler air temperatures at high elevations in the Spring Mountains of Nevada (Weiss
The areas where the Mount Charleston blue butterfly occurs often have shallow exposed soil and rock substrates with short, widely spaced forbs and grasses (Weiss
Therefore, based on the information above, we identify open habitat that permits light to reach the ground, nectar plants for adults and host plants for larvae, and exposed soil and rock substrates with short, widely spaced forbs and grasses to be physical or biological features for this subspecies that provide food, water, air, light, minerals, or other nutritional or physiological requirements.
The study and delineation of habitat for many butterflies has often been associated with larval host plants, breeding resources, and nectar sources for adults (Dennis 2004, p. 37). Similar to other butterfly species (Dennis 2004, p. 37), there is little to no information available about the structural elements required by the Mount Charleston blue butterfly for cover or shelter. However, we infer that, because of their low vagility, cover or shelter used by any life stage of the Mount Charleston blue butterfly will be in close association or proximity to larval or adult food resources in its habitat.
For larvae, diapause is generally thought to occur at the base of the larval host plant or in the surrounding substrate (Emmel and Shields 1980, p. 132). Mount Charleston blue butterfly larvae feed after diapause. Like other butterflies, after larvae become large enough, they pupate (Scott 1986, p. 24). Pupation most likely occurs in the ground litter near a main stem of the larval host plant (Emmel and Shields 1980, p. 132). After pupation, adults feed and mate in the same areas where larvae diapause and pupation occurs. In addition, no specific areas for overnight roosting by adult Mount Charleston blue butterflies have been reported. However, adults have been observed using areas in moderately dense forest stands immediately adjacent to low-cover areas with larval host and nectar plants (Thompson
Therefore, based on the information above, we identify areas with larval host plants and adult nectar plants, and areas immediately adjacent to these plants, to be a physical or biological feature for this subspecies that provides cover or shelter.
The adult Mount Charleston blue butterfly has specific site requirements for its flight period when breeding and reproduction occur, and these requirements may be correlated to its limited vagility and short adult life stage. The typical flight and breeding period for the Mount Charleston blue butterfly is early July to mid-August with a peak in late July, although the subspecies has been observed as early as mid-June and as late as mid-September (Austin 1980, p. 22; Boyd and Austin 1999, p. 17; Thompson
The presence of Mount Charleston blue butterfly adult nectar plants, such as
In 1987, researchers documented two occasions when Mount Charleston blue butterflies oviposited on
Therefore, based on the information above, we identify areas with larval host plants, especially
Habitat for the Mount Charleston blue butterfly that is protected from disturbance or representative of the historical, geographical, and ecological distributions of the subspecies occurs in locations with limited canopy cover that comprise the appropriate species of larval host and adult nectar plants. Although some of these open locations occur due to wind and other environmental stresses that inhibit tree and shrub growth, fire is one of the most prevalent disturbances across the landscape of the Mount Charleston blue butterfly. To better understand the fire frequency and severity as it relates to historic and current conditions at Mount Charleston blue butterfly locations, we characterized locations using biophysical setting (BPS) with associated fire regime groups and fire regime condition developed by Provencher (2008, pp. 1-25 and Appendix II; Barrett
In higher elevation locations where the Mount Charleston blue butterfly is known or presumed to occur (South Loop Trail, Mummy Springs (North Loop Trail), upper Bonanza Trail, and Griffith Peak), disturbance from fire is relatively infrequent, with variable severity (fire regime groups 4 and 5 in Provencher 2008, Appendix II; see example BPS above), occurring every 35 to 200 years at a high severity, or occurring more frequently than every 200 years with a variable but generally high severity (Barrett
In contrast, at lower elevation locations where the Mount Charleston blue butterfly is known or presumed to occur (Las Vegas Ski and Snowboard Resort (LVSSR), Foxtail, Youth Camp, Gary Abbott, Lower LVSSR Parking, Lee Meadows, Bristlecone Trail, and lower Bonanza Trail), disturbance from fire is likely to occur less than every 35 years with more than 75 percent being high-severity fires, or is likely to occur more than every 35 years at mixed-severity and low-severity (fire regime group 2 and 3 in Provencher 2008, Appendix II; see example BPS above). At these lower elevation habitats, fire regime conditions have departed further from historic conditions (Provencher 2008, Table 4, 5 and Appendix II). Lack of fire due to fire exclusion or reduction in natural fire cycles, as has been demonstrated in the Spring Mountains (Entrix 2008, p. 113) and other proximate mountain ranges (Amell 2006, pp. 2-3), has likely resulted in long-term successional changes, including increased forest area and forest structure (higher canopy cover, more young trees, and more trees intolerant of fire) (Nachlinger and Reese 1996, p. 37; Amell 2006, pp. 6-9; Boyd and Murphy 2008, pp. 22-28; Denton
The Carpenter 1 Fire in July 2013 burned into habitat of the Mount Charleston blue butterfly along the ridgelines between Griffith Peak and South Loop spanning a distance of approximately 3 miles (5 km). Within this area, low-, moderate-, or high-quality patches of Mount Charleston blue butterfly habitat intermixed with non-habitat have been documented (Pinyon 2011, Figure 8 and 9). The majority of Mount Charleston blue butterfly moderate- or high-quality habitat through this area was classified as having a very low or low soil-burn severity (Kallstrom 2013, p. 4). The characteristics of Mount Charleston blue
The effects of the Carpenter 1 Fire on Mount Charleston blue butterfly habitat ranged from low or no apparent effects to nearly complete elimination of plant cover (Herrmann 2014, p. 18). Based on a description of monitoring in 2014, the negative effects of the fire on the Mount Charleston blue butterfly and its habitat appear to be inversely related to the quality of habitat, where patches of high-quality habitat with low tree canopy cover were likely less affected (Herrmann 2014, pp. 3-21). Overall, host and nectar plants were diminished in cover and abundance within the burn perimeter but are still present and recovering with new growth (Herrmann 2014, pp. 17-19). Habitat within the burn perimeter will likely improve based upon habitat conditions in a nearby historic burn area (Herrmann 2014, pp. 17-19). Surveys in 2014 have confirmed that the Mount Charleston blue butterfly survived and is present within and adjacent areas outside the fire perimeter (Herrmann 2014, p. 3).
Recreational activities, trail-associated erosion, and the introduction of weeds or invasive grasses are likely the greatest threats that could occur within areas of Mount Charleston blue butterfly habitat burned by the Carpenter 1 Fire. Other potential threats to the Mount Charleston blue butterfly habitat associated with the fire may include trampling or grazing of new larval host or nectar plants by feral horses (
We are unaware of site- or species-specific analyses of climate change for the Spring Mountains in Nevada or impacts to the Mount Charleston blue butterfly; therefore, we rely on general predictions of climate change for alpine areas in the Southwest and predictions of climate change impacts to other invertebrate species to assess potential impacts of climate change to the Mount Charleston blue butterfly and its habitat. The Intergovernmental Panel on Climate Change (IPCC) has high confidence in predictions that extreme weather events, warmer temperatures, and regional drought are very likely to increase in the northern hemisphere as a result of climate change (IPCC 2007, pp. 15-16). Climate models show the southwestern United States has transitioned into a more arid climate of drought that is predicted to continue into the next century (Seager
Changes in local southern Nevada climatic patterns cannot be definitively tied to global climate change; however, they are consistent with IPCC-predicted patterns of extreme precipitation, warmer than average temperatures, and drought (Redmond 2007, p. 1), and Garfin
Analyses of climate change impacts to other invertebrate species suggest different aspects of a species' biology may be affected, including physiological and morphological responses (Roy and Sparks 2000; Altermatt 2012); shifts in spatial patterns and availability of refugia (Beaumont and Hughes 2002; Peterson
Based on the information above, we identify habitat where natural disturbance, such as fire that creates and maintains openings in the canopy (fire regime groups 2, 3, 4, and 5), to be a physical or biological feature for this subspecies that provides habitats that are representative of the historical, geographical, and ecological distributions of the subspecies.
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the Mount Charleston blue butterfly in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Mount Charleston blue butterfly are:
(i) Primary Constituent Element 1: Areas of dynamic habitat between 2,500 m (8,200 ft) and 3,500 m (11,500 ft) elevation with openings or where disturbance provides openings in the canopy that have no more than 50 percent tree cover (allowing sunlight to reach the ground); widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and grasses; and exposed soil and rock substrates. When taller grass and forb plants greater than or equal to 15 cm (0.5 ft) in height are present, the density is less than five per m
(ii) Primary Constituent Element 2: The presence of one or more species of host plants required by larvae of the
(iii) Primary Constituent Element 3: The presence of one or more species of nectar plants required by adult Mount Charleston blue butterflies for reproduction, feeding, and growth. Common nectar plants include
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the subspecies at the time of listing contain features which are essential to the conservation of the subspecies and which may require special management considerations or protection. Special management considerations or protection may be necessary to eliminate or reduce the magnitude of threats that affect the subspecies. Threats to the Mount Charleston blue butterfly and its features identified in the final listing rule for the Mount Charleston blue butterfly (78 FR 57750; September 19, 2013) include: (1) Loss and degradation of habitat due to changes in natural fire regimes and succession; (2) implementation of recreational development projects and fuels reduction projects; (3) increases of nonnative plants; (4) collection; (5) small population size and few occurrences; and (6) exacerbation of other threats from the impacts of climate change, which is anticipated to increase drought and extreme precipitation events. In addition to these threats, feral horses present an additional threat by causing the loss and degradation of habitat resulting from trampling of host and nectar plants as well as the direct mortality of Mount Charleston blue butterfly where it is present (Boyd and Murphy 2008, pp. 7 and 27; Andrew
Threats to the Mount Charleston blue butterfly and its habitat and recommendations for ameliorating them have been described for each location and the subspecies in general (Boyd and Murphy 2008, pp. 1-41; Andrew
All of the areas designated as critical habitat occur within the Spring Mountains National Recreation Area, and are covered by the 1998 Spring Mountains National Recreation Area (SMNRA) Conservation Agreement. To date, the Conservation Agreement has not always been effective in protecting existing habitat for the Mount Charleston blue butterfly or yielding significant conservation benefits for the species. The Forest Service is currently in the process of revising the SMNRA Conservation Agreement, and the Service is a cooperator in this process. However, as the Conservation Agreement is currently under revision, and completion has not occurred prior to publication of this final rule, it is unclear what level of protection or conservation benefit the final SNMRA Conservation Agreement will provide for the Mount Charleston blue butterfly.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we consider whether designating additional areas—outside of the geographical area currently occupied—are necessary to ensure the conservation of the species. We are designating critical habitat in areas within the geographical area occupied by the subspecies at the time of listing in October 2013 because such areas contain the physical or biological features that are essential to the conservation of the subspecies. We are not designating areas outside the geographical area occupied by the subspecies at the time of listing because they would provide limited benefit and are not needed to conserve the species.
When determining the possible distribution of areas that meet the definition of critical habitat for the Mount Charleston blue butterfly, we considered all known suitable habitat patches remaining within the subspecies' historical range from Willow Creek, south to Griffith Peak within the SMNRA. For the Mount Charleston blue butterfly, we included locations of known populations and suitable habitat immediately adjacent to, or areas between, known populations that provide connectivity between these locations.
This section provides the details of the process we used to delineate the critical habitat for the Mount Charleston blue butterfly. The areas designated as critical habitat in this final rule are areas where the Mount Charleston blue butterfly occur and that contain the physical and biological features essential to the conservation of the species. These areas have been identified through incidental observations and systematic surveys or studies occurring over a period of several years. This information comes from multiple sources, such as reports, journal articles, and Forest Service project information. Based on this
We delineated the final critical habitat boundaries using the following steps:
(1) We compiled and mapped Mount Charleston blue butterfly observation locations (points) and polygons of habitat that included larval host and nectar plants, or only larval host plants delineated in previous studies or surveys from Austin (1980), Weiss
(2) Observed locations of Mount Charleston blue butterflies described above were used to create larger polygons of suitable habitat by buffering observed locations by 100 m (330 ft). These polygons assumed that suitable habitat was present up to 100 m (330 ft) around an observed location, because it is estimated that individual Mount Charleston blue butterflies can utilize areas between 10 to 100 m (33 to 330 ft; Weiss
(3) Polygons of suitable habitat were identified from previously delineated habitat (described above) and were considered suitable if the habitat polygon contained: (a) Observed locations of Mount Charleston blue butterflies; (b) larval host and nectar plants; (c) delineated habitat that was rated by the investigator (Pinyon 2011, pp. 1-39) as either “moderate” or “good” quality; or (d) larval host plants. It was assumed that nectar plants would also be present in areas where larval host plants were detected and butterflies were observed because both larval host and nectar plants must be in close proximity for Mount Charleston blue butterflies to be present (Boyd and Murphy 2008, pp. 1-31; Thompson
(4) We evaluated connectivity corridors of butterfly populations between or adjacent to areas of suitable habitat because these areas are likely important for butterfly dispersal. In contrast to distances moved within a single patch of habitat, which has been estimated to be between 10 to 100 m (33 to 330 ft), dispersal can be defined as movement between patches of habitat (Bowler and Benton 2005, p. 207). Studies suggest that closely related butterfly taxa have more similar mobility than distantly related butterfly taxa (Burke
(5) Observed locations, suitable habitat, and connectivity corridors, as described above, are all considered to be within the present geographic range of the subspecies.
(6) Critical habitat boundaries were delineated using a data layer of the Public Land Survey System (PLSS), which includes quarter-quarter sections (16 ha (40 ac)). Quarter-quarter sections are designated as critical habitat if they contain observed locations, suitable habitat, or connectivity corridors. Quarter-quarter sections were used to delineate critical habitat boundaries because they provide a readily available systematic method to identify areas that encompass the physical and biological features essential to the conservation of the Mount Charleston blue butterfly and they provide boundaries that are easy to describe and interpret for the general public and land management agencies. Critical habitat boundaries were derived from the outer boundary of the polygons selected from the PLSS quarter-quarter sections in the previous steps.
(7) We removed locations from the critical habitat designation based on information received through the notice-and-comment process on the proposed rule. Some of these locations overlap slightly with Mount Charleston blue butterfly habitat previously mapped by DataSmiths 2007. These locations are at the fringe of previously mapped habitat and most of these areas lack one or more of the physical or biological features or are heavily impacted by public recreation and facilities management. We removed a 25-m (82-ft) perimeter distance around established boundaries or developed infrastructure that is consistent with the conclusions of a study on the Karner blue butterfly (
Specifically, we removed locations referred to as Dolomite Campground, Foxtail Girl Scout Camp, Foxtail Group Picnic Area, Foxtail Snow Play Area, Lee Canyon Guard Station, Lee Meadows (extirpated Mount Charleston blue butterfly location), McWilliams Campground, Old Mill Picnic Area, Youth Camp, and LVSSR base facilities and lift terminals. These locations are within the established boundaries or developed infrastructure (for example, buildings, roads, parking areas, fire pits, base ski lift terminals, etc.) for the above-listed campgrounds, day-use areas, and ski area facilities, which have extremely high levels of public visitation and associated recreational disturbance. High levels of recreational disturbance in these areas have either severely degraded available habitat, including host and nectar plants, or the intense level of recreational activity severely limits or precludes the use of these areas by the Mount Charleston blue butterfly. Additionally, small
When determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for Mount Charleston blue butterfly. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification, unless the specific action would affect the physical or biological features in the adjacent critical habitat.
We are designating as critical habitat lands that we have determined are occupied at the time of listing and contain the physical or biological features to support life-history processes that we have determined are essential to the conservation of Mount Charleston blue butterfly. Three units are designated, based on the physical or biological features being present to support the Mount Charleston blue butterfly's life-history processes. All units contain all of the identified physical or biological features and support multiple life-history processes.
The critical habitat designation is defined by the map, as modified by any accompanying regulatory text, presented at the end of this document in the Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. The coordinates or plot points or both on which the map is based are available to the public on
We are designating three units as critical habitat for the Mount Charleston blue butterfly. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those three units are: (1) South Loop, (2) Lee Canyon, and (3) North Loop. All three units are occupied. The approximate area of each critical habitat unit and the land ownerships are listed in Table 1.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Mount Charleston blue butterfly, below.
Unit 1 consists of approximately 2,228 ac (902 ha) and is located in Clark County, Nevada. This unit extends south and southeast from near the summit of Charleston Peak along high-elevation ridges to Griffith Peak. The unit likely represents the largest population of Mount Charleston blue butterflies and is the southernmost area identified as critical habitat for the subspecies.
The unit is within the geographic area occupied by the Mount Charleston blue butterfly at the time of listing. It contains the physical or biological features essential to the conservation of the subspecies, including: Elevations between 2,500 m (8,200 ft) and 3,500 m (11,500 ft); no tree cover or no more than 50 percent tree cover; widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and grasses, with exposed soil and rock substrates; the presence of one or more species of larval host plants; and the presence of one or more species of nectar plants.
Habitat in the unit is threatened by the impacts associated with climate change, such as increased drought and extreme precipitation events. Therefore, the physical or biological features essential to the conservation of the species in this unit may require special management considerations or protection to minimize impacts resulting from this threat (see
A portion of this unit was burned in July 2013, as part of the Carpenter 1 Fire, which burned into habitat of the Mount Charleston blue butterfly along the ridgelines between Griffith Peak and South Loop, spanning a distance of approximately 3 mi (5 km). Within this
Although the burn in this unit may have had short-term impacts to larval host or nectar plants, it is likely that the burn may have long-term benefits to Mount Charleston blue butterfly habitat by reducing canopy cover, thereby providing additional areas for larval host and nectar plants to grow, and releasing nutrients (Brown and Smith 2000, p. 26) into the soil, improving overall plant health and vigor, depending upon successional conditions such as soil types and moisture, and seed sources (Kallstrom 2013, p. 4). Therefore, we are designating as critical habitat areas that contained the physical or biological features essential to the conservation of the Mount Charleston blue butterfly prior to the Carpenter 1 Fire, but may have been burned by the fire, because we expect that these areas continue to contain the physical or biological features essential to conservation of the subspecies.
This unit is completely within the boundaries of the U.S. Department of Agriculture, Humboldt-Toiyabe National Forest, Spring Mountains National Recreation Area. The entire unit is within the Mount Charleston Wilderness, and southwestern portions of the unit overlap with the Carpenter Canyon Research Natural Area. This unit is within the area addressed by the Spring Mountains National Recreation Area Conservation Agreement.
Unit 2 consists of approximately 2,569 ac (1,040 ha) of Federal land, 2.2 ac (0.9 ha) of local land, and 1.2 ac (0.5 ha) of private land, and is located in Clark County, Nevada. This unit extends south and southeast from McFarland Peak and along the Bonanza Trail through Lee Canyon to slopes below the north side of the North Loop Trail and the west side of Mummy Mountain. This unit represents the northernmost area identified as critical habitat for the subspecies.
The unit is within the geographic area occupied by the Mount Charleston blue butterfly at the time of listing. It contains the physical or biological features essential to the conservation of the subspecies including: Elevations between 2,500 m (8,200 ft) and 3,500 m (11,500 ft); no tree cover or no more than 50 percent tree cover; widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and grasses, with exposed soil and rock substrates; the presence of one or more species of larval host plants; and the presence of one or more species of nectar plants.
Habitat in the unit is threatened by: Loss and degradation of habitat due to changes in natural fire regimes and succession; implementation of recreational development projects and fuels reduction projects; increases of nonnative plants; and the exacerbation of other threats from the impacts of climate change, which is anticipated to increase drought and extreme precipitation events. Therefore, the features essential to the conservation of the species in this unit require special management considerations or protection to minimize impacts resulting from these threats (see
This unit is completely within the administrative boundaries of the U.S. Department of Agriculture, Humboldt-Toiyabe National Forest, Spring Mountains National Recreation Area, with less than 1 percent owned by private landowners or Clark County. Approximately 33 percent of the west side of the unit is within the Mount Charleston Wilderness. This unit is within the area addressed by the Spring Mountains National Recreation Area Conservation Agreement.
Unit 3 consists of approximately 413 ac (167 ha) and is located in Clark County, Nevada. This unit extends northeast from an area between Mummy Spring and Fletcher Peak along high-elevation ridges down to an area above the State Highway 158. The unit represents the easternmost area identified as critical habitat for the subspecies.
The unit is within the geographic area occupied by the Mount Charleston blue butterfly at the time of listing. It contains the physical or biological features essential to the conservation of the subspecies including: Elevations between 2,500 m (8,200 ft) and 3,500 m (11,500 ft); no tree cover or no more than 50 percent tree cover; widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and grasses with exposed soil and rock substrates; the presence of one or more species of larval host plants; and the presence of one or more species of nectar plants.
Habitat in the unit is threatened by the impacts associated with climate change, such as increased drought and extreme precipitation events. Therefore, the features essential to the conservation of the species in this unit require special management considerations or protection to minimize impacts resulting from this threat (see
This unit is completely within the boundaries of the U.S. Department of Agriculture, Humboldt-Toiyabe National Forest, Spring Mountains National Recreation Area. Approximately 92 percent of the unit is within the Mount Charleston Wilderness. This unit is within the area addressed by the Spring Mountains National Recreation Area Conservation Agreement.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a Federal action may affect a listed species or its critical habitat, the
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for the Mount Charleston blue butterfly. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Mount Charleston blue butterfly. These activities include, but are not limited to, actions that would cause the quality, quantity, functionality, accessibility, or fragmentation of habitat or features to change unfavorably for Mount Charleston blue butterfly. Such activities could include, but are not limited to: Ground or soil disturbance, either mechanically or manually; clearing or grading; erosion control; silviculture; fuels management; fire suppression; development; snow management; recreation; feral horse or burro management; and herbicide or pesticide use. These activities could alter: Invasion rates of invasive or nonnative species, habitat necessary for the growth and reproduction of these butterflies and their host or nectar plants, and movement of adults between habitat patches. Such alterations may directly or cumulatively cause adverse effects to Mount Charleston blue butterflies and their life cycles.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. We have not excluded any areas from critical habitat under section 4(b)(2) of the Act.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and screening analysis which together with our narrative and interpretation of effects we consider our draft economic analysis (DEA) of the proposed critical habitat designation and related factors
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. We assess to the extent practicable, the probable impacts, if sufficient data are available, to both directly and indirectly impacted entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the designation of critical habitat for the Mount Charleston blue butterfly, first we identified, in the IEM dated February 10, 2014, probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (Forest Service); (2) fire management; (3) forest management; (4) recreation; (5) conservation/restoration; and (6) development. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Mount Charleston blue butterfly is present, Federal agencies already are required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. Consultations to avoid the destruction or adverse modification of critical habitat will be incorporated into the existing consultation process. Therefore, disproportionate impacts to any geographic area or sector are not likely as a result of this critical habitat designation.
In our IEM, we attempted to clarify the distinction between the effects that can result from the species being listed and those attributable to the critical habitat designation (
The critical habitat designation for the Mount Charleston blue butterfly totals approximately 5,214 acres (2,110 hectares) in three units, all of which were occupied at the time of listing and contain the physical and biological features essential to the conservation of the species. In these areas, any actions that may affect the species or its habitat would also affect designated critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the Mount Charleston blue butterfly. Therefore, only administrative costs are expected in all of the critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.
The Forest Service has administrative oversight of 99.9 percent of the critical habitat area and, as the primary Federal action agency in section 7 consultations, would incur incremental costs associated with the critical habitat designation. In some cases third parties may be involved in areas such as Unit 2 in Lee Canyon, particularly where the Las Vegas Ski and Snowboard Resort special-use-permit area overlaps. However, consultation is expected to occur even in the absence of critical habitat, and incremental costs would be limited to administrative costs resulting from the potential for adverse modification. It is unlikely that there will be any incremental costs associated with the 0.1 percent of non-Federal land, for which we do not foresee any Federal nexus and thus is outside of the context of section 7 of the Act.
The probable incremental economic impacts of the Mount Charleston blue butterfly critical habitat designation are expected to be limited to additional administrative effort, as well as minor costs of conservation efforts resulting from a small number of future section 7 consultations. This is due to two factors: (1) All the critical habitat units are considered to be occupied by the species, and incremental economic impacts of critical habitat designation, other than administrative costs, are unlikely; and (2) the majority of critical habitat is in designated Wilderness Areas where actions are currently limited and few actions are anticipated that will result in section 7 consultation or associated project modifications. Section 7 consultations for critical habitat are estimated to range between $410 and $9,100 per consultation. No more than 12 consultations are anticipated to occur in a year. Based upon these estimates, the maximum estimated incremental cost is estimated to be no greater than $109,200 in a given year. Thus, the annual administrative burden is unlikely to reach $100 million. Therefore, future probable incremental economic impacts are not likely to exceed $100 million in any single year, and disproportionate impacts to any geographic area or sector are not likely as a result of this critical habitat designation.
Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not
A copy of the IEM and screening analysis with supporting documents may be obtained by contacting the Southern Nevada Fish and Wildlife Office (see
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that no lands within the designation of critical habitat for Mount Charleston blue butterfly are owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security or homeland security. Consequently, the Secretary is not exercising her discretion to exclude any areas from this final designation based on impacts on national security or homeland security.
Under section 4(b)(2) of the Act, we also consider any other relevant impacts resulting from the designation of critical habitat. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this final rule, we have determined that the Clark County HCP is the only permitted HCP or other approved management plan for the Mount Charleston blue butterfly, and the final designation does not include any tribal lands or tribal trust resources. We did not receive comments on the designation of critical habitat for the Mount Charleston blue butterfly as it relates to the Clark County HCP. We anticipate no impact on tribal lands, partnerships, or HCPs from this critical habitat designation. Accordingly, the Secretary is not exercising his discretion to exclude any areas from this final designation based on other relevant impacts.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7 only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, the final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. The economic analysis finds that none of these criteria is relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with Mount Charleston blue butterfly conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments because because minimal critical habitat is within the jurisdiction of small governments. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the Mount Charleston blue butterfly in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. Due to current public knowledge of the protections for the subspecies and the prohibition against take of the subspecies both within and outside of the critical habitat areas, we do not anticipate that property values will be affected by the critical habitat designation. Based on the best available information, the takings implications assessment concludes that this designation of critical habitat for the Mount Charleston blue butterfly does not pose significant takings implications.
In accordance with E.O. 13132 (Federalism), this rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in Nevada. We did not receive official comments or positions on the proposed designation of critical habitat for the Mount Charleston blue butterfly from State of Nevada agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the Mount Charleston blue butterfly. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no tribal lands occupied by the Mount Charleston blue butterfly at the time of listing that contain the physical or biological features essential to conservation of the species, and no tribal lands unoccupied by the Mount Charleston blue butterfly that are essential for the conservation of the species. Therefore, we are not designating critical habitat for the Mount Charleston blue butterfly on tribal lands.
A complete list of all references cited is available on the Internet at
The primary authors of this rulemaking are the staff members of the Pacific Southwest Regional Office and the Southern Nevada Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(i)
Mount Charleston Blue Butterfly (
(1) Critical habitat units are depicted for Clark County, Nevada, on the map below.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Mount Charleston blue butterfly consist of three components:
(i) Areas of dynamic habitat between 2,500 meters (m) (8,200 feet (ft)) and 3,500 m (11,500 ft) elevation with openings or where disturbance provides openings in the canopy that have no more than 50 percent tree cover (allowing sunlight to reach the ground); widely spaced, low (less than 15 centimeters (cm) (0.5 ft) in height) forbs and grasses; and exposed soil and rock substrates. When taller grass and forb plants greater than or equal to 15 cm (0.5 ft) in height are present, the density is less than five per square meter (m
(ii) The presence of one or more species of host plants required by larvae of the Mount Charleston blue butterfly for feeding and growth. Known larval host plants are
(iii) The presence of one or more species of nectar plants required by adult Mount Charleston blue butterflies for reproduction, feeding, and growth. Common nectar plants include
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on July 30, 2015.
(4)
(5) Map of critical habitat units for the Mount Charleston blue butterfly follows:
Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC) is amending the licensing, inspection, and annual fees charged to its applicants and licensees. These amendments are necessary to implement the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), as amended, which requires the NRC to recover through fees approximately 90 percent of its budget authority in Fiscal Year (FY) 2015, not including amounts appropriated for Waste Incidental to Reprocessing (WIR), the Nuclear Waste Fund (NWF), generic homeland security activities, and Inspector General (IG) services for the Defense Nuclear Facilities Safety Board (DNFSB). These fees represent the cost of the NRC's services provided to applicants and licensees.
This final rule is effective on August 31, 2015.
Please refer to Docket ID NRC-2014-0200 when contacting the NRC about the availability of information for this final rule. You may access publicly-available information related to this final rule by any of the following methods:
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Arlette Howard, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-1481, email:
Over the past 40 years the NRC (and earlier, as the Atomic Energy Commission, the NRC's predecessor agency) has assessed and continues to assess fees to applicants and licensees to recover the cost of its regulatory program. The NRC's cost recovery principles for fee regulation are governed by two major laws: (1) The Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 483 (a)); and (2) OBRA-90 (42 U.S.C. 2214), as amended. The NRC is required each year, under OBRA-90, as amended, to recover approximately 90 percent of its budget authority, not including amounts appropriated for WIR, generic homeland security activities, the NWF, and IG services for the DNFSB, through fees to NRC licensees and applicants.
In addition to the requirements of OBRA-90, as amended, the NRC is also required to comply with the requirements of the Small Business Regulatory Enforcement Fairness Act of 1996. This Act encourages small businesses to participate in the regulatory process, and requires agencies to develop more accessible sources of information on regulatory and reporting requirements for small businesses and create a small entity compliance guide. In this final rule, the NRC continues using a fee methodology for qualifying small entities that establishes a maximum annual fee and minimum annual fee at a reduced rate to ease the financial burden for these licensees.
In compliance with the OBRA-90, as amended, requirement that the NRC collect approximately 90 percent of its budget authority through fee collection by the end of the fiscal year, this rulemaking is based on the $1,015.3 million in appropriations received by the NRC as a result of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), signed by President Obama on December 16, 2014.
In compliance with OBRA-90, as amended, and the Atomic Energy Act of 1954 (AEA), the NRC amends its fee schedules for parts 170 and 171 of Title 10 of the
The NRC received total appropriations of $1,015.3 million for FY 2015 as a result of Public Law 113-235, a decrease of $40.6 million from FY 2014. Based on OBRA-90, as amended, the NRC is required to recover $895.5 million through 10 CFR part 170 (user charges) and 10 CFR part 171 (annual fees) for FY 2015. This amount excludes non-fee items for WIR activities totaling $1.4 million, IG services for the DNFSB totaling $0.9 million, and generic homeland security activities totaling $18.1 million. This required fee recovery amount is $35.2 million less than the FY 2014 required fee recovery amount of $930.7 million. After accounting for prior year billing adjustments, the fee recoverable budget is further reduced to $888.7 million to be billed as fees to licensees and applicants under 10 CFR parts 170 and 171. This amount represents a decrease
Table I summarizes the final budget and fee recovery amounts for the FY 2015 final fee rule. The FY 2014 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)
In this final fee rule, the NRC amends fees for power reactors, spent fuel storage/reactor decommissioning, nonpower reactors, uranium recovery facilities, fuel facilities, materials users, and the U.S. Department of Energy's (DOE) transportation license as compared to the FY 2014 final rule. The total amount of annual fees to be recovered, $567 million, represents a decrease of $19.4 million from the FY 2014 final rule. Overall, annual fees for operating reactors decrease as a result of reduced budgetary resources, but this decrease is partially offset by a decline in 10 CFR part 170 billings and the permanent shutdown of Vermont Yankee. Additionally, annual fees for the fuel facilities fee class increase from FY 2014 as a result of the following: (1) Reduced 10 CFR part 170 billings for operational readiness reviews and inspections due to significant delays in construction; and (2) the termination of the certificate for the United States Enrichment Corporation's Paducah, Kentucky facility. For the transportation fee class, the annual fees increase from FY 2014, primarily due to rulemaking activities concerning 10 CFR part 71 compatibility with the International Atomic Energy Agency's transportation standards and improvements. Additionally, the increase in the annual fee for the transportation fee class is attributed to reduced 10 CFR part 170 billings caused by shifts in workload priorities. For 10 CFR part 170 hourly fees, the total amount to be recovered is $321.7 million, a decrease of $10.8 million from FY 2014.
In comparison to the FY 2015 proposed fee rule and the estimated FY 2015 final budget and fee rule recovery amounts, the NRC will collect $321.7 million in hourly fees (user charges), a decrease of $2.6 million from both estimates, respectively, for this final rule. This change is a result of the decline in estimated 10 CFR part 170 collections for the power reactor fee class due to unexpected application suspensions (particularly, the U.S. Evolutionary Power Reactor (EPR) design certification application and the Calvert Cliffs combined license application). The NRC will collect $567 million in annual fees, a decrease of $34.9 million from the FY 2015 proposed fee rule estimate and an increase of $4.8 million from the estimated FY 2015 final annual fees total. The change from the FY 2015 proposed fee rule and estimated FY 2015 final annual fees total is the result of the reduced estimated 10 CFR part 170 collections, as well as the 10 CFR part 171 billing adjustment.
