| Page Range | 45051-45394 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 45250 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services | |
| 80 FR 45393 - National Korean War Veterans Armistice Day, 2015 | |
| 80 FR 45389 - Anniversary of the Americans with Disabilities Act, 2015 | |
| 80 FR 45227 - Promise Zones Initiative: Proposed Third Round Selection Process Solicitation of Comment | |
| 80 FR 45184 - Implementation of Determinations Under Section 129 of the Uruguay Round Agreements Act: Aluminum Extrusions From the People's Republic of China; Certain Circular Welded Carbon Quality Steel Line Pipe From the People's Republic of China; Certain Kitchen Appliance Shelving and Racks From the People's Republic of China; Certain Magnesia Carbon Bricks From the People's Republic of China; Certain New Pneumatic Off-the-Road Tires From the People's Republic of China; Certain Oil Country Tubular Goods From the People's Republic of China; Certain Potassium Phosphate Salts from the People's Republic of China; Certain Steel Grating From the People's Republic of China; Certain Tow Behind Lawn Groomers and Certain Parts Thereof From the People's Republic of China; Circular Welded Austenitic Stainless Pressure Pipe From the People's Republic of China; Citric Acid and Certain Citrate Salts From the People's Republic of China; Lightweight Thermal Paper From the People's Republic of China; Narrow Woven Ribbons With Woven Selvedge From the People's Republic of China; Prestressed Concrete Steel Wire Strand From the People's Republic of China; Raw Flexible Magnets From the People's Republic of China; Sodium Nitrite From the People's Republic of China | |
| 80 FR 45183 - Certain Cut-to-Length Carbon Quality Steel Plate from the Republic of Korea: Partial Rescission of Countervailing Duty Administrative Review; 2014 | |
| 80 FR 45230 - Final Decision on Remand Against Federal Acknowledgment of the Duwamish Tribal Organization | |
| 80 FR 45182 - Polyethylene Terephthalate Film, Sheet, and Strip From Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2013-2014 | |
| 80 FR 45192 - Multilayered Wood Flooring From the People's Republic of China: Initiation of Antidumping Duty New Shipper Reviews; 2014-2015 | |
| 80 FR 45051 - Fees for Testing, Evaluation, and Approval of Mining Products | |
| 80 FR 45267 - Notification of United States-Chile Environment Affairs Council and Joint Commission on Environmental Cooperation Meetings | |
| 80 FR 45219 - Pesticide Experimental Use Permit; Receipt of Application; Comment Request | |
| 80 FR 45218 - Pesticide Cumulative Risk Assessment: Framework for Screening Analysis; Notice of Availability and Request for Comment | |
| 80 FR 45079 - Ethanesulfonic Acid, 2-hydroxy and the Corresponding Ammonium, Sodium, Potassium, Calcium, Magnesium, and Zinc Salts; Exemption from the Requirement of a Tolerance | |
| 80 FR 45220 - Announcement of the Board of Directors for the National Environmental Education Foundation | |
| 80 FR 45085 - National Oil and Hazardous Substance Pollution Contingency Plan National Priorities List: Deletion of the Crown Vantage Landfill Superfund Site | |
| 80 FR 45225 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 80 FR 45221 - Notice of Agreements Filed | |
| 80 FR 45222 - National Vaccine Injury Compensation Program; List of Petitions Received | |
| 80 FR 45086 - Endangered and Threatened Wildlife and Plants; Listing the Honduran Emerald Hummingbird (Amazilia luciae) | |
| 80 FR 45197 - Endangered and Threatened Species; Take of Anadromous Fish | |
| 80 FR 45222 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 80 FR 45222 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 45270 - Deepwater Port License Application: Delfin LNG LLC, Delfin LNG Deepwater Port | |
| 80 FR 45231 - Draft Environmental Impact Statement and Visitor Use Management Plan for Delaware Water Gap National Recreation Area, Pennsylvania and New Jersey | |
| 80 FR 45231 - Notice of Termination of the Environmental Impact Statement for the General Management Plan for Martin Van Buren National Historic Site, New York | |
| 80 FR 45207 - Submission for OMB Review; Comment Request | |
| 80 FR 45206 - Submission for OMB Review; Comment Request | |
| 80 FR 45274 - Proposed Agency Information Collection Activities; Comment Request | |
| 80 FR 45226 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 45100 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Trimester Total Allowable Catch Area Closure for the Common Pool Fishery | |
| 80 FR 45205 - Agency Information Collection Activities Under OMB Review | |
| 80 FR 45098 - Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries | |
| 80 FR 45248 - Arts Advisory Panel Meetings | |
| 80 FR 45226 - 1670-0023 Technical Assistance Request and Evaluation; Correction | |
| 80 FR 45227 - Establishment of the U.S. Immigration and Customs Enforcement Advisory Committee on Family Residential Centers and Solicitation of Nominations for Membership | |
| 80 FR 45233 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Members of SGIP 2.0, Inc. | |
| 80 FR 45234 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Open Mobile Alliance | |
| 80 FR 45233 - Certain Formatted Magnetic Data Storage Tapes and Cartridges Containing Same; Commission Determination Not To Review an Initial Determination Terminating the Investigation Based on Settlement | |
| 80 FR 45235 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Allseen Alliance, Inc. | |
| 80 FR 45234 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Cooperative Research Group on Mechanical Stratigraphy and Natural Deformation in Eagle Ford Formation and Equivalent Boquillas Formation, South-Central and West Texas (Eagle Ford II) | |
| 80 FR 45206 - Notice of LG Electronics Tianjin Appliance Co., Ltd. and LG Electronics USA Inc., Provisional Acceptance of a Settlement Agreement and Order, CPSC Docket No. 15-C0005; Correction | |
| 80 FR 45204 - Agency Information Collection Activities Under OMB Review | |
| 80 FR 45213 - Equitrans, L.P.; Notice of Application | |
| 80 FR 45214 - Combined Notice of Filings | |
| 80 FR 45216 - Combined Notice of Filings #1 | |
| 80 FR 45215 - Combined Notice of Filings #2 | |
| 80 FR 45209 - Combined Notice of Filings #1 | |
| 80 FR 45249 - Agency Information Collection Activities: Comment Request | |
| 80 FR 45181 - Siskiyou County Resource Advisory Committee | |
| 80 FR 45265 - Agency Information Collection Activities: Proposed Request and Comment Request | |
| 80 FR 45065 - Records and Information | |
| 80 FR 45264 - New Jersey Disaster #NJ-00011 | |
| 80 FR 45264 - Louisiana Disaster Number LA-00009 | |
| 80 FR 45230 - Indian Gaming | |
| 80 FR 45057 - Imposition of Special Measure Against FBME Bank Ltd., Formerly Known as the Federal Bank of the Middle East Ltd., as a Financial Institution of Primary Money Laundering Concern | |
| 80 FR 45203 - Endangered Species; File No. 18238 | |
| 80 FR 45204 - Endangered Species; File No. 17183 | |
| 80 FR 45196 - Marine Mammals; File No. 19091 | |
| 80 FR 45221 - Notice to All Interested Parties of the Termination of the Receivership of 10089, Security Bank of North Fulton, Alpharetta, Georgia | |
| 80 FR 45237 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Ventilation Plans, Tests, and Examinations in Underground Coal Mines | |
| 80 FR 45073 - Fluxapyroxad; Pesticide Tolerances | |
| 80 FR 45259 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Price Check Parameters | |
| 80 FR 45250 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify NASDAQ Rule 7014(g) Concerning Rebates Available Under the NBBO Program | |
| 80 FR 45256 - Self-Regulatory Organizations: Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 612 Regarding the Reset on Quote Functionality Included in the MIAX Aggregate Risk Manager | |
| 80 FR 45067 - Air Quality Designations for the 2006 24-hour Fine Particle National Ambient Air Quality Standards (2006 24-hour PM2.5 | |
| 80 FR 45236 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Mine Mapping and Records of Opening, Closing, and Reopening of Mines | |
| 80 FR 45217 - Clean Water Act Section 303(d): Availability of List Decisions | |
| 80 FR 45267 - Projects Approved for Consumptive Uses of Water | |
| 80 FR 45276 - Publication of Ukraine General Licenses 5, 6, 7, 8, and 9 | |
| 80 FR 45131 - Proposed Finding That Greenhouse Gas Emissions From Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and Welfare and Advance Notice of Proposed Rulemaking; Notice of Updates to Public Hearing | |
| 80 FR 45270 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel BLUEWATER; Invitation for Public Comments | |
| 80 FR 45051 - Electronic Applications for Licenses, Permits, and Safety Approvals | |
| 80 FR 45115 - Rulemaking Petition: Contributions From Corporations and Other Organizations to Political Committees | |
| 80 FR 45116 - Rulemaking Petition: Independent Spending by Corporations, Labor Organizations, Foreign Nationals, and Certain Political Committees (Citizens United) | |
| 80 FR 45154 - Endangered and Threatened Wildlife and Plants; Revision of the Section 4(d) Rule for the African Elephant (Loxodonta africana) | |
| 80 FR 45232 - Certain Communications or Computing Devices and Components Thereof Commission Determination Not To Review an Initial Determination Terminating the Investigation in Its Entirety Based Upon Settlement; Termination of Investigation; and Vacatur of Order No. 34 | |
| 80 FR 45210 - Columbia Gas Transmission, LLC; Notice of Intent To Prepare an Environmental Assessment for the Planned WB Xpress Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Meeting | |
| 80 FR 45214 - Commission Information Collection Activities (FERC-732); Comment Request; Extension | |
| 80 FR 45209 - Sweetwater Authority; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene | |
| 80 FR 45208 - Dan Sullivan; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene | |
| 80 FR 45249 - Information Collection: NRC Form 7, Application for NRC Export/Import License, Amendment, Renewal or Consent Request(s) | |
| 80 FR 45226 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed Meeting | |
| 80 FR 45248 - Extension of Comment Period; Mass Digitization Pilot Program; Request for Comments | |
| 80 FR 45194 - Genome in a Bottle Consortium-Progress and Planning Workshop | |
| 80 FR 45193 - Judges Panel of the Malcolm Baldrige National Quality Award | |
| 80 FR 45238 - Newport News Shipbuilding; Notice of Application for a Permanent Variance and Request for Comments | |
| 80 FR 45195 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys in the Atlantic Ocean | |
| 80 FR 45224 - Meeting of the National Advisory Committee on Children and Disasters | |
| 80 FR 45181 - Agenda and Notice of Public Meeting of the West Virginia Advisory Committee | |
| 80 FR 45278 - Submission for OMB Review; Comment Request | |
| 80 FR 45254 - Joint Industry Plan; Order Approving Amendment No. 35 to the Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privileges Basis Submitted by the BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., International Securities Exchange LLC, NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, Nasdaq Stock Market LLC, National Stock Exchange, Inc., New York Stock Exchange LLC, NYSE MKT LLC, and NYSE Arca, Inc. | |
| 80 FR 45252 - Consolidated Tape Association; Order Approving the Twenty Second Substantive Amendment to the Second Restatement of the CTA Plan and Sixteenth Substantive Amendment to the Restated CQ Plan | |
| 80 FR 45101 - Freedom of Information Act Regulations | |
| 80 FR 45235 - Agency Information Collection Activities: Proposed eCollection eComments Requested; Firearms and Explosives Services Division Customer Service Survey | |
| 80 FR 45086 - Federal Travel Regulation; Temporary Duty (TDY) Travel Allowances | |
| 80 FR 45339 - Revision to the Guideline on Air Quality Models: Enhancements to the AERMOD Dispersion Modeling System and Incorporation of Approaches To Address Ozone and Fine Particulate Matter | |
| 80 FR 45116 - Clarification of Employer's Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness | |
| 80 FR 45132 - National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table | |
| 80 FR 45279 - National Emissions Standards for Hazardous Air Pollutants for Mineral Wool Production and Wool Fiberglass Manufacturing |
Forest Service
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Health Resources and Services Administration
National Institutes of Health
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Indian Affairs Bureau
National Park Service
Antitrust Division
Mine Safety and Health Administration
Occupational Safety and Health Administration
Copyright Office, Library of Congress
National Endowment for the Arts
Federal Aviation Administration
Maritime Administration
Comptroller of the Currency
Financial Crimes Enforcement Network
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Direct final rule; confirmation of effective date and response to public comments.