The NRC proposed to establish an annual fee for rare earth facilities in the proposed FY 2015 fee rule. At the time the NRC issued its proposed fee rule, the NRC estimated that a portion of the budgeted resources for this fee class was not going to be collected through 10 CFR part 170 user fees, therefore requiring the establishment of an annual part 10 CFR part 171 fee to recover the remainder of the budgeted authority for this fee class. Upon further analysis, the NRC determined all budgeted resources for the rare earth facilities will be collected through 10 CFR part 170 this fiscal year. Therefore, NRC lacks a statutory basis to assess 10 CFR part 171 fees to this fee class, because that fee would not bear a reasonable relationship to the cost of providing generic NRC services, as there are no generic activities supporting this fee class. Therefore, in this final rule, the NRC omits the annual fee for rare earth facilities.
The NRC's hourly rate is used in assessing full cost fees for specific services provided by the NRC, as well as flat fees for activities such as NRC review of applications. For FY 2015, the NRC's hourly rate is $268, a decrease of $9 from the hourly rate in the FY 2015 proposed fee rule. The FY 2014 hourly rate (the current hourly rate) is $279. This rate is applicable to all activities for which fees are assessed under §§ 170.21 and 170.31.
The decrease in the FY 2015 hourly rate is due to an increase in estimated direct hours worked per mission-direct full-time equivalent (FTE) during the year and reduced budget. The hourly rate is inversely related to the mission-direct FTE rate. Therefore, as the FTE rate increases, the hourly rate decreases.
The NRC's hourly rate is derived by dividing the sum of recoverable budgeted resources for: (1) Mission-direct program salaries and benefits; (2) mission-indirect program support; and (3) agency overhead or indirect costs—which includes corporate support, office support, and the IG. The mission-direct FTE hours are the product of the mission-direct FTE multiplied by the hours per direct FTE. The only budgeted resources excluded from the hourly rate are those for contract activities related to mission-direct and fee-relief activities. Billable contract activities are included as a separate line item on the 10 CFR part 170 invoice.
In FY 2015, the NRC used 1,420 hours per direct FTE to calculate the hourly fee rate, which is higher than the FY 2014 estimate of 1,375 hours per direct FTE and represents increased productivity. These hours exclude all indirect activities such as training and general administration. The NRC generated this figure by reviewing and analyzing current available time and labor data from FY 2010 through FY 2012. As a result of that review, the NRC determined that the direct hours per FTE for FY 2015 budget formulation should be revised.
Table II shows the results of the hourly rate calculation methodology. The FY 2014 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)
As shown in Table II, dividing the FY 2015 $856 million budget amount included in the hourly rate by total mission-direct FTE hours (2,250 FTE times 1,420 hours) results in an hourly rate of $268. The hourly rate is rounded to the nearest whole dollar.
The NRC amends the current flat application fees in §§ 170.21 and 170.31 to reflect the revised hourly rate of $268. These flat fees are calculated by multiplying the average professional staff hours needed to process the licensing actions by the professional hourly rate for FY 2015. The agency estimates the average professional staff hours needed to process licensing actions every other year as part of its biennial review of fees performed in compliance with the Chief Financial Officers Act of 1990. The NRC performed this review for the FY 2015 proposed rule. The lower hourly rate of $268 is the primary reason for the decrease in application fees.
In general, any increases in application fees are due to the increased number of hours required to perform specific activities based on the biennial review. The NRC staff determined via a recent analysis that application fees for 12 fee categories (2.D., 3.C., 3.H., 3.M., 3.P., 3.R.2., 3.S., 4.B., 5.A., 7.A., 7.C., and 17 under § 170.31) will increase as a result of an increase in the average time spent processing these types of license applications. (Fee category 17 should have been counted in this analysis in the FY 2015 proposed fee rule.) The decrease in fees for 7 fee categories (2.C., 2.E., 2.F., 3.B., 3.I., 3.N., and 3.O. under § 170.31) is primarily due to the reduced hourly rate and a decrease in the average time to process these types of applications. Also, the NRC staff determined via a recent analysis that the application fees increase for 3 import and export fee categories (K.4., K.5., and 15.D. under § 170.31) and decrease for 13 import and export fee categories (15.A. thru 15.L., and 15.R. under § 170.31), an increase of 9 fee categories from the FY 2015 proposed fee rule as a result of the reduced hourly rate.
The amounts of the materials licensing flat fees are rounded so that the fees would be convenient to the user and the effects of rounding would be minimal. Fees under $1,000 are rounded to the nearest $10, fees that are greater than $1,000 but less than $100,000 are rounded to the nearest $100, and fees that are greater than $100,000 are rounded to the nearest $1,000.
The final licensing flat fees are applicable for fee categories K.1. through K.5. of § 170.21, and fee categories 1.C. through 1.D., 2.B. through 2.F., 3.A. through 3.S., 4.B. through 9.D., 10.B., 15.A. through 15.L., 15.R., and 16 of § 170.31. Applications filed on or after the effective date of the FY 2015 final fee rule would be subject to the revised fees in the final rule.
For this rulemaking, the NRC established rebaselined annual fees in accordance with SECY-05-0164, “Annual Fee Calculation Method,” September 15, 2005 (ADAMS Accession No. ML052580332). The rebaselining method analyzes the budget in detail and allocates the budgeted costs to various classes or subclasses of licensees. Stated otherwise, rebaselining is the annual reallocation of NRC resources based on changes in the NRC's budget. The NRC established the rebaselined methodology for calculating annual fees through notice and comment rulemaking in the FY 1999 fee rule (64 FR 31448; June 10, 1999), determining that base annual fees will be re-established (rebaselined) every third year, or more frequently if there is a substantial change in the total NRC budget or in the magnitude of the budget allocated to a specific class of licenses. The FY 2015 fee rulemaking
Moreover, in FY 2015, the NRC will use its fee-relief surcharge to increase all licensees' annual fees, based on their percentage share of the budget. Every year, the NRC applies the 10 percent of its budget that is excluded from fee recovery under OBRA-90 to offset the total budget allocated for activities that do not directly benefit current NRC licensees (these activities fall within the NRC's fee-relief category). The budget for these fee-relief activities is totaled, and then reduced by the amount of the NRC's fee relief. Any difference between the 10-percent appropriation and the budgeted amount of these activities results in a fee-relief adjustment (either an increase or decrease) to all licensees' annual fees, based on their percentage share of the budget. In FY 2015, there is an increase to all licensees' annual fees, for the reasons stated.
From the FY 2015 proposed fee rule, the most significant change under fee relief is under the scholarship and fellowship fee relief category. For this category, the budgetary resources increased to $18.9 million from $4.1 million because the FY 2015 appropriations require the NRC to fund the $15 million Integrated University Program.
Additionally, in the Staff Requirements Memorandum for SECY-14-0082, “Jurisdiction for Military Radium and U.S. Nuclear Regulatory Commission Oversight of U.S. Department of Defense Remediation of Radioactive Material” (ADAMS Accession No. ML14356A070), the Commission approved the staff's recommendation to finalize and implement a Memorandum of Understanding (MOU) with the U.S. Department of Defense (DOD) for remediation of DOD unlicensed sites containing radioactive materials subject to the NRC's regulatory authority. The MOU is slated to be finalized in FY 2015. As part of this effort, the Commission approved the establishment of a new fee-relief category for the regulatory activities for the monitoring of DOD unlicensed sites under the MOU. Consistent with this direction, the NRC includes a new activity under fee-relief activities, within 10 CFR part 170 licensing and inspection fees or 10 CFR part 171 annual fees. These program activities capture site-specific oversight activities performed under the MOU and any ongoing non-site specific MOU-related program activities. These activities will, therefore, be funded by the agency's 10-percent appropriation.
The FY 2015 budgeted resources for fee-relief activities are greater than the 10-percent fee relief amount by $1.0 million, which differs from the −$14.6 million mentioned in the FY 2015 proposed fee rule due to the reasons stated. After applying the generic LLW surcharge amount of $3.9 million, the total net adjustment to fee assessments is $4.9 million. The NRC allocates the LLW surcharge based on the volume of LLW disposal of three classes of licenses: operating reactors, fuel facilities, and materials users. Because LLW activities support NRC licensees and Agreement States, the costs of these activities are recovered through annual fees from NRC licensees.
In comparison, the FY 2014 fee relief resources were −$1.3 million. After applying the generic LLW surcharge amount of $3.2 million, the net FY 2014 fee relief adjustment to fee assessments was $1.9 million. Table III summarizes the fee-relief activities for FY 2015. The FY 2014 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)
Table IV shows how the NRC allocated the $4.9 million fee-relief assessment adjustment to each license fee class. As explained previously, the NRC allocated this fee-relief adjustment to each license fee class based on their percentage of the budget for their fee class compared to the NRC's total budget. This adjustment was added to the required annual fee recovery for each fee class.
Table IV also shows the allocation of the LLW surcharge activity. For FY 2015, the total budget allocated for LLW activity is $3.9 million. (Individual values may not sum to totals due to rounding.)
As previously stated, the NRC is required to establish rebaselined annual fees, which includes updating the number of NRC licensees in its fee calculation methodology. In the agency's FY 2006 final fee rule (71 FR 30721; May 30, 2006), the Commission determined that the agency should proceed with a presumption in favor of rebaselining when calculating annual fees each year. Rebaselining involves a detailed analysis of the NRC's budget, with the NRC allocating budgeted resources to fee classes and categories of licensees.
Therefore, in FY 2015, the NRC revises its annual fees in §§ 171.15 and 171.16 to recover approximately 90 percent of the NRC's FY 2015 budget authority, less non-fee amounts and the estimated amount to be recovered through 10 CFR part 170 fees. For FY 2015, the NRC's total fee recoverable budget, as mandated by law, is $895.5 million, a decrease of $35.2 million compared to FY 2014. After accounting for billing adjustments, the fee recoverable budget is further reduced to $888.7 million for FY 2015, a decrease of $28 million from FY 2014. The total estimated 10 CFR part 170 collections for this final rule total are $321.7 million, a decrease of $10.8 million from the FY 2014 fee rule, primarily within the power reactor and fuel facilities fee classes, while the spent fuel storage fee class has increased 10 CFR part 170 collections. The total amount to be recovered through annual fees from current licensees for this final rule is $567 million, a decrease of $17.2 million from the FY 2014 final rule. These decreases are later explained in detail within each fee class.
The FY 2015 budget was allocated to the appropriate fee class based on budgeted activities. Compared to FY 2014 annual fees, the FY 2015 rebaselined fees decrease for operating reactors, spent fuel storage and reactor decommissioning, and research and test reactors fee classes while annual fees increase for DOE transportation activities, fuel facilities fee classes, some materials users, and most uranium recovery licensees.
The factors affecting all annual fees include the distribution of budgeted costs to the different classes of licenses (based on the specific activities the NRC will perform in FY 2015), the estimated 10 CFR part 170 collections for the various classes of licenses, and allocation of the fee-relief surplus adjustment to all fee classes.
Table V shows the rebaselined fees for FY 2015 for a representative list of categories of licensees. The FY 2014 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)
The work papers (ADAMS Accession No. ML15160A434) that support this final rule show in detail the allocation of the NRC's budgeted resources for each class of licenses and how the fees are calculated. The work papers are available as indicated in Section XV, “Availability of Documents,” of this document.
Paragraphs a. through h. of this section describes budgetary resources allocated to each class of licenses and the calculations of the rebaselined fees. Individual values in the tables
The FY 2015 budgeted costs to be recovered in the annual fees assessment to the fuel facility class of licenses (which includes licensees in fee categories 1.A.(1)(a), 1.A.(1)(b), 1.A.(2)(a), 1.A.(2)(b), 1.A.(2)(c), 1.E., and 2.A.(1) under § 171.16) are approximately $42.9 million. This value is based on the full cost of budgeted resources associated with all activities that support this fee class, which is reduced by estimated 10 CFR part 170 collections and adjusted for allocated generic transportation resources and fee-relief. In FY 2015, the LLW surcharge for fuel facilities is added to the allocated fee-relief adjustment (see Table IV, “Allocation of Fee-Relief Adjustment and LLW Surcharge, FY 2015,” in Section II, “Discussion,” of this document). The summary calculations used to derive this value are presented in Table VI for FY 2015, with FY 2014 values shown for comparison. (Individual values may not sum to totals due to rounding.)
In FY 2015, the fuel facilities budgetary resources decreased due to reduced construction activities and licensing amendments compared to FY 2014. Despite the decrease in budgeted resources, the fuel facilities annual fees in FY 2015 increase compared to FY 2014 due to reduced 10 CFR part 170 billings for operation reviews and inspections resulting from numerous delays at the Chicago Bridge and Iron AREVA MOX Services Mixed Oxide Fuel Fabrication Facility, the International Isotopes uranium de-conversion facility, the Global Laser Enrichment (GLE) uranium enrichment facility, and the AREVA Eagle Rock Uranium Enrichment facility. Annual fees also increased as a result of the termination of the certificate for United States Enrichment Corporation's Paducah, Kentucky facility. The NRC allocates the total remaining annual fee recovery amount to the individual fuel facility licensees, based on the effort/fee determination matrix developed for the FY 1999 final fee rule (64 FR 31447; June 10, 1999). In the matrix included in the publicly-available NRC work papers, licensees are grouped into categories according to their licensed activities (
This methodology is adaptable to changes in the number of licensees or certificate holders, licensed or certified material and/or activities, and total programmatic resources to be recovered through annual fees. When a license or certificate is modified, it may result in a change of category for a particular fuel facility licensee, as a result of the methodology used in the fuel facility effort/fee matrix. Consequently, this change may also have an effect on the fees assessed to other fuel facility licensees and certificate holders. For example, if a fuel facility licensee amends its license/certificate to reflect cessation of licensed activities (
The methodology is applied as follows. First, a fee category is assigned, based on the nuclear material possessed or used, and/or the activity or activities authorized by license or certificate. Although a licensee/certificate holder may elect not to fully use a license/certificate, the license/certificate is still used as the source for determining authorized nuclear material possession and use/activity. Second, the category and license/certificate information are used to determine where the licensee/certificate holder fits into the matrix. The matrix depicts the categorization of licensees/certificate holders by authorized material types and use/activities.
Each year, the NRC's fuel facility project managers and regulatory analysts determine the level of effort associated with regulating each of these facilities. This is done by assigning, for each fuel facility, separate effort factors for the safety and safeguards activities associated with each type of regulatory activity. The matrix includes 10 types of regulatory activities, including enrichment and scrap/waste-related activities (see the work papers for the complete list). The NRC then calculates the total for all activities per licensee benefit factors by each fee category.
The effort factors for the various fuel facility fee categories are summarized in Table VII. In this rulemaking, some of the effort factors changed from the FY 2015 proposed fee rule as a result of the decertification of the Paducah facility. The value of the effort factors shown, as well as the percent of the total effort factor for all fuel facilities, reflects the total regulatory effort for each fee category (not per facility). This results in the spreading of costs to other fee categories.
For FY 2015, the total budgeted resources for safety activities are $17.2 million, excluding the fee-relief adjustment and the reclassification adjustment. This amount is allocated to each fee category based on its percent of the total regulatory effort for safety activities. For example, if the total effort factor for safety activities for all fuel facilities is 100, and the total effort factor for safety activities for a given fee category is 10, that fee category will be allocated 10 percent of the total budgeted resources for safety activities. Similarly, the budgeted resources amount of $14.6 million for safeguards activities is allocated to each fee category based on its percent of the total regulatory effort for safeguards activities. The fuel facility fee class' portion of the fee-relief/LLW adjustment, $2.1 million, is allocated to each fee category based on its percent of the total regulatory effort for both safety and safeguards activities. The annual fee per licensee is then calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category. The fee (rounded) for each facility is summarized in Table VIII.
The total FY 2015 budgeted costs to be recovered through annual fees assessed to the uranium recovery class (which includes licensees in fee categories 2.A.(2)(a), 2.A.(2)(b), 2.A.(2)(c), 2.A.(2)(d), 2.A.(2)(e), 2.A.(3), 2.A.(4), 2.A.(5), and 18.B. under § 171.16) are approximately $1.0 million. The derivation of this value is shown in Table IX, with FY 2014 values shown for comparison purposes.
In comparison to FY 2014, the FY 2015 budgetary resources for uranium recovery licensees increased due, in part, to the additional resources necessary to conduct the environmental reviews for materials licenses applications for uranium recovery facilities (including tribal consultations in support of the National Historic Preservation Act Section 106 reviews). Specifically, the NRC staff has been developing process changes to facilitate the environmental reviews for uranium recovery applications.
Since FY 2002, the NRC has computed the annual fee for the uranium recovery fee class by allocating the total annual fee amount for this fee class between the DOE and the other licensees in this fee class. The NRC regulates DOE's Title I and Title II activities under the Uranium Mill Tailings Radiation Control Act (UMTRCA). The Congress established the two programs, Title I and Title II, under UMTRCA to protect the public and the environment from uranium milling. The UMTRCA Title I program is for remedial action at abandoned mill tailings sites where tailings resulted largely from production of uranium for the weapons program. The NRC also regulates DOE's UMTRCA Title II program, which is directed toward uranium mill sites licensed by the NRC or Agreement States in or after 1978.
In FY 2015, the annual fee assessed to DOE includes recovery of the costs
The costs to be recovered through annual fees assessed to the uranium recovery class are shown in Table X.
The NRC will continue to use a matrix, which is included in the work papers, to determine the level of effort associated with conducting the generic regulatory actions for the different (non-DOE) licensees in this fee class. The weights derived in this matrix are used to allocate the approximately $377,874 annual fee amount to these licensees. The use of this uranium recovery annual fee matrix was established in the FY 1995 final fee rule (60 FR 32217; June 20, 1995). In this rulemaking, some of the matrix factors changed slightly from the FY 2015 proposed fee rule to accurately reflect the number of materials licensees. The matrix is described as follows.
First, the methodology identifies the categories of licenses included in this fee class (besides DOE). These categories are: Conventional uranium mills and heap leach facilities; uranium
Second, the matrix identifies the types of operating activities that support and benefit these licensees. The activities related to generic decommissioning/reclamation are not included in the matrix because they are included in the fee-relief activities. Therefore, they are not a factor in determining annual fees. The activities included in the matrix relate to operations, waste operations, and groundwater protection. The relative weight of each type of activity is then determined, based on the regulatory resources associated with each activity. The operations, waste operations, and groundwater protection activities have weights of 0, 5, and 10, respectively, in the matrix. These benefit factors are first multiplied by the relative weight assigned to each activity. The NRC then calculates the total for all activities per licensee benefit factors by each fee category. Therefore, these benefit factors reflect the relative regulatory benefit associated with each licensee and fee category.
Each year, the NRC determines the level of benefit to each licensee for generic uranium recovery program activities for each type of generic activity in the matrix. This is done by assigning, for each fee category, separate benefit factors for each type of regulatory activity in the matrix. The relative weight of each type of activity is then determined, based on the regulatory resources associated with each activity. These benefit factors are first multiplied by the relative weight assigned to each activity. The NRC then calculates total and per licensee benefit factors for each fee category.
Table XI displays the benefit factors per licensee and per fee category, for each of the non-DOE fee categories included in the uranium recovery fee class as follows:
Applying these factors to the approximately $389,129 in budgeted costs to be recovered from non-DOE uranium recovery licensees results in the total annual fees for each fee category. The annual fee per licensee is calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in
The total budgeted costs to be recovered from the power reactor fee class in FY 2015 in the form of annual fees is $475.9 million, as shown in Table XIII. The FY 2014 values are shown for comparison. (Individual values may not sum to totals due to rounding.)
In comparison to FY 2014, the operating reactor budgetary resources decrease in FY 2015 to reflect the conclusion of Kewaunee, Crystal River 3, and San Onofre Nuclear Generating Station, Units 1 and 2, operating reactor oversight responsibilities. In FY 2015, the operating power reactor annual fee decreases as a result of reduced budgetary resources and are partially offset by a decrease in 10 CFR part 170 billings due to unexpected new reactor application suspensions and the shutdown of one power reactor, Vermont Yankee. The permanent shutdown of the Vermont Yankee reactor decreases the fleet of operating reactors, which subsequently increases the annual fees for the rest of the fleet.
The budgeted costs to be recovered through annual fees to power reactors are divided equally among the 99 power reactors licensed to operate, resulting in an FY 2015 annual fee of $4,807,000 per reactor. Additionally, each power reactor licensed to operate would be assessed the FY 2015 spent fuel storage/reactor decommissioning annual fee of $223,000. The total FY 2015 annual fee is $5,030,000 for each power reactor licensed to operate. The annual fees for power reactors are presented in § 171.15.
For FY 2015, budgeted costs of $32.4 million for spent fuel storage/reactor decommissioning would be recovered through annual fees assessed to 10 CFR part 50 power reactors and to 10 CFR part 72 licensees who do not hold a 10 CFR part 50 license. Those reactor licensees that have ceased operations and have no fuel onsite would not be subject to these annual fees.
In comparison to FY 2014, the decreased annual fee is a result of a decrease in budgetary resources and increased estimated 10 CFR part 170 collections for inspections at Beaver Valley and Pilgrim Power Stations for FY 2015. Table XIV shows the calculation of this annual fee amount. The FY 2014 values are shown for comparison. (Individual values may not sum to totals due to rounding.)
The required annual fee recovery amount is divided equally among 122 licensees, resulting in an FY 2015 annual fee of $223,000 per licensee.
Approximately $330,000 in budgeted costs would be recovered through annual fees assessed to the research and test reactor class of licenses for FY 2015. Table XV summarizes the annual fee calculation for the research and test reactors for FY 2015. The FY 2014 values are shown for comparison. (Individual values may not sum to totals due to rounding.)
In FY 2015, the annual fees decrease for research and test reactors as result of a slight decline in budgetary resources. The required annual fee recovery amount is divided equally among the four research and test reactors subject to annual fees and results in an FY 2015 annual fee of $83,500 for each licensee.
The NRC will recover $35.7 million through annual fees assessed to materials users licensed under 10 CFR parts 30, 40, and 70. Table XVI shows the calculation of the FY 2015 annual fee amount for materials users licensees. The FY 2014 values are shown for comparison. Note the following fee categories under § 171.16 are included in this fee class: 1.C., 1.D., 1.F., 2.B., 2.C. through 2.F., 3.A. through 3.S., 4.A. through 4.C., 5.A., 5.B., 6.A., 7.A. through 7.C., 8.A., 9.A. through 9.D., and 17. (Individual values may not sum to totals due to rounding.)
To equitably and fairly allocate the $35.7 million in FY 2015 budgeted costs to be recovered in annual fees from the approximately 2,900 diverse materials users licensees, the NRC continues to base the annual fees for each fee category within this class on the 10 CFR part 170 application fees and estimated inspection costs for each fee category. Because the application fees and inspection costs are indicative of the complexity of the license, this approach continues to provide a proxy for allocating the generic and other regulatory costs to the diverse categories of licenses based on the NRC's cost to regulate each category. This fee calculation also considers the
The annual fee for these categories of materials users' licenses is developed as follows:
Annual fee = Constant × [Application Fee + (Average Inspection Cost/Inspection Priority)] + Inspection Multiplier × (Average Inspection Cost/Inspection Priority) + Unique Category Costs.
For FY 2015, the constant multiplier necessary to recover approximately $26 million in general costs (including allocated generic transportation costs) is 1.52. The average inspection cost is the average inspection hours for each fee category multiplied by the hourly rate of $268. The inspection priority is the interval between routine inspections, expressed in years. The inspection multiplier is the multiple necessary to recover approximately $8.9 million in inspection costs, and is 1.73 for FY 2015. The unique category costs are any special costs that the NRC has budgeted for a specific category of licenses. For FY 2015, approximately $235,000 in budgeted costs for the implementation of revised 10 CFR part 35, “Medical Use of Byproduct Material (unique costs),” has been allocated to holders of NRC human-use licenses.
The annual fee to be assessed to each licensee also includes a share of the fee-relief assessment of approximately $31,000 allocated to the materials users fee class (see Table IV, “Allocation of Fee-Relief Adjustment and LLW Surcharge, FY 2015,” in Section II, “Discussion,” of this document), and for certain categories of these licensees, a share of the approximately $542,700 surcharge costs allocated to the fee class. The annual fee for each fee category is shown in § 171.16(d).
Table XVII shows the calculation of the FY 2015 generic transportation budgeted resources to be recovered through annual fees. In comparison to FY 2014, the total budgetary resources for generic transportation activities, including those to support DOE Certificate of Compliance (CoCs), increase in FY 2015 due to: (1) Rulemaking activities involving 10 CFR part 71 Compatibility with IAEA Transportation Standards and Improvements, (2) the increased activities from the development of the Continued Storage Rule and associated generic environmental impact statement combined, and (3) a significant decrease in transportation licensing work due to shifts towards storage licensing priorities. For FY 2015, the total amount of annual fees to be collected for generic transportation activities, including those to support DOE CoCs, is $7.4 million, due to the reasons mentioned.
The FY 2014 values are shown for comparison. (Individual values may not sum to totals due to rounding.)
The NRC must approve any package used for shipping nuclear material before shipment. If the package meets NRC requirements, the NRC issues a Radioactive Material Package CoC to the organization requesting approval of a package. Organizations are authorized to ship radioactive material in a package approved for use under the general licensing provisions of 10 CFR part 71, “Packaging and Transportation of Radioactive Material.” The resources associated with generic transportation activities are distributed to the license fee classes based on the number of CoCs benefitting (used by) that fee class, as a proxy for the generic transportation resources expended for each fee class.
Generic transportation resources associated with fee-exempt entities are not included in this total. These costs are included in the appropriate fee-relief category (
Consistent with the policy established in the NRC's FY 2006 final fee rule (71 FR 30721; May 30, 2006), the NRC recovers generic transportation costs unrelated to DOE as part of existing annual fees for license fee classes. The NRC continues to assess a separate annual fee under § 171.16, fee category 18.A., for DOE transportation activities. The amount of the allocated generic resources is calculated by multiplying the percentage of total CoCs used by each fee class (and DOE) by the total generic transportation resources to be recovered.
The distribution of these resources to the license fee classes and DOE is shown in Table XVIII. The distribution is adjusted to account for the licensees in each fee class that are fee-exempt. For example, if four CoCs benefit the entire research and test reactor class, but only 4 of 31 research and test reactors are subject to annual fees, the number of CoCs used to determine the proportion of generic transportation resources allocated to research and test reactor annual fees equals (4/31) × 4, or 0.5 CoCs.
The NRC assesses an annual fee to DOE based on the 10 CFR part 71 CoCs it holds and does not allocate these DOE-related resources to other licensees' annual fees, because these resources specifically support DOE. Note that DOE's annual fee includes a reduction for the fee-relief surplus adjustment (see Table IV, “Allocation of Fee-Relief Adjustment and LLW Surcharge, FY 2015,” in Section II, “Discussion,” of this document), resulting in a total annual fee of $1,623,000 million for FY 2015. The overall increase is due to rulemaking activities involving 10 CFR part 71 Compatibility with IAEA Transportation Standards and Improvements combined with a significant decrease in transportation licensing work due to shifts towards storage licensing priorities. This rulemaking is essential for 10 CFR part 71 updates and compliance.
For FY 2015, the NRC staff performed a biennial review using the fee methodology developed in FY 2009 that applies a fixed percentage of 39 percent to the prior 2-year weighted average of materials users' fees. This methodology disproportionately impacted NRC's small licensees fees by increasing fees by an approximate 43 percent on average compared to other materials licensees not eligible for small entity fee status whose fees increased by 38 percent or less for FY 2015; therefore, the NRC staff limited the increase to 21 percent based on historical applications of the fee methodology. Consequently, the change resulted in a fee of $3,400 for an upper-tier small entity and $700 for a lower-tier small entity for FY 2015. The NRC staff believes these fees are reasonable and provide relief to small entities while simultaneously recovering from those licensees some of the NRC's costs for activities that benefit the industry.
The NRC prematurely published a change to the small entity size standards in the FY 2015 proposed fee rule. Therefore, the NRC is not changing or amending the size standards in the final fee rule. Licensees should continue to refer to 10 CFR 2.810 to determine eligibility under NRC's size standards. The NRC will conduct the next biennial review in FY 2017.
The NRC also makes 11 administrative changes:
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Two program offices, the Office of Nuclear Material Safety and Safeguards (NMSS) and the Office of International Programs (OIP), have completed their biennial review to the CFO regarding the FY 2015 fees. The NMSS recommended changes to the professional staff hours for most of the small materials users. The OIP also recommended changes to the hours for some import and export license fee categories.
Cumulatively, the FY 2015 biennial review resulted in increased professional staff hours within 11 fee categories and decreased professional staff hours within 11 fee categories. The changes in the number of hours and the hourly rate are components that will be used to determine the 10 CFR part 170 fees for the materials user's licenses as well as import and export applications.
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The FY 2015 fee rule is a major rule as defined by the Congressional Review Act of 1996 (5 U.S.C. 801-808). Therefore, the NRC's fee schedules for FY 2015 will become effective 60 days after publication of the final rule in the
Materials licensees with annual fees of less than $100,000 are billed annually. Those materials licensees whose license anniversary date during FY 2015 falls before the effective date of the FY 2015 final rule will be billed for the annual fee during the anniversary month of the license at the FY 2014 annual fee rate. Those materials licensees whose license anniversary
The NRC published the FY 2015 proposed fee rule in the
The NRC also held a public meeting on April 20, 2015, to provide more transparency regarding fees in relation to the budget process and fulfill its commitment to external stakeholders to address NRC program processes and inefficiencies mentioned in the comments submitted for the FY 2014 proposed fee rule. The first session of the public meeting addressed the FY 2015 budget for the following program areas: Operating reactors, new reactors, fuel facilities, decommissioning, low-level waste, and mission support. The second session of the public meeting addressed the NRC fee process in relation to the budget laws that govern fees, the calculation of fees, FY 2015 proposed fee rule highlights including improvements, and next steps regarding the final rule. Additionally, the second session addressed the fee billing process including the charging of staff hours, validation of charges, preparation of invoices, and allocation of administrative time for program managers and resident inspectors. During the public meeting, the NRC received comments on the FY 2015 proposed fee rule. These comments are detailed in the transcription of the public meeting (ADAMS Accession No. ML15153A028). All of these comments except one are identical to comments later received as comment submissions for the FY 2015 proposed fee rule. The NRC responds to the one additional comment raised in the public meeting, as well as all other comment submissions, in Section IV, Public Comment Analysis, of this document.
The NRC received 11 written comment submissions for the proposed rule. A comment submission for the purpose of this rule is defined as a communication or document submitted to the NRC by an individual or entity, with one or more distinct comments addressing a subject or an issue. A comment, on the other hand, refers to a statement made in the submission addressing a subject or issue. Nine comment submissions were received after the 30-day comment period closed; the NRC has addressed all nine late-filed comment submissions as part of this final rule.
The primary concern for the majority of the commenters is that the FY 2015 proposed fee rule was published late in the fiscal year and that the work papers lacked adequate justification to substantiate a change in fees, thereby denying the public an opportunity to submit meaningful commentary for consideration in the FY 2015 final fee rule. The commenters are listed in Table XIX, and are classified as follows: One government agency (DOE); two members of the uranium industry (Kennecott Uranium Company and Wyoming Mining Association (WMA)); one materials licensee (Rendezvous Engineering, P.C.); one rare earth applicant (Rare Element Resources); and six members of the nuclear industry (Southern Nuclear Operating Company (SNC), Duke Energy (Duke), Exelon Generation, LLC (Exelon), Nuclear Energy Institute (NEI), Tennessee Valley Authority (TVA), and AREVA, Inc. (AREVA)).
Information about obtaining the complete text of the comment submissions is available in Section XV, “Availability of Documents,” of this document.
The NRC has carefully considered the public comments received. The comments have been organized by topic followed by the NRC response.
The NRC performs several types of activities in its oversight of UMTRCA sites that have been transferred to DOE for long-term surveillance and maintenance. The NRC staff reviews the reports generated by DOE, including routine ground water monitoring reports, annual site remediation performance reports, annual inspection reports and other technical reports generated by DOE. The NRC staff also reviews and provides comments on non-routine reports such as the reports developed by DOE concerning the Many Devils Wash at the Shiprock site and the Phytoremediation Pilot Study at the Monument Valley site. In addition, if DOE proposes to revise a Ground Water Corrective Action Plan or Remediation Plan at a site, the NRC staff reviews and (if appropriate) concurs on the revised plan. The NRC staff also performs Observational Site Visits at UMTRCA sites to observe the DOE, and DOE contractors, performing the annual inspections of the UMTRCA sites required by the site Long-Term Surveillance Plan. Other significant staff actions include participating in the activities related to the development and implementation of the 5-year plan to address uranium contamination on the Navajo Nation. No change was made to the final rule in response to this comment.
Additionally, the National Historic Preservation Act Section 106 consultation process associated with uranium recovery licensing actions has grown significantly over the past several years. This growth can be attributed to two main factors: (1) The siting of these projects in areas that are known to be the aboriginal homelands of a large number of Federally-recognized Native American tribes and tribes at or near sites that are considered sacred by these tribes (
Implementing a new fee class would be unduly burdensome, costly, and generally unworkable for two reasons. First, although generic new reactor activities may preferentially benefit new reactor vendors or licensees, there are many activities that appear to be focused on new reactors but ultimately have a direct benefit to operating units. To illustrate, consider the rulemaking effort to change the financial qualification standards for merchant plants. Although this rulemaking was initially focused on new reactor applicants, the Commission, in approving the rulemaking, expanded its scope to include license transfers, which provides a direct and appreciable benefit to existing operating reactors. Similarly, the expertise developed in the areas of seismic and flooding analysis was developed to address new reactor applicants. Now, however, that expertise is being brought to bear on seismic and flooding reevaluations being done in response to the Fukushima event.
Contrary to Exelon's comment, these are not “indirect” benefits to existing reactors, but rather concrete cases where work that, on its face, was geared towards new reactor activities yielded valuable and tangible benefits for the existing fleet, and therefore was appropriately billed to existing reactors. To devise methods to separate the NRC's generic new reactor costs from generic operating reactor costs, and then implement oversight to ensure the costs were correctly allocated, would require appreciable and recurring expenses that would be billed to all licensees. Further, such a process, which would have to be performed on a year-to-year basis, would be unworkable in any practical sense given the fluid nature of the NRC's generic regulatory work vis-à-vis power reactors.
Second, creating a new fee class would also prove impracticable because entities holding licenses for currently operating reactors may also be, either now or in the future, applicants for new nuclear power plant licenses. Given the evolving nature of the new reactor landscape, there is no practicable or reliable method to determine which existing NRC licensees will develop an interest in future reactor activities. Exelon's comment argues that the NRC should merely identify those entities that have pending regulatory approvals pertaining to new plant activities. But the existing marketplace is more fluid than Exelon's comment suggests, and having a stable and predictable regulatory infrastructure benefits more entities than just those currently seeking pending regulatory approvals because it promotes business planning. Exelon itself was engaged in new reactor activities from 2003-2012 (and, therefore, directly benefitted from all of the NRC's generic new reactor work). It is plausible that an entity previously involved in new reactor activities could re-engage in those activities at some time in the future.
Ultimately, identification of fee classes is a matter of line-drawing. By virtue of being a generic activity without a specific, concrete beneficiary, activities that fall in the 10 CFR part 171
Regarding advanced reactor research, the NRC is not conducting any generic research for advanced non-light water reactor designs that can be charged as user fees to specific applicants. Because these are generic costs that do not directly benefit a specific applicant, NRC cannot legally recover these costs through IOAA user fees. No change was made to the final rule in response to this document.
In addition to an increase in the FFBL budget line, another factor for the increase in FFBL annual fees is the reduced number of FFBL licensees to whom the NRC can distribute those fees (one facility was decertified in 2015). No change was made to the final rule in response to this comment; however, the final rule has been changed to reflect changes in the FFBL calculations.
To assist in the continued streamlining of corporate support functions, the NRC recently contracted with an outside entity to conduct a review of the agency's overhead functions and to identify ways to reduce costs with no impact on the agency's ability to carry out its mission. This review, which involved interviews with and benchmarking against peer agencies, confirmed that there is no standard government-wide definition of overhead costs, but found that NRC overhead costs are roughly in line with peer agencies with respect to the standard corporate support cost categories used by the Federal Chief Executive Officers Council—acquisition, financial management, information technology, human capital, and real property. However, because of its mission, the NRC has additional security requirements that contribute to higher overhead costs in areas such as physical and personnel security. The review also resulted in recommendations on how the NRC can implement leading practices that have reduced overhead costs at peer agencies. The NRC will consider these recommendations in implementing the Project AIM strategy approved by the Commission.
Finally, with respect to the commenters' concerns regarding
In the final fee rule for FY 2005 (70 FR 30526), the NRC revised its estimate of the number of direct hours per FTE to use a realistic estimate based on time and labor data for program employees who perform activities directly associated with the programmatic mission of the NRC. The NRC periodically reviews time and labor data to assess changes in the average number of productive hours from year to year, and determine a realistic estimate of direct hours per FTE based on the most recent data. The estimate does not include time for administrative, training, and other activities a direct program FTE may perform that, while relevant to consider for certain costing purposes, would more accurately be considered overhead rather than “direct” time for purposes of calculating a rate per hour of direct activities. The analysis is conducted at the beginning of the budget formulation cycle. The resulting productivity assumption informs workload and resource estimates in the agency's budget request. When the NRC calculates the fees required to recover the budget enacted by Congress, this same estimate of direct hours per FTE is used to calculate the hourly rate.
The estimate of 1,420 hours per FTE used in the fee rule calculation for FY 2015 was based on an analysis of actual time and labor data from FY 2011 through FY 2012. This was the most recent data available when the FY 2015 budget was formulated. Use of an updated, realistic estimate of direct hours per FTE helps ensure that the hourly rate accurately reflects the current cost of providing 10 CFR part 170 services, allowing the NRC to more fully recover the costs of these services through 10 CFR part 170 fees. No change was made to the final rule in response this comment.
The NRC also received comments not related to this rulemaking. These comments suggested that the NRC implement a number of recommendations to improve the efficiency of NRC operations. These recommendations included: favoring and enhancing risk-informed, performance-based licensing and regulatory approaches; increasing the efficiency of certain environmental reviews; adhering to existing Commission-approved guidance while working to prepare new guidance with the aid of stakeholder input; certifying
All of these matters are outside the scope of this rulemaking. The primary purpose of the NRC's annual fee recovery rulemaking is to update the NRC's fee schedules to recover approximately 90 percent of the appropriations that the NRC received for the current fiscal year, and to make other necessary corrections or appropriate changes to specific aspects of the NRC's fee regulations in order to ensure compliance with OBRA-90, as amended. The NRC's annual fee recovery rulemaking is to update the NRC's fee schedules to account for the appropriations the NRC received for the current fiscal year, and to make other necessary corrections or appropriate changes to specific aspects of the NRC's fee regulations.
The NRC takes very seriously the importance of examining and improving the efficiency of its operations and the prioritization of its regulatory activities. Recognizing the importance of continuous reexamination and improvement of the way the agency does business, the NRC has undertaken, and continues to undertake, a number of significant initiatives aimed at improving the efficiency of NRC operations and enhancing the agency's approach to regulating. Though comments addressing these issues may not be within the scope of this fee rulemaking, the NRC will consider this input in our future program operations.
The following paragraphs describe the specific amendments for this final rule.
The NRC adds a new definition of “Overhead and General and Administrative Costs” and revises the definition for “Utilization facility.”
The NRC revises this section to reflect the hourly rate for FY 2015.
The NRC revises fees for fee category code K. to reflect the FY 2015 hourly rate for flat fee applications.
The NRC adds subcategories to fee category 3.L. licenses (broad scope) to assess additional fees to licensees such as the United States Department of Agriculture and the Department of the Army, in order to accurately reflect the cost of services provided by the NRC. The NRC revises footnote 6 to avoid duplicate billing for fuel cycle facility licensees.
The NRC modifies the definition for “Overhead and General and Administrative Costs” to reflect the FY 2008 merger of the Advisory Committee on Nuclear Waste with the Advisory Committee on Reactor Safeguards.
The NRC revises paragraph (b)(1) to reflect the required FY 2015 annual fee to be collected from each operating power reactor by September 30, 2015. The NRC revises the introductory text of paragraph (b)(2) to reflect FY 2015 in reference to annual fees and fee-relief adjustment. The NRC revises paragraph (c)(1) and the introductory text of paragraph (c)(2) to reflect the FY 2015 spent fuel storage/reactor decommissioning and spent fuel storage annual fee for 10 CFR part 50 licenses and 10 CFR part 72 licensees who do not hold a 10 CFR part 50 license, and the FY 2015 fee-relief adjustment. The NRC revises the introductory text of paragraph (d)(1) and paragraphs (d)(2) and (d)(3) to reflect the FY 2015 fee-relief adjustment for the operating reactor power class of licenses, the number of operating power reactors, and the FY 2015 fee-relief adjustment for spent fuel storage reactor decommissioning class of licenses. The NRC revises paragraph (e) to reflect the FY 2015 annual fees for research reactors and test reactors.
The NRC revises paragraphs (d) and (e) to reflect FY 2015 annual fees and the FY 2015 fee-relief adjustment. The NRC adds subcategories to fee category 3.L. licenses (broad scope) to assess additional fees to licensees such as the Department of Agriculture and the Department of the Army, in order to accurately reflect the cost of services provided by the NRC. The NRC also revises footnote 6 to avoid duplicate billing for fuel cycle facility licensees.
Section 604 of the Regulatory Flexibility Act requires agencies to perform an analysis that considers the impact of a rulemaking on small entities. The NRC's regulatory flexibility analysis for this final rule is available as indicated in Section XV, Availability of Documents, of this document, and a summary is provided in the following paragraphs.
The NRC is required by the OBRA-90, as amended, to recover approximately 90 percent of its FY 2015 budget authority through the assessment of user fees. The OBRA-90 further requires that the NRC establish a schedule of charges that fairly and equitably allocates the aggregate amount of these charges among licensees.
The FY 2015 final rule establishes the schedules of fees necessary for the NRC to recover 90 percent of its budget authority for FY 2015. The final rule estimates some increases in annual fees charged to certain licensees and holders of certificates, registrations, and approvals, and decreases in those annual fees charged to others. Licensees affected by these final estimates include those who qualify as small entities under the NRC's size standards in § 2.810.
The NRC prepared a FY 2015 biennial regulatory analysis in accordance with the FY 2001 final rule (66 FR 32467; June 14, 2001). This rule also stated the small entity fees will be reexamined every 2 years and in the same years the NRC conducts the biennial review of fees as required by the Chief Financial Officer's Act.
For this final rule, small entity fees increase to $3,400 for the maximum upper-tier small entity fee and increase to $700 for the lower-tier small entity as a result of the biennial review which factored in the number of increased
Additionally, the Small Business Regulatory Enforcement Fairness Act requires all Federal agencies to prepare a written compliance guide for each rule for which the agency is required by 5 U.S.C. 604 to prepare a regulatory flexibility analysis. The NRC, in compliance with the law, has prepared the “Small Entity Compliance Guide,” which is available as indicated in Section XV, Availability of Documents, of this document.
Under OBRA-90, as amended, and the AEA, the NRC is required to recover 90 percent of its budget authority, or total appropriations of $1,015.3 million, in FY 2015. The NRC established fee methodology guidelines for 10 CFR part 170 in 1978, and more fee methodology guidelines through the establishment of 10 CFR part 171 in 1986. In subsequent rulemakings, the NRC has adjusted its fees without changing the underlying principles of its fee policy in order to ensure that the NRC continues to comply with the statutory requirements for cost recovery in OBRA-90 and the AEA.
In this rulemaking, the NRC continues this long-standing approach. Therefore, the NRC did not identify any alternatives to the current fee structure guidelines and did not prepare a regulatory analysis for this rulemaking.
The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and that a backfit analysis is not required. A backfit analysis is not required because these amendments do not require the modification of, or addition to, systems, structures, components, or the design of a facility, or the design approval or manufacturing license for a facility, or the procedures or organization required to design, construct, or operate a facility.
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).
The NRC has determined that this rule is the type of action described in 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.
This rule does not contain any information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521.
The NRC may not conduct or sponsor, and a person is not required to respond to a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
In accordance with the Congressional Review Act of 1996 (5 U.S.C. 801-808), the NRC has determined that this action is a major rule and has verified the determination with the Office of Information and Regulatory Affairs of the Office of Management and Budget.
The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC amends the licensing, inspection, and annual fees charged to its licensees and applicants, as necessary, to recover approximately 90 percent of its budget authority in FY 2015, as required by OBRA-90, as amended. This action does not constitute the establishment of a standard that contains generally applicable requirements.
The Small Business Regulatory Enforcement Fairness Act requires all Federal agencies to prepare a written compliance guide for each rule for which the NRC is required by 5 U.S.C. 604 to prepare a regulatory flexibility analysis. The NRC, in compliance with the law, prepared the “Small Entity Compliance Guide” for the FY 2015 final fee rule. This document is available as indicated in Section XV, “Availability of Documents,” of this document.
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
Byproduct material, Import and export licenses, Intergovernmental relations, Non-payment penalties, Nuclear materials, Nuclear power plants and reactors, Source material, Special nuclear material.
Annual charges, Byproduct material, Holders of certificates, registrations, approvals, Intergovernmental relations, Nonpayment penalties, Nuclear materials, Nuclear power plants and reactors, Source material, Special nuclear material.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553, the NRC is adopting the following amendments to 10 CFR parts 170 and 171.
Independent Offices Appropriations Act sec. 501 (31 U.S.C. 9701); Atomic Energy Act sec. 161(w) (42 U.S.C. 2201(w)); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); Chief Financial Officers Act sec. 205 (31 U.S.C. 901, 902); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act secs. 623, Energy Policy Act of 2005 sec. 651(e), Pub. L. 109-58, 119 Stat. 783 (42 U.S.C. 2201(w), 2014, 2021, 2021b, 2111).
(1) The Government benefits for each employee such as leave and holidays, retirement and disability benefits, health and life insurance costs, and social security costs;
(2) Travel costs;
(3) Overhead [
(4) Indirect costs that would include, but not be limited to, NRC central policy direction, legal, and executive management services for the Commission, and special and independent reviews, investigations, and enforcement, and appraisal of NRC programs and operations. Some of the organizations included, in whole or in part, are the Commissioners, Secretary, Executive Director for Operations, General Counsel, Congressional and Public Affairs (except for international safety and safeguards programs), Inspector General, Investigations, Enforcement, Small Business and Civil Rights, the Technical Training Center, Advisory Committee on Reactor Safeguards, and the Atomic Safety and Licensing Board Panel. The Commission views these budgeted costs as support for all its regulatory services provided to applicants, licensees, and certificate holders, and these costs must be recovered under Public Law 101-508.
(1) Any nuclear reactor other than one designed or used primarily for the formation of plutonium or U-233; or
(2) An accelerator-driven subcritical operating assembly used for the irradiation of materials containing special nuclear material and described in the application assigned docket number 50-608.
Fees for permits, licenses, amendments, renewals, special projects, 10 CFR part 55 re-qualification and replacement examinations and tests, other required reviews, approvals, and inspections under §§ 170.21 and 170.31 will be calculated using the professional staff-hour rate of $268 per hour.
Consolidated Omnibus Budget Reconciliation Act sec. 7601, Pub. L. 99-272, as amended by sec. 5601, Pub. L. 100-203, as amended by sec. 3201, Pub. L. 101-239, as amended by sec. 6101, Pub. L. 101-508, as amended by sec. 2903a, Pub. L. 102-486 (42 U.S.C. 2213, 2214), and as amended by Title IV, Pub. L. 109-103 (42 U.S.C. 2214); Atomic Energy Act sec. 161(w), 223, 234 (42 U.S.C. 2201(w), 2273, 2282); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005 sec. 651(e), Pub. L. 109-58 (42 U.S.C. 2014, 2021, 2021b, 2111).
(b)(1) The FY 2015 annual fee for each operating power reactor which must be collected by September 30, 2015, is $5,030,000.
(2) The FY 2015 annual fees are comprised of a base annual fee for power reactors licensed to operate, a base spent fuel storage/reactor decommissioning annual fee, and associated additional charges (fee-relief adjustment). The activities comprising the spent storage/reactor decommissioning base annual fee are shown in paragraphs (c)(2)(i) and (ii) of this section. The activities comprising the FY 2015 fee-relief adjustment are shown in paragraph (d)(1) of this section. The activities comprising the FY 2015 base annual fee for operating power reactors are as follows:
(c)(1) The FY 2015 annual fee for each power reactor holding a 10 CFR part 50 license that is in a decommissioning or possession-only status and has spent fuel onsite, and for each independent spent fuel storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 license, is $223,000.
(2) The FY 2015 annual fee is comprised of a base spent fuel storage/reactor decommissioning annual fee (which is also included in the operating power reactor annual fee shown in paragraph (b) of this section) and a fee-relief adjustment. The activities comprising the FY 2015 fee-relief adjustment are shown in paragraph (d)(1) of this section. The activities comprising the FY 2015 spent fuel storage/reactor decommissioning rebaselined annual fee are:
(d)(1) The fee-relief adjustment allocated to annual fees includes a surcharge for the activities listed in paragraph (d)(1)(i) of this section, plus the amount remaining after total budgeted resources for the activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of this section are reduced by the appropriations the NRC receives for these types of activities. If the NRC's appropriations for these types of activities are greater than the budgeted resources for the activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of this section for a given fiscal year, annual fees will be reduced. The activities comprising the FY 2015 fee-relief adjustment are as follows:
(2) The total FY 2015 fee-relief adjustment allocated to the operating power reactor class of licenses is a $2,088,700 fee-relief surplus, not including the amount allocated to the spent fuel storage/reactor decommissioning class. The FY 2015 operating power reactor fee-relief adjustment to be assessed to each operating power reactor is approximately a $21,098 fee-relief surplus. This amount is calculated by dividing the total operating power reactor fee-relief surplus adjustment, $2,088,700 million, by the number of operating power reactors (99).
(3) The FY 2015 fee-relief adjustment allocated to the spent fuel storage/reactor decommissioning class of licenses is a $37,100 fee-relief assessment. The FY 2015 spent fuel storage/reactor decommissioning fee-relief adjustment to be assessed to each operating power reactor, each power reactor in decommissioning or possession-only status that has spent fuel onsite, and to each independent spent fuel storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 license, is a $304 fee-relief assessment. This amount is calculated by dividing the total fee-relief adjustment costs allocated to this class by the total number of power reactor licenses, except those that permanently ceased operations and have no fuel onsite, and 10 CFR part 72 licensees who do not hold a 10 CFR part 50 license.
(e) The FY 2015 annual fees for licensees authorized to operate a research or test (nonpower) reactor licensed under 10 CFR part 50 of this chapter, unless the reactor is exempted from fees under § 171.11(a), are as follows:
(d) The FY 2015 annual fees are comprised of a base annual fee and an allocation for fee-relief adjustment. The activities comprising the FY 2015 fee-relief adjustment are shown for convenience in paragraph (e) of this section. The FY 2015 annual fees for materials licensees and holders of certificates, registrations, or approvals subject to fees under this section are shown in the following table:
(e) The fee-relief adjustment allocated to annual fees includes the budgeted resources for the activities listed in paragraph (e)(1) of this section, plus the total budgeted resources for the activities included in paragraphs (e)(2) and (e)(3) of this section, as reduced by the appropriations the NRC receives for these types of activities. If the NRC's appropriations for these types of activities are greater than the budgeted resources for the activities included in paragraphs (e)(2) and (e)(3) of this section for a given fiscal year, a negative fee-relief adjustment (or annual fee reduction) will be allocated to annual fees. The activities comprising the FY 2015 fee-relief adjustment are as follows:
For the Nuclear Regulatory Commission.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from ExxonMobil Alaska LNG LLC (AK LNG) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to a geophysical and geotechnical survey in Cook Inlet, Alaska. This action is proposed to occur for 84 days after August 7, 2015. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to AK LNG to incidentally take, by Level B Harassment only, marine mammals during the specified activity.
Comments and information must be received no later than July 30, 2015.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
An electronic copy of the application may be obtained by writing to the address specified above, telephoning the contact listed below (see
Sara Young, Office of Protected Resources, NMFS, (301) 427-8484.
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
An Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On February 4, 2015, NMFS received an application from AK LNG for the taking of marine mammals incidental to a geotechnical and geophysical survey in Cook Inlet, Alaska. NMFS determined that the application was adequate and complete on June 8, 2015.
AK LNG proposes to conduct a geophysical and geotechnical survey in Cook Inlet to investigate the technical suitability of a pipeline study corridor across Cook Inlet and potential marine terminal locations near Nikiski. The proposed activity would occur for 12 weeks during the 2015 open water season after August 7, 2015. The following specific aspects of the proposed activities are likely to result in the take of marine mammals: Sub-bottom profiler (chirp and boomer), and a seismic airgun. Take, by Level B Harassment only, of individuals of four species is anticipated to result from the specified activities.
The planned geophysical surveys involve remote sensors including single beam echo sounder, multibeam echo sounder, sub-bottom profilers (chirp and boomer), 0.983 L (60 in
Geophysical and geotechnical surveys that do not involve equipment that could acoustically harass listed marine mammals could begin as soon as April 2015, depending on the ice conditions. These surveys include echo sounders and side scan sonar surveys operating at frequencies above the hearing range of local marine mammals and geotechnical borings, which are not expected to produce underwater noise exceeding
The Cook Inlet 2015 G&G Program will include geophysical surveys, shallow geotechnical investigations, and geotechnical borings. Two separate areas will be investigated and are shown in Figure 1 of the application: The pipeline survey area and the Marine Terminal survey area (which includes an LNG carrier approach zone). The pipeline survey area runs from the Kenai Peninsula, across the Inlet, up to Beluga, also considered the Upper Inlet. The Terminal area will include an area west and south of Nikiski, the northern edge of what is considered the Lower Inlet. The G&G Program survey areas (also referred to as the action area or action areas) are larger than the proposed pipeline route and the Marine Terminal site to ensure detection of all potential hazards, or to identify areas free of hazards. This provides siting flexibility should the pipeline corridor or Marine Terminal sites need to be adjusted to avoid existing hazards.
• Pipeline Survey Area—The proposed pipeline survey area (Figure 1) crosses Cook Inlet from Boulder Point on the Kenai Peninsula across to Shorty Creek about halfway between the village of Tyonek and the Beluga River. This survey area is approximately 45 km (28 mi) in length along the corridor centerline and averages about 13 km (8 mi) wide. The total survey area is 541 km2 (209 mi2). The pipeline survey area includes a subarea where vibracores will be conducted in addition to the geophysical surveys and shallow geotechnical investigations.
• Marine Terminal Survey Area—The proposed Marine Terminal survey area (Figure 1) encompassing 371 km2 (143 mi2) is located near Nikiski where potential sites and vessel routes for the Marine Terminal are being investigated. The Marine Terminal survey area includes two subareas: A seismic survey subarea where the airgun will be operated in addition to the other geophysical equipment, and a terminal boring subarea where geotechnical boreholes will be drilled in addition to the geophysical survey and shallow geotechnical investigations. The seismic survey subarea encompasses 25 km2 (8.5 mi2) and the terminal boring subarea encompasses 12 km2 (4.6 mi2).
The details of this activity are broken down into two categories for further description and analysis: Geophysical surveys and geotechnical surveys.
The types of acoustical geophysical equipment planned for use in the Cook Inlet 2015 G&G Program are indicated, by survey area, in Table 1 in the application. The equipment includes: Single beam echo sounder, multibeam echo sounder, sub-bottom profilers (chirp and boomer), 0.983 L (60 in
Downhole geophysics is included in the table as a sound source, but is not considered further in this assessment as the energy source will not generate significant sound energy within the water column since the equipment will be located downhole within the geotechnical boreholes. The transmitter (source) and receiver are both housed within the same probe or tool that is lowered into the hole on a wireline. The suspension log transmitter is an electromechanical device. It consists of a metallic barrel (the hammer) disposed horizontally in the tool and actuated by an electromagnet (solenoid) to hit the inside of tool body (the plate). The fundamental H1 mode is at about 4.5 KHz, and H2 is at 9 KHz. An extra resonance (unknown) mode is also present at about 15Khz. An analysis performed to estimate the expected sound level of the proposed borehole logging equipment scaled the sound produced by a steel pile driven by a hammer (given that both are cylindrical noise sources and produce impulsive sounds) and concluded that the sound level produced at 25m by the borehole logging equipment would be less than 142 dB. This is not considering the confining effect of the borehole which would lower the sound level even further (I&R, 2015).
The other types of geophysical equipment proposed for the 2015 program will generate impulsive sound in the water column and are described below Information on the acoustic characteristics of geophysical and geotechnical sound sources is also summarized in Table 2 in the application, followed by a corresponding description of each piece of equipment to be used.
Single beam echo sounders calculate water depth by measuring the time it takes for emitted sound to reflect off the seafloor bottom and return to the transducer. They are usually mounted on the vessel hull or a side-mounted pole. Echo sounding is expected to be conducted concurrently with sub-bottom profiling. Given an operating frequency of more than 200 kHz (Table 2), it is unlikely that the single beam echosounder will cause behavioral disturbance to marine mammals in the area (Wartzok and Ketten 1999, Southall et al. 2007, Reichmuth and Southall 2011, Castellote et al. 2014). While literature has shown pinniped behavioral reaction to sounds at 200kHz, as well as detection of subharmonics at 90 and 130 KHz by several odontocetes, the ambient noise levels in Cook Inlet make behavioral disturbance unlikely (Hastie et al. 2014, Deng et al. 2014). Further, single beam echo sounders operate at relatively low energy levels (146 dB re 1 μPa-m [rms]). The simultaneous operations of echo sounder with sub-bottom profiler should have no additive effect on marine mammals. The high ambient noise levels in Cook Inlet, as well as the low proposed source level of this technology will like not disturb marine mammals to the point of Level B harassment. Thus, this equipment is not further evaluated in this application
Multibeam echo sounders emit a swath of sonar downward to the seafloor at source energy levels of 188 dB re 1 μPa-m (rms). The reflection of the sonar signal provides for the production of three dimensional seafloor images. These systems are usually side-mounted to the vessel. Echo sounding is expected to be conducted concurrently with sub-bottom profiling. Given the operating frequencies of the planned multibeam system (>200 kHz, Table 2), the generated underwater sound will be beyond the hearing range of Cook Inlet marine mammals (Wartzok and Ketten 1999, Kastelein et al. 2005, Southall et al. 2007, Reichmuth and Southall 2011, Castellote et al. 2014). Further, most sound energy is emitted directly downward from this equipment, not laterally. As with the single beam, the multibeam is not further evaluated because it far exceeds the maximum hearing frequency of local marine mammals. Due to this technology being
Side-scan sonar emits a cone-shaped pulse downward to the seafloor with source energy of about 188 dB re 1 μPa-m (rms). Acoustic reflections provide a two-dimensional image of the seafloor and other features. The side-scan sonar system planned for use during this program will emit sound energy at frequencies of 400 and 1600 kHz (Table 2), which are well beyond the normal hearing range of Cook Inlet marine mammals (Wartzok and Ketten 1999, Kastelein et al. 2005, Southall et al. 2007, Reichmuth and Southall 2011, Castellote et al. 2014). Side-scan sonar is not further evaluated in this application.
The chirp sub-bottom profiler planned for use in this program is a precisely controlled “chirp” system that emits high-energy sounds with a resolution of one millisecond (ms) and is used to penetrate and profile the shallow sediments near the sea floor. At operating frequencies of 2 to 16 kHz (Table 2), this system will be operating at the lower end of the hearing range of beluga whales and well below the most sensitive hearing range of beluga whales (45-80 kHz, Castellote et al. 2014). The source level is estimated at 202 dB re 1 μPa-m (rms). The beam width is 24 degrees and pointed downward.
A boomer sub-bottom profiling system with a penetration depth of up to 600 ms and resolution of 2 to 10 ms will be used to penetrate and profile the Cook Inlet sediments to an intermediate depth. The system will be towed behind the vessel. With a sound energy source level of about 205 dB re 1 μPa-m (rms) at frequencies of 0.5 to 6 kHz (Table 2), most of the sound energy generated by the boomer will be at frequencies that are well below peak hearing sensitivities of beluga whales (45-80 kHz; Castellote et al. 2014), but would still be detectable by these animals. The boomer is pointed downward but the equipment is omni-directional so the physical orientation is irrelevant.
A 0.983 L (60 in
Vibracoring is conducted to obtain cores of the seafloor sediment from the surface down to a depth of about 6.1 m (20 ft). The cores are later analyzed in the laboratory for moisture, organic and carbonate content, shear strength, and grain size. Vibracore samplers consist of a 10-cm (4.0-in) diameter core barrel and a vibratory driving mechanism mounted on a four-legged frame, which is lowered to the seafloor. The electric motor driving mechanism oscillates the core barrel into the sediment where a core sample is then extracted. The duration of the operation varies with substrate type, but generally the sound source (driving mechanism) is operable for only the one or two minutes it takes to complete the 6.1-m (20-ft) bore and the entire setup process often takes less than one hour.
Chorney et al. (2011) conducted sound measurements on an operating vibracorer in Alaska and found that it emitted a sound pressure level at 1-m source of 187.4 dB re 1 μPa-m (rms), with a frequency range of between 10 Hz and 20 kHz (Table 2). Vibracoring will result in the largest zone of influence (ZOI; area ensonified by sound energy greater than the 120 dB threshold) among the continuous sound sources. Vibracoring would also have a very small effect on the benthic habitat.
Vibracoring will be conducted at approximate intervals of one core every 4.0 km (2.5 mi) along the pipeline corridor centerline for a total of about 22 samplings total. Approximately 33 vibracores will also be collected within the Marine Terminal survey area. Only about three or four vibracorings per day are expected to be conducted over about 14 days of vibracoring activity, but given the expected duration per vibracore the total time the sound source would be operating is expected to be about 2.0 hours or less.
Because of the very brief duration within a day (up to four 1 or 2-minute periods) of this continuous, non-impulsive sound, combined with the small number of days the source will be used overall, NMFS does not believe that the vibracore operations will result in the take of marine mammals. However, because the applicant requested take from this source and included a quantitative analysis in their application, that analysis will be included here for reference and opportunity for public comment.
Geotechnical borings will be conducted within the Marine Terminal survey area and within the pipeline survey area near potential shoreline crossings. Geotechnical borings will be conducted by collecting geotechnical samples from borings 15.2 to 70.0 m (50-200 ft) deep using a rotary drilling unit mounted on a small jack-up platform. Geotechnical borings provide geological information at greater sediment depths than vibracores. These data are required to help inform proper designs and construction techniques for pipeline crossing and terminal facilities. The number of and general locations for the planned geotechnical boreholes are provided below in Table 3.
The jack-up platform is expected to be the Seacore
Sound source verifications of large jack-up drilling rigs in Cook Inlet (
Grab sampling will involve using a Van Veen grab sampler that will be lowered with its “jaws” open to the seafloor from the geophysical vessel at which point the mechanical closing mechanism is activated, thus “grabbing” a sample of bottom sediment. The sampler is retrieved to the vessel deck and a sample of the sediments collected for environmental and geotechnical analysis, such as soil description and sieve analyses. Grab sampling does not produce significant underwater sound, but will have a small effect on the benthic habitat. Grab samples will be obtained as warranted to aid interpretation of geophysical data.
Piezo-cone penetration testing (PCPT) involves placing a metal frame on the ocean bottom and then pushing an instrumented cone into the seafloor at a controlled rate, measuring the resistance and friction of the penetration. The results provide a measure of the geotechnical engineering property of the soil, including load bearing capacity and stratigraphy. The target depth is about 4.9 m (16 ft). PCPTs will be conducted at intervals of about one per 8.0 km (5.0 mi) along the pipeline corridor centerline and elsewhere in the pipeline survey area and Marine Terminal survey area. Precise target locations will be determined in the field and will be adjusted by onboard personnel after the preliminary geophysical data has been made available to select sample locations that better identify soil transition zones and/or other features. PCPT will have an inconsequential effect on benthic habitat as well as local marine mammal populations
The geophysical surveys will be conducted from one of two source vessels with the smaller of the two used in more shallow, nearshore water conditions. Vibracoring will be conducted from a third vessel as noted in Table 4 in the application. Geotechnical borings will be conducted from a jack-up platform. The jack-up platform is not self-powered, and will be positioned over each sampling location by a tug. The proposed vessels are: Three source vessels, one jack-up platform, and one tug. The contracted vessels will either be these vessels or similar vessels with similar configurations.
Marine mammals that regularly inhabit upper Cook Inlet and Nikiski activity areas are the beluga whale (
The Cook Inlet beluga whale Distinct Population Stock (DPS) is a small geographically isolated population that is separated from other beluga populations by the Alaska Peninsula. The population is genetically (mtDNA) distinct from other Alaska populations suggesting that the Peninsula is an effective barrier to genetic exchange (O'Corry-Crowe et al. 1997) and that these whales may have been separated from other stocks at least since the last ice age. Laidre et al. (2000) examined data from over 20 marine mammal surveys conducted in the northern Gulf of Alaska and found that sightings of belugas outside Cook Inlet were exceedingly rare, and these were composed of a few stragglers from the Cook Inlet DPS observed at Kodiak Island, Prince William Sound, and Yakutat Bay. Several marine mammal surveys specific to Cook Inlet (Laidre et al. 2000, Speckman and Piatt 2000), including those that concentrated on beluga whales (Rugh et al. 2000, 2005a), clearly indicate that this stock largely confines itself to Cook Inlet. There is no indication that these whales make forays into the Bering Sea where they might intermix with other Alaskan stocks.