This action confirms the effective date of the direct final rule, request for comments, published on May 27, 2015, and dispositions the one public comment received. The rule amends commercial space transportation regulations to allow an applicant for a license, experimental permit, or safety approval the option of submitting an application electronically.
The effective date of July 27, 2015, for the direct final rule published on May 27, 2015 (80 FR 30147), is confirmed.
For information on where to obtain copies of rulemaking documents and other information related to this action, see “How To Obtain Additional Information” in the
For technical questions concerning this action, contact Shirley McBride, Office of Commercial Space Transportation, Regulations and Analysis Division, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-7470; email
For legal questions concerning this action, contact Alex Zektser, Office of Chief Counsel, International Law, Legislation, and Regulations Division, AGC-250, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3073; email
Before publication of the direct final rule on May 27, 2015 (
The comment period on the direct final rule closed on June 26, 2015. Only one commenter submitted a comment document.
The FAA only received one comment on June 3, 2015, from an individual commenter supporting the final rule. The commenter also recommended that in addition to this rulemaking, the FAA also institute a practice of providing an electronic response acknowledging receipt of the application.
Because there were no adverse comments submitted on this rulemaking and the only comment submitted on the rule supported the agency action, the FAA has determined that no further rulemaking action is necessary. The direct final rule is effective on July 27, 2015. The FAA will consider the additional suggestion submitted by the individual commenter separately from this rulemaking action, as the suggestion was that the FAA institute a practice in addition to the one that is the subject of this rulemaking.
Mine Safety and Health Administration, Labor.
Final rule.
The Mine Safety and Health Administration (MSHA) is revising the Agency's regulation for administering fees for testing, evaluation, and approval of products manufactured for use in mines. This final rule revises the fees charged for these services. The final rule also includes a fee for approval services that MSHA provides to applicants or approval holders under the existing rule, but for which the Agency currently does not charge a fee, and for other activities required to support the approval process. This change will allow MSHA to charge fees that reflect the full cost of the approval services provided.
The final rule is effective on October 1, 2015.
Sheila A. McConnell, Acting Director, Office of Standards, Regulations, and Variances, MSHA, at
As part of the U.S. Department of Labor, under the Federal Mine Safety and Health Act of 1977 (Mine Act), as amended, MSHA's mission is to prevent death, disease, and injury from mining and promote safe and healthy workplaces for the Nation's miners. Since 1911, MSHA and its predecessor agencies have evaluated and tested products for use in mines to prevent fires, explosions, and accidents.
Under the final rule, MSHA revises the hourly rate for the fees charged to applicants and approval holders to include all costs associated with the approval program. MSHA calculates the hourly rate by dividing the total approval program costs (direct and indirect) during a prior fiscal year, including internal quality control activities and post-approval product audits, by the number of total direct hours spent on approval program activities for the same period. These changes in how MSHA calculates fees increase the hourly rate to $121.
This rule is not economically significant. The final rule will produce zero costs and zero benefits because the fees MSHA collects are transfer payments. MSHA discusses transfer payments in section IV of this preamble.
Under various authorities,
Section 205 of the Chief Financial Officers Act of 1990 (CFO Act) and Office of Management and Budget (OMB) Circular No. A-25 Revised, User Charges (7/8/1993), require agencies to review the user charges in their programs to ensure that the charges reflect the full costs of the services provided. Traditionally, MSHA reviews its user charges annually; however, MSHA last revised its hourly rate under part 5 to $97.00 on December 29, 2010 (75 FR 82074).
Under 30 U.S.C. 966, MSHA may retain up to $2,499,000 of fees collected for the approval and certification of equipment, materials, and explosives for use in mines.
MSHA proposed revisions to its existing regulations on fees for testing, evaluation and approval of mining products on October 9, 2014 (79 FR 61035). This final rule addresses the comments received in response to the proposed rule.
In this final rule, the term “approval” includes approvals, certifications, acceptances, and evaluations MSHA issues under Title 30, Chapter I, Subchapter B,
Final § 5.10, like the proposal, provides the purpose and scope of the rule. It also establishes a system under which MSHA charges a fee for approval program services for products manufactured for use in mines. Like the proposal, the final rule identifies the activities in the approval program.
The approval program represents all the activities necessary for MSHA to assure that products approved for use in mines are designed, manufactured, and maintained in accordance with approval requirements. The approval program includes: (1) Application processing; (2) testing and evaluation; (3) approval decisions; (4) post-approval activities; and (5) the termination of approvals.
1. Application processing begins when an applicant files a new application for approval. MSHA administratively reviews each new application and, on determining that the application is complete, prepares a maximum fee estimate and sends it to the applicant. The applicant must agree to pay the estimated fee before MSHA will begin testing, as needed, and evaluating the product.
2. Testing and evaluation includes technical evaluation, analysis, test set up, testing, test tear down, any consultation on the application, and internal quality control activities. MSHA uses internal quality control programs to monitor and improve its testing and evaluation processes (
3. Following testing and evaluating a product, MSHA makes an approval decision and notifies the applicant by letter of the Agency's findings and decision. If the product is approved, the letter identifies the approved specifications for the design, construction, maintenance, and conditions of use for the product. If the product is not approved or if the application is cancelled, the letter identifies the reasons for the decision. All approval documentation is kept on file at MSHA.
4. MSHA also conducts the following post-approval activities:
• Changing approvals (
• Conducting post-approval product audits and field audits.
• Responding to complaints.
• Investigating product failures.
• Monitoring regional or nationwide product recall or retrofit programs.
• Conducting administrative actions, such as transfer of approval numbers.
5. Termination of an approval may occur when an approval holder voluntarily requests termination of an approval, when MSHA revokes an approval because of compliance or safety issues, or when MSHA issues regulations that make an approval obsolete.
MSHA did not receive any comments on § 5.10 and it is finalized as proposed.
Final § 5.30, like the proposal, addresses the hourly rate calculation, the activities for which MSHA charges a fee, activities that are not subject to a fee, the fee estimate, and any changes to the fee estimate. Section 5.30 is finalized as proposed.
Under final § 5.30(a), like the proposal, MSHA will continue to charge a fee based on an hourly rate for approval program activities and other associated costs, such as travel expenses and part 15 fees. Part 15 fees for services provided to MSHA by other organizations will be set by those organizations.
Final paragraph § 5.30(b), like the proposal, is derived from existing § 5.30(a) and identifies the costs MSHA incurs in administering the approval program. Under the final rule, like the proposal, the hourly rate is calculated to reflect the costs of the overall approval program. Under the existing rule, the hourly rate includes only the application processing; testing and evaluation; and approval decision costs.
Also under the existing rule, some post-approval activities, such as changes to approvals, are included in the approval program costs used in calculating the hourly rate. Under the existing rule, however, MSHA had excluded the costs of monitoring to assure approved products continue to be manufactured and maintained as approved because MSHA considered these activities to be enforcement activities rather than approval program activities (52 FR 17507-17508). As stated previously, OMB Circular No. A-25 requires that agencies recover the full costs of services rendered. To more accurately account for costs, MSHA proposed to include the direct and indirect cost of these post-approval product activities in the hourly rate calculation because these activities are an important part of the approval program. These activities assure MSHA, operators, and miners that products continue to be designed, manufactured, and maintained in accordance with the approval requirements.
Under the final rule, like the proposal, MSHA will continue to determine an hourly rate to cover direct and indirect costs. MSHA bases the hourly rate on all approval program costs the Agency incurred during a prior fiscal year. The hourly rate is the total approval program costs (direct and indirect) divided by the number of direct hours spent on all approval program activities. Final paragraph § 5.30(b) lists the approval program costs that MSHA will include in the hourly rate calculation.
Final paragraph § 5.30(b)(1), like the proposal, defines direct costs as consisting of compensation and benefit costs for all hours worked in support of the approval program and is derived, in part, from existing § 5.10(b)(1) and (b)(2). These costs include approval program activities, such as testing and evaluation, including internal quality control; and post-approval activities, including post-approval product audits.
Final paragraph § 5.30(b)(2), like the proposal, defines indirect costs and is derived, in part, from existing § 5.10(b)(3) and (b)(4). Indirect costs include the approval program's proportionate share of the hours worked to manage and operate the Approval and Certification Center (A&CC). These costs are associated with activities required for information technology (IT) and A&CC management and administration. Indirect costs also include the approval program's proportionate share of depreciation for buildings, their improvements, and equipment; a proportionate share of utilities, equipment rental, facility and equipment maintenance, security, supplies and materials, and other costs necessary for the operation and maintenance of the A&CC; and a proportionate share of Department of Labor-provided services that would include financial systems, and audit and IT support.
A commenter asked what MSHA considers to be indirect costs. Section 5.30(b)(2) in this final rule and in the preamble to the proposed rule (79 FR 61037) defines indirect costs. MSHA's definition of indirect costs is consistent with OMB Circular No. A-25. MSHA determined that the definition in the final rule adequately addresses the commenter's question.