The Cook Inlet beluga DPS was originally estimated at 1,300 whales in
Prior to the decline, this DPS was believed to range throughout Cook Inlet and occasionally into Prince William Sound and Yakutat (Nemeth et al. 2007). However, the range has contracted coincident with the population reduction (Speckman and Piatt 2000). During the summer and fall, beluga whales are concentrated near the Susitna River mouth, Knik Arm, Turnagain Arm, and Chickaloon Bay (Nemeth et al. 2007) where they feed on migrating eulachon (
Goetz et al. (2012) modeled beluga use in Cook Inlet based on the NMFS aerial surveys conducted between 1994 and 2008. The combined model results shown in Figure 3 in the application indicate a very clumped distribution of summering beluga whales, and that lower densities of belugas are expected to occur in most of the pipeline survey area (but not necessarily specific G&G survey locations; see Section 6.3 in the application) and the vicinity of the proposed Marine Terminal. However, beluga whales begin moving into Knik Arm around August 15 where they spend about a month feeding on Eagle River salmon. The area between Nikiski, Kenai, and Kalgin Island provides important wintering habitat for Cook Inlet beluga whales. Use of this area would be expected between fall and spring, with animals largely absent during the summer months when G&G surveys would occur (Goetz
Two different stocks of killer whales inhabit the Cook Inlet region of Alaska: The Alaska Resident Stock and the Gulf of Alaska, Aleutian Islands, Bering Sea Transient Stock (Allen and Angliss 2014). The Alaska Resident stock is estimated at 2,347 animals and occurs from Southeast Alaska to the Bering Sea (Allen and Angliss 2014). Resident whales feed exclusively on fish and are genetically distinct from transient whales (Saulitis et al. 2000).
The transient whales feed primarily on marine mammals (Saulitis et al. 2000). The transient population inhabiting the Gulf of Alaska shares mitochondrial DNA haplotypes with whales found along the Aleutian Islands and the Bering Sea, suggesting a common stock, although there appears to be some subpopulation genetic structuring occurring to suggest the gene flow between groups is limited (see Allen and Angliss 2014). For the three regions combined, the transient population has been estimated at 587 animals (Allen and Angliss 2014).
Killer whales are occasionally observed in lower Cook Inlet, especially near Homer and Port Graham (Shelden et al. 2003, Rugh et al. 2005a). The few whales that have been photographically identified in lower Cook Inlet belong to resident groups more commonly found in nearby Kenai Fjords and Prince William Sound (Shelden et al. 2003). Prior to the 1980s, killer whale sightings in upper Cook Inlet were very rare. During aerial surveys conducted between 1993 and 2004, killer whales were observed on only three flights, all in the Kachemak and English Bay area (Rugh et al. 2005a). However, anecdotal reports of killer whales feeding on belugas in upper Cook Inlet began increasing in the 1990s, possibly in response to declines in sea lion and harbor seal prey elsewhere (Shelden et al. 2003). These sporadic ventures of transient killer whales into beluga summering grounds have been implicated as a possible contributor to the decline of Cook Inlet belugas in the 1990s, although the number of confirmed mortalities from killer whales is small (Shelden et al. 2003). If killer whales were to venture into upper Cook Inlet in 2015, they might be encountered during the G&G Program.
Harbor porpoise are small (approximately 1.2 m [4 ft] in length), relatively inconspicuous toothed whales. The Gulf of Alaska Stock is distributed from Cape Suckling to Unimak Pass and was most recently estimated at 31,046 animals (Allen and Angliss 2014). They are found primarily in coastal waters less than 100 m (328 ft) deep (Hobbs and Waite 2010) where they feed on Pacific herring (
Although they have been frequently observed during aerial surveys in Cook Inlet, most sightings of harbor porpoise are of single animals, and are concentrated at Chinitna and Tuxedni bays on the west side of lower Cook Inlet (Rugh et al. 2005a). Dahlheim et al. (2000) estimated the 1991 Cook Inlet-wide population at only 136 animals. Also, during marine mammal monitoring efforts conducted in upper Cook Inlet by Apache from 2012 to 2014, harbor porpoise represented less than 2% of all marine mammal sightings. However, they are one of the three marine mammals (besides belugas and harbor seals) regularly seen in upper Cook Inlet (Nemeth et al. 2007), especially during spring eulachon and summer salmon runs. Because harbor porpoise have been observed throughout Cook Inlet during the summer months, including mid-inlet waters, they represent species that might be encountered during G&G Program surveys in upper Cook Inlet.
At over 150,000 animals state-wide (Allen and Angliss 2014), harbor seals are one of the more common marine mammal species in Alaskan waters. They are most commonly seen hauled out at tidal flats and rocky areas. Harbor seals feed largely on schooling fish such as Alaska pollock (Theragra chalcogramma), Pacific cod (Gadus macrocephalus), salmon, Pacific herring, eulachon, and squid. Although harbor seals may make seasonal movements in response to prey, they are resident to Alaska and do not migrate.
The Cook Inlet/Shelikof Stock, ranging from approximately Anchorage down along the south side of the Alaska Peninsula to Unimak Pass, has been recently estimated at a stable 22,900 (Allen and Angliss 2014). Large numbers concentrate at the river mouths and embayments of lower Cook Inlet, including the Fox River mouth in Kachemak Bay (Rugh et al. 2005a). Montgomery et al. (2007) recorded over 200 haulout sites in lower Cook Inlet
Although there is considerable distributional overlap in the humpback whale stocks that use Alaska, the whales seasonally found in lower Cook Inlet are probably of the Central North Pacific stock. Listed as endangered under the Endangered Species Act (ESA), this stock has recently been estimated at 7,469, with the portion of the stock that feeds in the Gulf of Alaska estimated at 2,845 animals (Allen and Angliss 2014). The Central North Pacific stock winters in Hawaii and summers from British Columbia to the Aleutian Islands (Calambokidis et al. 1997), including Cook Inlet.
Humpback use of Cook Inlet is largely confined to lower Cook Inlet. They have been regularly seen near Kachemak Bay during the summer months (Rugh et al. 2005a), and there is a whale-watching venture in Homer capitalizing on this seasonal event. There are anecdotal observations of humpback whales as far north as Anchor Point, with recent summer observations extending to Cape Starichkof (Owl Ridge 2014). Because of the southern distribution of humpbacks in Cook Inlet, it is unlikely that they will be encountered during this activity in close enough proximity to cause Level B harassment and are not considered further in this proposed Authorization.
Each spring, the Eastern North Pacific stock of gray whale migrates 8,000 kilometers (5,000 miles) northward from breeding lagoons in Baja California to feeding grounds in the Bering and Chukchi seas, reversing their travel again in the fall (Rice and Wolman 1971). Their migration route is for the most part coastal until they reach the feeding grounds. A small portion of whales do not annually complete the full circuit, as small numbers can be found in the summer feeding along the Oregon, Washington, British Columbia, and Alaskan coasts (Rice et al. 1984, Moore et al. 2007).
Human exploitation reduced this stock to an estimated “few thousand” animals (Jones and Schwartz 2002). However, by the late 1980s, the stock was appearing to reach carrying capacity and estimated to be at 26,600 animals (Jones and Schwartz 2002). By 2002, that stock had been reduced to about 16,000 animals, especially following unusually high mortality events in 1999 and 2000 (Allen and Angliss 2014). The stock has continued to grow since then and is currently estimated at 19,126 animals with a minimum estimate of 18,017 (Carretta et al. 2013). Most gray whales migrate past the mouth of Cook Inlet to and from northern feeding grounds. However, small numbers of summering gray whales have been noted by fisherman near Kachemak Bay and north of Anchor Point. Further, summering gray whales were seen offshore of Cape Starichkof by marine mammal observers monitoring Buccaneer's Cosmopolitan drilling program in 2013 (Owl Ridge 2014). Regardless, gray whales are not expected to be encountered in upper Cook Inlet, where the activity is concentrated, north of Kachemak Bay. Therefore, it is unlikely that they will be encountered during this activity in close enough proximity to cause Level B harassment and are not considered further in this proposed Authorization.
Minke whales are the smallest of the rorqual group of baleen whales reaching lengths of up to 35 feet. They are also the most common of the baleen whales, although there are no population estimates for the North Pacific, although estimates have been made for some portions of Alaska. Zerbini et al. (2006) estimated the coastal population between Kenai Fjords and the Aleutian Islands at 1,233 animals.
During Cook Inlet-wide aerial surveys conducted from 1993 to 2004, minke whales were encountered only twice (1998, 1999), both times off Anchor Point 16 miles northwest of Homer. A minke whale was also reported off Cape Starichkof in 2011 (A. Holmes, pers. comm.) and 2013 (E. Fernandez and C. Hesselbach, pers. comm.), suggesting this location is regularly used by minke whales, including during the winter. Recently, several minke whales were recorded off Cape Starichkof in early summer 2013 during exploratory drilling conducted there (Owl Ridge 2014). There are no records north of Cape Starichkof, and this species is unlikely to be seen in upper Cook Inlet. There is little chance of encountering a minke whale during these activities and they are not analyzed further.
Dall's porpoise are widely distributed throughout the North Pacific Ocean including Alaska, although they are not found in upper Cook Inlet and the shallower waters of the Bering, Chukchi, and Beaufort Seas (Allen and Angliss 2014). Compared to harbor porpoise, Dall's porpoise prefer the deep offshore and shelf slope waters. The Alaskan population has been estimated at 83,400 animals (Allen and Angliss 2014), making it one of the more common cetaceans in the state. Dall's porpoise have been observed in lower Cook Inlet, including Kachemak Bay and near Anchor Point (Owl Ridge 2014), but sightings there are rare. The concentration of sightings of Dall's porpoise in a southerly part of the Inlet suggest it is unlikely they will be encountered during AK LNG's activities and they are therefore not considered further in this analysis.
The Western Stock of the Steller sea lion is defined as all populations west of longitude 144° W to the western end of the Aleutian Islands. The most recent estimate for this stock is 45,649 animals (Allen and Angliss 2014), considerably less than that estimated 140,000 animals in the 1950s (Merrick et al. 1987). Because of this dramatic decline, the stock was listed under the ESA as a threatened DPS in 1990, and relisted as endangered in 1997. Critical habitat was designated in 1993, and is defined as a 20-nautical-mile radius around all major rookeries and haulout sites. The 20-nautical-mile buffer was established based on telemetry data that indicated these sea lions concentrated their
Steller sea lions inhabit lower Cook Inlet, especially in the vicinity of Shaw Island and Elizabeth Island (Nagahut Rocks) haulout sites (Rugh
The upper reaches of Cook Inlet may not provide adequate foraging conditions for sea lions for establishing a major haul out presence. Steller sea lions feed largely on walleye pollock (
This section includes a summary and discussion of the ways that components (
NMFS intends to provide a background of potential effects of AK LNG's activities in this section. Operating active acoustic sources have the potential for adverse effects on marine mammals. The majority of anticipated impacts would be from the use of these sources.
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson
Southall
The functional groups applicable to this proposed survey and the associated frequencies are:
• Low frequency cetaceans (13 species of mysticetes): Functional hearing estimates occur between approximately 7 Hertz (Hz) and 25 kHz (extended from 22 kHz based on data indicating that some mysticetes can hear above 22 kHz; Au
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing estimates occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (eight species of true porpoises, six species of river dolphins,
• Pinnipeds in water: Phocid (true seals) functional hearing estimates occur between approximately 75 Hz and 100 kHz (Hemila
As mentioned previously in this document, four marine mammal species (3 odontocetes and 1 phocid) would likely occur in the proposed action area. Table 2 presents the classification of these species into their respective functional hearing group. NMFS consider a species' functional hearing group when analyzing the effects of exposure to sound on marine mammals.
The effects of sounds from airgun operations might include one or more of the following: Tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent impairment, or non-auditory physical or physiological effects (Richardson
Studies on marine mammals' tolerance to sound in the natural environment are relatively rare. Richardson
Numerous studies have shown that pulsed sounds from airguns are often readily detectable in the water at distances of many kilometers. Several studies have also shown that marine mammals at distances of more than a few kilometers from operating seismic vessels often show no apparent
Weir (2008) observed marine mammal responses to seismic pulses from a 24 airgun array firing a total volume of either 5,085 in
Bain and Williams (2006) examined the effects of a large airgun array (maximum total discharge volume of 1,100 in
Pirotta
Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, avoiding predators, and learning about their environment (Erbe and Farmer, 2000; Tyack, 2000).
The term masking refers to the inability of an animal to recognize the occurrence of an acoustic stimulus because of interference of another acoustic stimulus (Clark
Introduced underwater sound may, through masking, reduce the effective communication distance of a marine mammal species if the frequency of the source is close to that used as a signal by the marine mammal, and if the anthropogenic sound is present for a significant fraction of the time (Richardson
Marine mammals are thought to be able to compensate for masking by adjusting their acoustic behavior through shifting call frequencies, increasing call volume, and increasing vocalization rates. For example in one study, blue whales increased call rates when exposed to noise from seismic surveys in the St. Lawrence Estuary (Di Iorio and Clark, 2010). Other studies reported that some North Atlantic right whales exposed to high shipping noise increased call frequency (Parks
Studies have shown that some baleen and toothed whales continue calling in the presence of seismic pulses, and some researchers have heard these calls between the seismic pulses (
In contrast, Clark and Gagnon (2006) reported that fin whales in the northeast Pacific Ocean went silent for an extended period starting soon after the onset of a seismic survey in the area. Similarly, NMFS is aware of one report that observed sperm whales ceased calls when exposed to pulses from a very distant seismic ship (Bowles
Risch
Several studies have also reported hearing dolphins and porpoises calling while airguns were operating (
Although some degree of masking is inevitable when high levels of manmade broadband sounds are present in the sea, marine mammals have evolved systems and behavior that function to reduce the impacts of masking. Odontocete conspecifics may readily detect structured signals, such as the echolocation click sequences of small toothed whales even in the presence of strong background noise because their frequency content and temporal features usually differ strongly from those of the background noise (Au and Moore, 1988, 1990). The components of background noise that are similar in frequency to the sound signal in question primarily determine the degree of masking of that signal.
Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or manmade noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The sound localization abilities of marine mammals suggest that, if signal and noise come from different directions, masking would not be as severe as the usual types of masking studies might suggest (Richardson
These data demonstrating adaptations for reduced masking pertain mainly to the very high frequency echolocation signals of toothed whales. There is less information about the existence of corresponding mechanisms at moderate or low frequencies or in other types of marine mammals. For example, Zaitseva
Marine mammals may behaviorally react to sound when exposed to anthropogenic noise. Reactions to sound, if any, depend on species, state of maturity, experience, current activity, reproductive state, time of day, and many other factors (Richardson
Types of behavioral reactions can include the following: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, one could expect the consequences of behavioral modification to be biologically significant if the change affects growth, survival, and/or reproduction (
• Drastic changes in diving/surfacing patterns (such as those associated with beaked whale stranding related to exposure to military mid-frequency tactical sonar);
• Permanent habitat abandonment due to loss of desirable acoustic environment; and
• Disruption of feeding or social interaction resulting in significant energetic costs, inhibited breeding, or cow-calf separation.
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Richardson
Observers have seen various species of
Ship-based monitoring studies of baleen whales (including blue, fin, sei, minke, and humpback whales) in the northwest Atlantic found that overall, this group had lower sighting rates during seismic versus non-seismic periods (Moulton and Holst, 2010). The authors observed that baleen whales as a group were significantly farther from the vessel during seismic compared with non-seismic periods. Moreover, the authors observed that the whales swam away more often from the operating seismic vessel (Moulton and Holst, 2010). Initial sightings of blue and minke whales were significantly farther from the vessel during seismic operations compared to non-seismic periods and the authors observed the same trend for fin whales (Moulton and Holst, 2010). Also, the authors observed that minke whales most often swam away from the vessel when seismic operations were underway (Moulton and Holst, 2010).
Observers stationed on seismic vessels operating off the United Kingdom from 1997-2000 have provided data on the occurrence and behavior of various toothed whales exposed to seismic pulses (Stone, 2003; Gordon
The beluga may be a species that (at least in certain geographic areas) shows long-distance avoidance of seismic vessels. Aerial surveys during seismic operations in the southeastern Beaufort Sea recorded much lower sighting rates of beluga whales within 10-20 km (6.2-12.4 mi) of an active seismic vessel. These results were consistent with the low number of beluga sightings reported by observers aboard the seismic vessel, suggesting that some belugas might have been avoiding the seismic operations at distances of 10-20 km (6.2-12.4 mi) (Miller
Seismic operators and protected species observers (observers) on seismic vessels regularly see dolphins and other small toothed whales near operating airgun arrays, but in general there is a tendency for most delphinids to show some avoidance of operating seismic vessels (
Captive bottlenose dolphins exhibited changes in behavior when exposed to strong pulsed sounds similar in duration to those typically used in seismic surveys (Finneran
Results for porpoises depend upon the species. The limited available data suggest that harbor porpoises show stronger avoidance of seismic operations than do Dall's porpoises (Stone, 2003; MacLean and Koski, 2005; Bain and Williams, 2006; Stone and Tasker, 2006). Dall's porpoises seem relatively tolerant of airgun operations (MacLean and Koski, 2005; Bain and Williams, 2006), although they too have been observed to avoid large arrays of operating airguns (Calambokidis and Osmek, 1998; Bain and Williams, 2006). This apparent difference in responsiveness of these two porpoise species is consistent with their relative responsiveness to boat traffic and some other acoustic sources (Richardson
Pinnipeds are not likely to show a strong avoidance reaction to the airgun sources proposed for use. Visual monitoring from seismic vessels has shown only slight (if any) avoidance of airguns by pinnipeds and only slight (if any) changes in behavior. Monitoring work in the Alaskan Beaufort Sea during 1996-2001 provided considerable information regarding the behavior of Arctic ice seals exposed to seismic pulses (Harris
Exposure to high intensity sound for a sufficient duration may result in
The following physiological mechanisms are thought to play a role in inducing auditory TS: Effects to sensory hair cells in the inner ear that reduce their sensitivity, modification of the chemical environment within the sensory cells, residual muscular activity in the middle ear, displacement of certain inner ear membranes, increased blood flow, and post-stimulatory reduction in both efferent and sensory neural output (Southall
PTS is considered auditory injury (Southall
Although the published body of scientific literature contains numerous theoretical studies and discussion papers on hearing impairments that can occur with exposure to a loud sound, only a few studies provide empirical information on the levels at which noise-induced loss in hearing sensitivity occurs in non-human animals.
Recent studies by Kujawa and Liberman (2009) and Lin
For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran
Lucke
A recent study on bottlenose dolphins (Schlundt,
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture.
Given the higher level of sound necessary to cause PTS as compared with TTS, it is considerably less likely that PTS would occur during the proposed seismic survey, although TTS is possible but unlikely. Cetaceans generally avoid the immediate area around operating seismic vessels, as do some other marine mammals. Some pinnipeds show avoidance reactions to airguns, but their avoidance reactions are generally not as strong or consistent compared to cetacean reactions.
Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg, 2000; Sapolsky
In the case of many stressors, an animal's first and most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response, which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with stress. These responses have a relatively short duration and may or may not have significant long-term effects on an animal's welfare.
An animal's third line of defense to stressors involves its neuroendocrine or sympathetic nervous systems; the system that has received the most study has been the hypothalmus-pituitary-adrenal system (also known as the HPA axis in mammals or the hypothalamus-pituitary-interrenal axis in fish and some reptiles). Unlike stress responses associated with the autonomic nervous system, the pituitary hormones regulate virtually all neuroendocrine functions affected by stress—including immune competence, reproduction, metabolism, and behavior. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg, 1987; Rivier, 1995), altered metabolism (Elasser
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that the body quickly replenishes after alleviation of the stressor. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, it diverts energy resources from other biotic functions, which impair those functions that experience the diversion. For example, when mounting a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When mounting a stress response diverts energy from a fetus, an animal's reproductive success and fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state called “distress” (
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiment; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton
For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (
Hearing is one of the primary senses marine mammals use to gather information about their environment and communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, we assume that reducing a marine mammal's ability to gather information about its environment and communicate with other members of its species would induce stress, based on data that terrestrial animals exhibit those responses under similar conditions (NRC, 2003) and because marine mammals use hearing as their primary sensory mechanism. Therefore, NMFS assumes that acoustic exposures sufficient to trigger onset PTS or TTS would be accompanied by physiological stress responses. More importantly, marine mammals might experience stress responses at received levels lower than those necessary to trigger onset TTS. Based on empirical studies of the time required to recover from stress responses (Moberg, 2000), NMFS also assumes that stress responses could persist beyond the time interval required for animals to recover from TTS and might result in pathological and pre-pathological states that would be as significant as behavioral responses to TTS.
Resonance effects (Gentry, 2002) and direct noise-induced bubble formations (Crum
In general, there are few data about the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. Such effects, if they occur at all, would presumably be limited to short distances and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall
When a living or dead marine mammal swims or floats onto shore and becomes “beached” or incapable of returning to sea, the event is a “stranding” (Geraci
Marine mammals strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series. However, the cause or causes of most strandings are unknown (Geraci
AK LNG would also operate a sub-bottom profiler chirp and boomer from the source vessel during the proposed survey. The chirp's sounds are very short pulses, occurring for one ms, six times per second. Most of the energy in the sound pulses emitted by the profiler is at 2-6 kHz, and the beam is directed downward. The chirp has a maximum source level of 202 dB re: 1 µPa, with a tilt angle of 90 degrees below horizontal and a beam width of 24 degrees. The sub-bottom profiler boomer will shoot approximately every 3.125m, with shots lasting 1.5 to 2 seconds. Most of the energy in the sound pulses emitted by the boomer is concentrated between 0.5 and 6 kHz, with a source level of 205dB re: 1μPa.The tilt of the boomer is 90 degrees below horizontal, but the emission is omnidirectional. Kremser
Marine mammal communications would not likely be masked appreciably by the profiler's signals given the directionality of the signal and the brief period when an individual mammal is likely to be within its beam. Furthermore, despite the fact that the profiler overlaps with hearing ranges of
Animals may avoid the area around the survey vessels, thereby reducing exposure. Any disturbance to marine mammals is likely to be in the form of temporary avoidance or alteration of opportunistic foraging behavior near the survey location.
AK LNG would conduct vibracoring in a corridor across a northern portion of Cook Inlet. While duration is dependent on sediment type, the driving mechanism, which emits sound at a source level of 187dB re: 1µPa, will only bore for 1 to 2 minutes. The sound is emitted at a frequency of 10Hz to 20kHz. Cores will be bored at approximately every 4 km along the pipeline corridor, for about 22 cores in that area. Approximately 33 cores will be taken in the Marine Terminal area.
There are no data on the behavioral response to vibracore activity of marine mammals in Cook Inlet. The closest analog to vibracoring might be exploratory drilling, although there is a notable difference in magnitude between an oil and gas drilling operation and collecting sediment samples with a vibracorer. Thomas et al. (1990) played back drilling sound to four captive beluga whales and found no statistical difference in swim patterns, social groups, respiration and dive rates, or stress hormone levels before and during playbacks. There is no reason to believe that beluga whales or any other marine mammal exposed to vibracoring sound would behave any differently, especially since vibracoring occurs for only one or two minutes.
Stress, Stranding, and Mortality Safety zones will be established to prevent acoustical injury to local marine mammals, especially injury that could indirectly lead to mortality. Also, G&G sound is not expected to cause resonate effects to gas-filled spaces or airspaces in marine mammals based on the research of Finneran (2003) on beluga whales showing that the tissue and other body masses dampen any potential effects of resonance on ear cavities, lungs, and intestines. Chronic exposure to sound could lead to physiological stress eventually causing hormonal imbalances (NRC 2005). If survival demands are already high, and/or additional stressors are present, the ability of the animal to cope decreases, leading to pathological conditions or death (NRC 2005). Potential effects may be greatest where sound disturbance can disrupt feeding patterns including displacement from critical feeding grounds. However, all G&G exposure to marine mammals would be of duration measured in minutes.
Specific sound-related processes that lead to strandings and mortality are not well documented, but may include (1) swimming in avoidance of a sound into shallow water; (2) a change in behavior (such as a change in diving behavior) that might contribute to tissue damage, gas bubble formation, hypoxia, cardiac arrhythmia, hypertensive hemorrhage, or other forms of trauma; (3) a physiological change such as a vestibular response leading to a behavioral change or stress-induced hemorrhagic diathesis, leading in turn to tissue damage; and, (4) tissue damage directly from sound exposure, such as through acoustically mediated bubble formation and growth or acoustic resonance of tissues (Wood et al. 2012). Some of these mechanisms are unlikely to apply in the case of impulse G&G sounds, especially since airguns and sub-bottom profilers produce broadband sound with low pressure rise. Strandings to date which have been attributed to sound exposure related to date from military exercises using narrowband mid-frequency sonar with a much greater likelihood to cause physical damage (Balcomb and Claridge 2001, NOAA and USN, 2001, Hildebrand 2005).
The low intensity, low frequency, broadband sound associated with airguns and sub-bottom profilers, combined with the shutdown safety zone mitigation measure for the airgun would prevent physical damage to marine mammals. The vibracoring would also be unlikely to have the capability of causing physical damage to marine mammals because of its low intensity and short duration.
Vessel movement in the vicinity of marine mammals has the potential to result in either a behavioral response or a direct physical interaction. We discuss both scenarios here.
Behavioral responses to stimuli are complex and influenced to varying degrees by a number of factors, such as species, behavioral contexts, geographical regions, source characteristics (moving or stationary, speed, direction, etc.), prior experience of the animal and physical status of the animal. For example, studies have shown that beluga whales' reactions varied when exposed to vessel noise and traffic. In some cases, naive beluga whales exhibited rapid swimming from ice-breaking vessels up to 80 km (49.7 mi) away, and showed changes in surfacing, breathing, diving, and group composition in the Canadian high Arctic where vessel traffic is rare (Finley et al., 1990). In other cases, beluga whales were more tolerant of vessels, but responded differentially to certain vessels and operating characteristics by reducing their calling rates (especially older animals) in the St. Lawrence River where vessel traffic is common (Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales continued to feed when surrounded by fishing vessels and resisted dispersal even when purposefully harassed (Fish and Vania, 1971).
In reviewing more than 25 years of whale observation data, Watkins (1986) concluded that whale reactions to vessel traffic were “modified by their previous experience and current activity: Habituation often occurred rapidly, attention to other stimuli or preoccupation with other activities sometimes overcame their interest or wariness of stimuli.” Watkins noticed that over the years of exposure to ships in the Cape Cod area, minke whales changed from frequent positive interest (
Ship strikes of cetaceans can cause major wounds, which may lead to the death of the animal. An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or a vessel's propeller could injure an animal just below the surface. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007).
The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (
An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus, 2001; Laist et al., 2001; Jensen and Silber, 2003; Vanderlaan and Taggart, 2007). In assessing records with known vessel speeds, Laist et al. (2001) found a direct relationship between the occurrence of a whale strike and the speed of the vessel involved in the collision. The authors concluded that most deaths occurred when a vessel was traveling in excess of 24.1 km/h (14.9 mph; 13 kts).
Entanglement can occur if wildlife becomes immobilized in survey lines, cables, nets, or other equipment that is moving through the water column. The proposed seismic survey would require towing approximately 8.0 km (4.9 mi) of equipment and cables. This size of the array generally carries a lower risk of entanglement for marine mammals. Wildlife, especially slow moving individuals, such as large whales, have a low probability of entanglement due to the low amount of slack in the lines, slow speed of the survey vessel, and onboard monitoring. Pinnipeds and porpoises are the least likely to entangle in equipment, as most documented
The G&G Program survey areas are primarily within upper Cook Inlet, although the Marine Terminal survey area is located near Nikiski just south of the East Foreland (technically in Lower Cook Inlet), which includes habitat for prey species of marine mammals, including fish as well as invertebrates eaten by Cook Inlet belugas. This area contains Critical Habitat for Cook Inlet belugas, is near the breeding grounds for the local harbor seal population, and serves as an occasional feeding ground for killer whales and harbor porpoises. Cook Inlet is a large subarctic estuary roughly 299 km (186 mi) in length and averaging 96 km (60 mi) in width. It extends from the city of Anchorage at its northern end and flows into the Gulf of Alaska at its southernmost end. For descriptive purposes, Cook Inlet is separated into unique upper and lower sections, divided at the East and West Forelands, where the opposing peninsulas create a natural waistline in the length of the waterway, measuring approximately 16 km (10 mi) across (Mulherin et al. 2001).
Potential effects on beluga habitat would be limited to noise effects on prey; direct impact to benthic habitat from jack-up platform leg placement, and sampling with grabs, coring, and boring; and small discharges of drill cuttings and drilling mud associated with the borings. Portions of the survey areas include waters of Cook Inlet that are <9.1 m (30 ft) in depth and within 8.0 km (5.0 mi) of anadromous streams. Several anadromous streams (Three-mile Creek, Indian Creek, and two unnamed streams) enter the Cook Inlet within the survey areas. Other anadromous streams are located within 8.0 km (5.0 mi) of the survey areas. The survey program will not prevent beluga access to the mouths of these streams and will result in no short-term or long-term loss of intertidal or subtidal waters that are <9.1 m (30 ft) in depth and within 8.0 km (5.0 mi) of anadromous streams. Minor seafloor impacts will occur in these areas from grab samples, PCPTs, vibracores, or geotechnical borings but will have no effect on the area as beluga habitat once the vessel or jack-up platform has left. The survey program will have no effect on this Primary Constituent Element.
Belugas may avoid areas ensonified by the geophysical or geotechnical activities that generate sound with frequencies within the beluga hearing range and at levels above threshold values. This includes the chirp sub-bottom profiler with a radius of 184 m (604 ft), the boomer sub-bottom profiler with a radius of 263 m (863 ft), the airgun with a radius of 300 m (984 ft) and the vibracores with a radius of 2.54 km (1.58 mi). The sub-bottom profilers and the airgun will be operated from a vessel moving at speeds of about 4 kt. The operation of a vibracore has a duration of approximately 1-2 minutes. All of these activities will be conducted in relatively open areas of the Cook Inlet within Critical Habitat Area 2. Given the size and openness of the Cook Inlet in the survey areas, and the relatively small area and mobile/temporary nature of the zones of ensonification, the generation of sound by the G&G activities is not expected to result in any restriction of passage of belugas within or between critical habitat areas. The jack-up platform from which the geotechnical borings will be conducted will be attached to the seafloor with legs, and will be in place at a given location for up to 4-5 days, but given its small size (Table 4 in the application) would not result in any obstruction of passage by belugas. The program will have no effect on this Primary Constituent Element.
Upper Cook Inlet comprises the area between Point Campbell (Anchorage) down to the Forelands, and is roughly 95 km (59 mi) in length and 24.9 km (15.5 mi) in width (Mulherin et al. 2001). Five major rivers (Knik, Matanuska, Susitna, Little Susitna, and Beluga) deliver freshwater to upper Cook Inlet, carrying a heavy annual sediment load of over 40 million tons of eroded materials and glacial silt (Brabets 1999). As a result, upper Cook Inlet is relatively shallow, averaging 18.3 m (60 ft) in depth. It is characterized by shoals, mudflats, and a wide coastal shelf, less than 17.9 m (59 ft) deep, extending from the eastern shore. A deep trough exists between Trading Bay and the Middle Ground Shoal, ranging from 35 to 77 m (114-253 ft) deep (NOAA Nautical Chart 16660). The substrate consists of a mixture of coarse gravels, cobbles, pebbles, sand, clay, and silt (Bouma et al. 1978, Rappeport 1982).
Upper Cook Inlet experiences some of the most extreme tides in the world, demonstrated by a mean tidal range from 4.0 m (13 ft) at the Gulf of Alaska end to 8.8 m (29 ft) near Anchorage (U.S. Army Corps of Engineers 2013). Tidal currents reach 3.9 kts per second (Mulherin et al. 2001) in upper Cook Inlet, increasing to 5.7-7.7 kts per second near the Forelands where the inlet is constricted. Each tidal cycle creates significant turbulence and vertical mixing of the water column in the upper inlet (U.S. Army Corps of Engineers 2013), and are reversing, meaning that they are marked by a period of slack tide followed an acceleration in the opposite direction (Mulherin et al. 2001).
Because of scouring, mixing, and sediment transport from these currents, the marine invertebrate community is very limited (Pentec 2005). Of the 50 stations sampled by Saupe et al. 2005 for marine invertebrates in Southcentral Alaska, their upper Cook Inlet station had by far the lowest abundance and diversity. Further, the fish community of upper Cook Inlet is characterized largely by migratory fish—eulachon and Pacific salmon—returning to spawning rivers, or outmigrating salmon smolts. Moulton (1997) documented only 18 fish species in upper Cook Inlet compared to at least 50 species found in lower Cook Inlet (Robards et al. 1999).
Lower Cook Inlet extends from the Forelands southwest to the inlet mouth demarked by an approximate line between Cape Douglas and English Bay. Water circulation in lower Cook Inlet is dominated by the Alaska Coastal Current (ACC) that flows northward along the shores of the Kenai Peninsula until it turns westward and is mixed by the combined influences of freshwater input from upper Cook Inlet, wind, topography, tidal surges, and the coriolis effect (Field and Walker 2003, MMS 1996). Upwelling by the ACC brings nutrient-rich waters to lower Cook Inlet and contributes to a biologically rich and productive ecology (Sambrotto and Lorenzen 1986). Tidal currents average 2-3 kt per second and are rotary in that they do not completely go slack before rotating around into an opposite direction (Gatto 1976, Mulherin et al. 2001). Depths in the central portion of lower Cook Inlet are 60-80 m (197-262 ft) and decrease steadily toward the shores (Muench 1981). Bottom sediments in the lower inlet are coarse gravel and sand that grade to finer sand and mud toward the south (Bouma 1978).
Coarser substrate support a wide variety of invertebrates and fish including Pacific halibut, Dungeness crab (Metacarcinus magister), tanner crab (Chionoecetes bairdi), pandalid shrimp (Pandalus spp.), Pacific cod, and rock sole (Lepidopsetta bilineata), while the soft-bottom sand and silt communities are dominated by polychaetes, bivalves and other flatfish (Field and Walker 2003). These species constitute prey species for several
G&G Program activities that could potentially impact marine mammal habitats include sediment sampling (vibracore, boring, grab sampling) on the sea bottom, placement of the jack-up platform spud cans, and acoustical injury of prey resources. However, there are few benthic resources in the survey area that could be impacted by collection of the small samples (Saupe et al. 2005).
Acoustical effects to marine mammal prey resources are also limited. Christian et al. (2004) studied seismic energy impacts on male snow crabs (Chionoecetes sp.) and found no significant increases in physiological stress due to exposure to high sound pressure levels. No acoustical impact studies have been conducted to date on the above fish species, but studies have been conducted on Atlantic cod (Gadus morhua) and sardine (Clupea sp). Davis et al. (1998) cited various studies that found no effects to Atlantic cod eggs, larvae, and fry when received levels were 222 dB. Effects found were to larval fish within about 5.0 m (16 ft), and from air guns with volumes between 49,661 and 65,548 cm
Potential damage to the Cook Inlet benthic community will be limited to the actual surface area of the four spud cans that form the “foot” of each 0.762-m (30-in) diameter leg, the 42 0.1524-m (6-in) diameter borings, and the 55 0.0762-m (3-in) diameter vibracore samplings (plus several grab and PCPT samples). Collectively, these samples would temporarily damage about a hundred square meters of benthic habitat relative to the size (nearly 21,000 km
The Cook Inlet 2015 G&G Program will result in a number of minor discharges to the waters of Cook Inlet. Discharges associated with the geotechnical borings will include: (1) The discharge of drill cuttings and drilling fluids and (2) the discharge of deck drainage (runoff of precipitation and deck wash water) from the geotechnical drilling platform. Other vessels associated with the G&G surveys will discharge wastewaters that are normally associated with the operation of vessels in transit including deck drainage, ballast water, bilge water, non-contact cooling water, and gray water.
The discharges of drill cuttings, drilling fluids, and deck drainage associated with the geotechnical borings will be within limitations authorized by the Alaska Department of Environmental Conservation (ADEC) under the Alaska Pollutant Discharge Elimination System (APDES). The drill cuttings consist of natural geologic materials of the seafloor sediments brought to the surface via the drill bit/drill stem of the rotary drilling operation, will be relatively minor in volume, and deposit over a very small area of Cook Inlet seafloor. The drilling fluids which are used to lubricate the bit, stabilize the hole, and viscosify the slurry for transport of the solids to the surface will consist of seawater and guar gum. Guar gum is a high-molecular weight polysaccharide (galactose and mannose units) derived from the ground seeds of the plant Cyampsis gonolobus. It is a non-toxic fluid also used as a food additive in soups, drinks, breads, and meat products.
Vessel discharges will be authorized under the U.S. Environmental Protection Agency's (EPA's) National Pollutant Discharge Elimination System (NPDES) Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation of Vessels. Each vessel will have obtained authorization under the VGP and will discharge according to the conditions and limitations mandated by the permit. As required by statute and regulation, the EPA has made a determination that such discharges will not result in any unreasonable degradation of the marine environment, including:
• Significant adverse changes in ecosystem diversity, productivity and stability of the biological community within the area of discharge and surrounding biological communities,
• threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms, or
• loss of aesthetic, recreational, scientific or economic values which is unreasonable in relation to the benefit derived from the discharge.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
To mitigate potential acoustical impacts to local marine mammals, Protected Species Observers (PSOs) will operate aboard the vessels from which the chirper, boomer, airgun, and vibracorer will be deployed. The PSOs will implement the mitigation measures described in the Marine Mammal Monitoring and Mitigation Plan (Appendix A). These mitigations include: (1) Establishing safety zones to ensure marine mammals are not injured by sound pressure levels exceeding Level A injury thresholds; (2) shutting down the airgun when required to avoid harassment of beluga whales; and (3) timing survey activity to avoid concentrations of beluga whales on a seasonal basis.
Before chirper, boomer, airgun, or vibracoring operations begin, the PSOs will “clear” both the Level A and Level B Zones of Influence (ZOIs—area from the source to the 160dB or 180/190dB isopleths) of marine mammals by intensively surveying these ZOIs prior to activity to confirm that marine mammals are not seen in the applicable area. All three geophysical activities will be shut down in mid-operation at the approach to any marine mammal to the Level A safety zone, and at the approach of an ESA-listed beluga whale to the Level B harassment zone for the airgun. (The geotechnical vibracoring
AK LNG will hire qualified and NMFS-approved PSOs. These PSOs will be stationed aboard the geophysical survey source or support vessels during sub-bottom profiling, air gun, and vibracoring operations. A single senior PSO will be assigned to oversee all Marine Mammal Mitigation and Monitoring Program mandates and function as the on-site person-in-charge (PIC) implementing the 4MP.
Generally, two PSOs will work on a rotational basis during daylight hours with shifts of 4 to 6 hours, and one PSO on duty on each source vessel at all times. Work days for an individual PSO will not exceed 12 hours in duration. Sufficient numbers of PSOs will be available and provided to meet requirements.
Roles and responsibilities of all PSOs include the following:
• Accurately observe and record sensitive marine mammal species;
• Follow monitoring and data collection procedures; and
• Ensure mitigation measures are followed.
All field data collected will be entered by the end of the day into a custom database using a notebook computer. Weather data relative to viewing conditions will be collected hourly, on rotation, and when sightings occur and include the following:
• Sea state;
• Wind speed and direction;
• Sun position; and
• Percent glare.
• The following data will be collected for all marine mammal sightings:
• Bearing and distance to the sighting;
• Species identification;
• Behavior at the time of sighting (
• Direction and speed relative to vessel;
• Reaction to activities—changes in behavior (
• Group size;
• Orientation when sighted (
• Closest point of approach;
• Sighting cue (
• Physical description of features that were observed or determined not to be present in the case of unknown or unidentified animals;
• Time of sighting;
• Location, speed, and activity of the source and mitigation vessels, sea state, ice cover, visibility, and sun glare; and positions of other vessel(s) in the vicinity, and
• Mitigation measure taken—if any.
All observations and shut downs will be recorded in a standardized format and data entered into a custom database using a notebook computer. Accuracy of all data will be verified daily by the PIC or designated PSO by a manual verification. These procedures will reduce errors, allow the preparation of short-term data summaries, and facilitate transfer of the data to statistical, graphical, or other programs for further processing and archiving. PSOs will conduct monitoring during daylight periods (weather permitting) during G&G activities, and during most daylight periods when G&G activities are temporarily suspended.
If ESA-listed marine mammals (
A full ramp-up after a shutdown will not begin until there has been a minimum of 30 minutes of observation of the applicable exclusion zone by PSOs to assure that no marine mammals are present. The entire exclusion zone must be visible during the 30-minute lead-in to a full ramp up. If the entire exclusion zone is not visible, then ramp-up from a cold start cannot begin. If a marine mammal(s) is sighted within the injury exclusion zone during the 30-minute watch prior to ramp-up, ramp-up will be delayed until the marine mammal(s) is sighted outside of the zone or the animal(s) is not sighted for at least 15-30 minutes: 15 minutes for small odontocetes and pinnipeds (
If a marine mammal is detected outside the Level A injury exclusion zone and, based on its position and the relative motion, is likely to enter that zone, the vessel's speed and/or direct course may, when practical and safe, be changed to also minimize the effect on the seismic program. This can be used in coordination with a power down procedure. The marine mammal activities and movements relative to the seismic and support vessels will be closely monitored to ensure that the marine mammal does not approach within the applicable exclusion radius. If the mammal appears likely to enter the exclusion radius, further mitigative actions will be taken,
The following additional protective measures for beluga whales and groups of five or more killer whales and harbor porpoises are proposed. Specifically, a 160-dB vessel monitoring zone would be established and monitored in Cook Inlet during all seismic surveys. If a beluga whale or groups of five or more killer whales and/or harbor porpoises are visually sighted approaching or within the 160-dB disturbance zone, survey activity would not commence until the animals are no longer present within the 160-dB disturbance zone. Whenever beluga whales or groups of five or more killer whales and/or harbor porpoises are detected approaching or within the 160-dB disturbance zone, the airguns may be powered down before the animal is within the 160-dB disturbance zone, as an alternative to a complete shutdown. If a power down is not sufficient, the sound source(s) shall be shut-down until the animals are no longer present within the 160-dB zone.
NMFS proposes that AK LNG will not operate within 10 miles (16 km) of the mean higher high water (MHHW) line of the Susitna Delta (Beluga River to the
NMFS has carefully evaluated AK LNG's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
• Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
• A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
• A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
• A reduction in the intensity of exposures (either total number or number at biologically important time or location) to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
• Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
Based on the evaluation of AK LNG's proposed measures, as well as other measures proposed by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed measures to ensure availability of such species or stock for taking for certain subsistence uses are discussed later in this document (see “Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses” section).
Weekly reports will be submitted to NMFS no later than the close of business (Alaska Time) each Thursday during the weeks when in-water G&G activities take place. The reports will cover information collected from Wednesday of the previous week through Tuesday of the current week. The field reports will summarize species detected, in-water activity occurring at the time of the sighting, behavioral reactions to in-water activities, and the number of marine mammals exposed to harassment level noise.
Monthly reports will be submitted to NMFS for all months during which in-water G&G activities take place. The reports will be submitted to NMFS no later than five business days after the end of the month. The monthly report will contain and summarize the following information:
• Dates, times, locations, heading, speed, weather, sea conditions (including Beaufort Sea state and wind force), and associated activities during the G&G Program and marine mammal sightings.
• Species, number, location, distance from the vessel, and behavior of any sighted marine mammals, as well as associated G&G activity (number of shut downs), observed throughout all monitoring activities.
• An estimate of the number (by species) of: (i) Pinnipeds that have been exposed to the geophysical activity (based on visual observation) at received levels greater than or equal to 160 dB re 1 μPa (rms) and/or 190 dB re 1 μPa (rms) with a discussion of any specific behaviors those individuals exhibited; and (ii) cetaceans that have been exposed to the geophysical activity (based on visual observation) at received levels greater than or equal to 160 dB re 1 μPa (rms) and/or 180 dB re 1 μPa (rms) with a discussion of any specific behaviors those individuals exhibited.
• An estimate of the number (by species) of pinnipeds and cetaceans that have been exposed to the geotechnical activity (based on visual observation) at received levels greater than or equal to 120 dB re 1 μPa (rms) with a discussion of any specific behaviors those individuals exhibited.
• A description of the implementation and effectiveness of the: (i) Terms and conditions of the Biological Opinion's Incidental Take Statement; and (ii) mitigation measures of the IHA. For the Biological Opinion, the report shall confirm the implementation of each Term and Condition, as well as any conservation recommendations, and describe their effectiveness, for minimizing the adverse effects of the action on ESA-listed marine mammals.
A report will be submitted to NMFS within 90 days after the end of the project or at least 60 days before the request for another Incidental Harassment Authorization for the next open water season to enable NMFS to incorporate observation data into the next Authorization. The report will summarize all activities and monitoring results (
• Summaries of monitoring effort (
• Analyses of the effects of various factors influencing detectability of
• Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover.
• Analyses of the effects of survey operations.
• Sighting rates of marine mammals during periods with and without G&G survey activities (and other variables that could affect detectability), such as: (i) Initial sighting distances versus survey activity state; (ii) closest point of approach versus survey activity state; (iii) observed behaviors and types of movements versus survey activity state; (iv) numbers of sightings/individuals seen versus survey activity state; (v) distribution around the source vessels versus survey activity state; and (vi) estimates of Level B harassment based on presence in the 120 or 160 dB harassment zone.
In the unanticipated event that the specified activity leads to an injury of a marine mammal (Level A harassment) or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the event. The Applicant would work with NMFS to minimize reoccurrence of such an event in the future. The G&G Program would not resume activities until formally notified by NMFS via letter, email, or telephone.
In the event that the G&G Program discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the G&G Program discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Acoustic stimuli (
NMFS' practice is to apply the 120 or 160 dB re: 1 μPa received level threshold (whichever is appropriate) for underwater impulse sound levels to determine whether take by Level B harassment occurs.
All four types of survey equipment addressed in the application will be operated from the geophysical source vessels that will either be moving steadily across the ocean surface (chirper, boomer, airgun), or from station to station (vibracoring). Thus, it is assumed that any given area will be not ensonified by any specific equipment more than one day, and that a given area will not be repeatedly ensonified, or ensonified for an extended period. The numbers of marine mammals that might be exposed to sound pressure levels exceeding NMFS Level B harassment threshold levels due to G&G surveys, without mitigation, were determined by multiplying the average raw density for each species by the daily ensonified area, and then multiplying that figure by
The ZOI is the area ensonified by a particular sound source greater than threshold levels (120 dB for continuous and 160 dB for impulsive). The radius of the ZOI for a particular equipment was determined by applying the source sound pressure levels described in Table 6 of the application to Collins et al.'s (2007) attenuation model of 18.4 Log(r) −0.00188 derived from Cook Inlet. For those equipment generating loud underwater sound within the audible hearing range of marine mammals (<200 kHz), the distance to threshold ranges between 184 m (604 ft) and 2.54 km (1.58 mi), with ZOIs ranging between 0.106 and 20.26 km
Density estimates were derived for harbor porpoises, killer whales, and harbor seals from NMFS 2002-2012 Cook Inlet survey data as described below in Section 6.1.2.1 and shown in Table 8. The beluga whale exposure estimates were calculated using density estimates from Goetz et al. (2012) as described in Section 6.1.2.2.
Density estimates were calculated for all marine mammals (except beluga whales) by using aerial survey data collected by NMFS in Cook Inlet between 2002 and 2012 (Rugh et al. 2002, 2003, 2004a, 2004b, 2005a, 2005b, 2005c, 2006, 2007; Shelden et al. 2008, 2009, 2010; Hobbs et al. 2011, Shelden et al. 2012) and compiled by Apache, Inc. (Apache IHA application 2014). To estimate the average raw densities of marine mammals, the total number of animals for each species observed over the 11-year survey period was divided by the total area of 65,889 km
These raw densities were not corrected for animals missed during the aerial surveys as no accurate correction factors are currently available for these species; however, observer error may be limited as the NMFS surveyors often circled marine mammal groups to get an accurate count of group size. The harbor seal densities are probably biased upwards given that a large number of the animals recorded were of large groups hauled out at river mouths, and do not represent the distribution in the waters where the G&G activity will actually occur.
Goetz et al. (2012) modeled aerial survey data collected by the NMFS between 1993 and 2008 and developed specific beluga summer densities for each 1-km
The Cook Inlet 2015 G&G Program is expected to require approximately 12 weeks (84 days) to complete. During approximately 63 of these days, the chirp and boomer sub-bottom profiler will produce the loudest sound levels. Airgun use will occur during approximately 7 days and will occur only near the proposed Marine Terminal. The airgun activity will occur during the summer when beluga whale use of Cook Inlet is primarily concentrated near the Susitna Delta, approximately 65 km (40 mi) north of the airgun survey area. Vibracoring, with its large ZOI, will occur intermittently over approximately 14 days. The applicant provided an estimate of 50km per day that the survey vessel could travel.
The numbers of marine mammals that might be exposed to sound pressure levels exceeding NMFS Level B harassment threshold levels due to G&G surveys, without mitigation, were determined by multiplying the average raw density for each species by the daily ensonified area, then multiplying by the number of days each sound source is estimated to be in use. The chirp and boomer activities were separated out to calculate exposure from days of activities in the Upper Inlet area and the Lower Inlet area to better estimate the density of belugas. The exposure estimates for each activity were then summed to provide total exposures for the duration of the project. The exposure estimates for the activity are detailed below.
NMFS recognizes that these exposure estimates are likely overestimates, particularly in light of the fact that many of these technologies will be operating simultaneously, and not exposing animals in separate instances for the duration of the survey period. Additionally, the beamwidth and tilt angle of the sub-bottom profiler are not factored into the characterization of the sound field, making it conservative and large, creating additional overestimates in take estimation.
The possibility of Level A exposure was analyzed, however the distances to 180 dB/190 dB isopleths are incredibly small, ranging from 0 to 26 meters. The number of exposures, without accounting for mitigation or likely avoidance of louder sounds, is small for these zones, and with mitigation and the likelihood of detecting marine mammals within this small area combined with the likelihood of avoidance, it is likely these takes can be avoided. The only technology that would not shutdown is the vibracore, which has a distance to Level A isopleth (180 dB) of 3 meters. Therefore, authorization of Level A take is not necessary.
NMFS proposes to authorize the following takes by Level B harassment:
Negligible impact' is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, except where otherwise identified, the discussion of our analyses applies to all the species listed in Table 8, given that the anticipated effects of this project on marine mammals are expected to be relatively similar in nature. Where there is information either about impacts, or about the size, status, or structure of any species or stock that would lead to a different analysis for this activity, species-specific factors are identified and analyzed.
In making a negligible impact determination, NMFS considers:
• The number of anticipated injuries, serious injuries, or mortalities;
• The number, nature, and intensity, and duration of Level B harassment; and
• The context in which the takes occur (
• The status of stock or species of marine mammals (
• Impacts on habitat affecting rates of recruitment/survival; and
• The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.
Given the proposed mitigation and related monitoring, no injuries or mortalities are anticipated to occur to any species as a result of AK LNG's proposed survey in Cook Inlet, and none are proposed to be authorized. Additionally, animals in the area are not expected to incur hearing impairment (
The addition of five vessels, and noise due to vessel operations associated with the survey, would not be outside the present experience of marine mammals in Cook Inlet, although levels may increase locally. Potential impacts to marine mammal habitat were discussed previously in this document (see the “Anticipated Effects on Habitat” section). Although some disturbance is possible to food sources of marine mammals, the impacts are anticipated to be minor enough as to not affect annual rates of recruitment or survival of marine mammals in the area. Based on the size of Cook Inlet where feeding by marine mammals occurs versus the localized area of the marine survey activities, any missed feeding opportunities in the direct project area would be minor based on the fact that other feeding areas exist elsewhere.
Taking into account the mitigation measures that are planned, effects on cetaceans are generally expected to be restricted to avoidance of a limited area around the survey operation and short-term changes in behavior, falling within the MMPA definition of “Level B harassment”. Shut-downs are proposed for belugas and groups of killer whales or harbor porpoises when they approach the 160dB disturbance zone, to further reduce potential impacts to these populations. Visual observation by trained PSOs is also implemented to reduce the impact of the proposed activity. Animals are not expected to permanently abandon any area that is surveyed, and any behaviors that are interrupted during the activity are expected to resume once the activity ceases. Only a small portion of marine mammal habitat will be affected at any time, and other areas within Cook Inlet will be available for necessary biological functions.
Cook Inlet beluga whales are listed as endangered under the ESA. These stocks are also considered depleted under the MMPA. The estimated annual rate of decline for Cook Inlet beluga whales was 0.6 percent between 2002 and 2012.
Belugas in the Canadian Beaufort Sea in summer appear to be fairly responsive to seismic energy, with few being sighted within 10-20 km (6-12 mi) of seismic vessels during aerial surveys (Miller
Given the large number of vessels in Cook Inlet and the apparent habituation to vessels by Cook Inlet beluga whales and the other marine mammals that may occur in the area, vessel activity and noise is not expected to have effects that could cause significant or long-term consequences for individual marine mammals or their populations.
In addition, NMFS proposes to seasonally restrict survey operations in the area known to be important for beluga whale feeding, calving, or nursing. The primary location for these biological life functions occurs in the Susitna Delta region of upper Cook Inlet. NMFS proposes to implement a 16 km (10 mi) seasonal exclusion from seismic survey operations in this region from April 15-October 15. The highest concentrations of belugas are typically
Odontocete (including Cook Inlet beluga whales, killer whales, and harbor porpoises) reactions to seismic energy pulses are usually assumed to be limited to shorter distances from the airgun(s) than are those of mysticetes, in part because odontocete low-frequency hearing is assumed to be less sensitive than that of mysticetes.
Killer whales are not encountered as frequently in Cook Inlet as some of the other species in this analysis, however when sighted they are usually in groups. The addition of a mitigation measure to shutdown if a group of 5 or more killer whales is seen approaching the 160 dB zone is intended to minimize any impact to an aggregation of killer whales if encountered. The killer whales in the survey area are also thought to be transient killer whales and therefore rely on the habitat in the AK LNG survey area less than other resident species.
Harbor porpoises are among the most sensitive marine mammal species with regard to behavioral response and anthropogenic noise. They are known to exhibit behavioral responses to operation of seismic airguns, pingers, and other technologies at low thresholds. However, they are abundant in Cook Inlet and therefore the authorized take is unlikely to affect recruitment or status of the population in any way. In addition, mitigation measures include shutdowns for groups of more than 5 harbor porpoises that will minimize the amount of take to the local harbor porpoise population. This mitigation as well as the short duration and low source levels of the proposed activity will reduce the impact to the harbor porpoises found in Cook Inlet.
Observations during other anthropogenic activities in Cook Inlet have reported large congregations of harbor seals have been observed hauling out in upper Cook Inlet. However, mitigation measures, such as vessel speed, course alteration, and visual monitoring, and restrictions will be implemented to help reduce impacts to the animals. Additionally, this activity does not encompass a large number of known harbor seal haulouts, particularly as this activity proposes operations traversing across the Inlet, as opposed to entirely nearshore activities. While some harbor seals will likely be exposed, the proposed mitigation along with their smaller aggregations in water than on shore should minimize impacts to the harbor seal population. The level of take of harbor seals may be further minimized by the preference of harbor seals to haul out for greater quantities of time in the summer, when much of this work is proposed to occur. Additionally, the short duration of the survey, and the use of visual observers should further reduce the potential for take by behavioral harassment to Cook Inlet harbor seals. Therefore, the exposure of pinnipeds to sounds produced by this phase of AK LNG's proposed survey is not anticipated to have an effect on annual rates of recruitment or survival on those species or stocks.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total annual marine mammal take from AK LNG's proposed seismic survey will have a negligible impact on the affected marine mammal species or stocks.
Although NMFS does not believe that the operation of the vibracore would result in the take of marine mammals, we note here that even if the vibracore did result in take of marine mammals, the numbers and scope of vibracore take predicted in the applicant's application and analysis would not have changed this finding. The vibracoring activity is proposed to occur at 33 locations across the Inlet from the Forelands, north to the upper end of Cook Inlet. However, the actual noise-producing activity will only occur for 90 seconds at a time, during which PSOs will be observing for marine mammals. The limited scope and duration of vibracoring makes it extremely unlikely that take by Level B harassment would occur during the vibracore portion of the operation.
The requested takes proposed to be authorized annually represent 1.06 percent of the Cook Inlet beluga whale population of approximately 340 animals (Allen and Angliss, 2014), 0.135 percent of the Gulf of Alaska, Aleutian Island and Bering Sea stock of killer whales (345 transients), and 0.047 percent of the Gulf of Alaska stock of approximately 31,046 harbor porpoises. The take requests presented for harbor seals represent 5.47 percent of the Cook Inlet/Shelikof stock of approximately 22,900 animals. These take estimates represent the percentage of each species or stock that could be taken by Level B behavioral harassment.
NMFS finds that any incidental take reasonably likely to result from the effects of the proposed activity, as proposed to be mitigated through this IHA, will be limited to small numbers relative to the affected species or stocks. In addition to the quantitative methods used to estimate take, NMFS also considered qualitative factors that further support the “small numbers” determination, including: (1) The seasonal distribution and habitat use patterns of Cook Inlet beluga whales, which suggest that for much of the time only a small portion of the population would be accessible to impacts from AK LNG's activity, as most animals are found in the Susitna Delta region of Upper Cook Inlet from early May through September; (2) other cetacean species are not common in the survey area; (3) the proposed mitigation requirements, which provide spatio-temporal limitations that avoid impacts to large numbers of belugas feeding and calving in the Susitna Delta; (4) the proposed monitoring requirements and mitigation measures described earlier in this document for all marine mammal species that will further reduce the amount of takes; and (5) monitoring results from previous activities that indicated low numbers of beluga whale sightings within the Level B disturbance exclusion zone and low levels of Level B harassment takes of other marine mammals. Therefore, NMFS determined that the numbers of animals likely to be taken are small.
Although NMFS does not believe that the operation of the vibracore would result in the take of marine mammals, we note here that even if the vibracore did result in take of marine mammals, the amount of total take predicted in the applicant's analysis including the vibracore take would still be small compared to the population sizes of the affected species and stocks.
The subsistence harvest of marine mammals transcends the nutritional and economic values attributed to the animal and is an integral part of the cultural identity of the region's Alaska Native communities. Inedible parts of the whale provide Native artisans with materials for cultural handicrafts, and the hunting itself perpetuates Native traditions by transmitting traditional
The Cook Inlet beluga whale has traditionally been hunted by Alaska Natives for subsistence purposes. For several decades prior to the 1980s, the Native Village of Tyonek residents were the primary subsistence hunters of Cook Inlet beluga whales. During the 1980s and 1990s, Alaska Natives from villages in the western, northwestern, and North Slope regions of Alaska either moved to or visited the south central region and participated in the yearly subsistence harvest (Stanek, 1994). From 1994 to 1998, NMFS estimated 65 whales per year (range 21-123) were taken in this harvest, including those successfully taken for food and those struck and lost. NMFS concluded that this number was high enough to account for the estimated 14 percent annual decline in the population during this time (Hobbs et al., 2008). Actual mortality may have been higher, given the difficulty of estimating the number of whales struck and lost during the hunts. In 1999, a moratorium was enacted (Pub. L. 106-31) prohibiting the subsistence take of Cook Inlet beluga whales except through a cooperative agreement between NMFS and the affected Alaska Native organizations. Since the Cook Inlet beluga whale harvest was regulated in 1999 requiring cooperative agreements, five beluga whales have been struck and harvested. Those beluga whales were harvested in 2001 (one animal), 2002 (one animal), 2003 (one animal), and 2005 (two animals). The Native Village of Tyonek agreed not to hunt or request a hunt in 2007, when no co-management agreement was to be signed (NMFS, 2008a).
On October 15, 2008, NMFS published a final rule that established long-term harvest limits on Cook Inlet beluga whales that may be taken by Alaska Natives for subsistence purposes (73 FR 60976). That rule prohibits harvest for a 5-year interval period if the average stock abundance of Cook Inlet beluga whales over the prior five-year interval is below 350 whales. Harvest levels for the current 5-year planning interval (2013-2017) are zero because the average stock abundance for the previous five-year period (2008-2012) was below 350 whales. Based on the average abundance over the 2002-2007 period, no hunt occurred between 2008 and 2012 (NMFS, 2008a). The Cook Inlet Marine Mammal Council, which managed the Alaska Native Subsistence fishery with NMFS, was disbanded by a unanimous vote of the Tribes' representatives on June 20, 2012. At this time, no harvest is expected in 2015 or, likely, in 2016.
Data on the harvest of other marine mammals in Cook Inlet are lacking. Some data are available on the subsistence harvest of harbor seals, harbor porpoises, and killer whales in Alaska in the marine mammal stock assessments. However, these numbers are for the Gulf of Alaska including Cook Inlet, and they are not indicative of the harvest in Cook Inlet.
There is a low level of subsistence hunting for harbor seals in Cook Inlet. Seal hunting occurs opportunistically among Alaska Natives who may be fishing or travelling in the upper Inlet near the mouths of the Susitna River, Beluga River, and Little Susitna. Some detailed information on the subsistence harvest of harbor seals is available from past studies conducted by the Alaska Department of Fish & Game (Wolfe et al., 2009). In 2008, 33 harbor seals were taken for harvest in the Upper Kenai-Cook Inlet area. In the same study, reports from hunters stated that harbor seal populations in the area were increasing (28.6%) or remaining stable (71.4%). The specific hunting regions identified were Anchorage, Homer, Kenai, and Tyonek, and hunting generally peaks in March, September, and November (Wolfe et al., 2009).
Section 101(a)(5)(D) also requires NMFS to determine that the taking will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
The primary concern is the disturbance of marine mammals through the introduction of anthropogenic sound into the marine environment during the proposed seismic survey. Marine mammals could be behaviorally harassed and either become more difficult to hunt or temporarily abandon traditional hunting grounds. However, the proposed seismic survey will not have any impacts to beluga harvests as none currently occur in Cook Inlet. Additionally, subsistence harvests of other marine mammal species are limited in Cook Inlet.
The entire upper Cook unit and a portion of the lower Cook unit falls north of 60° N' or within the region NMFS has designated as an Arctic subsistence use area. AK LNG provided detailed information in Section 8 of their application regarding their plan to cooperate with local subsistence users and stakeholders regarding the potential effects of their proposed activity. There are several villages in AK LNG's proposed project area that have traditionally hunted marine mammals, primarily harbor seals. Tyonek is the only tribal village in upper Cook Inlet with a tradition of hunting marine mammals, in this case harbor seals and beluga whales. However, for either species the annual recorded harvest since the 1980s has averaged about one or fewer of either species (Fall et al. 1984, Wolfe et al. 2009, SRBA and HC 2011), and there is currently a moratorium on subsistence harvest of belugas. Further, many of the seals that are harvested are done incidentally to salmon fishing or moose hunting (Fall et al. 1984, Merrill and Orpheim 2013), often near the mouths of the Susitna Delta rivers (Fall et al. 1984) north of AK LNG's proposed seismic survey area.
Villages in lower Cook Inlet adjacent to AK LNG's proposed survey area (Kenai, Salamatof, and Nikiski) have either not traditionally hunted beluga whales, or at least not in recent years, and rarely do they harvest sea lions. These villages more commonly harvest harbor seals, with Kenai reporting an average of about 13 per year between 1992 and 2008 (Wolfe et al. 2009). According to Fall et al. (1984), many of the seals harvested by hunters from these villages were taken on the west side of the inlet during hunting excursions for moose and black bears.
Although marine mammals remain an important subsistence resource in Cook Inlet, the number of animals annually harvested is low, and are primarily harbor seals. Much of the harbor seal harvest occurs incidental to other fishing and hunting activities, and at areas outside of the AK LNG's proposed seismic areas such as the Susitna Delta or the west side of lower Cook Inlet. Also, AK LNG is unlikely to conduct activity in the vicinity of any of the river mouths where large numbers of seals haul out.
AK LNG and NMFS recognize the importance of ensuring that ANOs and federally recognized tribes are informed, engaged, and involved during the
Prior to offshore activities AK LNG will consult with nearby communities such as Tyonek, Salamatof, and the Kenaitze Indian Tribe to attend and present the program description prior to operations within those areas. During these meetings discussions will include a project description, maps of project area and resolutions of potential conflicts. These meetings will allow AK LNG to understand community concerns, and requests for communication or mitigation. Additional communications will continue throughout the project. A specific meeting schedule has not been finalized, but meetings with the entities identified will occur before an Authorization is issued.
If a conflict does occur with project activities involving subsistence or fishing, the project manager will immediately contact the affected party to resolve the conflict.
The project will not have any effect on beluga whale harvests because no beluga harvest will take place in 2015. Additionally, the proposed seismic survey area is not an important native subsistence site for other subsistence species of marine mammals thus, the number harvested is expected to be extremely low. The timing and location of subsistence harvest of Cook Inlet harbor seals may coincide with AK LNG's project, but because this subsistence hunt is conducted opportunistically and at such a low level (NMFS, 2013c), AK LNG's program is not expected to have an impact on the subsistence use of harbor seals. Moreover, the proposed survey would result in only temporary disturbances. Accordingly, the specified activity would not impact the availability of these other marine mammal species for subsistence uses.
NMFS anticipates that any effects from AK LNG's proposed survey on marine mammals, especially harbor seals and Cook Inlet beluga whales, which are or have been taken for subsistence uses, would be short-term, site specific, and limited to inconsequential changes in behavior and mild stress responses. NMFS does not anticipate that the authorized taking of affected species or stocks will reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (1) Causing the marine mammals to abandon or avoid hunting areas; (2) directly displacing subsistence users; or (3) placing physical barriers between the marine mammals and the subsistence hunters; and that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the proposed mitigation and monitoring measures, NMFS has preliminarily determined that there will not be an unmitigable adverse impact on subsistence uses from AK LNG's proposed activities.
There is one marine mammal species listed as endangered under the ESA with confirmed or possible occurrence in the proposed project area: The Cook Inlet beluga whale. In addition, the proposed action could occur within 10 miles of designated critical habitat for the Cook Inlet beluga whale. NMFS's Permits and Conservation Division has initiated consultation with NMFS' Alaska Region Protected Resources Division under section 7 of the ESA. This consultation will be concluded prior to issuing any final authorization.
NMFS has prepared a Draft Environmental Assessment (EA) for the issuance of an IHA to AK LNG for the proposed oil and gas exploration seismic survey program in Cook Inlet. The Draft EA has been made available for public comment concurrently with this proposed authorization (see
As a result of these preliminary determinations, we propose to issue an IHA to Alaska LNG for taking marine mammals incidental to a geophysical and geotechnical survey in Cook Inlet, Alaska, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.