Final § 5.30(c), like the proposal, is derived from existing § 5.10(b) and includes activities for which MSHA charges a fee. These activities continue to include application processing (
A commenter objected to MSHA charging for internal quality control. Under the final rule, like the proposal, MSHA will charge applicants and approval holders a fee for internal quality control activities. These activities are an integral part of the approval program. MSHA uses internal quality control activities to monitor and improve the Agency's testing and evaluation processes and for quality control. These internal quality control activities assure applicants and approval holders that consistent, accurate, and up-to-date scientific methods are used when MSHA is evaluating and testing products. For example, MSHA has standard procedures to repair, maintain, and calibrate laboratory equipment in accordance with the manufacturers' specifications. Each applicant and approval holder receives a benefit from these internal quality control activities.
MSHA will distribute the hours worked and costs of internal quality control activities, based on the hours worked on each application. Hours worked on specific internal quality control activities, however, are not charged to a particular application. Instead, MSHA will charge each applicant a prorated share. MSHA will calculate the prior year's internal quality control hours as a percentage of total hours, multiply that percentage by the number of direct hours worked on a particular application, and add the result to the number of direct hours worked on that application.
A commenter objected to MSHA charging a fee for post-approval product audits stating that MSHA could charge for exaggerated paperwork evaluations and could audit the same company as often as they want. Under existing 30 CFR 7.8(b), 14.10(b), and 15.10(b), MSHA audits a specific product no more than once a year, except for cause, and the approval-holder may attend any testing MSHA conducts on their product. Post-approval product audits are part of the approval program (post-approval activities) because they are necessary to assure that products have been manufactured as approved.
Under the final rule, like the proposal, MSHA will charge approval holders for the Agency's post-approval product audits, but will not charge for investigations or audits based on complaints about the products.
Internal quality control activities and post-approval product audits assure MSHA, operators, and miners that products are and continue to be designed, manufactured, and maintained in accordance with the approval requirements to ensure the health and safety of miners. For these reasons, MSHA will charge a fee for these activities.
Existing § 5.10(c)(1), (c)(2), (c)(3), and (c)(4) are revised and redesignated, in part, as final § 5.30(d). Final § 5.30(d), like the proposal, addresses the activities for which MSHA will not charge a fee. These include technical assistance not related to approval applications; technical programs, including development of new technology programs; participation in research conducted by other government agencies or private organizations; and regulatory review activities, including participation in the development of health and safety standards, regulations, and legislation.
MSHA did not receive any comments on proposed § 5.30(d) and it is finalized as proposed.
Existing paragraphs § 5.30(b), (c), and (d) are redesignated as final paragraphs § 5.30(e), (f), and (g) under § 5.30 Fee Calculation.
Final paragraph § 5.30(e), like the proposal, is revised by renumbering existing paragraphs § 5.30(b)(1) and (b)(2) as § 5.30(e)(1) and (e)(2), respectively. Final paragraphs § 5.30(f) and (g) remain unchanged.
MSHA did not receive any comments on § 5.30(e), (f), and (g) and these sections are finalized as proposed.
Final § 5.40, like the proposal, is revised by adding “approval holders” to entities to be billed and replacing “processing of the application is completed” with “approval program activities are completed.” MSHA will continue to charge applicants a fee for approvals and some post-approval activities (
MSHA received no comments on proposed § 5.40 and it is finalized as proposed.
Final § 5.50, like the proposal, replaces “fee schedule” with “hourly rate” because MSHA no longer has a fee schedule. A commenter questioned why MSHA has a scheduling fee. As discussed in this final rule and in the preamble to the proposed rule, MSHA eliminated the individual fee schedules in 1987 and created a single hourly rate for calculation of fees.
Like the proposal, MSHA is revising the hourly rate from $97 under the existing rule to $121 using fiscal year (FY) 2012 data. A commenter objected to MSHA raising the hourly rate, citing challenging times being faced by the coal industry. This commenter was particularly concerned about the impact of the increase in fees on a small manufacturing company in the coal service industry. In response to this comment, MSHA states below, in Section V. Feasibility, that the increase in the hourly rate is below one percent of the estimated annual revenues of the impacted industries. The final rule, like the proposal, removes the term “fee schedule” from § 5.50 and it is finalized as proposed.
MSHA received general comments that objected to the overall rulemaking and to MSHA collecting more money than the Agency has the authority to retain. Under OMB Circular No. A-25, MSHA is required to review the user fees in its programs to ensure that the charges reflect the full costs of the services provided. This action transfers the cost of MSHA approval program services from the taxpayer to the applicants or approval holders who benefit from these services. Fees collected in excess of those the Agency is authorized to retain are sent back to the U.S. Treasury.
Executive Orders (E.O.) 12866 and 13563 generally direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. To comply with these Executive Orders, MSHA has included the following impact analysis.
Section 3(f) of the E.O. 12866 defines a significant regulatory action as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely and materially affects a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) creates a serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has determined that this is a significant regulatory action.
The final rule would not have an annual effect of $100 million or more on the economy and, under E.O. 12866, is not considered economically significant. MSHA has not prepared a separate regulatory economic analysis for this rulemaking. Rather, the analysis is presented below.
MSHA will continue to charge a fee for approval services based on an hourly rate. As under the existing rule, MSHA's hourly rate will include direct costs and indirect costs. However, under the final rule, MSHA will calculate the hourly rate by dividing all approval program costs incurred by the Agency during a prior fiscal year by the number of direct hours spent on approval program activities for the same period.
The final rule will increase the hourly rate from $97 to $121, an increase of $24.
MSHA will also begin to charge a fee for internal quality control activities and post-approval product audits. In FY 2012, MSHA collected approximately $1.2 million in fees. Under this final rule, MSHA estimates that the Agency would have collected a total of $2.7 million in fees in FY 2012, an increase of $1.5 million.
The charges under the final rule are fees and are considered transfer payments, not costs, under OMB Circular No. A-4, Regulatory Analysis (09/17/2003). Transfer payments are payments from one group to another that do not affect total resources available to society. Under the final rule, the applicant or the approval holder pays for services for which they receive a benefit. These services are currently paid for by the taxpayer.
Because the fees MSHA collects are a transfer, there are zero costs and zero benefits regardless of the discount rate (OMB Circular No. A-4, Regulatory Analysis (09/17/2003) Section (G) Accounting Statement).
The rule will not produce any quantifiable benefits because the only impact is the transfer payment.
MSHA analyzed A&CC invoice data from FY 2012. Using the U.S. Economic Census North American Industry Classification System (NAICS) data, MSHA estimated the impact of the final rule on mining and non-mining industries. NAICS is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy (
From the A&CC post-approval product audit data and FY 2012 invoices, MSHA identified 30 industries that received A&CC approval program services. MSHA grouped this data into three general industry categories: Coal Mining, Other Mining, and Non-Mining.
MSHA estimated the fees that will be collected under this final rule by summing the impact of the hourly rate increase and the increase from charging for internal quality control activities and post-approval product audits. Under this final rule, fees will increase by approximately $1.5 million annually ($0.3 million from the hourly rate increase + $1.1 million for internal quality control activities + $0.1 million for post-approval product audit activities). Of the $1.5 million, the increase in fees for the coal and other mining industries will total approximately $0.9 million annually. The remaining $0.6 million will be distributed among the non-mining industries that seek product approval from MSHA.
MSHA estimated the fee increase from the final hourly rate by multiplying the number of chargeable hours for FY 2012 (12,189 hours) by the final hourly rate of $121. In 2012, MSHA estimated that the final hourly rate would have resulted in approximately $1.5 million in fees collected, an increase of $300,000 (($121 new rate−$97 old rate) × 12,189 hours).
MSHA also estimated the fees from charging for internal quality control activities. MSHA uses internal quality control activities to monitor and improve the Agency's testing and evaluation processes. These activities include internal process reviews; maintaining laboratory equipment; and repairing, maintaining, and calibrating laboratory equipment to assure the equipment produces reliable and accurate results. In FY 2012, MSHA spent 9,015 hours on these activities. MSHA multiplied the 9,015 hours by the proposed $121 hourly rate. This results in an estimated annual impact of $1.1 million.
In addition, MSHA analyzed post-approval product audit data from 2008 to 2012 to estimate the increase in fees from charging for these services. In any given year, post-approval product audits are completed only on a subset of the total products approved by the A&CC. In 2012, MSHA spent approximately 1,000 hours on 125 post-approval product audits. Multiplying the 1,000 hours by the proposed $121 hourly rate results in an estimated annual impact of $121,000. The average estimated impact would have been $970 for each approval holder audited in 2012.
MSHA concludes that the final rule would be economically feasible.
MSHA has traditionally used a revenue screening test—whether the annualized compliance costs of a regulation are less than one percent of revenues (dollar change/revenue), or are negative (
MSHA performed the revenue screening test comparing the annual impact to annual revenues for all three categories and found that the percentage impact rounds to zero percent of revenue in each case. Given the relatively small impact compared to industry total revenues, any further analysis would not be productive.
Because the estimated impacts are below one percent of estimated annual revenue of the impacted industries, MSHA concludes that compliance with the provisions of the final rule is economically feasible.
The Regulatory Flexibility Act of 1980 (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 and other statutes, and E.O. 13272 requires agencies to consider the effects of their final and existing regulations on small entities and to examine alternatives that would minimize the small entity impacts while still meeting the regulations' purposes. MSHA has reviewed the final rule to assess the potential impact on small businesses, small governmental jurisdictions, and small organizations.
The applicants who will be affected by the final rule represent 30 industries. The Small Business Administration's (SBA's) size standard for a small entity (13 CFR 121.201) differs by industry code. For mining, SBA defines a small entity as one with 500 or fewer employees. For non-mining industries that would be impacted by this rule, SBA defines a small entity as one that has revenues of $7.5 million or less. MSHA used the SBA's definitions for a small entity, FY 2012 invoice data, and NAICS industry data to evaluate the small business impact.
For the non-mining industries, the affected industries represent small business revenues of approximately $474 billion. The final rule will increase fees for non-mining industries by approximately $0.5 million. The impact from an increase in fees is essentially zero percent of revenue ($0.5 million/$474 billion).
For the mining industries, MSHA data shows small coal mine revenues of $30 billion. The final rule will increase fees for small coal mines by approximately $0.9 million. MSHA data shows other small mine revenues (not coal mines) of $57 billion. The final rule will increase fees for small mines other than coal by approximately $6,000. The impact from an increase in fees is zero percent for both mining categories.