This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
We request comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for Alaska LNG. Please include with your comments any supporting data or literature citations to help inform our final decision on AK LNG's request for an MMPA authorization.
Exxon Mobil Alaska LNG LLC (AK LNG), 3201 C Street; Suite 506, Anchorage, Alaska 99501, is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371(a)(5)(D)), to harass small numbers of marine mammals incidental to specified activities associated with a marine geophysical and geotechnical survey in Cook Inlet, Alaska, contingent upon the following conditions:
1. This Authorization is valid from August 7, 2015, through August 6, 2016.
2. This Authorization is valid only for AK LNG's activities associated with survey operations that shall occur within the areas denoted as Marine Terminal Survey Area and Pipeline Survey Area as depicted in the attached Figures 1 of AK LNG's April 2015 application to the National Marine Fisheries Service.
(a) The incidental taking of marine mammals, by Level B harassment only, is limited to the following species in the waters of Cook Inlet:
(i) Odontocetes: see Table 1 (attached) for authorized species and take numbers.
(ii) Pinnipeds: see Table 1 (attached) for authorized species and take numbers.
(iii) If any marine mammal species are encountered during activities that are not listed in Table 1 (attached) for authorized taking and are likely to be exposed to sound pressure levels (SPLs) greater than or equal to 160 dB re 1 μPa (rms) for impulsive sound of 120 dB re 1μPa (rms), then the Holder of this Authorization must alter speed or course or shut-down the sound source to avoid take.
(b) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in Table 1 or the taking of any other species of marine mammal is prohibited and may result in the modification, suspension or revocation of this Authorization.
(c) If the number of detected takes of any marine mammal species listed in Table 1 is met or exceeded, AK LNG shall immediately cease survey
4. The authorization for taking by harassment is limited to the following acoustic sources (or sources with comparable frequency and intensity) absent an amendment to this Authorization:
(a) EdgeTech 3200 Sub-bottom profiler chirp;
(b) Applied Acoustics AA301 Sub-bottom profiler boomer;
(c) A 60 in
5. The taking of any marine mammal in a manner prohibited under this Authorization must be reported immediately to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS or her designee at (301) 427-8401.
6. The holder of this Authorization must notify the Chief of the Permits and Conservation Division, Office of Protected Resources, or her designee at least 48 hours prior to the start of survey activities (unless constrained by the date of issuance of this Authorization in which case notification shall be made as soon as possible) at 301-427-8484 or to
7.
(a) Utilize a minimum of two NMFS- qualified PSOs per source vessel (one on duty and one off-duty) to visually watch for and monitor marine mammals near the seismic source vessels during daytime operations (from nautical twilight-dawn to nautical twilight-dusk) and before and during start-ups of sound sources day or night. Two PSVOs will be on each source vessel, and two PSVOs will be on a support vessel to observe the exclusion and disturbance zones. PSVOs shall have access to reticle binoculars (7x50) and long-range binoculars (40x80). PSVO shifts shall last no longer than 4 hours at a time. PSVOs shall also make observations during daytime periods when the sound sources are not operating for comparison of animal abundance and behavior, when feasible. When practicable, as an additional means of visual observation, AK LNG's vessel crew may also assist in detecting marine mammals.
(b) Record the following information when a marine mammal is sighted:
(i) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (
(ii) Time, location, heading, speed, activity of the vessel (including type of equipment operating), Beaufort sea state and wind force, visibility, and sun glare; and
(iii) The data listed under Condition 7(d)(ii) shall also be recorded at the start and end of each observation watch and during a watch whenever there is a change in one or more of the variables.
(c) Establish a 160 dB re 1 μPa (rms) “disturbance zone” for belugas, and groups of five or more harbor porpoises and killer whales as well as a 180 dB re 1 μPa (rms) and 190 dB re 1 μPa (rms) “exclusion zone” (EZ) for cetaceans and pinnipeds respectively before equipment is in operation.
(d) Visually observe the entire extent of the EZ (180 dB re 1 μPa [rms] for cetaceans and 190 dB re 1 μPa [rms] for pinnipeds) using NMFS-qualified PSVOs, for at least 30 minutes (min) prior to starting the survey (day or night). If the PSVO finds a marine mammal within the EZ, AK LNG must delay the seismic survey until the marine mammal(s) has left the area. If the PSVO sees a marine mammal that surfaces, then dives below the surface, the PSVO shall wait 30 min. If the PSVO sees no marine mammals during that time, they should assume that the animal has moved beyond the EZ. If for any reason the entire radius cannot be seen for the entire 30 min (
(e) Alter speed or course during survey operations if a marine mammal, based on its position and relative motion, appears likely to enter the relevant EZ. If speed or course alteration is not safe or practicable, or if after alteration the marine mammal still appears likely to enter the EZ, further mitigation measures, such as a shutdown, shall be taken.
(f) Shutdown the sound source(s) if a marine mammal is detected within, approaches, or enters the relevant EZ. A shutdown means all operating sound sources are shut down (
(g) Survey activity shall not resume until the PSVO has visually observed the marine mammal(s) exiting the EZ and is not likely to return, or has not been seen within the EZ for 15 min for species with shorter dive durations (small odontocetes and pinnipeds) or 30 min for species with longer dive durations (large odontocetes, including killer whales and beluga whales).
(h) Marine geophysical surveys may continue into night and low-light hours if such segment(s) of the survey is initiated when the entire relevant EZs can be effectively monitored visually (
(i) No initiation of survey operations involving the use of sound sources is permitted from a shutdown position at night or during low-light hours (such as in dense fog or heavy rain).
(j) If a beluga whale is visually sighted approaching or within the relevant160dB disturbance zone, survey activity will not commence or the sound source(s) shall be shut down until the animals are no longer present within the 160-dB zone.
(h) Whenever aggregations or groups of killer whales and/or harbor porpoises are detected approaching or within the 160-dB disturbance zone, survey activity will not commence or the sound source(s) shall be shut-down until the animals are no longer present within the 160-dB zone. An aggregation or group of whales/porpoises shall consist of five or more individuals of any age/sex class.
(i) AK LNG must not operate within 10 miles (16 km) of the mean higher high water (MHHW) line of the Susitna Delta (Beluga River to the Little Susitna River) between April 15 and October 15 (to avoid any effects to belugas in an important feeding and breeding area).
(j) Survey operations involving the use of airguns, sub-bottom profiler, or vibracore must cease if takes of any marine mammal are met or exceeded.
8.
(a) Submit a weekly field report, no later than close of business (Alaska time) each Thursday during the weeks when in-water survey activities take place. The field reports will summarize species detected, in-water activity occurring at the time of the sighting, behavioral reactions to in-water activities, and the number of marine mammals taken.
(b) Submit a monthly report, no later than the 15th of each month, to NMFS' Permits and Conservation Division for all months during which in-water seismic survey activities occur. These reports must contain and summarize the following information:
(i) Dates, times, locations, heading, speed, weather, sea conditions (including Beaufort sea state and wind force), and associated activities during all operations and marine mammal sightings;
(ii) Species, number, location, distance from the vessel, and behavior of any marine mammals, as well as associated activity (type of equipment in use and number of shutdowns), observed throughout all monitoring activities;
(iii) An estimate of the number (by species) of: (A) pinnipeds that have been exposed to the activity (based on visual observation) at received levels greater than or equal to 160 dB re 1 µPa (rms) and/or 190 dB re 1 µPa (rms) with a discussion of any specific behaviors those individuals exhibited; and (B) cetaceans that have been exposed to the activity (based on visual observation) at received levels greater than or equal to 120 dB or 160 dB re 1 µPa (rms) and/or 180 dB re 1 µPa (rms) with a discussion of any specific behaviors those individuals exhibited.
(iv) A description of the implementation and effectiveness of the: (A) terms and conditions of the Biological Opinion's Incidental Take Statement (ITS); and (B) mitigation measures of this Authorization. For the Biological Opinion, the report shall confirm the implementation of each Term and Condition, as well as any conservation recommendations, and describe their effectiveness, for minimizing the adverse effects of the action on Endangered Species Act-listed marine mammals.
(c) Submit a draft Technical Report on all activities and monitoring results to NMFS' Permits and Conservation Division within 90 days of the completion of the seismic survey. The Technical Report will include the following information:
(i) Summaries of monitoring effort (
(ii) Analyses of the effects of various factors influencing detectability of marine mammals (
(iii) Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;
(iv) Analyses of the effects of survey operations; and
(v) Sighting rates of marine mammals during periods with and without survey activities (and other variables that could affect detectability), such as: (A) initial sighting distances versus survey activity state; (B) closest point of approach versus survey activity state; (C) observed behaviors and types of movements versus survey activity state; (D) numbers of sightings/individuals seen versus survey activity state; (E) distribution around the source vessels versus survey activity state; and (F) estimates of take by Level B harassment based on presence in the relevant120 dB or 160 dB harassment zone.
(d) Submit a final report to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, within 30 days after receiving comments from NMFS on the draft report. If NMFS decides that the draft report needs no comments, the draft report shall be considered to be the final report.
(e) AK LNG must immediately report to NMFS if 10 belugas are detected within the relevant 120 dB or 160 dB re 1 µPa (rms) disturbance zone during survey operations to allow NMFS to consider making necessary adjustments to monitoring and mitigation.
9. (a) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A harassment), serious injury or mortality (
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) The name and type of vessel involved;
(iii) The vessel's speed during and leading up to the incident;
(iv) Description of the incident;
(v) Status of all sound source use in the 24 hours preceding the incident;
(vi) Water depth;
(vii) Environmental conditions (
(viii) Description of marine mammal observations in the 24 hours preceding the incident;
(ix) Species identification or description of the animal(s) involved;
(x) The fate of the animal(s); and
(xi) Photographs or video footage of the animal (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with AK LNG to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. AK LNG may not resume their activities until notified by NMFS via letter or email, or telephone.
(b) In the event that AK LNG discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
(c) In the event that AK LNG discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in Condition 2 of this Authorization (
10. AK LNG is required to comply with the Reasonable and Prudent Measures and Terms and Conditions of the ITS corresponding to NMFS' Biological Opinion issued to both U.S. Army Corps of Engineers and NMFS' Office of Protected Resources.
11. A copy of this Authorization and the ITS must be in the possession of all contractors and PSOs operating under the authority of this Incidental Harassment Authorization.
12. Penalties and Permit Sanctions: Any person who violates any provision of this Incidental Harassment Authorization is subject to civil and criminal penalties, permit sanctions, and forfeiture as authorized under the MMPA.
13. This Authorization may be modified, suspended or withdrawn if the Holder fails to abide by the conditions prescribed herein or if the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, or if there is an unmitigable adverse impact on the availability of such species or stocks for subsistence uses.
Bureau of Consumer Financial Protection.
Final rule.
The Bureau of Consumer Financial Protection (Bureau or CFPB) amends the regulation defining larger participants of certain consumer financial product and service markets by adding a new section to define larger participants of a market for automobile financing. The new section defines a market that includes: grants of credit for the purchase of an automobile; refinancings of such obligations (and subsequent refinancings thereof) that are secured by an automobile; automobile leases; and purchases or acquisitions of any of the foregoing obligations. The Bureau issues this rule pursuant to its authority, under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), to supervise certain nonbank covered persons for compliance with Federal consumer financial law and for other purposes. The Bureau has the authority to supervise nonbank covered persons of all sizes in the residential mortgage, private education lending, and payday lending markets. In addition, the Bureau has the authority to supervise nonbank “larger participant[s]” of markets for other consumer financial products or services, as the Bureau defines by rule. This final rule identifies a market for automobile financing and defines as larger participants of this market certain nonbank covered persons that will be subject to the Bureau's supervisory authority. It also defines certain automobile leases as a “financial product or service” under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act. Finally, this final rule makes certain technical corrections to existing larger-participant rules.
Effective August 31, 2015.
Dania Ayoubi or Jolina Cuaresma, Counsels; or Amanda Quester, Senior Counsel, Office of Regulations, Consumer Financial Protection Bureau, 1700 G Street, NW., Washington, DC 20552, at (202) 435-7700.
The Dodd-Frank Act authorizes the Bureau to define by regulation larger participants of certain markets for financial products or services.
The Final Rule defines a market for automobile financing that covers specific activities and sets forth a test to determine whether a nonbank covered person is a larger participant of that market. The Final Rule defines “automobile” to mean any self-propelled vehicle primarily used for personal, family, or household purposes for on-road transportation, with certain exclusions (motor homes, recreational vehicles (RVs), golf carts, and motor scooters). The Final Rule defines “annual originations” to mean the sum of the following transactions for the preceding calendar year:
• credit granted for the purchase of an automobile;
• refinancings of such obligations (and any subsequent refinancings thereof) that are secured by an automobile;
• automobile leases; and
• purchases or acquisitions of any of the foregoing obligations.
As in the Proposed Rule, the term “annual originations” in the Final Rule does not include investments in asset-backed securities. The Final Rule also excludes certain purchases or acquisitions by special purpose entities that are established for the purpose of facilitating asset-backed securities transactions.
Under the Final Rule, a nonbank covered person that engages in automobile financing
As noted above, the Bureau is including automobile leases in the criterion it uses to define larger participants in the market for automobile financing. Certain consumer leases are identified as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act, and therefore count toward the aggregate annual originations threshold for the larger-participant test in this Final Rule. For the reasons explained below, the Bureau believes that the purpose of the Final Rule and the Bureau's overall mission are best served by covering automobile leasing more broadly. Accordingly, under its authority granted by section 1002(15)(A)(xi)(II) of the Dodd-Frank Act, the Bureau is adding §§ 1001.1 and 1001.2 in new part 1001 to title 12 of the Code of Federal Regulations. Section 1001.1 states the authority and purpose of part 1001, which is to implement the Bureau's authority, granted by section 1002(15)(A)(xi) of the Dodd-Frank Act, to define the term “financial product or service” for purposes of title X of the
The Final Rule also makes certain technical corrections to existing larger-participant rules. Specifically, the Final Rule inserts the word “financial” before the term “product or service” in the definition of “nonbank covered person” in § 1090.101. The Final Rule also amends §§ 1090.104(a) and 1090.105(a) to clarify that if a company ceases to be an affiliated company of a nonbank covered person during the relevant measurement period, its annual receipts must be aggregated for the entire period of measurement for purposes of the consumer reporting and consumer debt collection larger-participant rules.
Section 1024 of the Dodd-Frank Act gives the Bureau supervisory authority over all nonbank covered persons
Subpart A of the Bureau's existing larger-participant rule, 12 CFR part 1090, prescribes various procedures, definitions, standards, and protocols that apply to all markets in which the Bureau defines larger participants.
As prescribed by existing § 1090.102, any nonbank covered person that qualifies as a larger participant remains a larger participant until two years after the first day of the tax year in which the person last met the applicable test. Pursuant to existing § 1090.103, a person will be able to dispute whether it qualifies as a larger participant in the automobile financing market. The Bureau will notify an entity when the Bureau intends to undertake supervisory activity; the entity will then have an opportunity to submit documentary evidence and written arguments in support of its claim that it is not a larger participant.
The Bureau includes relevant market descriptions and larger-participant tests, as it develops them, in subpart B. The Final Rule is the fifth in a series of rulemakings to define larger participants of markets for other consumer financial products or services within subpart B. The first four rules define larger participants of markets for consumer reporting, consumer debt collection, student loan servicing, and international money transfers.
This Final Rule describes a market for consumer financial products or services, which the Final Rule labels “automobile financing.” The definition does not encompass all activities that could be considered auto financing. Any reference herein to the “automobile financing market” means only the particular market for automobile financing identified by the Final Rule.
The Final Rule defining larger participants of a market for automobile financing does not impose new substantive consumer protection requirements. Nonbank covered persons generally are subject to the Bureau's regulatory and enforcement authority, and any applicable Federal consumer financial law, regardless of whether they are subject to the Bureau's supervisory authority.
The Bureau is authorized to supervise nonbank covered persons subject to section 1024 of the Dodd-Frank Act for purposes of: (1) assessing compliance with Federal consumer financial law; (2) obtaining information about such persons' activities and compliance systems or procedures; and (3) detecting and assessing risks to consumers and consumer financial markets.
The Bureau prioritizes supervisory activity among nonbank covered persons on the basis of risk, taking into account, among other factors, the size of each entity, the volume of its transactions involving consumer financial products or services, the size and risk presented by the market in which it is a participant, the extent of relevant State oversight, and any field and market information that the Bureau has on the entity. Such field and market information might include, for example, information from complaints and any other information the Bureau has about risks to consumers posed by a particular entity.
The specifics of how an examination takes place vary by market and entity. However, the examination process generally proceeds as follows. Bureau examiners contact the entity for an initial conference with management and often request records and other information. Bureau examiners will ordinarily also review the components of the supervised entity's compliance management system. Based on these discussions and a preliminary review of the information received, examiners determine the scope of an on-site
The Bureau has published a general examination manual describing the Bureau's supervisory approach and procedures.
On September 17, 2014, the Bureau issued a notice of proposed rulemaking
The Bureau is issuing this Final Rule pursuant to its authority under the following provisions of the Dodd-Frank Act: (1) Sections 1024(a)(1)(B) and (a)(2), which authorize the Bureau to supervise nonbanks that are larger participants of markets for consumer financial products or services, as defined by rule;
The Administrative Procedure Act generally requires that rules be published not less than 30 days before their effective dates.
Proposed § 1001.1 stated the authority and purpose for proposed new part 1001. It explained that under section 1002(15)(A)(xi) of the Dodd-Frank Act, the Bureau is authorized to define certain financial products or services for purposes of title X of the Dodd-Frank Act, in addition to those defined in section 1002(15)(A)(i)-(x). Proposed § 1001.1 explained that the purpose of proposed part 1001 was to implement that authority.
The Bureau received no comments on proposed § 1001.1. Section 1001.1 is finalized as proposed.
Proposed § 1001.2(a) defined the term “financial product or service” under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act to include extending or brokering certain leases of an automobile that (1) meet the requirements of leases authorized under section 108 of the Competitive Equality Banking Act of 1987 (CEBA),
The Bureau proposed to include automobile leasing in the consumer financial product or service market for automobile financing for purposes of a rule defining larger participants in that market. Section 1002(15)(A)(ii) of the Dodd-Frank Act defines the term “financial product or service” to include certain leases that, among other things, are the functional equivalent of purchase finance arrangements.
The proposal set forth the Bureau's belief that the phrase “functional equivalent of purchase finance arrangements”—which is not defined in the Dodd-Frank Act
The proposal explained that, for consumers, the leasing process functions in ways that are equivalent to a financed purchase. For example, leasing a vehicle requires an application process and an ongoing contractual obligation that are both financial in
The proposal further noted that automobile leasing shares many other features with automobile lending. A consumer must demonstrate an ability to pay the monthly payments in order to qualify for a lease, and a consumer's creditworthiness impacts the terms of the lease. An automobile finance company may furnish information about a lessee, such as payment history, to credit bureaus in the same manner that the company does for a borrower. Also, similar to a consumer who finances an automobile with a loan, a consumer who leases an automobile bears the responsibility for the vehicle's upkeep and must maintain, repair, and service the vehicle during the lease term.
As the Bureau further observed in the proposal, in an automobile leasing arrangement, the consumer can typically purchase the vehicle at the end of the lease term for a pre-determined amount, which is generally based on the residual value of the vehicle.
Moreover, the proposal explained that automobiles are important to the financial well-being of consumers regardless of whether the consumer obtains the use of a vehicle through a lease or a loan. Consumers rely on automobiles for their transportation needs. From a consumer's standpoint, whether a vehicle is leased or financed through a loan, any act or practice that impedes access to a vehicle or otherwise creates problems related to the loan or leasing arrangement can have a critical impact on the consumer. Based on these factors, the Bureau reasoned in the proposal that, from the perspective of the consumer, most automobile leases are the functional equivalent of purchase finance arrangements.
The Bureau also noted in the proposal that typical automobile leases meet the remaining two requirements of section 1002(15)(A)(ii) of the Dodd-Frank Act. First, automobile leases are generally “non-operating.” Consistent with the definition in Regulation Y, which governs bank holding companies and changes in bank control, “non-operating,” as interpreted by the Bureau in the proposal, means that the lease provider is not, directly or indirectly, engaged in operating, servicing, maintaining, or repairing the leased property during the lease term.
However, as the Bureau explained in the proposal, the requirement that leases that fall under section 1002(15)(A)(ii) (“category (ii) leases”) be the functional equivalent of purchase finance arrangements means that coverage of leases under that section will necessarily depend on a number of factors and circumstances that may vary among particular leases and institutions. Given this potential variance, the Bureau expressed concern in the proposal that not all automobile leases that materially impact consumers will necessarily qualify for coverage under section 1002(15)(A)(ii) and that market participants may have a difficult time discerning which leases meet the definition and which do not. Such a result would make the automobile financing larger-participant rule difficult to administer with respect to leasing and would not provide optimal protection to consumers. Accordingly, to further the mandate of protecting consumers and for ease of administering the automobile financing larger-participant rule, the Bureau proposed to exercise its authority under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act to define certain automobile leases not covered under section 1002(15)(A)(ii) as financial products or services within the meaning of section 1002(15)(A).
As discussed above, under section 1002(15)(A)(xi)(II), for purposes of title X of the Dodd-Frank Act, the Bureau may define as a covered financial product or service other financial products or services that are permissible
As explained in the proposal, banks and financial holding companies are broadly authorized to engage in automobile leasing. With respect to national banks, CEBA amended the National Bank Act, to add, among other things, 12 U.S.C. 24(Tenth), which authorizes national banks to “invest in tangible personal property, including, without limitation, vehicles, manufactured homes, machinery, equipment, or furniture, for lease financing transactions on a net lease basis,” as long as such investment does not exceed 10 percent of its assets.
a lease under which the national bank will not, directly or indirectly, provide or be obligated to provide for:
(1) Servicing, repair, or maintenance of the leased property during the lease term;
(2) Parts or accessories for the leased property;
(3) Loan of replacement or substitute property while the leased property is being serviced;
(4) Payment of insurance for the lessee, except where the lessee has failed in its contractual obligation to purchase or maintain required insurance; or
(5) Renewal of any license or registration for the property unless renewal by the bank is necessary to protect its interest as owner or financier of the property.
12 CFR 23.2(f).
Additionally, in the proposal, the Bureau expressed its belief that, whether or not a particular automobile lease qualifies as a category (ii) lease, all leasing covered by the proposed definition has a material impact on consumers. The Bureau noted that access to a vehicle is critical for consumers, automobile leasing is a significant financial obligation, and consumers are increasingly turning to leasing as a means to obtain a vehicle. The Bureau further stated in the proposal that the impact of automobile leasing on consumers and their financial well-being does not turn on whether a lease is the functional equivalent of a purchase finance arrangement.
Accordingly, as authorized under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act, the Bureau proposed to define the term “financial product or service” to include extending or brokering leases for automobiles, where the lease: (1) qualifies as a full-payout lease
a lease in which the national bank reasonably expects to realize the return of its full investment in the leased property, plus the estimated cost of financing the property over the term of the lease, from:
(1) Rentals;
(2) Estimated tax benefits; and
(3) The estimated residual value of the property at the expiration of the lease term.
12 CFR 23.2(e).
The Bureau explained that the proposed definition would also ensure that leases falling under the definition are subject to the range of protections applicable to “financial product[s] or service[s]” under the Dodd-Frank Act. For example, it would ensure that the offering or providing of the defined leases is subject to the prohibition against unfair, deceptive, or abusive acts or practices in section 1031 of the Dodd-Frank Act.
The Bureau received a number of comments relating to its interpretation of leases that fall within section 1002(15)(A)(ii) of the Dodd-Frank Act and to the proposed new definition under section 1002(15)(A)(xi)(II). A consumer group agreed with the Bureau's interpretation that, from the perspective of the consumer, certain leases are the “functional equivalent of purchase finance arrangements” under section 1002(15)(A)(ii). The commenter reasoned that whether or not the transaction results in owning a car, consumers likely experience leases much in the same way as they do purchase loans. The commenter also noted that both are financial transactions paid by the consumer over a certain period of time, and both grant the consumer exclusive use and possession of an automobile. The commenter also supported the Bureau's inclusion under section 1002(15)(A)(xi)(II) of certain other leases because those leases also have a material impact on consumers.
Other commenters including several trade associations suggested that the Bureau erred in interpreting the phrase “functional equivalent of purchase finance arrangements” from the perspective of the consumer. These commenters argued that: (1) the Bureau's interpretation is inconsistent with prior judicial and prudential regulator interpretations that leases are only functionally equivalent to loans and/or credit where the residual value of the leased asset falls below a specified threshold; (2) contrary to the Bureau's interpretation, the term “functional equivalent of purchase
Commenters are correct in pointing out that the prudential regulators, as well as at least one court decision, have interpreted regulatory requirements that a lease offered by a financial institution be the “functional equivalent” of a loan and/or credit to impose limits on the residual value
First, the phrase used in section 1002(15)(A)(ii)—“functional equivalent of purchase financing arrangements”—does not appear in any of the other statutes or regulations pertaining to the leasing activities of financial institutions. The prudential regulators and courts have consequently never addressed the meaning of that specific language. That Congress chose a phrase different from the language utilized by other regulators (
Even if the “functional equivalent” language in section 1002(15)(A)(ii) were identical to the language interpreted by the prudential regulators and judicial precedent to impose a residual value limit, the Bureau believes that the difference in the roles of the prudential regulators and the Bureau, and the different purposes of the provisions at issue, would make it reasonable for the Bureau to interpret the same language differently from those prior interpretations. In interpreting what leases might be the “functional equivalent” of a purchase finance arrangement, a key question is how the leases function and with respect to whom. The prudential regulators' primary role is to ensure safety and soundness of financial institutions by, among other things, serving as the gatekeepers of permissible banking activity. In light of this role, it made sense for prudential regulators to focus on how leases function vis-a-vis the financial institution and thus to consider primarily the risk posed to the financial stability of the institution when delineating permissible leasing activity. Accordingly, the prudential regulators deemed leases “functionally equivalent” to credit transactions only when the lease and the loan created a similar level of risk to the institution, such as in the case of low residual value leasing.
By contrast, Congress charged the Bureau with a different mission than the prudential regulators, and, accordingly, the Bureau believes that the “functional equivalent” language in section 1002(15)(A)(ii) of the Dodd-Frank Act should play a different role from the language governing the prudential regulators' leasing provisions. As set forth in the Dodd-Frank Act, the Bureau's purpose is to “ensur[e] that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.”
Commenters also asserted that, even from the perspective of the consumer, a lease cannot be the “functional equivalent of [a] purchase finance arrangement” unless the lease agreement actually results in the acquisition or ownership of the leased item by the lessee at the end of the lease term. They argued that for a product to be functionally equivalent to a “purchase finance arrangement” it must necessarily result in a “purchase.” They further stated that the core function of a purchase finance arrangement is to finance the acquisition of ownership, and that any product or service that lacks this specific function, cannot be said to be functionally equivalent to such an arrangement. Along similar lines, commenters maintained that the Bureau's approach is in fundamental conflict with provisions under the UCC
The Bureau does not disagree with commenters that the phrase “purchase finance arrangement” suggests financing used for a purchase. However, the touchstone of the relevant requirement of section 1002(15)(A)(ii) is not whether a lease is a “purchase finance arrangement,” but rather whether the two are functionally equivalent. The Bureau does not believe that transfer of ownership or the option to acquire a vehicle for nominal or no consideration is a necessary hallmark of functional equivalence under section 1002(15)(A)(ii) or that most automobile leases therefore do not qualify as functionally equivalent to purchase finance arrangements.
Nor are the UCC, TILA, and other similar provisions invoked by commenters instructive. These provisions seek to identify financial arrangements that are labeled as leases but are in fact disguised security interests or credit sales.
Commenters further suggested that interpreting an automobile lease to be functionally equivalent to a purchase finance arrangement may cause consumer confusion about the difference between an automobile lease and an automobile loan. The Bureau does not think that these concerns are warranted. Consumers are unlikely to rely on this rule as a source of information on automobile leases. However, even if consumers do so, the Bureau does not take the position here that automobile leases and purchase finance arrangements are identical. Rather, the discussion above specifically explains that the two are “functionally equivalent” for the reasons identified, though they remain distinct products.
Having considered the comments discussed above, the Bureau adheres to its position in the proposal that it is reasonable, and best suited to the Bureau's purpose and objectives, to assess the functional equivalence requirement from the perspective of the consumer. For the reasons set forth in the proposal and relayed above, the Bureau believes that, from the consumer's perspective, most automobile leases are therefore functionally equivalent to purchase finance arrangements.
Those parties to the proceeding in favor of the performance of the activity by bank holding companies (generally hereafter “proponents”) argued that leasing is essentially a financial transaction since it is an alternate method of financing the purchase of an automobile without the necessity of a large initial down payment. Thus, to the customer it is a means of obtaining the possession and use of an automobile through deferred payment. To the bank it is another in a spectrum of methods of new car financing that includes instalment credit transactions, floor planning and commercial lending to independent lessors.
The Bureau received no comments challenging its assertion that most automobile leases meet the other two requirements of section 1002(15)(A)(ii) for personal property leases—that is, that they have terms longer than 90 days and are non-operating. The Bureau adheres to its position that most automobile leases meet these requirements. For the foregoing reasons, the Bureau continues to believe that most automobile leases qualify as financial products or services under section 1002(15)(A)(ii).
The Bureau also received a number of comments regarding its decision to define certain leases as financial products or services under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act. Commenters did not dispute the Bureau's assertion that national banks may offer or provide such leases under CEBA. Commenters also did not dispute the Bureau's assertion that invoking authority under section 1002(15)(A)(xi)(II) to define CEBA leases as financial products or services would make the larger-participant rule easier to administer.
However, the Bureau received comments stating that the Bureau may not or should not rely on its authority under section 1002(15)(A)(xi)(II) with respect to automobile leases that are not the functional equivalent of purchase finance arrangements. Those comments argued that: (1) The Bureau failed to provide a proper record for its definition of automobile leases as financial products or services under section 1002(15)(A)(xi)(II); (2) the Bureau underestimated the number of leases that would be covered by that definition; (3) the Bureau has not demonstrated that leases covered by the definition will have a material impact on consumers as a whole; (4) because Congress already defined some leases as financial products or services under section 1002(15)(A)(ii), the Bureau lacks authority under section 1002(15)(A)(xi)(II) to define additional leases as financial products or services; and (5) expansion of the Bureau's authority over automobile leasing is unnecessary because automobile leases are sufficiently regulated.
With regard to the comment that the Bureau has failed to provide a proper record to support its definition of certain automobile leases as financial products or services under section 1002(15)(A)(xi)(II), the Bureau believes that it has appropriately met the two-part showing required under section 1002(15)(A)(xi)(II): That the financial product or service may be offered by banks and has (or likely will have) a material impact on consumers.
For the reasons set forth in the proposal, the Bureau finds that the leases falling within proposed and final § 1001.2(a) may be offered by banks under Federal law. As noted above and in the proposal, CEBA allows banks to offer certain automobile leases even when they are not the functional equivalent of purchase finance arrangements.
The Bureau also finds that all CEBA automobile leases have a material impact on consumers even if they are not the functional equivalent of purchase finance arrangements. Access to a vehicle is critical for consumers, and consumers are increasingly turning to leasing as a means to obtain possession and use of a vehicle. For consumers who choose to lease an automobile, the lease is a significant financial obligation. The average monthly payment for new leases as of the fourth quarter of 2014 was $408, and the average lease term was 35 months (with nearly two-thirds of lease terms between 25 and 36 months).
Indeed, Congress, in enacting the Consumer Leasing Act of 1976 (CLA),
Commenters also suggested that the Bureau overestimated the number of leases that are financial products or services under section 1002(15)(A)(ii) and that, as a result, section 1002(15)(A)(xi)(II) would have to be the primary basis for defining automobile leases as financial products or services. The Bureau does not agree with the premise of this comment. As explained above, the Bureau believes that section 1002(15)(A)(ii) should be interpreted from the perspective of the consumer and would thus cover most consumer automobile leases. However, even if the commenter were correct that section 1002(15)(A)(ii) covered no or very few automobile leases, the Bureau believes that its definition under § 1001.2(a) would nevertheless be authorized under section 1002(15)(A)(xi)(II). As noted above, the Bureau has found that banks may offer automobile leases under CEBA even if they are not the functional equivalent of purchase finance arrangements. This is true irrespective of the number of leases that fall under section 1002(15)(A)(ii). The Bureau has also found that all CEBA automobile leases—regardless of whether they are the functional equivalent of purchase finance arrangements—have a material impact on consumers. The need for the Bureau's definition under section 1002(15)(A)(xi)(II) would only be magnified if the Bureau overestimated, as the commenter suggested, the number of leases that already qualify as financial products or services under section 1002(15)(A)(ii). Therefore, even if the Bureau's interpretation that section 1002(15)(A)(ii) covers most automobile leases were erroneous, the Bureau's findings and exercise of its authority under section 1002(15)(A)(xi)(II) in this rulemaking would be sufficient to define all automobile leases that banks may offer under CEBA, and that are not already covered under section 1002(15)(A)(ii), as financial products or services.
A commenter also suggested that because the Bureau's proposed definition under section 1002(15)(A)(xi)(II) would apply to a small number of automobile leases, the Bureau has not demonstrated that these leases will have a material impact on consumers as a whole. As the Bureau understands it, the premise of this comment is that section 1002(15)(A)(xi)(II) requires the Bureau to find that a financial product or service has a “material impact” on consumers in the aggregate rather than on individual consumers. The Bureau believes that it appropriately demonstrated material impact as required under section 1002(15)(A)(xi)(II). Nothing in section 1002(15)(A)(xi)(II) requires the Bureau, in defining a financial product or service, to find that it has a material impact on consumers in the aggregate.
A commenter suggested that because Congress already defined some leases as financial products or services under section 1002(15)(A)(ii), the Bureau lacks authority under section 1002(15)(A)(xi)(II) to define additional leases as financial products or services. However, there is no indication that Congress intended for the categories of financial products or services defined in section 1002(15)(A)(i)-(x) to serve as a limit on the types of other financial products or services that the Bureau may define under section 1002(15)(A)(xi)(II). Congress itself decided to define a number of specific financial products or services as areas of special interest to Congress for regulation and oversight by the Bureau, but it also vested the Bureau with broad discretionary rulemaking authority to define “other” financial products or services to fill any gaps left by Congress where the two conditions of section 1002(15)(A)(xi)(II) are met. The Bureau believes that, in order to best fulfill the purposes of the Dodd-Frank Act and to provide comprehensive protections for consumers, its authority in section 1002(15)(A)(xi)(II) should allow it to define a new financial product or service even if it is within the same category as a product or service defined in section 1002(15)(A)(i)-(x). In other words, although Congress defined certain leases as financial products or services in section 1002(15)(A)(ii), the Bureau is free to define “other” leases as financial products or services under
As further discussed above, those conditions are met with respect to the automobile leasing activities described under § 1001.2(a). And the Bureau is not seeking to define under section 1002(15)(A)(xi)(II) activities that already qualify as financial products or services under section 1002(15)(A)(i)-(x) or to modify the definition of leasing activities described under section 1002(15)(A)(ii). To the contrary, the Bureau is defining “other” financial products or services and has expressly carved out from its definition in § 1001.2(a) financial products or services already covered under section 1002(15)(A)(ii).
Finally, one commenter generally suggested that expansion of the Bureau's authority over automobile leasing is unnecessary because, in the commenter's view, automobile leases are sufficiently regulated. This commenter noted that the Bureau administers and enforces the CLA and its implementing Regulation M, which cover automobile leases. The commenter also noted that automobile leases are subject to section 5 of the Federal Trade Commission Act, which prohibits unfair or deceptive acts or practices. The commenter further highlighted that the Federal prudential regulators may supervise banks for compliance with section 5 with respect to automobile leasing activities.
The Bureau agrees that the existing regulatory framework governing automobile leasing is important, but the Bureau believes this framework would best protect consumers when applied in conjunction with the Bureau's particular authorities under title X. Those authorities include authority to supervise nonbank “larger participant[s]” in markets for consumer financial products or services, 12 U.S.C. 5514(a)(1)(B); to prohibit unfair, deceptive, and abusive acts or practices; to monitor markets for a consumer financial product or service, 12 U.S.C. 5512(c)(1); to require disclosures regarding the features of a consumer financial product or service, 12 U.S.C. 5532(a); and to prescribe rules for consumers to seek information concerning a consumer financial product or service they have obtained, 12 U.S.C. 5533(a). The Bureau believes that these title X-specific authorities are necessary to ensure a fair, transparent, and competitive market for consumer automobile leasing. The Bureau further notes that the existence of the complementary regulatory framework noted by the commenter is not unique to automobile leasing. Numerous products that qualify as financial products or services under title X and are thus subject to the Bureau's title X authorities also fall under one or more “enumerated consumer laws”
The Bureau proposed to make a technical correction to the definition of “nonbank covered person” in § 1090.101 by substituting the term “consumer financial product or service” for “consumer product or service” where it appears. The Bureau did not receive any comments on this change and is finalizing § 1090.101 as proposed.
The Bureau proposed to make a technical correction to paragraph (iii)(D) of the definition of “annual receipts” in § 1090.104(a), which governs how the affiliate aggregation rules apply to formerly affiliated companies for purposes of the Consumer Reporting Rule. The correction clarifies that if a company is an affiliated company of the nonbank covered person during the relevant measurement period but ceases to be an affiliated company during the same period, the annual receipts of the nonbank covered person and the formerly affiliated company must be aggregated for the entire period of measurement. As noted below, the Bureau proposed to make the same change to paragraph (iii)(D) of the definition of “annual receipts” in § 1090.105(a) in the Consumer Debt Collection Rule. For the reasons explained below, the Bureau is finalizing these changes as proposed.
Under section 1024(a)(3)(B) of the Dodd-Frank Act, the activities of affiliated companies are to be aggregated for purposes of computing activity levels for the larger-participant rules. In the Consumer Reporting and Consumer Debt Collection Rules, the Bureau implemented the aggregation called for by section 1024(a)(3)(B) by prescribing the addition of all the receipts of a nonbank covered person and its affiliated companies to produce the nonbank covered person's annual receipts.
The affiliate aggregation provisions of each of the larger-participant rules address circumstances where a company becomes affiliated with a nonbank covered person or ceases to be affiliated with the nonbank covered person during the relevant measurement period.
This is the approach used in the Student Loan Servicing Rule's definition of “account volume” and the International Money Transfer Rule's definition of “aggregate annual
The annual international money transfers of a nonbank covered person must be aggregated with the annual international money transfers of any person that was an affiliated company of the nonbank covered person at any time during the preceding calendar year. The annual international money transfers of the nonbank covered person and its affiliated companies are aggregated for the entire preceding calendar year, even if the affiliation did not exist for the entire calendar year.
The annual receipts of a formerly affiliated company are not included if affiliation ceased before the applicable period of measurement as set forth in paragraph (ii) of this definition. This exclusion of annual receipts of formerly affiliated companies applies during the entire period of measurement, rather than only for the period after which affiliation ceased.
Only one commenter addressed this proposed technical correction. An industry trade association urged the Bureau not to use this rulemaking to make changes to the larger-participant rules for the consumer reporting and consumer debt collection markets. It stated that doing so would undermine transparency and public participation in the rulemaking process. This commenter acknowledged that the proposed change may be simpler for the Bureau but suggested that it may be difficult for companies to secure necessary financial records from entities with which they are no longer affiliated.
The Bureau believes that when companies have been affiliated at any time during the measurement period it is simplest and most appropriate to aggregate annual receipts corresponding to the entire measurement period. As explained above, doing so will promote consistency across the larger-participant rules and will make the handling of formerly affiliated companies more consistent with the approach taken for newly affiliated companies in the Consumer Reporting and Consumer Debt Collection Rules. It may also avoid administrative difficulties associated with part-year calculations of annual receipts in some instances.
The Bureau provided the public with notice of these proposed changes and an opportunity to comment in the proposal that was published in the
The Bureau proposed to amend the final sentence of paragraph (iii)(D) of § 1090.105(a)'s definition of “annual receipts” to clarify that if a company is an affiliated company of the nonbank covered person during the relevant measurement period but ceases to be an affiliated company during the same period, the annual receipts of the nonbank covered person and the formerly affiliated company must be aggregated for the entire period of measurement. For the same reasons described above with respect to § 1090.104(a), the Bureau is finalizing the changes to § 1090.105(a) as proposed.
Section 1090.108 relates to automobile financing. Autos have become indispensable for most working individuals, with nearly 90 percent of the workforce commuting to work by car, truck, or van, and most driving alone.
While a significant number of consumers obtain credit to purchase
Recognizing the significant impact that automobile financing has on consumers' lives, the Bureau proposed to identify a market for automobile financing. Commenters generally supported the Bureau's identification of an automobile financing market, although some raised specific concerns regarding the scope of the market that are discussed in the section-by-section analysis of § 1090.108(a) and (b) below. Because automobile financing is an important activity that affects millions of consumers, the Bureau believes that supervision will be beneficial to both consumers and the market as a whole. Supervision of larger participants in the automobile financing market will help the Bureau ensure that these market participants are complying with applicable Federal consumer financial law and thereby will further the Bureau's mission to ensure consumers' access to fair, transparent, and competitive markets for consumer financial products and services.
The automobile financing market identified by the Final Rule includes: (1) Specialty finance companies; (2) “captive” nonbanks (commonly referred to as “captives”); and (3) Buy Here Pay Here (BHPH) finance companies.
Generally, captives are subsidiary finance companies owned by auto manufacturers. They provide consumers with financing for the primary purpose of facilitating their parent companies' and associated franchised dealers' auto sales.
Some BHPH finance companies are similar to captives in that they are associated with certain dealers. BHPH dealers traditionally focus on subprime and deep subprime borrowers. While BHPH dealers are mostly independently-owned entities that serve as the primary lender and receive payments directly from consumers, some larger BHPH dealers will sell or assign their contracts to specific BHPH finance companies once the contract has been consummated with the consumer. Unlike captives, these BHPH finance companies do not focus on a particular auto manufacturer.
According to the Bureau's estimates based on 2013 data from Experian Automotive's AutoCount® database,
Auto credit is provided both through direct and indirect channels creating different dynamics for consumers and industry participants. In the direct lending channel, a consumer seeks credit directly from the financing source, whereas in the indirect lending channel, the dealer typically enters into a retail installment sales contract that it then sells to a third-party finance company.
With indirect lending, dealers rather than consumers typically select the lender that will provide the financing. Upon completion of the vehicle selection process, the dealer usually collects basic information regarding the applicant and uses an automated system to forward that information to prospective indirect auto lenders. After evaluating the applicant, indirect auto lenders may provide the dealer with purchase eligibility criteria or stipulations including, but not limited to, a risk-based “buy rate” that establishes a minimum interest rate at which the lender is willing to purchase a retail installment sales contract executed between the consumer and the dealer for the purchase of the vehicle.
A franchised dealer often can choose from a selection of funding sources in arranging credit for a consumer. However, a franchised dealer that is affiliated with a manufacturer can be incentivized to use a captive through mechanisms such as promotional discounts or limited-time financing offers that can be used to attract consumers. An independent auto dealer, which is not associated with a specific manufacturer or brand, typically does not have access to captive finance sources but will have access to other indirect sources, including depository institutions engaged in indirect lending as well as specialty finance companies.
With the relevant eligibility criteria and stipulations, the dealer then selects the indirect lender that will provide the financing and extends the credit through a retail installment sales
Leases can also be obtained through direct or indirect channels. To purchase an auto lease from a dealer, finance sources express their interest by providing the dealer with the relevant terms of a lease similar to those considered for a loan. These terms can include a “money factor,” which can be used to determine the rent charge portion of the monthly payment, and the length or term of the lease.
Refinancing of an existing credit obligation can enable a consumer to reduce his or her monthly auto payment. The refinancing market is highly dependent on interest rates and, thus, activity typically increases as rates decrease relative to the initial rate at origination. According to Experian Automotive, the average auto loan term as of the fourth quarter of 2014 was around 66 months for new vehicles and around 62 months for used vehicles.
Unless otherwise specified, the definitions in § 1090.101 should be used when interpreting terms in this Final Rule.
The Bureau proposed to use aggregate annual originations as the criterion to assess whether a nonbank covered person is a larger participant of the automobile financing market. Proposed § 1090.108(a) defined the term “aggregate annual originations” as the sum of the number of annual originations of a nonbank covered person and the number of annual originations of each of the nonbank covered person's affiliated companies, calculated according to instructions set forth in the Proposed Rule. The Bureau is finalizing this definition as proposed, except that the Final Rule: (1) Counts refinancings as “annual originations” only if they meet the requirements set forth in the Proposed Rule and are also secured by an automobile, and (2) excludes certain purchases or acquisitions by special purpose entities that are made for the purpose of facilitating asset-backed securitizations. The Bureau has also made some technical changes to proposed § 1090.108(a) for clarity.
Purchases of retail installment contracts are included in paragraph (i)(A)(4) of the proposed definition of “aggregate annual originations,” which includes “purchases or acquisitions” of “[c]redit granted for the purpose of purchasing an automobile.” Therefore, originations that are made indirectly are captured by the proposed definition, and the Final Rule does not modify this aspect of the proposed definition.
The Bureau continues to believe that it is appropriate to include refinancing activity in the automobile financing market defined in this rule, and is therefore finalizing this element of the proposed definition of “annual originations” as proposed. Like purchase-money loans, the refinancings that are included in the proposed definition involve debt arising from the purchase of an automobile. The creditors that offer such refinancings are in competition with other creditors in the automobile financing market for the right to hold and service such debt. Although refinancing activity is limited
The Bureau considered the concern raised by some commenters that covered persons may not have the information necessary to determine whether they are refinancing an obligation subject to the proposed definition. As explained above, the Final Rule does not require automobile finance companies to calculate whether they are larger participants. In any event, most auto loans are purchase-money loans, and the Bureau believes that covered persons that refinance vehicle-secured loans generally know whether the debt they are refinancing was originally incurred for the purpose of purchasing the vehicle.
The Bureau recognizes, however, that in rare cases a purchase-money loan could be refinanced without the refinancing creditor taking a security interest in the automobile, making the original purpose of the debt less obvious. To address such circumstances and for ease of administration, the Bureau has included language in paragraph (i)(A)(3) of the definition of “aggregate annual originations” to clarify that a refinancing must be secured by an automobile to be included in the definition. The Bureau is otherwise finalizing paragraph (i)(A)(3) of the definition of “aggregate annual originations” as proposed.
The Bureau received comments from industry trade associations and an industry participant in support of the proposed exclusion and no comments opposing it. However, several of these commenters stated that the final rule should also exclude purchases or acquisitions of obligations by securitization trusts and other special purpose entities that are created to facilitate securitization transactions. They indicated that without this change, many securitization entities would be considered larger participants, which would negatively impact the securitization process. Some of these commenters stated that if the Bureau did not exclude these transactions, the rule would lead to double or triple counting of the same automobile loan or lease contract.
Raising similar concerns, an industry trade association requested that the Bureau clarify the exclusion to expressly exclude all securitization activities from the definition of annual originations. It stated that securitization activities are not a consumer financial product or service and have no impact on consumers.
Another trade association commented that the language does not clearly exclude the various transactions creating those securities, and requested that the Bureau clarify that any purchases or acquisitions of credit obligations for securitization purposes and transfers of credit obligations among affiliated entities do not fall within the scope of the rule. This commenter also requested that the Bureau not define the term “asset-backed securities.” No commenter urged the Bureau to define the term “asset-backed securities.”
For the same reasons expressed in the proposal, the Bureau believes that it is appropriate to exclude investments in asset-backed securities from “annual originations” and is therefore finalizing that element of the proposal in paragraph (i)(B)(1) of the definition of “aggregate annual originations.” In addition, the Final Rule excludes certain purchases or acquisitions of obligations by special purpose entities established for the purpose of facilitating asset-backed securities in paragraph (i)(B)(2) of the definition of “aggregate annual originations.” In light of the limited role that these special purpose entities play, the Bureau does not believe that their purchases or acquisitions should be included in the definition of “annual originations” if they are made for the purpose of facilitating an asset-backed securities transaction.
Most commenters supported the Bureau's proposal to exclude title loans from the automobile financing market. Several trade associations and an industry commenter urged the Bureau not to expand the scope to include loans that are not made for the purpose of purchasing or refinancing an automobile.
A number of individuals and consumer advocacy groups also
On the other hand, a few commenters recommended that the Bureau include title loans in the market defined in this rulemaking. Citing the potential consumer harms stemming from title lending, one consumer group encouraged the Bureau to include title lenders that made more than 25 extensions of credit during the preceding calendar year.
A trade association representing title lenders also encouraged the Bureau to include title loans.
After considering all of these comments, the Bureau has decided to exclude title loans from the Final Rule. Loans provided by title lenders are not used for the same purposes as the types of financing included within the proposed market (
There is no need for the Bureau to address in this rulemaking the assertion by one commenter that title loans are more similar to automobile financing transactions than to payday loans because payday lending is not a part of this larger-participant rulemaking.
For purposes of computing the covered person's aggregate annual originations, the Proposed Rule provided that the annual originations of each affiliated company were first to be calculated separately and then aggregated with the originations of the covered entity. Paragraph (ii) of the proposed definition of “aggregate annual originations” set forth the method of aggregating the annual originations of a nonbank covered person and its affiliated companies when affiliation has started or ended within the preceding calendar year. It provided that the annual originations of a nonbank covered person must be aggregated with the annual originations of any person that was an affiliated company of the nonbank covered person at any time during the preceding calendar year. The annual originations of a nonbank covered person and its affiliated companies were to be aggregated for the entire preceding calendar year, even if the affiliation did not exist for the entire calendar year. The aggregation provision would not apply, however, if the affiliated company was a dealer excluded by proposed § 1090.108(c), which is discussed below.
Several commenters supported the Bureau's proposal to aggregate annual originations of all affiliated companies in the previous calendar year for the purpose of calculating aggregate annual originations. One trade association objected to the Bureau's proposal to count “annual originations” in a manner that includes an affiliate's annual originations during a calendar year, regardless of whether an affiliation existed during the entire calendar year. This commenter suggested that it may be difficult for a company to secure necessary financial records from an unaffiliated company.
Because the criterion for the rule is aggregate
The Bureau proposed to define “automobile” to mean any self-propelled vehicle primarily used for personal, family, or household purposes for on-road transportation.
The proposed definition of “automobile” was informed by the definition of “motor vehicle” in section 1029(f) of the Dodd-Frank Act,
(A) Any self-propelled vehicle designed for transporting persons or property on a street, highway, or other road;
(B) recreational boats and marine equipment;
(C) motorcycles;
(D) motor homes, recreational vehicle trailers, and slide-in campers, as those terms are defined in sections 571.3 and 575.103(d) of title 49, Code of Federal Regulations, or any successor thereto; and
(E) other vehicles that are titled and sold through dealers.
12 U.S.C. 5519(f)(1).
The Bureau also proposed expressly to exclude certain types of motor vehicles, such as motor homes, RVs, golf carts, and motor scooters, from the definition of “automobile.” The Bureau did not have extensive data on the financing activity associated with these types of vehicles, and indicated that the vehicles excluded from the definition might warrant different larger-participant criteria and thresholds if they were included in the market defined for the Proposed Rule. The Bureau sought comment and additional market data related to its assumptions. The Bureau also sought comment on its proposed definition of “automobile,” including whether the proposed definition should address other vehicles or types of vehicles and whether motorcycles should be a separately defined term.
Industry participants, two trade associations, and several members of Congress urged the Bureau to exclude motorcycles from the definition of “automobile,” maintaining that motorcycles are more akin to the types of recreational vehicles excluded from the proposed definition than to cars and light trucks. These commenters stated that motorcycles are largely discretionary purchases and are not commonly used for commuting. They also stated that motorcycles are significantly less expensive than cars and that the overall volume of motorcycle sales is equal to only a small fraction of car sales.
These commenters urged the Bureau to follow the approach taken by six other Federal regulators (the Agencies) that recently excluded motorcycle loans from the definition of “automobile loan” in the Credit Risk Retention Rule.
The Bureau has considered these comments but believes that similarities in the financing process, relevant compliance requirements, pricing, and how the vehicles may be used support inclusion in the same market for supervisory purposes. Similar to cars and light-duty trucks, motorcycles are often purchased at a dealership where the price is negotiated, add-ons may be sold, and financing is arranged through an application and credit check.
Unlike many of the vehicles excluded from the proposal, motorcycles are commonly used for on-road transportation and can be used for many of the same purposes as automobiles, such as daily errands and long-distance trips. They can also be used for transportation to work, even if that is uncommon. Although the proposal noted that automobiles are important to many consumers as a means of transportation to work, the Bureau did not intend to suggest that the rule would only cover vehicles that are used for that purpose or that the financing of vehicles used for recreational purposes is unimportant. The proposed definition includes, for example, cars or light-duty trucks that are not used for commuting.
Although some commenters suggested that the Bureau should follow the approach taken in the Credit Risk Retention Rule, the Agencies' exclusion of motorcycles from the exemption provided in that rule was based on their assessment that motorcycles—like other vehicles that are used for recreational purposes—as a class have a riskier profile than the vehicles that are included in the Agencies' definition of “automobile loans.”
One industry trade association expressed support for the Bureau's decision to exclude RVs from the definition of “automobile” in this rule, while emphasizing that RVs should still be considered motor vehicles as defined in the Dodd-Frank Act. This commenter believed that using the broad definition of “motor vehicle” found in the Dodd-Frank Act would make this rule difficult to administer. It also stated that there are no significant nonbank financial institutions in the RV industry and that including motor homes and RVs in the Final Rule would thus have little if any impact. No other commenters addressed the Proposed Rule's exclusions for specific categories of motor vehicles.
The Bureau is finalizing the specific exclusions to the definition of “automobile” as proposed. These exclusions will promote clarity and ease of administration by providing bright lines regarding which vehicles are covered. The Bureau also recognizes that the uses of the excluded vehicles are either different or more limited than those of the vehicles that are included in the definition. For example, motor scooters generally are not suitable for long-distance trips or highway driving, while RVs and motor homes generally cannot be used for commuting or daily errands due to parking limitations. On average, the categories of vehicles excluded in the Proposed Rule are also either substantially more or less expensive than the vehicles that qualify as automobiles under the proposed definition.
Proposed § 1090.108(a) defined the term “automobile financing” to mean providing the transactions identified under the term “annual originations” as defined in proposed § 1090.108(a). The Bureau intended this proposed definition to reflect the number of consumer loans and leases made or facilitated (through purchases of the loans and leases) regarding one of the most important assets of American households. The comments that the Bureau received relating to the definition of “automobile financing” were similar to those relating to the definition of “annual originations.” For the same reasons discussed above in the section-by-section analysis of the definition of “aggregate annual originations,” the Bureau is finalizing the definition of “automobile financing” as proposed, with one minor clarifying change that does not have any substantive effect.
Proposed § 1090.108(a) defined the term “automobile lease” to mean a lease for the use of an automobile, as defined in the Proposed Rule, that is a financial product or service under either section 1002(15)(A)(ii) of the Dodd-Frank Act or proposed § 1001.2(a). A number of consumer groups, civil rights groups, and individual commenters supported the proposal to include automobile leasing in the market for automobile financing. However, as discussed above, two industry trade associations and an industry commenter suggested that the Bureau should include only a narrower category of leases that meet certain residual value limits and, in their view, are the functional equivalent of a purchase finance arrangement. Because of the similarities between automobile leases and automobile loans described above and the importance of leases to consumers, the Bureau believes that it is important to maintain broad coverage of automobile leases in this larger-participant rule. The Bureau therefore is not narrowing the scope of leases included in the manner suggested by some commenters and is finalizing the definition of “automobile lease” as proposed.
The Proposed Rule defined “refinancing” by reference to the definition contained in Regulation Z § 1026.20(a), except that the Proposed Rule indicated that a refinancing need not be by the original creditor, holder, or servicer of the original obligation. Section 1026.20(a) provides that “[a] refinancing occurs when an existing obligation that was subject to this subpart is satisfied and replaced by a new obligation undertaken by the same consumer” and identifies certain transactions that are not treated as a refinancing. The Bureau sought comment on whether the Regulation Z definition of refinancing as modified is appropriate, and whether the Bureau should consider a new definition of refinancing for purposes of this larger-participant rulemaking. The Bureau also sought data on refinancing activity in the market and its participants.
Two trade associations and an industry commenter suggested that the Bureau should adopt a narrower definition of “refinancing” that is fully consistent with the definition in Regulation Z. These commenters stated that the proposed definition should be modified so as not to include refinancing activity conducted by third parties.
The definition of “refinancing” in Regulation Z § 1026.20(a) serves a different purpose than the concept of refinancing in this larger-participant rule. Section 1026.20(a) addresses when the
Given the purpose of this rulemaking, it would not be appropriate to exclude third-party refinancings from the term “refinancing.” Refinancings by the original creditor and a third party are sufficiently similar so as to be considered part of the same market for automobile financing. Therefore, consistent with the proposal, the Bureau is finalizing the rule to include refinancings by nonbank covered persons that were not the original creditor, holder, or servicer of the obligation. In addition, as explained in the discussion of the definition of “aggregate annual originations” above, the Bureau has added a requirement in paragraph (i)(A)(3) of the definition of “aggregate annual originations” that a refinancing must be secured by a vehicle to be counted as an “annual origination” in order to facilitate application of the criterion.
The Bureau proposed to use aggregate annual originations as the criterion that establishes which entities are larger participants of the automobile financing market. A discussion of the comments received relating to the definition of “aggregate annual originations” and the adjustments the Bureau has made to that proposed definition is set forth above. For the reasons stated there and below, the Bureau is finalizing “aggregate annual originations” as the criterion as proposed.
The Final Rule uses aggregate annual originations because, among other things, it is a meaningful measure of a nonbank covered person's level of participation in the automobile financing market and of its impact on consumers. A particular nonbank entity's annual number of originations reflects the number of loans and leases it makes or facilitates (through purchases of the loans and leases) regarding one of the most important assets of American households. Further, because the Final Rule defines the term “aggregate annual originations,” in part, in terms of how many loans or leases an entity granted or purchased, the Bureau expects that aggregate annual originations criterion will generally correlate to the size of the entity's loan and lease portfolios.
The Bureau anticipates that nonbank covered persons will be able to calculate aggregate annual originations without difficulty, should the occasion arise to do so. As a general matter, most market participants generally know the number of loans and leases they extend because they handle the servicing for these accounts and are presumably expecting a payment for each loan and lease. Further, they generally know the number of loans they make or purchase because they execute liens against the automobile titles.
In the proposal, the Bureau relied on Experian Automotive's AutoCount database for data on a significant portion of annual originations. AutoCount is a vehicle database that collects monthly transaction data from State Departments of Motor Vehicles (DMVs). In 46 States, DMV title and registration information includes the finance source on record.
Two industry trade associations and an industry commenter urged the Bureau to provide more detail on why the Experian AutoCount database was chosen and how the data in the database was gathered. These commenters asked if the Bureau would be using the same definitions as Experian, and expressed concern that the use of the database could misidentify larger participants due to differences in the Experian dataset and the Bureau's criterion. No commenter suggested an alternative national source of data.
The Bureau recognizes that estimates of “annual originations” based on the AutoCount data may be either over- or under-inclusive due to differences between what is included in the AutoCount data and in the Bureau's definitions. For example, the term “annual originations,” as defined in this Final Rule, includes transactions not tracked in the AutoCount data. Specifically, the Final Rule defines “annual originations” to include the sum of a nonbank covered person's credit granted for the purchase of an automobile, refinancings of such obligations (and any subsequent refinancings thereof) that are secured by an automobile, automobile leases, and purchases or acquisitions of any of the foregoing obligations. In contrast, the AutoCount data track only loans and leases for which a title and registration is filed with the State DMV and are less inclusive than the Final Rule in a number of respects. For example, the AutoCount data may not include certain refinancings and purchases and acquisitions of credit obligations and leases that are included in the Final Rule definition of “annual originations.”
Notwithstanding the differences between AutoCount and the Final Rule definitions, AutoCount data provide a reasonable proxy for the Bureau's definition of “annual originations” for rulemaking purposes. The dataset covers almost the entire United States and is relatively reliable because it is based on title and registration information filed with State DMVs. AutoCount is therefore the most comprehensive database that the Bureau could identify for this rulemaking, and commenters did not identify any other database that the Bureau should use. In light of these factors, the Bureau believes that the AutoCount data can adequately inform the decision of setting a threshold using the criterion of aggregate annual originations.
The Bureau's use of the AutoCount database in this rulemaking will not result in covered persons being misidentified as larger participants, as some commenters asserted. To the extent that the Final Rule's definitions differ from the types of transactions that
While generally agreeing with the Bureau's proposal to consider aggregate annual originations, a number of consumer advocates and civil rights groups suggested that the Bureau include servicing activity within the criterion or otherwise ensure that the Final Rule will cover large servicers as well. These commenters noted that servicing may be done by entities that do not own the obligations that are being serviced and that it is important to ensure that consumer protection laws and regulations are being followed in servicing.
The Bureau agrees that oversight of servicing in the automobile financing market is important, but believes it can accomplish that goal without including servicing activity within the Final Rule's criterion. As the commenters recognize, the use of non-holder servicers is not as prevalent in the auto market as in the housing market. Instead, most of the entities that will be larger participants under this Final Rule service their own loans and leases, and the Bureau will be able to examine their servicing activity as part of its larger-participant examinations even if servicing activity is not part of the criterion used in this Final Rule.
Two industry trade associations and an industry commenter also suggested that the Bureau should exclude all direct lending from the scope of the market defined in this rule. These commenters suggested that the Bureau's primary concerns are with practices that only occur in the purchase of motor vehicle sales finance contracts, such as pricing disparities that result when dealers are given pricing authority. The Bureau has considered these comments but believes that direct lending is an integral and important part of the automobile financing market defined in this rule. Like indirect lending and leasing, direct lending can affect a consumer's access to transportation. Supervision will allow the Bureau to ensure that market participants engaging in these activities are complying with applicable Federal consumer financial law. The Bureau therefore declines to carve direct lending out of the scope of this rule and is finalizing the criterion as proposed.
The Proposed Rule defined a nonbank covered person as a larger participant of the automobile financing market if the person has at least 10,000 aggregate annual originations. The Bureau received comments supporting the Bureau's proposed approach, as well as comments advocating a higher or lower threshold. For the reasons that follow, the Bureau is finalizing the rule with a threshold of 10,000 aggregate annual originations as proposed.
Based on the Bureau's estimates, a threshold of 10,000 aggregate annual originations will bring within the Bureau's supervisory authority about 34 entities and their affiliated companies that engage in automobile financing.
As the Bureau explained in its proposal, the aggregate annual originations threshold of 10,000 will allow the Bureau to supervise market participants that represent a substantial portion of the automobile financing market and that have a significant impact on consumers. The Bureau estimates that in 2013 the entities that would qualify as larger participants under the proposed threshold provided loans and leases to approximately 6.8 million consumers.
A number of consumer groups, civil rights groups, and consumer attorneys supported the proposed threshold and encouraged the Bureau to ensure that a threshold of 10,000 aggregate annual originations covers finance companies that target subprime consumers, regional finance companies, and finance companies related to Buy Here Pay Here (BHPH) dealers. One consumer advocacy group urged the Bureau to decrease the threshold to 5,000, asserting that the Bureau should protect as many consumers as feasible. A consumer banking trade association urged the Bureau not to raise the threshold above 10,000 because the proposed threshold would allow the Bureau to supervise a more varied mix of entities and would help to level the playing field between banks and nonbanks.
Two trade associations and an industry participant encouraged the Bureau to raise the threshold to 50,000. They believe that a lower threshold might prompt some covered persons to limit their originations to larger loans and to avoid making smaller loans, in order to avoid the rule's coverage. Three trade associations and an industry participant noted that many of the entities that would be larger participants at the proposed threshold have well below 1 percent market share and that small businesses could qualify as larger participants under the proposed threshold. A law firm representing small businesses urged the Bureau either to increase the threshold or to explicitly carve out small businesses as defined by the Small Business Administration (SBA). The commenter indicated that
The Bureau is finalizing the threshold as proposed because it believes that 10,000 aggregate annual originations is a reasonable and appropriate threshold for defining larger participants of the automobile financing market. A threshold of 10,000 aggregate annual originations will bring within the Bureau's authority roughly 34 entities together with their affiliated companies that engage in automobile financing. Each of these entities provides or engages in hundreds of automobile originations each week and falls in the top 10 percent of nonbank entities in the market according to the Bureau's estimates. They can reasonably be considered larger participants of the market. Some entities that meet this threshold will have considerably less than 1 percent market share, but that is due in large part to the fragmentation of the market and does not change the fact they are “larger” than the vast majority of market participants.
The Bureau does not believe that the proposed threshold is likely to have any appreciable effect on the availability of credit. As discussed in part VI.B.2.b below, the Bureau estimates that the cost of supervision for an entity that provides 10,000 aggregate annual originations would be a small fraction of 1 percent of its total revenue from one year's originations. Given the nominal cost of supervision, the Bureau does not believe that entities will change the types of loans and leases they offer merely to avoid the Bureau's supervisory authority. Furthermore, should an entity that would otherwise meet the larger-participant test adjust its offerings in response to the rule, any effect on consumers would be mitigated by the large number of remaining nonbank entities in the market as well as depository institutions that provide auto financing.
The Bureau also considered a lower or higher threshold. For example, a threshold of 5,000 aggregate annual originations would allow the Bureau to supervise approximately 50 entities and their affiliated companies that engage in automobile financing. While lowering the threshold would substantially increase the number of entities subject to supervision, it would only result in a marginal increase in the percentage of overall market activity covered due to the relatively small market share of entities at the lower threshold.
The Bureau has a variety of other tools that it can use to protect consumers should concerns emerge regarding nonbank market participants that have less than 10,000 aggregate annual originations. The Bureau could, for example, establish supervisory authority over a particular company that the Bureau has reasonable cause to determine poses risks to consumers pursuant to the Bureau's risk determination rule.