Approximately $100,000 in increased fees is primarily attributable to foreign entities. MSHA concludes that the impact on the U.S. economy and its businesses would be
Several commenters stated that large companies could absorb the increase in fees and that the small companies would be adversely affected. MSHA's analysis determined that the impact of the final rule for both small mining and small non-mining entities is essentially
MSHA certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
This final rule contains no information collections subject to review by OMB under the Paperwork Reduction Act of 1995. The paperwork associated with applications for approval are considered under the specific part in Title 30, Chapter 1, Subchapter B that contains the requirements for the specific product submitted for MSHA approval.
MSHA has reviewed the final rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note), as amended, requires agencies to assess the impact of agency action on family well-being. MSHA has determined that this final rule would have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. Accordingly, MSHA certifies that this final rule will not impact family well-being.
Executive Order 12630 requires Federal agencies to “identify the takings implications of final regulatory actions . . . .” MSHA has determined that this final rule will not include a regulatory or policy action with takings implications. Accordingly, under E.O. 12630, no further Agency action or analysis is required.
Executive Order 12988 contains requirements for Federal agencies promulgating new regulations or reviewing existing regulations to minimize litigation by eliminating drafting errors and ambiguity, providing a clear legal standard for affected conduct rather than a general standard, promoting simplification, and reducing burden. MSHA has reviewed this final rule and has determined that it would meet the applicable standards provided in E.O. 12988 to minimize litigation and undue burden on the Federal court system.
MSHA has determined that this final rule will have no adverse impact on children. Accordingly, under E.O. 13045, no further Agency action or analysis is required.
MSHA has determined that this final rule does not have federalism implications because it would 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. Accordingly, under E.O. 13132, no further Agency action or analysis is required.
MSHA has determined that this final rule does not have tribal implications because it would not have substantial direct effects 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. Accordingly, under E.O. 13175, no further Agency action or analysis is required.
MSHA has reviewed this final rule for its impact on the supply, distribution, and use of energy because it applies to the coal mining industry. Insofar as the final rule would result in an increase to the yearly transfer of $0.9 million for the coal mining industry relative to annual revenues of $41 billion in 2012, it is not a “significant energy action” because it is not “likely to have a significant adverse effect on the supply, distribution, or use of energy (including a shortfall in supply, price increases, and increased use of foreign supplies).” Accordingly, under E.O. 13211, no further Agency action or analysis is required.
Mine safety and health.
For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977, as amended, MSHA is revising 30 CFR part 5 to read as follows:
30 U.S.C. 957.
This part establishes a system under which MSHA charges a fee for services provided. This part includes the management and calculation of fees for the approval program, which includes: Application processing, testing and evaluation, approval decisions, post-approval activities, and termination of approvals.
(a)
(b)
(1) Direct costs are compensation and benefit costs for hours worked on approval program activities.
(2) Indirect costs are a proportionate share of the following A&CC costs:
(i) Compensation and benefit hours worked in support of all A&CC activities;
(ii) A&CC building and equipment depreciation costs;
(iii) A&CC utilities, facility and equipment maintenance, and supplies and materials; and
(iv) Information Technology and other services the Department of Labor provides to the A&CC.
(c)
(1) Application processing (
(2) Testing and evaluation (
(3) Approval decisions (
(4) Two post-approval activities: changes to approvals and post-approval product audits.
(d)
(1) Technical assistance not related to processing an approval application;
(2) Technical programs, including development of new technology programs;
(3) Participation in research conducted by other government agencies or private organizations; and
(4) Regulatory review activities, including participation in the development of health and safety standards, regulations, and legislation.
(e)
(1) The applicant may pre-authorize an expenditure for services, and may further choose to pre-authorize either a maximum dollar amount or an expenditure without a specified maximum amount.
(i) All applications containing a pre-authorization statement will be put in the queue for the technical evaluation on completion of an initial administrative review.
(ii) MSHA will concurrently prepare a maximum fee estimate for applications containing a statement pre-authorizing a maximum dollar amount, and will provide the applicant with this estimate.
(2) Where MSHA's estimated maximum fee exceeds the pre-authorized maximum dollar amount, the applicant has the choice of cancelling the action and paying for all work done up to the time of the cancellation, or authorizing MSHA's estimate.
(3) Under the Revised Acceptance Modification Program (RAMP), MSHA expedites applications for acceptance of minor changes to previously approved, certified, accepted, or evaluated products. The applicant must pre-authorize a fixed dollar amount, set by MSHA, for processing the application.
(f) If unforeseen circumstances are discovered during the evaluation, and MSHA determines that these circumstances would result in the actual costs exceeding either the pre-authorized expenditure or the authorized maximum fee estimate, as appropriate, MSHA will prepare a revised maximum fee estimate for completing the evaluation. The applicant will have the option of either cancelling the action and paying for services rendered or authorizing MSHA's revised estimate, in which case MSHA will continue to test and evaluate the product.
(g) If the actual cost of processing the application is less than MSHA's maximum fee estimate, MSHA will charge the actual cost.
Applicants and approval holders will be billed for all fees, including actual travel expenses, if any, when approval program activities are completed. Invoices will contain specific payment instruction, including the address to mail payments and authorized methods of payment.
The hourly rate will remain in effect for at least one year and be subject to revision at least once every three years.
Financial Crimes Enforcement Network (FinCEN), Treasury.
Final rule.
In a Notice of Finding (NOF) published in the
This final rule is effective August 28, 2015.
The FinCEN Resource Center at (800) 767-2825.
On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the USA PATRIOT Act). Title III of the USA PATRIOT Act amends the anti-money laundering provisions of the Bank Secrecy Act (BSA), codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5314, 5316-5332, to promote the prevention, detection, and prosecution of international money laundering and the financing of terrorism. Regulations implementing the BSA appear at 31 CFR chapter X. The authority of the Secretary of the Treasury (the Secretary) to administer the BSA and its implementing regulations has been delegated to the Director of FinCEN.
Section 311 of the USA PATRIOT Act (Section 311), codified at 31 U.S.C. 5318A, grants the Director of FinCEN the authority, upon finding that reasonable grounds exist for concluding that a foreign jurisdiction, financial institution, class of transaction, or type of account is of “primary money laundering concern,” to require domestic financial institutions and financial agencies to take certain “special measures” to address the primary money laundering concern. This rulemaking imposes the fifth special measure, codified at 31 U.S.C. 5318A(b)(5), against FBME. The fifth special measure allows the Director to prohibit or impose conditions on the opening or maintaining of
FBME was established in 1982 in Cyprus as the Federal Bank of the Middle East, Ltd., a subsidiary of the private Lebanese bank, the Federal Bank of Lebanon. Both FBME and the Federal Bank of Lebanon are owned by Ayoub-Farid M. Saab and Fadi M. Saab. In 1986, FBME changed its country of incorporation to the Cayman Islands, and its banking presence in Cyprus was re-registered as a branch of the Cayman Islands entity. In 2003, FBME left the Cayman Islands and incorporated and established its headquarters in Tanzania. At the same time, FBME's Cypriot operations became a branch of FBME Tanzania Ltd. In 2005, FBME changed its name from the Federal Bank of the Middle East, Ltd. to FBME Bank Ltd.
FBME's headquarters in Tanzania is widely regarded as the largest bank in Tanzania based on its $2 billion asset size, but it has only four Tanzania-based branches. While FBME is presently headquartered in Tanzania, FBME transacts over 90 percent of its global banking business and holds over 90 percent of its assets in its Cyprus branch. FBME has always maintained a significant presence in Cyprus. FBME has stated, however, that it is not in direct competition with local retail banks in Cyprus for several reasons, including that it does not issue checks, it has no retail counters there, and its Cypriot customers are limited mainly to staff, contractors, and professionals providing services to FBME.
In a NOF published in the
As detailed in the NOF, these activities have included (1) an FBME customer receiving a deposit of hundreds of thousands of dollars from a financier for Lebanese Hezbollah; (2) providing financial services to a financial advisor for a major transnational organized crime figure; (3) FBME's facilitation of the transfers to an FBME account involved in fraud against a U.S. person, with the FBME customer operating the alleged fraud scheme later being indicted in the United States District Court for the Northern District of Ohio; and (4) FBME's facilitation of U.S. sanctions evasion through its extensive customer base of shell companies, including at least one FBME customer that was a front company for a U.S.-sanctioned Syrian entity, the Scientific Studies and Research Center (SSRC) and which used its FBME account to process transactions through the U.S. financial system.
On the same date it published the NOF, FinCEN also published in the
On July 21, 2014, the Central Bank of Cyprus (CBC) issued a decree announcing that it would formally place FBME's Cyprus branch “under resolution,” allowing the CBC to take numerous unilateral measures to protect FBME's depositors. On July 24, 2014, the Bank of Tanzania took over management of FBME's headquarters in Tanzania because of the potential effects of the CBC's actions on the Tanzanian banking system.
After considering all relevant comments and other information available to the agency, including both public and non-public reporting, FinCEN is issuing this final rule imposing the fifth special measure against FBME, which prohibits the opening or maintaining of correspondent or payable-through accounts for FBME by U.S. financial institutions. This information continues to provide reason to believe that FBME's AML compliance efforts are not adequate to address the risks faced by FBME, and that FBME facilitates illicit financial activity. As described below, audits performed by third parties in 2013 and 2014 that were provided to FinCEN by FBME to demonstrate the effectiveness of its AML compliance program instead identified significant, recurring weaknesses in FBME's compliance program. Several deficiencies were identified by one of the third party auditors as being of “high or medium significance.” These deficiencies, which FinCEN has reason to believe continue to exist following the issuance of the NOF, facilitate the illicit financial activities of FBME's customers.
FBME, through outside counsel, submitted comments, dated September 22, 2014, during the comment period. FBME made six additional submissions of information related to comments made during the comment period after the close of the comment period. FBME's September 22, 2014, comments were received during the comment period and accordingly made a part of the public record. The six additional submissions were not made a part of the public record, based in part on FBME's claim that these additional submissions contained sensitive commercial and business information and FBME's corresponding request that the additional submissions be afforded confidential treatment. However, FinCEN reviewed and considered each of these submissions in drafting this final rule.
FBME's September 22, 2014 comment consists of an introduction followed by two major sections. In its introduction, FBME makes six key points. First, FBME states that its AML compliance program policies are in line with applicable requirements, including the requirements of the European Union's Third Money Laundering Directive and the CBC's Fourth Directive. FBME contends that this alignment has been the case since at least 2013, according to third party audits. Second, FBME states that, in response to recommendations made as a result of audits conducted by Ernst & Young (EY) in 2011 and KPMG in 2013, FBME has
The first section of FBME's September 22, 2014 comment then describes aspects of its AML compliance program, and the second section responds to statements made in the NOF that FBME asserts are inaccurate or based on incomplete information.
In this final rule, FinCEN is focusing its response on the six points in the introduction, which summarize FBME's concerns with the NOF and the NPRM. In responding to the first three points of FBME's introduction, FinCEN also refutes the first section of FBME's comment because the first three points of FBME's introduction and the first section of FBME's comment all refer to FBME's AML compliance program, its policies, audits conducted by third parties, and FBME's management. In responding to the fourth point of FBME's introduction, FinCEN is also addressing the second section of FBME's comment because both the fourth point of the introduction and the second section of the comment refer to the same statements in the NOF that FBME asserts are inaccurate or based on incomplete information.
With regard to FBME's first and second points, the information provided by FBME on the audits conducted by KPMG and EY in 2013 and 2014, respectively, show a pattern of recurring AML deficiencies at the bank. These included failures to maintain adequate customer identification files, along with other customer due diligence weaknesses, failure to ensure that third parties the bank relied on to establish new customer relationships employed appropriate AML controls with regard to such persons, and issues with sanctions-related screening.
According to FBME's comment, EY conducted an audit in 2011 (the 2011 EY Audit). During that audit, according to FBME, EY found that FBME's due diligence procedures with respect to obtaining information from new clients met the requirements of the CBC Directive at the time, but also noted that some customer information requirements of the Directive had not been fully met by FBME in previous iterations of its AML procedures and policies. According to FBME's comment, EY subsequently conducted another audit in 2014 (the 2014 EY Audit), which found that, although FBME had an AML compliance program in place that incorporated the requirements of both the CBC Fourth Directive and the European Union Third Directive, FBME nevertheless had deficiencies in its customer due diligence, automated alerts system, and AML training areas.
According to FBME's September 22, 2014 comment, KPMG also conducted an audit in 2013 (the 2013 KPMG Audit) which found that FBME “basically fulfills” its AML regulatory requirements set forth by the CBC and the European Union, but also identified issues of “high or medium” significance with FBME's use of Approved Third Parties and FBME's sanction screening procedures. As FBME stated in its September 22, 2014 comment, FBME uses its relationships with Approved Third Parties, some of which are in foreign jurisdictions, to develop potential new customer relationships. According to the KPMG 2013 Audit, FBME had never attempted to ensure the adequacy of its Approved Third Parties' AML measures. In addition, the 2013 KPMG Audit found that FBME only screened the related parties of its Approved Third Parties when the customers were initially onboarded.
The 2013 KPMG Audit also found FBME's customer due diligence deficient. As FBME disclosed in its September 22, 2014 comment, in its 2013 audit, KPMG “recommended better presentation of ownership information to demonstrate links between group entities for older customers, in line with a new structure that had been introduced for new customers. KPMG also found that certain customer files reviewed did not have sufficient information to gain a complete understanding of the customers' activities or business rationale.” In its 2013 audit, KPMG further found that FBME's use of hold-mail accounts and post office boxes managed by Approved Third Parties should be reconsidered by FBME in order to “avoid potential anonymisation.”
The 2014 EY Audit identified numerous deficiencies in FBME's compliance program. Specifically, the 2014 EY Audit found that the following recommendations were necessary for FBME's compliance program: Consistently documenting the efforts taken to verify the sources of funds and business purpose of accounts from prospective customers; more thoroughly investigating relationships among FBME customers, especially when inordinate volumes of internal transfers are identified; modifying FBME's periodic customer due diligence process to align with industry practices (
The numerous AML compliance program deficiencies described in the 2013 KPMG Audit and the 2014 EY Audit in particular are similar to AML deficiencies FinCEN identified in the NOF. All of these findings follow action against FBME by the CBC for similar issues. As FBME acknowledged in its September 22, 2014 comment, in 2010, the CBC fined FBME 80,000 euros for customer identification, due diligence, and automated monitoring deficiencies. According to the 2013 KPMG Audit, FBME also undertook an extensive Know Your Customer (KYC) remediation project from 2009 through 2011 that was ordered by the CBC and resulted in the closure of thousands of FBME accounts.
Finally, FBME's argument that its AML compliance program is now adequate is weakened by the list of illicit actors identified in the NOF that have continued to make use of FBME as recently as 2014, including narcotics traffickers, terrorist financiers, and organized crime figures.
With regard to FBME's third point, information available to FinCEN makes it reasonable to conclude that FBME's management facilitated, either actively or passively, the illicit activities of its customers, as FinCEN set forth in the NOF.
With regard to FBME's fourth point, in which FBME has argued that portions of the eight statements in the NOF were incorrect or based on incomplete information, FinCEN believes that it is appropriate in two cases to amend the NOF based on these comments. In the first case, FBME stated that it was not
In the second case, FBME argued that the report that FBME may be subject to a fine of up to 240 million euros is from a November 2013 article in the Cypriot press that relied on anonymous sources at the CBC. FinCEN agrees that the source of this statement was an article that appeared in the Cypriot press that referenced statements by a CBC official speaking anonymously. Neither these two cases nor any of FBME's remaining claims of incompleteness and factual inaccuracy presents any new information or in any way cause FinCEN to doubt the accuracy of the information presented in the NOF.
With regard to FBME's fifth point, FinCEN notes that the filing of STRs on suspicious activities or transactions by a financial institution is not, taken in isolation, an adequate indicator of the robustness and comprehensiveness of a compliance program. Although the filing of STRs is a critical component of any financial institution's AML compliance program, if STRs are filed in an incomplete, inaccurate, or untimely manner, their usefulness to authorities responsible for investigating money laundering and other illicit activities is greatly diminished. Moreover, filing STRs does not excuse a financial institution's failure to adequately implement other areas of its AML program, such as, for example, customer due diligence procedures.
With regard to FBME's sixth point, as part of FinCEN's consideration of the statutory factors supporting its selection of the fifth special measure, FinCEN has considered “the extent to which the action or the timing of the action would have a significant adverse systemic impact on . . . legitimate business activities involving” FBME. This is discussed in Part IV, section A below.
In addition to its public comment, FBME has submitted a substantial volume of supplemental information regarding FBME's policies and procedures, and reports of the audits conducted by KPMG in 2013 and EY in 2014. FinCEN has carefully considered these materials, which outline some of the steps that FBME has taken to strengthen its compliance program. However, after a thorough review of these materials, FinCEN believes that, except as acknowledged above, the statements made in the NOF remain true and accurate, and that FBME is of “primary money laundering concern.”
FinCEN continues to have serious concerns regarding FBME's potential to be used wittingly or unwittingly for illicit purposes. As FinCEN explained in its NOF, FBME customers continue to exhibit shell company attributes and many are located in high-risk jurisdictions. FinCEN continues to have concerns with FBME's AML compliance program, in particular with the aforementioned customer due diligence deficiencies, which were identified over a number of years and which enable FBME customers to conduct financial activity in relative obscurity.
FinCEN also considered a comment received from the American Bankers' Association (ABA), dated September 22, 2014; a joint comment received from the Securities Industry and Financial Markets Association (SIFMA) and The Clearing House (TCH), dated September 22, 2014; and a separate comment received from SIFMA, dated September 22, 2014. FinCEN notes that these comments were procedural in nature and did not address the underlying conclusion surrounding the risk of money laundering through FBME.
FinCEN appreciates the thoughtful comments that were submitted and has addressed these comments, as appropriate, in the section-by-section analysis below.
As described in the NOF and this final rule, the Director of FinCEN found that reasonable grounds exist for concluding that FBME is a financial institution of primary money laundering concern. Based upon that finding, the Director of FinCEN is authorized to impose one or more special measures. Following the required consultations and the consideration of all relevant factors discussed in the NOF, the Secretary, through the Director of FinCEN, proposed the imposition of the fifth special measure in an NPRM published on July 22, 2014. The fifth special measure authorizes a prohibition against the opening or maintaining of correspondent accounts by any domestic financial institution or agency for, or on behalf of, a financial institution found to be a primary money laundering concern.
Consistent with the finding that FBME is a financial institution of primary money laundering concern and in consideration of additional relevant factors, this final rule imposes the fifth special measure with regard to FBME. The prohibition on the maintenance of correspondent accounts imposed by the fifth special measure will help to guard against the money laundering risks that FBME presents to the U.S. financial system as identified in the NOF, NPRM, and this final rule.
In determining which special measure to implement to address the primary money laundering concern posed by FBME, FinCEN has considered the following factors.
Other countries or multilateral groups have not yet taken action similar to those proposed in this rulemaking that would prohibit domestic financial institutions and agencies from opening or maintaining a correspondent account for, or on behalf of, FBME and that would require those domestic financial institutions and agencies to screen their correspondents in a manner that is reasonably designed to guard against indirect use by FBME, including access through the use of nested correspondent accounts held by FBME.
The fifth special measure imposed by this rulemaking prohibits covered financial institutions from opening and maintaining correspondent accounts for, or on behalf of, FBME. As a corollary to this measure, covered financial institutions also are required to take reasonable steps to apply special due diligence, as set forth below, to all of their correspondent accounts to help ensure that no such account is being used indirectly to provide services to FBME. FinCEN does not expect the burden associated with these requirements to be significant. Additionally, there is only a minimal burden involved in transmitting a one-time notice to correspondent account holders concerning the prohibition on indirectly providing services to FBME. U.S. financial institutions generally apply some level of transaction and account screening, often through the use of commercially available software. As explained in more detail in the section-by-section analysis below, financial institutions should, if necessary, be able to easily adapt their current screening procedures to support compliance with this final rule. Thus, the prohibition on the maintenance of correspondent accounts that would be required by this
FBME is not a major participant in the international payment system and is not relied upon by the international banking community for clearance or settlement services. Thus, the imposition of the fifth special measure against FBME will not have a significant adverse systemic impact on the international payment, clearance, and settlement system. In light of the underlying money laundering risks posed by FBME, FinCEN does not believe that the rule will impose an undue burden on legitimate business activities involving FBME. There are other banks in both Cyprus and Tanzania that could alleviate potential impact on legitimate business activities within those jurisdictions.
The exclusion from the U.S. financial system of banks that, like FBME, serve as conduits for money laundering activity and other financial crimes will enhance U.S. national security by making it more difficult for terrorists, sanctions evaders, and money launderers to access the substantial resources of the U.S. financial system. More generally, the imposition of the fifth special measure will complement the U.S. Government's worldwide foreign policy efforts to expose and disrupt international money laundering, and to encourage other nations to do the same. The United States has played a leadership role in combating money laundering and terrorist financing not only through action with regard to specific institutions but also through participation in international operational and standard-setting bodies such as the Egmont Group and the Financial Action Task Force.
Section 1010.658(a)(1) of the rule defines FBME to include all branches, offices, and subsidiaries of FBME operating in any jurisdiction, including Tanzania and Cyprus. Financial institutions should take commercially reasonable measures to determine whether a customer is a branch, office, or subsidiary of FBME. Currently, FBME's bank branches are located in Tanzania and Cyprus, with a representative office in Moscow, Russian Federation.
SIFMA, TCH, and the ABA noted that it would be useful for FinCEN to provide a list of FBME's subsidiaries; however, because subsidiary relationships can change frequently, covered financial institutions should use commercially-reasonable tools to determine the current subsidiaries of FBME.
Section 1010.658(a)(2) of the rule defines the term “correspondent account” by reference to the definition contained in 31 CFR 1010.605(c)(1)(ii). Section 1010.605(c)(1)(ii) defines a correspondent account to mean an account established to receive deposits from, or make payments or other disbursements on behalf of, a foreign bank, or to handle other financial transactions related to the foreign bank. Under this definition, “payable through accounts” are a type of correspondent account.
In the case of a U.S. depository institution, this broad definition includes most types of banking relationships between a U.S. depository institution and a foreign bank that are established to provide regular services, dealings, and other financial transactions, including a demand deposit, savings deposit, or other transaction or asset account, and a credit account or other extension of credit. FinCEN is using the same definition of “account” for purposes of this rule as was established for depository institutions in the final rule implementing the provisions of section 312 of the USA PATRIOT Act requiring enhanced due diligence for correspondent accounts maintained for certain foreign banks.
In the case of securities broker-dealers, futures commission merchants, introducing brokers-commodities, and investment companies that are open-end companies (mutual funds), FinCEN is also using the same definition of “account” for purposes of this rule as was established for these entities in the final rule implementing the provisions of section 312 of the USA PATRIOT Act requiring enhanced due diligence for correspondent accounts maintained for certain foreign banks.
Section 1010.658(a)(3) of the rule defines “covered financial institution” with the same definition used in the final rule implementing section 312 of the USA PATRIOT Act,
• An insured bank (as defined in section 3(h) of the Federal Deposit Insurance Act (12 U.S.C. 1813(h));
• A commercial bank;
• An agency or branch of a foreign bank in the United States;
• A Federally insured credit union;
• A savings association;
• A corporation acting under section 25A of the Federal Reserve Act (12 U.S.C. 611);
• A trust bank or trust company;
• A broker or dealer in securities;
• A futures commission merchant or an introducing broker-commodities; and
• A mutual fund.
Section 1010.658(a)(4) of the rule defines “subsidiary” as a company of which more than 50 percent of the voting stock or analogous equity interest is owned by another company.
For purposes of complying with the final rule's prohibition on the opening or maintaining in the United States of correspondent accounts for, or on behalf of, FBME, covered financial institutions
Section 1010.658(b)(1) of the rule imposing the fifth special measure prohibits all covered financial institutions from establishing, maintaining, administering, or managing a correspondent account in the United States for, or on behalf of, FBME. The prohibition requires all covered financial institutions to review their account records to ensure that they maintain no accounts directly for, or on behalf of, FBME.
As a corollary to the prohibition on maintaining correspondent accounts directly for FBME, § 1010.658(b)(2) of the rule imposing the fifth special measure requires a covered financial institution to apply special due diligence to its correspondent accounts that is reasonably designed to guard against processing transactions involving FBME. As part of that special due diligence, covered financial institutions must notify those foreign correspondent account holders that covered financial institutions know or have reason to know provide services to FBME that such correspondents may not provide FBME with access to the correspondent account maintained at the covered financial institution. Covered financial institutions should implement appropriate risk-based procedures to identify transactions involving FBME.
A covered financial institution may satisfy the notification requirement by transmitting the following notice to its foreign correspondent account holders that it knows or has reason to know provide services to FBME:
Notice: Pursuant to U.S. regulations issued under Section 311 of the USA PATRIOT Act,
A covered financial institution may, for example, have knowledge through transaction screening software that a correspondent account processes transactions for FBME. The purpose of the notice requirement is to aid cooperation with correspondent account holders in preventing transactions involving FBME from accessing the U.S. financial system. However, FinCEN would not require or expect a covered financial institution to obtain a certification from any of its correspondent account holders that access will not be provided to comply with this notice requirement. Instead, methods of compliance with the notice requirement could include, for example, transmitting a one-time notice by mail, fax, or email to appropriate correspondent account holders of the covered financial institution, informing them that they may not provide FBME with access to the covered financial institution's correspondent account, or including such information in the next regularly occurring transmittal from the covered financial institution to those correspondent account holders.
In its comment to the NPRM, SIFMA requested reconsideration of the notice provision, specifically regarding the meaning of “one-time notice,” and further objected to the requirement to send such a notice as overly burdensome and possibly duplicative. SIFMA also requested further clarification with regard to the timing of the required notice. FinCEN emphasizes that the scope of notice requirement is targeted toward those correspondent account holders that the covered financial institution knows or has reason to know provide services to FBME, not to all correspondent account holders. The term “one-time notice” means that a financial institution should provide notice to all existing correspondent account holders who the covered financial institution knows or has reason to know provide services to FBME, within a reasonably short time after this final rule is published, and to new correspondent account holders during the account opening process who the covered financial institution knows or has reason to know provide services to FBME. It is not necessary for the notice to be provided in any particular form. It may be provided electronically, orally (with documentation), or as part of the standard paperwork involved in opening or maintaining a correspondent account. Given the limited nature of FBME's correspondent relationships, FinCEN does not expect this requirement to be burdensome.
A covered financial institution is also required to take reasonable steps to identify any indirect use of its correspondent accounts by FBME, to the extent that such indirect use can be determined from transactional records maintained by the covered financial institution in the normal course of business. Covered financial institutions are expected to apply an appropriate screening mechanism to be able to identify a funds transfer order that on its face lists FBME as the financial institution of the originator or beneficiary, or otherwise references FBME. An appropriate screening mechanism could be the mechanism used by a covered financial institution to comply with various legal requirements, such as the commercially available software programs used to comply with the economic sanctions programs administered by the Office of Foreign Assets Control (OFAC).
Notifying certain correspondent account holders and taking reasonable steps to identify any indirect use of its correspondent accounts by FBME in the manner discussed above are the minimum due diligence requirements under the rule imposing the fifth special measure. Beyond these minimum steps, a covered financial institution must adopt a risk-based approach for determining what, if any, additional due diligence measures are appropriate to guard against the risk of indirect use of its correspondent accounts by FBME, based on risk factors such as the type of services it offers and the geographic locations of its correspondent account holders.
Under this rule imposing the fifth special measure, a covered financial institution that obtains knowledge that a correspondent account is being used by a foreign bank to provide indirect access to FBME must take all appropriate steps to prevent such indirect access, including the notification of its correspondent account holder per § 1010.658(b)(2)(i)(A) and, where necessary, terminating the correspondent account. A covered financial institution may afford the foreign bank a reasonable opportunity to take corrective action prior to terminating the correspondent account. Should the foreign bank refuse to comply, or if the covered financial institution cannot obtain adequate assurances that the account will no longer be available to FBME, the covered financial institution must terminate the account within a commercially reasonable time. This means that the covered financial
Section 1010.658(b)(3) of the rule imposing the fifth special measure clarifies that the rule does not impose any reporting requirement upon any covered financial institution that is not otherwise required by applicable law or regulation. A covered financial institution must, however, document its compliance with the requirement that it notify those correspondent account holders that the covered financial institution knows or has reason to know provide services to FBME, that such correspondents may not process any transaction involving FBME through the correspondent account maintained at the covered financial institution.
When an agency issues a final rule, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” that will “describe the impact of the Final Rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the final rule is not expected to have a significant economic impact on a substantial number of small entities.
For purposes of the RFA, both banks and credit unions are considered small entities if they have less than $500,000,000 in assets.
Broker-dealers are defined in 31 CFR 1010.100(h) as those broker-dealers required to register with the Securities and Exchange Commission (SEC). Because FinCEN and the SEC regulate substantially the same population, for the purposes of the RFA, FinCEN relies on the SEC's definition of small business as previously submitted to the Small Business Administration (SBA). The SEC has defined the term small entity to mean a broker or dealer that: (1) Had total capital (net worth plus subordinated liabilities) of less than $500,000 on the date in the prior fiscal year as of which its audited financial statements, were prepared pursuant to Rule 17a-5(d) or, if not required to file such statements, a broker or dealer that had total capital (net worth plus subordinated debt) of less than $500,000 on the last business day of the preceding fiscal year (or in the time that it has been in business if shorter); and (2) is not affiliated with any person (other than a natural person) that is not a small business or small organization as defined in this release.
Futures commission merchants (FCMs) are defined in 31 CFR 1010.100(x) as those FCMs that are registered or required to be registered as a FCM with the Commodity Futures Trading Commission (CFTC) under the Commodity Exchange Act (CEA), except persons who register pursuant to section 4f(a)(2) of the CEA, 7 U.S.C. 6f(a)(2). Because FinCEN and the CFTC regulate substantially the same population, for the purposes of the RFA, FinCEN relies on the CFTC's definition of small business as previously submitted to the SBA. In the CFTC's “Policy Statement and Establishment of Definitions of `Small Entities' for Purposes of the Regulatory Flexibility Act,” the CFTC concluded that registered FCMs should not be considered to be small entities for purposes of the RFA.
For purposes of the RFA, an introducing broker-commodities dealer is considered small if it has less than $35,500,000 in gross receipts annually.
Mutual funds are defined in 31 CFR 1010.100(gg) as those investment companies that are open-end investment companies that are registered or are required to register with the SEC. Because FinCEN and the SEC regulate substantially the same population, for the purposes of the RFA, FinCEN relies on the SEC's definition of small business as previously submitted to the SBA. The SEC has defined the term “small entity” under the Investment Company Act to mean “an investment company that, together with other investment companies in the same group of related investment companies, has net assets of $50 million or less as of the end of its most recent fiscal year.”
As noted above, 80 percent of banks, 94 percent of credit unions, 17 percent of broker-dealers, 95 percent of introducing brokers-commodities, no FCMs, and seven percent of mutual funds are small entities. The limited number of foreign banking institutions with which FBME maintains or will maintain accounts will likely limit the number of affected covered financial institutions to the largest U.S. banks, which actively engage in international transactions. Thus, the prohibition on maintaining correspondent accounts for foreign banking institutions that engage in transactions involving FBME under the fifth special measure would not impact a substantial number of small entities.
The fifth special measure would require covered financial institutions to provide a notification intended to aid cooperation from foreign correspondent account holders in preventing transactions involving FBME from accessing the U.S. financial system.
For these reasons, FinCEN certifies that this final rulemaking would not have a significant impact on a substantial number of small businesses.
The collection of information contained in the final rule has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), and has been assigned OMB Control Number 1506- AB19. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.
Executive Orders 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has been determined that the Final Rule is not a “significant regulatory action” for purposes of Executive Order 12866.
Administrative practice and procedure, Banks and banking, Brokers, Counter-money laundering, Counter-terrorism, Foreign banking.
For the reasons set forth in the preamble, chapter X of title 31 of the Code of Federal Regulations is amended as follows:
12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314, 5316-5332; title III, secs. 311, 312, 313, 314, 319, 326, 352, Pub. L. 107-56, 115 Stat. 307.
(a)
(1)
(2)
(3)
(4)
(b)
(2)
(A) Notifying those correspondent account holders that the covered financial institution knows or has reason to know provide services to FBME Bank, Ltd., that such correspondents may not provide FBME Bank, Ltd. with access to the correspondent account maintained at the covered financial institution; and
(B) Taking reasonable steps to identify any use of its foreign correspondent accounts by FBME Bank, Ltd., to the extent that such use can be determined from transactional records maintained in the covered financial institution's normal course of business.
(ii) A covered financial institution shall take a risk-based approach when deciding what, if any, other due diligence measures it reasonably must adopt to guard against the use of its foreign correspondent accounts to process transactions involving FBME Bank, Ltd.
(iii) A covered financial institution that obtains knowledge that a foreign correspondent account may be being used to process transactions involving FBME Bank, Ltd. shall take all appropriate steps to further investigate and prevent such access, including the notification of its correspondent account holder under paragraph (b)(2)(i)(A) of this section and, where necessary, termination of the correspondent account.
(iv) A covered financial institution required to terminate a correspondent account pursuant to paragraph (b)(2)(iii) of this section:
(A) Should do so within a commercially reasonable time, and should not permit the foreign bank to establish any new positions or execute any transaction through such correspondent account, other than those necessary to close the correspondent account; and
(B) May reestablish a correspondent account closed pursuant to this paragraph if it determines that the correspondent account will not be used to provide banking services indirectly to FBME Bank Ltd.
(3)
(ii) Nothing in this paragraph (b) shall require a covered financial institution to report any information not otherwise required to be reported by law or regulation.
Postal Service
Final rule.
The Postal Service is amending its regulations concerning records and information management for administrative purposes, to clarify existing text, and to update and add definitions.
These regulations will be effective July 29, 2015.
Matthew J. Connolly, Chief Privacy Officer, 202-268-2608.
The Postal Service is amending 39 CFR parts 261, 262, and 265 to delineate more clearly the responsibility for managing postal records and ensuring compliance with the Freedom of Information Act (FOIA).
As required by 5 U.S.C. 552(a)(1), the amendments to part 261 provide descriptions of the Postal Service's central and field organization for FOIA processing. Specifically, the amendments clarify the position of the Postal Service's Privacy and Records Office within the General Counsel's Office. As further required by 5 U.S.C. 552(a)(6)(B)(ii), the amendments also describe the Postal Service's FOIA Public Liaisons and their responsibilities to requesters through the Postal Service's FOIA Requester Service Centers.
As required by 5 U.S.C. 552(a)(6)(B), the amendments to part 262 provide further descriptions of the Postal Service's central and field organization for FOIA processing. Specifically, the amendments describe various officials involved in FOIA processing and their responsibilities.
As required by 5 U.S.C. 552(a)(1), the amendments to part 265 provide descriptions of the established places at which, the employees from whom, and the methods whereby the public may obtain information, make submittals or requests, and obtain decisions regarding FOIA requests. Specifically, the amendments describe how and to whom a FOIA request must be submitted, and clarify that the regulations must be read in conjunction with the text of the FOIA, the Fee Schedule and Guidelines published by the Office of Management and Budget, and Postal Service Handbook AS-353,
Archives and records.
Archives and records.
Administrative practice and procedure, Courts, Freedom of information, Government employees.
For the reasons stated in the preamble, the Postal Service amends 39 CFR chapter I, subchapter D as follows:
39 U.S.C. 401.
Under 39 U.S.C. 410, as enacted by the Postal Reorganization Act, the U.S. Postal Service is not subject to the provisions of the Federal Records Act of 1950, or any of its supporting regulations which provide for the conduct of records management in Federal agencies. The objective of parts 261 through 268 of this chapter are to provide the basis for an organization-wide records and information management program affecting all Postal Service organizational components having the custody of any form of information and records.
(a) As provided in 39 U.S.C. 401(5), the Postal Service has the power to acquire property it deems necessary or convenient in the transaction of its business and to hold, maintain, sell, lease or otherwise dispose of such property.
(b) Under § 262.2 of this chapter, the Postal Service Privacy and Records Office, located under the Associate General Counsel and Chief Ethics and Compliance Officer, is responsible for the retention, security, and privacy of Postal Service records and is empowered to authorize the disclosure of such records and to order their disposal by destruction or transfer. Included is the authority to issue records management policy and to delegate or take appropriate action if that policy is not adhered to or if questions of interpretation of procedure arise.
(a) The Chief Freedom of Information Act (FOIA) Officer, whose duties are performed by the Associate General Counsel and Chief Ethics and Compliance Officer, is responsible for:
(1) Overseeing Postal Service compliance with the FOIA.
(2) Making recommendations to the Postmaster General regarding the Postal Service's FOIA program.
(3) Monitoring and reporting on FOIA implementation and performance for the Postal Service.
(b) The Chief Privacy Officer, under the Associate General Counsel and Chief Ethics and Compliance Officer, is responsible for administering records and information management policies, and the privacy of information programs, and for the compliance of all
(c) The Deputy Chief FOIA Officer, under the Privacy and Records Office, administers the Postal Service release of information program with the assistance of FOIA Coordinators in Headquarters departments and area and district offices.
(d) Freedom of Information Act Public Liaisons are responsible for:
(1) Managing FOIA Requester Service Centers (RSCs).
(2) Receiving concerns of requesters about the service provided by the FOIA RSC following an initial response.
(3) Ensuring a service-oriented response to requests and FOIA-related inquiries.
(4) Reporting to the Chief FOIA Officer on their activities.
(e) Freedom of Information Act Requester Service Centers are responsible for:
(1) Facilitating communication between the Postal Service and FOIA requesters.
(2) Providing information to requesters concerning the status of FOIA requests and information about responses to such requests.
(f) Freedom of Information Act Coordinators fill an ad hoc position located within each Headquarters department, and Area and District office, and are responsible for:
(1) Coordinating and tracking FOIA requests referred to or received by their functional or geographical area.
(2) Providing procedural guidance, upon request, to records custodians.
(3) Assisting the Deputy Chief FOIA Officer with national reporting activities, such as annual reporting of local FOIA and Privacy Act activities.
(g) Records Custodians are responsible for ensuring that records within their facilities or organizations are managed according to Postal Service policies. Vice presidents or their designees are the custodians of records maintained at Headquarters. In the field, the Records Custodian is the head of a Postal Service facility such as an area, district, Post Office, or other Postal Service installation or designee that maintains Postal Service records. Senior medical personnel are the custodians of restricted medical records maintained within Postal Service facilities. The Custodian of Employee Assistance Program (EAP) records is the Postal Service counselor, a supplier, or the public health service, whichever provided the services.
(h) Postal Service managers are responsible for administering records and information management policies and for complying with all handbooks, directives, and instructions in support of this policy.
5 U.S.C. 552, 552a; 39 U.S.C. 401.
(a)
(b)
(c)
(d)
(e)
5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403, 410, 1001, 2601.
(a) This part contains the regulations of the Postal Service relating to the availability to the public of Postal Service records. Included in this part are the regulations which implement the Freedom of Information Act (FOIA), 5 U.S.C. 552, insofar as it applies to the Postal Service. These rules should be read in conjunction with the text of the FOIA and the Fee Schedule and Guidelines published by the Office of Management and Budget. Additionally, Postal Service Handbook AS-353,
(b) Official records of the Postal Service made available pursuant to the requirements of the Act shall be furnished to members of the public as prescribed by this part.
(a)
(b)
(c)
Inquiries regarding the availability of Postal Service records must be directed to the appropriate Freedom of Information Act (FOIA) Requester Service Center (RSC). A description of FOIA RSCs is available at
(a)
(2)
Environmental Protection Agency.
Final rule.
Pursuant to its authority under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is promulgating this final action to make technical amendments to address several minor, inadvertent and nonsubstantive errors in the regulatory text establishing the air quality designations for the 2006 24-hour fine particle (PM
The effective date of these technical amendments is August 28, 2015.
For general questions concerning this action, please contact Andy Chang, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Planning Division, C539-04, Research Triangle Park, NC 27711, telephone (919) 541-2416, email at
The following is an outline of the preamble.
Section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary. In this action, we are amending 40 CFR part 81, which contains the tables of area designations and boundaries for each NAAQS. Notice
Whenever the EPA establishes a new NAAQS, section 107(d) of the CAA requires the EPA to designate all areas of the country as meeting or not meeting the new NAAQS, or as unclassifiable where available information does not support a determination whether an area is meeting the NAAQS. The area designations and boundaries for each NAAQS are set forth in tables at 40 CFR part 81.
This action makes technical amendments to minor, inadvertent and nonsubstantive errors in the 40 CFR part 81 regulatory text concerning the air quality designations for certain areas in two states for the 2006 24-hour PM
Documents related to the affected designations are available in the following dockets: Docket ID No. EPA-HQ-OAR-2007-0562 (2006 24-hour PM
A discussion of these inadvertent errors and associated corrections follows in the next section. The revisions to the regulatory text, specifically as codified in 40 CFR part 81, are provided at the end of this preamble.
The EPA published its air quality designations for the 2006 24-hour PM
The EPA published its air quality designations for the 1997 annual PM
The EPA redesignated New York County, New York as nonattainment for the 1987 annual PM
The EPA has confirmed that the Madison Avenue monitor in New York County (Air Quality Systems (AQS) Site ID 36-061-0077) recorded violations of the 1987 annual PM
When the EPA establishes a new NAAQS, section 107(d) of the CAA requires the EPA to designate all areas of the country as meeting or not meeting the new NAAQS, or as unclassifiable where available information does not support a determination whether an area is meeting the NAAQS. The area designations and boundaries for each NAAQS are set forth in tables at 40 CFR part 81.This action makes technical amendments to minor, inadvertent and nonsubstantive errors in the 40 CFR part 81 regulatory text concerning the air quality designations for certain areas in two states for the 2006 24-hour PM
This action makes technical amendments to correct minor, inadvertent and nonsubstantive errors in prior area designations. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
Because the EPA has made a good cause finding that this action is not subject to notice and comment requirements under the Administrative Procedure Act or any other statute as indicated in the
This action contains no federal mandate under the provisions of Title II of the UMRA of 1995, 2 U.S.C. 1531-1538 for state, local or tribal governments or the private sector. The action does not impose an enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action corrects minor, inadvertent and nonsubstantive errors in prior area designations.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action makes technical amendments to correct minor, inadvertent and nonsubstantive errors in prior area designations. Thus, Executive Order 13132 does not apply to this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action only makes technical amendments to correct minor, inadvertent and nonsubstantive errors in prior area designations or redesignations. None of these technical amendments has a substantial direct effect on any tribal land; thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. VCS are technical standards (
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the U.S.
The EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action makes technical amendments to correct minor, inadvertent, nonsubstantive errors in the designations for certain areas. The results are also contained in section IV titled, “Environmental Justice Considerations” of this preamble.
The Congressional Review Act, 5 U.S.C. 801
In the final actions designating areas for the PM
Environmental protection, Air pollution control, National parks, Wilderness areas.
For the reasons set forth in the preamble, 40 CFR part 81 is amended as follows:
42 U.S.C. 7401,
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of fluxapyroxad in or on cotton, gin byproducts and cotton, undelinted seed. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective July 29, 2015. Objections and requests for hearings must be received on or before September 28, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2012-0638, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. 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:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0638 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 28, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0638, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluxapyroxad including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluxapyroxad follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Fluxapyroxad is of low acute toxicity by the oral, dermal and inhalation routes, is not irritating to the eyes and skin, and is not a dermal sensitizer. The primary target organ for fluxapyroxad exposure via the oral route is the liver with secondary toxicity in the thyroid for rats only. Liver toxicity was observed in rats, mice, and dogs, with rats as the most sensitive species for all durations of exposure. In rats, adaptive effects of hepatocellular hypertrophy and increased liver weights and changes in liver enzyme activities were first observed. As the dose or duration of exposure to fluxapyroxad increased, clinical chemistry changes related to liver function also occurred, followed by hepatocellular necrosis, neoplastic changes in the liver, and tumors. Thyroid effects were observed only in rats. These effects were secondary to changes in liver enzyme regulation, which increased metabolism of thyroid hormone, resulting in changes in thyroid hormones, thyroid follicular hypertrophy and hyperplasia, and thyroid tumor formation. Tumors were not observed in species other than rats or in organs other than the liver and thyroid.
Fluxapyroxad is classified as “Not likely to be Carcinogenic to Humans” based on convincing evidence that carcinogenic effects are not likely below a defined dose range. There is no mutagenicity concern from
No evidence of neurotoxicity was observed in response to repeated administration of fluxapyroxad. An acute neurotoxicity study showed decreased rearing and motor activity. This occurred on the day of dosing only and in the absence of histopathological effects or alterations in brain weights. This indicated that any neurotoxic effects of fluxapyroxad are likely to be transient and reversible due to alterations in neuropharmacology and not from neuronal damage. There were no neurotoxic effects observed in the subchronic dietary toxicity study. No evidence of reproductive toxicity was observed. Developmental effects observed in both rats and mice (thyroid follicular hypertrophy and hyperplasia in rats and decreased defecation, food consumption, body weight/body weight gain, and increased litter loss in rabbits) occurred at the same doses as those that caused adverse effects in maternal animals, indicating no quantitative susceptibility. Since the maternal toxicities of thyroid hormone perturbation in rats and systemic toxicity in rabbits likely contributed to the observed developmental effects there is low concern for qualitative susceptibility. An immunotoxicity study in mice showed no evidence of immunotoxic effects from fluxapyroxad.
Subchronic oral toxicity studies in rats, developmental toxicity studies in rabbits, and
Specific information on the studies received and the nature of the adverse effects caused by fluxapyroxad as well as the no-observed-adverse-effect-level
Once a pesticide's toxicological profile is determined, EPA identifies toxicological POD and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a PAD or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for chemical name used for human risk assessment is shown in Table 1 of this unit.
1.
i.
ii.
iii.
iv.
2.
Based on the Tier 1 Rice Model and the Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of fluxapyroxad for acute exposures are estimated to be 127 parts per billion (ppb) for surface water and 203 ppb for ground water. The EDWCs for chronic exposures for non-cancer assessments are estimated to be 127 ppb for surface water and 184 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 203 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 184 ppb was used to assess the contribution to drinking water.
3.
Both adults and children may be exposed to fluxapyroxad residues from contact with treated lawns. Adult post-application exposures were not quantitatively assessed since no dermal hazard was identified for fluxapyroxad and inhalation exposures are typically negligible in outdoor settings. The exposure assessment for children included incidental oral exposure resulting from transfer of residues from the hands or objects to the mouth, and from incidental ingestion of soil. Post-application hand-to-mouth and object-to-mouth exposures are expected to be short-term (1 to 30 days) in duration due to the intermittent nature of applications in residential environments. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA has not found fluxapyroxad to share a common mechanism of toxicity with any other substances, and fluxapyroxad does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that fluxapyroxad does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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i. The toxicity database for fluxapyroxad is complete. Although no subchronic inhalation data is available,
ii. There is no indication that fluxapyroxad is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. Neither the acute nor the subchronic neurotoxicity studies indicated specific neurotoxicity responses to fluxapyroxad. Because fluxapyroxad can disrupt thyroid hormone levels, the Agency considered the potential for fluxapyroxad to cause developmental neurotoxicity as a result of thyroid hormone disruption, which is more sensitive endpoint than the endpoints used in a developmental neurotoxicity study. Based on its evaluation of thyroid hormone data submitted for fluxapyroxad and the ontogeny of thyroid hormone metabolism, the Agency has determined that adverse thyroid hormone disruptions in the young are unlikely to occur at dose levels as low as the points of departure chosen for risk assessment. The Agency has low concern for neurotoxic effects of fluxapyroxad at any life stage.
iii. Based on the developmental and reproductive toxicity studies discussed in Unit III.D.2., there are no residual uncertainties with regard to prenatal and/or postnatal toxicity.
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues or field trial residue data. The dietary risk assessment is based on reliable data, is conservative and will not underestimate dietary exposure to fluxapyroxad. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to fluxapyroxad in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by fluxapyroxad.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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A Liquid Chromatography-Mass Spectrometer/Mass Spectrometer (LC/MS/MS) method is available as an enforcement method. This method uses reversed-phase High Pressure Liquid Chromatography (HPLC) with gradient elution, and includes 2 ion transitions to be monitored for the parent fluxapyroxad.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however,
There is a Codex MRL for cotton, undelinted seed at 0.01 ppm. However, this MRL is based on seed treatment of cotton, and not foliar applications (which is the proposed use for the U.S. registration and which results in higher residues). Therefore, there is no ground for harmonization of U.S. tolerance and Codex MRL.
Therefore, tolerances are established for residues of fluxapyroxad [3-(difluoromethyl)-1-methyl-
This action amends existing tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of ethanesulfonic acid, 2-hydroxy- (CAS Reg. No. 107-36-8); ethanesulfonic acid, 2-hydroxy-, ammonium salt (CAS Reg. No. 57267-78-4); ethanesulfonic acid, 2-hydroxy-, sodium salt (CAS Reg. No. 1562-00-1); ethanesulfonic acid, 2-hydroxy-, potassium salt (CAS Reg. No. 1561-99-5); ethanesulfonic acid, 2-hydroxy-, calcium salt (CAS Reg. No. 10550-47-7); ethanesulfonic acid, 2-hydroxy-, magnesium salt (CAS Reg. No. 17345-56-1), and ethanesulfonic acid, 2-hydroxy-, zinc salt (CAS Reg. No. 129756-32-7) when used as inert ingredients (chelator, sequestrant and conditioning agent) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest and applied to animals. Technology Sciences Group Inc. (1150 18th St. NW., Suite 1000 Washington, DC 20036) on behalf of Huntsman Corporation (8600 Gosling Rd., The Woodlands, TX 77381) submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of ethanesulfonic acid, 2-hydroxy- and its corresponding ammonium, sodium, potassium, calcium, magnesium, and zinc salts.
This regulation is effective July 29, 2015. Objections and requests for hearings must be received on or before September 28, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0325, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. 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:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0325 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 28, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0325, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for ethanesulfonic acid, 2-hydroxy and the corresponding ammonium, sodium, potassium, calcium, magnesium, and zinc salts (also referred to as isethionic acid and its salts) including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with isethionic acid and its salts follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by isethionic acid and its salts as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.
Isethionate salts are expected to metabolize and dissociate into isethionic acid in the body. Therefore, toxicity for each of the isethionate salt forms are expected to have equal toxicity and share similar physical and chemical characteristics. Studies on isethionic acid or any one of its salt can be considered relevant for the entire group.
The acute oral toxicity of isethionic acid ammonium salt is low. The acute oral lethal dose (LD)
In a 90-day oral toxicity study on rats via gavage with sodium isethionate, decreased mean corpuscular hemoglobin concentration, increased mean absolute and relative reticulocyte counts, increased spleen weights and microscopic changes in the liver, bile duct, and spleen were observed at 1,000 milligram/kilogram/day (mg/kg/day) (LOAEL). Effects showed complete reversal after exposure was discontinued. The NOAEL for sodium isethionate was identified in this study as 200 mg/kg/day.
In an OSCPP Harmonized Test Guideline 870.3650 combined repeated dose toxicity study with the reproduction/developmental toxicity screening test, ammonium isethionate was administered to rats by gavage. The parental systemic LOAEL for ammonium isethionate is 500 mg/kg/day based on absolute and relative kidney weights and relative adrenal weights, and the parental systemic NOAEL is 250 mg/kg/day. The reproductive/developmental LOAEL for ammonium isethionate in rats was not identified, and the reproductive/developmental NOAEL is greater than or equal to 500 mg/kg/day.
Ammonium isethionate was negative for mutagenicity or chromosomal aberrations in a battery of tests of genotoxicity including a reverse gene mutation assay in bacteria, an
The OncoLogic
No neurotoxicity studies were available in the database for isethionic acid and its salts. However, a functional observational battery (FOB) and locomotor activity patterns were evaluated in the combined reproduction/developmental toxicity screening test and 90-day oral toxicity study. No alterations in the FOB or locomotor activity patterns were observed.
No Immunotoxicity studies on isethionic acid and its salts were available in the database. Increased spleen weights and microscopic changes in the spleen were observed in the 90-day toxicity study in rats; however, the chronic reference dose (cRfD) is based on this study and is protective of these effects.
No metabolism studies were available in the database for isethionic acid and its salts.
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for isethionic acid and its salts used for human risk assessment is shown in Table 1 of this unit.
1.
An