The Bureau estimates that a higher alternative threshold of 50,000 aggregate annual originations would allow the Bureau to supervise only the 15 very largest participants in the market and their affiliated companies, representing approximately 86 percent of market activity. At this higher threshold the Bureau would not be able to supervise as varied a mix of nonbank larger participants because some firms impacting a large portion of consumers in important market segments, such as captive, subprime, and BHPH lending, would be omitted.
The Bureau does not believe it is necessary to raise the threshold in order to avoid capturing small businesses as defined by the SBA or to add an express exclusion for such entities. According to the Bureau's estimates, few if any entities that meet the proposed threshold have annual receipts at or below the relevant SBA size standard, which in recent years has increased from $7 million to $38.5 million.
The Bureau proposed to exclude from the rule those motor vehicle dealers that are excluded from the Bureau's authority by section 1029 of the Dodd-Frank Act.
The Bureau explained in its proposal that the dealers that were excluded by proposed § 1090.108(c)(2), typically BHPH dealers, can reasonably be considered part of a separate and distinct market. A trade association representing the used motor vehicle industry objected to the exclusion of BHPH dealers from this rule and stated that BHPH dealers provide the same financial product or service as those entities that the Bureau proposed to include. No other comments related to the exclusion under proposed § 1090.108(c) were received.
The Bureau continues to believe that it is appropriate to exclude dealers that are identified in proposed § 1090.108(c)(2) from the market defined in this Final Rule and is therefore
The Bureau has considered potential benefits, costs, and impacts of the Final Rule.
The Final Rule defines a category of nonbanks that would be subject to the Bureau's nonbank supervision program pursuant to section 1024(a)(1)(B) of the Dodd-Frank Act. The category includes “larger participant[s]” of a market for “automobile financing” described in the Final Rule. Participation in this market is measured on the basis of aggregate annual originations. A nonbank covered person engaged in automobile financing is a larger participant of the market for automobile financing if, together with its affiliated companies, it has aggregate annual originations (measured for the preceding calendar year) of at least 10,000. As prescribed by existing § 1090.102, any nonbank covered person that qualifies as a larger participant will remain a larger participant until two years after the first day of the tax year in which the person last met the larger-participant test.
This analysis considers the benefits, costs, and impacts of the key provisions of the Final Rule against a baseline that includes the Bureau's existing rules defining larger participants in certain markets.
The Bureau notes at the outset that limited data are available with which to quantify the potential benefits, costs, and impacts of the Final Rule. As described above, the Bureau has utilized the Experian AutoCount database for quantitative information on the number of market participants and their number and dollar volume of originations. However, the Bureau lacks detailed information about their rate of compliance with Federal consumer financial law and about the range of, and costs of, compliance mechanisms used by market participants.
In light of these data limitations, this analysis generally provides a qualitative discussion of the benefits, costs, and impacts of the Final Rule.
The discussion below describes four categories of potential benefits and costs. First, the Final Rule authorizes the Bureau to supervise certain nonbank entities in the automobile financing market. These larger participants in the market might respond to the possibility of supervision by changing their systems and conduct, and those changes might result in costs, benefits, or other impacts. Second, if the Bureau undertakes supervisory activity at specific larger participants, those companies would incur costs from responding to supervisory activity, and
In considering the costs and benefits of the Final Rule, it is important to note that various products or services are included in the defined automobile financing market. Direct lending, where the consumer applies for credit directly to the financial institution, makes up a relatively small portion of the total automobile loan and sales volume. Direct lending is currently dominated by traditional depository institutions and credit unions already regulated by the Bureau and other Federal agencies. Indirect lending, where a dealer—rather than the consumer—finds a lender willing to provide credit to the consumer, comprises a significant portion of the automobile financing market. In addition, some consumers refinance the credit obligation for their automobile after taking out the initial loan. Finally, leasing is the other primary way in which consumers can finance the use of a vehicle; under this arrangement a financial institution holds the title to the vehicle that the consumer leases under a payment plan that typically ends with an option to purchase the vehicle.
The Final Rule will subject larger participants of the automobile financing market to the possibility of Bureau supervision. That the Bureau will be authorized to undertake supervisory activities with respect to a nonbank covered person that qualifies as a larger participant does not necessarily mean the Bureau will in fact undertake such activities with respect to that covered entity in the near future. Rather, supervision of any particular larger participant as a result of this rulemaking is probabilistic in nature. For example, the Bureau will examine certain larger participants on a periodic or occasional basis. The Bureau's decisions about supervision will be informed, as applicable, by the factors set forth in section 1024(b)(2), relating to the size and volume of individual participants, the risks their consumer financial products and services pose to consumers, the extent of State consumer protection oversight, and other factors that the Bureau may determine are relevant. Each entity that believes it qualifies as a larger participant will know that it might be supervised and might gauge, given its circumstances, the likelihood that the Bureau will initiate an examination or other supervisory activity.
The prospect of potential supervisory activity could create an incentive for larger participants to allocate additional resources and attention to compliance with Federal consumer financial law, potentially leading to an increase in the level of compliance. These entities might anticipate that by doing so (and thereby decreasing risks to consumers) they could decrease the likelihood of their actually being subjected to supervision. In addition, an actual examination will likely reveal any past or present noncompliance, which the Bureau can seek to correct through supervisory activity or, in some cases, enforcement actions. Larger participants might therefore judge that the prospect of supervision increases the potential consequences of noncompliance with Federal consumer financial law, and they might seek to decrease that risk by curing or mitigating any noncompliance. Larger participants might thus be able to catch and address compliance problems at an earlier point when the costs of correcting them would be lower.
The Bureau believes it is likely that many market participants will increase compliance in response to the Bureau's supervisory activities authorized by the Final Rule. However, because the Final Rule itself does not require any nonbank covered person in the automobile financing market to alter its conduct, any estimate of the amount of increased compliance would require both an estimate of current compliance levels and a prediction of market participants' behavior in response to the Final Rule. The data the Bureau currently has do not support a specific quantitative estimate or prediction. But, to the extent that nonbank entities allocate resources to increase their compliance in response to the Final Rule, that response would result in both benefits and costs to consumers and covered persons.
Increased compliance with Federal consumer financial law by larger participants in the market for automobile financing will be beneficial to consumers who either finance the purchase of or lease automobiles, or refinance their credit obligations related to the purchase of their automobiles. The number of individuals potentially affected is significant. As noted above, data from Experian Automotive for the fourth quarter of 2014 show auto lenders holding outstanding auto loans totaling almost $900 billion.
Several Federal consumer financial laws offer protections to consumers who seek automobile financing as defined in the Final Rule, including, to the extent applicable, TILA and Regulation Z, the Fair Credit Reporting Act and Regulation V, the CLA and Regulation M, ECOA and Regulation B, and the Gramm-Leach-Bliley Act and Regulation P.
The possibility of supervision also may help make incentives to comply with Federal consumer financial law more consistent between the likely larger participants and depository institutions and credit unions, which are already subject to Federal supervision with respect to Federal consumer financial law. Introducing the possibility of Federal supervision could encourage entities that likely qualify as larger participants to devote additional resources to compliance. It could also help ensure that the benefits of Federal oversight reach consumers who do not have ready access to automobile financing through depository institutions and credit unions.
The Bureau recognizes that increasing compliance involves costs. These costs may be fixed or ongoing. Nonbank entities in the automobile financing market might need to hire or train additional personnel to effectuate any changes in their practices that would be necessary to produce the increased compliance. They might need to invest in changes to their systems to carry out their revised procedures. In addition, they might need to develop or enhance compliance management systems, to ensure awareness of any gaps in compliance. Such changes will also require investment and might entail increased operating costs.
In the proposal, the Bureau stated that economic theory predicts that fixed costs will be absorbed by providers, here the entities that may qualify as larger participants. One commenter stated that this prediction does not constitute broadly accepted economic theory. The Bureau disagrees and believes that fixed costs will not be directly passed through by providers. Canonical economic theory states that sellers will set a price along the demand curve based on the level of output where marginal cost equals marginal revenue. Since fixed costs do not impact demand, marginal cost, or marginal revenue, economic theory states that changes in these costs should not impact the pricing decisions of existing producers.
Although these fixed costs are not expected to pass through to consumers via changes in price by current providers of automobile financing that become larger participants, consumers may be adversely affected by increases in costs associated with the introduction of this larger-participant rule to the extent these cost increases cause current providers to decrease volume below the larger-participant threshold (or to exit), deter current providers from increasing volume, or deter entry by new providers in the future.
An entity that incurs ongoing costs in support of increasing compliance might try to recoup these costs by attempting to pass those costs directly through to consumers; for example, in the case of the indirect channel, this could occur through lowering fees or other forms of compensation paid to dealers and other entities. Whether and to what extent either change would occur depends on the relative elasticities of supply and demand in the automobile financing market. These elasticities can vary across products or services covered by the Final Rule and may be influenced by the presence of substitute products or services as well as the availability of information, which would influence the perceived availability of substitute products or services. For example, larger participants of the automobile financing market may be in competition with depository institutions or credit unions (or affiliates thereof) that are already subject to supervision by the Bureau and/or Federal prudential regulators with respect to Federal consumer financial law. To the extent the Final Rule will result in an increase in the costs faced by larger participants, that increase will be a competitive benefit to banks and credit unions with sufficient liquidity to expand their financing operations. Competition from banks and credit unions might reduce the ability of larger participants to pass through cost increases to consumers, dealers, or other entities as they may instead seek alternate sources of financing. Moreover, consumers might respond to such a cost increase by reducing the amounts they are willing to pay in other aspects of the automobile purchase transaction. Dealers could respond to decreased levels of financing revenues shared with them by larger participants by either attempting to increase revenues derived from other areas of the automobile purchase transaction, such as the stated price of the vehicle or costs of accessories, or bearing the loss of revenue.
In considering the Final Rule's potential price effect, it is important to take into account the fact that nonbank covered persons below the larger-participant threshold will not be subject to supervision. The costs of these nonbank covered persons will therefore be unaffected by the definition of larger participants in the Final Rule and so their pricing should also not be affected. To the extent that nonbank larger participants consider raising their prices in response to this rule, nonbank entities that are not larger participants, along with banks and credit unions that already compete in the market while bearing the cost of supervision, could potentially offer more attractive transaction terms relative to larger participants and thus deter larger participants from actually increasing prices. While a shift in transactions from larger participants toward nonbank
In addition to the responses of market participants anticipating supervision, the possible consequences of the Final Rule include the responses to and effects of individual examinations or other supervisory activities that the Bureau might conduct in the automobile financing market.
Supervisory activity could provide several types of benefits. For example, as a result of supervisory activity, the Bureau and an entity might uncover deficiencies in the entity's policies and procedures. The Bureau's examination manual calls for the Bureau generally to prepare a report of each examination, to assess the strength of the entity's compliance mechanisms, and to assess the risks the entity poses to consumers, among other things. The Bureau will share examination findings with the examined entity because one purpose of supervision is to inform the entity of problems detected by examiners. Thus, for example, an examination might find evidence of widespread noncompliance with Federal consumer financial law, or it might identify specific areas where an entity has inadvertently failed to comply. These examples are only illustrative of the kinds of information an examination might uncover.
Detecting and informing entities about such problems should be beneficial to consumers. When the Bureau notifies an entity about risks associated with an aspect of its activities, the entity is expected to adjust its practices to reduce those risks. That response may result in increased compliance with Federal consumer financial law, with benefits like those described above. Or it may avert a violation that would have occurred had Bureau supervision not detected the risk promptly. The Bureau may also inform entities about risks posed to consumers that fall short of violating the law. Action to reduce those risks would also be a benefit to consumers.
Given the obligations nonbank covered persons in the automobile financing market have under Federal consumer financial law and the existence of efforts to enforce such law, the results of supervision also may benefit entities under supervision by detecting compliance problems early. When an entity's noncompliance results in litigation or an enforcement action, the entity must face both the costs of defending its conduct and the penalties for noncompliance, including potential liability for damages to private plaintiffs. The entity must also adjust its systems to ensure future compliance. Changing practices that have been in place for long periods of time can be expected to be relatively difficult because the practices may be severe enough to represent a serious failing of an entity's systems. Supervision may detect flaws at a point when correcting them would be relatively inexpensive. Catching problems early can, in some situations, forestall costly litigation. To the extent early correction limits the amount of consumer harm caused by a violation, it can help limit the cost of redress. In short, supervision might benefit larger participants by, in the aggregate, reducing the need for other more expensive activities to achieve compliance.
The potential costs of actual supervisory activities arise in two categories. The first involves any costs to larger participants of increasing compliance in response to the Bureau's findings during supervisory activity and to supervisory actions. These costs are similar in nature to the possible compliance costs, described above, that larger participants in general might incur in anticipation of possible supervisory actions. This analysis will not repeat that discussion. The second category is the cost of supporting supervisory activity.
Supervisory activity may involve requests for information or records, on-site or off-site examinations, or some combination of these activities. For example, in an on-site examination, Bureau examiners generally contact the entity for an initial conference with management. That initial contact is often accompanied by a request for information or records. Based on the discussion with management and an initial review of the information received, examiners determine the scope of the on-site exam. While on-site, examiners spend some time in further conversation with management about the entity's policies, procedures, and processes. The examiners also review documents, records, and accounts to assess the entity's compliance and evaluate the entity's compliance management system. As with the Bureau's other examinations, examinations of nonbank larger participants of the automobile financing market could involve issuing confidential examination reports and compliance ratings. The Bureau's examination manual describes the supervision process and indicates what materials and information an entity could expect examiners to request and review, both before they arrive and during their time on-site.
The primary cost an entity will face in connection with an examination is the cost of employees' time to collect and provide the necessary information.
The cost of supporting supervisory activity may be calibrated using prior Bureau experience in supervision. The Bureau considers its auto financing examinations at depository institutions and credit unions as a reasonable proxy for the duration and labor intensity of potential nonbank larger participant examinations. This belief arises from the similar role these institutions play in the market for automobile financing,
The average duration of the on-site portion of Bureau bank auto financing examinations is approximately nine weeks.
Some industry commenters challenged this estimate, drawing on experiences by other companies in other industries to suggest that exam costs for larger participants would, in fact, range from $750,000 to $1,000,000.
A law firm that represents financial services entities indicated that one of its clients finances an average of $3,800 per transaction, an amount approximately 83 percent lower than the Bureau's estimate, and stated as a result that the cost of an examination relative to total revenue would be much higher than the Bureau's estimate. The Bureau acknowledges some entities may participate in certain segments of the market in a way that results in a lower amount financed; however, of the over 500 institutions in AutoCount that the Bureau considered as participants in the nonbank market in 2013, the amount cited by the commenter ($3,800) falls within the lowest percentile of amount financed. Even if this remarkably low amount financed were considered in evaluating relative costs, for an entity with the larger-participant minimum of 10,000 aggregate annual originations the costs would still be less than one-half of 1 percent of total revenue from the 10,000 aggregate annual originations according to the Bureau's estimates.
The Bureau declines to predict, at this point, precisely how many examinations in the automobile financing market it will undertake in a given year, as neither the Dodd-Frank Act nor the Final Rule specifies a particular level or frequency of examinations. Given the Bureau's finite supervisory resources, and the range of industries over which it has supervisory responsibility for consumer financial protection, when and how often a given larger participant will be supervised is uncertain. The frequency of examinations will depend on a number of factors, including the Bureau's understanding of the conduct of market participants and the specific risks they pose to consumers; the responses of larger participants to prior examinations; and the demands that other markets make on the Bureau's supervisory resources. These factors can be expected to change over time, and the Bureau's understanding of these factors may change as it gathers more information about the market through its supervision and by other means.
The larger-participant rule does not require nonbank entities to assess whether they are larger participants. However, the Bureau acknowledges that in some cases they might decide to incur costs in assessing whether they qualify as larger participants and potentially disputing their status.
Larger-participant status depends on a nonbank's aggregate annual originations as defined in the Final Rule. An estimate of this number should be readily extractible from company records, as market participants likely evaluate the components of aggregate annual originations as part of their regular business practices. In addition, information on originations can be derived from title records that market participants maintain and publicly record.
To the extent that some nonbank covered persons in the automobile financing market do not already know whether their aggregate annual originations exceed the threshold, such entities might, in response to the Final Rule, develop new systems to count their aggregate annual originations in accordance with the definition in the Final Rule. The data the Bureau currently has do not support a detailed estimate of how many nonbank entities will engage in such development or how much they might spend. Regardless, nonbank entities will be unlikely to spend significantly more on specialized systems to count aggregate annual originations than it would cost them to be supervised by the Bureau as larger participants. It bears emphasizing that even if expenditures on an accounting system successfully proved that a nonbank covered person in the automobile financing market was not a larger participant, it does not necessarily follow that this entity could not be supervised. The Bureau can supervise a nonbank entity whose conduct the Bureau determines, pursuant to section 1024(a)(1)(C), poses risks to consumers. Thus, a nonbank entity choosing to spend significant amounts on an accounting system directed toward the larger-participant test could not be sure it will not be subject to Bureau supervision notwithstanding those expenses. The Bureau therefore believes it is unlikely that any but a very few nonbank entities will undertake such expenditures.
Finally, in § 1001.2, the Bureau is defining the term “financial product or service” to include automobile leases that (1) meet the requirements of leases authorized under section 108 of CEBA, as implemented by 12 CFR part 23, and are thus permissible for national banks to offer or provide; and (2) are not currently defined as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act. As explained below, the Bureau believes that the benefits, costs, and impacts to consumers and covered persons of § 1001.2 will likely be small. First, § 1001.2 will not extensively alter the substantive obligations of covered persons. Second, § 1001.2 will not substantially expand the number of market participants brought under supervision as a result of the Final Rule, or for entities already subject to supervision, the scope of supervisory examinations. The Bureau lacks data about the range of, and costs of, compliance mechanisms used by banks or nonbank entities in the automobile financing market. In light of these data limitations, the Bureau's analysis generally provides a qualitative discussion of the benefits, costs, and impacts of § 1001.2.
Benefits of § 1001.2 will stem from enhanced consumer protections relating to automobile leases that will fall under the definition. As financial products or services under title X of the Dodd-Frank Act, such leases will become subject to the UDAAP prohibition under section 1031 of the Dodd-Frank Act. These leases are already subject to a similar prohibition against unfair or deceptive acts or practices (UDAP) in or affecting commerce under section 5 of the Federal Trade Commission Act (FTC Act).
Section 1001.2 also has the potential to expand supervisory activities in two distinct ways. First, § 1001.2, as incorporated into the final larger-participant rule, could bring certain nonbank entities under Bureau supervision by expanding the activities counted in determining whether participants of the automobile financing market qualify as larger participants and are thus subject to supervision under the Final Rule. To the extent that nonbank entities in the automobile financing market are brought under supervision as a result of § 1001.2, both consumers and covered persons will benefit. The nature of these benefits, including from both the possibility of supervision and actual individual supervisory activities, are discussed above.
Second, § 1001.2 could affect the scope of supervision for other nonbank entities and certain banks and credit unions and their affiliates.
With respect to banks and credit unions, the Bureau has supervisory authority over insured depository institutions and credit unions with total assets of more than $10 billion (and their affiliates) for compliance with Federal consumer financial laws, and the prudential regulators exercise primary supervisory authority over other insured depository institutions and credit unions with total assets of $10 billion or less for compliance with Federal consumer financial laws. As noted above, although § 1001.2 will not expand the scope of leasing activities of depository institutions and credit unions that are subject to supervision, for leasing covered under § 1001.2, it will expand the scope of that supervision to include compliance with section 1031 of the Dodd-Frank Act.
Although the Bureau has identified the above potential consumer benefits from the expanded supervision authority that could result from § 1001.2, the Bureau believes such benefits will be limited in extent. Most significantly, as discussed above, the Bureau believes that most automobile leases currently qualify as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act. Thus, the Bureau believes that few, if any, nonbank participants in the automobile financing market will be subject to the Bureau's supervision under the Final Rule as a result of § 1001.2.
Finally, under section 1031(b), the Bureau has authority to prescribe rules applicable to a covered person or service provider identifying as unlawful UDAAPs in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service. Thus, the Bureau could promulgate such rules in connection with transactions for the leases that would fall under § 1001.2. The Bureau would consider the benefits, costs, and impacts of any such rulemaking as part of its analysis under section 1022(b)(2) for that rulemaking. The Bureau notes that any such rulemaking would likely aim to provide consumers and covered persons with additional clarity in regard to identifying UDAAPs. It is not possible, however, to identify with any greater specificity here the potential benefits to consumers or covered persons from § 1001.2 as a result of an unspecified future rulemaking.
Section 1001.2 will impose compliance costs on covered persons by subjecting leasing activities that fall under § 1001.2 to the UDAAP prohibition in section 1031 of the Dodd-Frank Act. Those entities will incur some cost of compliance because, as laid out above, the prohibitions under section 1031 of the Dodd-Frank Act and section 5 of the FTC Act are not co-extensive: in particular, section 5 of the FTC Act does not include a prohibition on abusive acts or practices similar to that under section 1031 of the Dodd-Frank Act. However, given the fact that, as interpreted by the Bureau, section 1002(15)(A)(ii) covers most automobile leases and the substantial overlap of the prohibited conduct under section 1031 of the Dodd-Frank Act and section 5 of the FTC Act, in the Bureau's judgment, the compliance costs to covered persons of this new prohibition will be limited in extent.
Regarding supervision, § 1001.2, as incorporated into the final larger-participant rule, could also bring certain nonbank entities under Bureau supervision and will affect the scope of supervision for other nonbank entities, banks, and credit unions. With respect to nonbanks, § 1001.2 will, as discussed above, expand the activities counted in determining whether participants of the automobile financing market qualify as larger participants and are thus subject to supervision under the Final Rule. To the extent that larger participants in the automobile financing market are brought under supervision as a result of § 1001.2, such entities will incur costs. The nature of these costs, including from the possibility of supervision as well as from actual individual supervisory activities, are discussed above. For participants of the automobile financing market that would be subject to supervision under the larger-participant rule even absent § 1001.2, § 1001.2 will impose costs by expanding the leasing activities of such entities subject to supervision for compliance with section 1031 of the Dodd-Frank Act. With respect to banks and credit unions, by expanding the leasing activities subject to the section 1031 UDAAP prohibition, as discussed above, § 1001.2 will correspondingly expand the activities subject to supervision by either the Bureau or the prudential regulators, as applicable, for compliance with that prohibition.
For both banks and nonbanks, the Bureau believes that the increased costs of supervision identified above will be small. As discussed above, the Bureau believes that most auto leases currently qualify as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act, and, as discussed above, the Bureau believes that few, if any, nonbank participants in the automobile financing market will be brought under Bureau supervision under the Final Rule as a result of § 1001.2.
Finally, under section 1031(b) of the Dodd-Frank Act, the Bureau has authority to prescribe rules applicable to a covered person or service provider identifying as unlawful UDAAPs in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service. Thus, under § 1001.2, the Bureau may promulgate such rules in connection with transactions for the leases that fall under § 1001.2. Such a rule may impose costs on covered persons or service providers. It is not possible to identify with any greater specificity here the potential costs to covered persons or service providers of any such hypothetical future rulemaking. The Bureau notes, however, that it would consider the benefits, costs, and impacts of any such rulemaking as part of its analysis under section 1022(b)(2) for that rulemaking.
The Bureau considered different thresholds for larger-participant status in the market for automobile financing. One alternative the Bureau considered is a larger threshold of, for example, 50,000 aggregate annual originations. Under such an alternative, the benefits of supervision to both consumers and covered persons would likely be substantially reduced because some firms impacting a large portion of consumers in important market segments, such as captive, subprime, and BHPH lending, would be omitted. On the other hand, the overall potential costs across all nonbank covered persons would be reduced if fewer firms were defined as larger participants and thus fewer were subject to the Bureau's supervision authority on that basis. Similarly, the Bureau also considered lower thresholds, such as 5,000 aggregate annual originations, but believes these would only marginally increase the proportion of market activity that the Bureau could supervise while potentially exposing a greater number of nonbank covered persons to the costs listed above. However, the total direct costs for actual supervisory activity might not change substantially because the Bureau conducts exams based on risk and would not necessarily examine more or fewer entities if the rule's coverage were broader or narrower.
The Bureau also considered various other criteria for assessing larger-participant status, including dollar volume of originations and total unpaid principal balances. Calculating either of these metrics might be more involved than calculating the number of originations for a given nonbank entity. If so, then a given entity might face greater costs for evaluating or disputing whether it qualified as a larger participant should the occasion to do so arise. Additionally, as some nonbank entities might, for example, specialize in sectors featuring higher average loan amounts or different prepayment and default rates than others, using aggregate annual originations more directly captures the number of consumers impacted by the Final Rule. For each criterion, the Bureau expects that it could choose a suitable threshold for which the set of larger participants, among those entities participating in the market today, would be similar to those expected to qualify under the Final Rule. Consequently, the costs, benefits, and impacts of this Final Rule should not depend on which criterion the Bureau uses.
No depository institutions or credit unions of any size will become larger participants in the market for automobile financing under the Final Rule. Further, as explained above, the Final Rule's definition of certain leasing activity as a financial product or service will not in itself have any significant effect on depository institutions and credit unions with $10 billion or less in total assets. Nevertheless, the Final Rule might, as discussed above, have some impact on depository institutions or credit unions that provide financing for automobile transactions. The Final Rule might therefore alter market dynamics in a market in which some depository institutions and credit unions with less than $10 billion in assets may be active. For example, if nonbanks' price of credit for loan acquisitions or leases were to increase, or similarly were the compensation for selling those same products to decrease due to increased costs related to supervision, then depository institutions or credit unions of any size might benefit by the relative change in competitors' costs.
Because the rule applies uniformly to automobile financing transactions of both rural and non-rural consumers, the rule should not have a unique impact on rural consumers. The Bureau is not aware of any evidence suggesting that rural consumers have been disproportionately harmed by nonbank entities' failure to comply with Federal consumer financial law. The Bureau requested comments that provide information related to how automobile financing transactions affect rural consumers, but did not receive any.
The Regulatory Flexibility Act (RFA),
The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) of any proposed rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.
The undersigned certified that the Proposed Rule, if adopted, would not have a significant economic impact on a substantial number of small entities and that an IRFA was therefore not required. The Final Rule adopts the Proposed Rule with some modifications that do not lead to a different conclusion. Therefore, a final regulatory flexibility analysis is not required.
The Final Rule defines a class of nonbank covered persons as larger participants of the automobile financing market and thereby authorizes the Bureau to undertake supervisory activities with respect to those nonbank covered persons. The Final Rule also defines the term “financial product[s] or service[s]” to include automobile leases that (1) meet the requirements of leases authorized under section 108 of CEBA, as implemented by 12 CFR part 23, and are thus permissible for national banks to offer or provide; and (2) are not currently defined as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act. The Final Rule will not affect a substantial number of small businesses.
Regarding insured depositories and credit unions, these entities are small businesses only if their assets are below $550 million.
Regarding nonbank entities, the Final Rule adopts a threshold for larger-participant status of at least 10,000 aggregate annual originations.
Considering the limited public information available for several of the smallest potential larger participants, the Bureau requested comment on the impact of the Proposed Rule on small nonbank entities and solicited data that may be relevant to this analysis. A law firm that represents financial services entities stated that one of its clients, which the law firm did not name, had approximately $30 million in total receipts during fiscal year 2014, while generating sufficient origination volume to constitute a larger participant under the Proposed Rule. The Bureau acknowledges that it is possible that a few firms that qualify as a small business could also meet the threshold as a larger participant due to small loan amounts, short term lengths, or other factors. However, the Bureau's analysis indicates that this will not be the case for a substantial number of small entities. In order to qualify as a small business and a larger participant according to the Bureau's estimates, an
Section 1001.2(a) will have little impact on small nonbank entities engaged in automobile leasing. As mentioned above, the vast majority of automobile leases likely already qualify as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act, and so the change in definition is unlikely to affect the larger-participant status of any small business. With respect to costs related to compliance, under § 1001.2 small nonbanks will have to comply with the UDAAP prohibition under section 1031 of the Dodd-Frank Act when providing automobile leases covered under § 1001.2. However, as with small banks, small nonbanks that provide automobile leases must already comply with similar UDAP prohibitions under section 5 of the FTC Act as well as the applicable enumerated consumer laws, such as the CLA. Additionally, as explained above, there are likely to be few, if any, small nonbank businesses in the automobile financing market that will be subject to supervision irrespective of § 1001.2. To the extent that any small nonbanks are larger participants under the Final Rule, the Bureau believes that § 1001.2 will expand the scope of leasing activities of such entities subject to supervision for compliance with section 1031. The economic impact of this expansion in scope will not be significant. Notably, even absent § 1001.2, all leasing activities of such entities would be subject to supervision by the Bureau for compliance with the enumerated consumer laws, including the CLA.
Additionally, if a larger participant qualifies as a small business under the $38.5 million SBA size standard, the Final Rule will not result in a “significant impact” on the entity. The Final Rule will not itself impose any business conduct obligations beyond those described above regarding the automobile leases defined under the Final Rule as financial products or services. Furthermore, the Bureau's supervisory activity will have very little economic impact on a supervised entity. When and how often the Bureau will in fact engage in supervisory activity, such as an examination, with respect to a larger participant (and, if so, the extent of such activity) will depend on a number of considerations, including the Bureau's allocation of resources and the application of the statutory factors set forth in section 1024(b)(2) of the Dodd-Frank Act. Given the Bureau's finite supervisory resources, and the range of industries over which it has supervisory responsibility for consumer financial protection, when and how often a given a larger participant will be supervised is uncertain. Moreover, if supervisory activity occurs, the costs that will result from such activity are expected to be minimal in relation to the overall activities of a larger participant.
Finally, section 1024(e) of the Dodd-Frank Act authorizes the Bureau to supervise service providers to nonbank covered persons encompassed by section 1024(a)(1), which includes larger participants. Because the Final Rule does not specifically address service providers, effects on service providers need not be discussed for purposes of this RFA analysis. Even were such effects relevant, the Bureau believes that it would be very unlikely that any supervisory activities with respect to the service providers to the potential larger participants of the market for automobile financing would result in a significant economic impact on a substantial number of small entities.
Accordingly, the undersigned certifies that the Final Rule will not have a significant economic impact on a substantial number of small entities.
The Bureau has determined that this Final Rule does not impose any new recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would constitute collections of information requiring approval under the Paperwork Reduction Act, 44 U.S.C. 3501,
Consumer protection, Credit.
For the reasons set forth in the preamble, the Bureau adds 12 CFR part 1001 and amends 12 CFR part 1090, to read as follows:
12 U.S.C. 5481(15)(A)(xi); and 12 U.S.C. 5512(b)(1).
Under 12 U.S.C. 5481(15)(A)(xi), the Bureau is authorized to define certain financial products or services for purposes of title X of the Dodd-Frank Act, Public Law 111-203, 124 Stat. 1376 (2010) (Title X) in addition to those defined in 12 U.S.C. 5481(15)(A)(i)-(x). The purpose of this part is to implement that authority.
Except as otherwise provided in Title X, in addition to the definitions set forth in 12 U.S.C. 5481(15)(A)(i)-(x), the term “financial product or service” means, for purposes of Title X:
(a) Extending or brokering leases of an automobile, as automobile is defined by 12 CFR 1090.108(a), where the lease:
(1) Qualifies as a full-payout lease and a net lease, as provided by 12 CFR 23.3(a), and has an initial term of not less than 90 days, as provided by 12 CFR 23.11; and
(2) Is not a financial product or service under 12 U.S.C. 5481(15)(A)(ii).
12 U.S.C. 5514(a)(1)(B); 12 U.S.C. 5514(a)(2); 12 U.S.C. 5514(b)(7)(A); and 12 U.S.C. 5512(b)(1).
(1) Any person that engages in offering or providing a consumer financial product or service; and
(2) Any affiliate of a person that engages in offering or providing a consumer financial product or service if such affiliate acts as a service provider to such person.
(a) * * *
(iii) * * *
(D) The annual receipts of a formerly affiliated company are not included in the annual receipts of a nonbank covered person for purposes of this section, if the affiliation ceased before the applicable period of measurement as set forth in paragraph (ii) of this definition. The annual receipts of a nonbank covered person and its formerly affiliated company are aggregated for the entire period of measurement if the affiliation ceased during the applicable period of measurement as set forth in paragraph (ii) of this definition.
(a) * * *
(iii) * * *
(D) The annual receipts of a formerly affiliated company are not included in the annual receipts of a nonbank covered person for purposes of this section if the affiliation ceased before the applicable period of measurement as set forth in paragraph (ii) of this definition. The annual receipts of a nonbank covered person and its formerly affiliated company are aggregated for the entire period of measurement if the affiliation ceased during the applicable period of measurement as set forth in paragraph (ii) of this definition.
(a)
(i)
(A) Annual originations means the sum of the following transactions for the preceding calendar year:
(
(
(
(
(B) The term annual originations does not include:
(
(
(ii)
(b)
(c)
(1) Persons excluded from the Bureau's authority by 12 U.S.C. 5519; and
(2) Persons who meet the definition in 12 U.S.C. 5519(f)(2); are identified in 12 U.S.C. 5519(b)(2); and are predominantly engaged in the sale and servicing of motor vehicles (as that term is defined in 12 U.S.C. 5519(f)(1)), the leasing and servicing of motor vehicles, or both.
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |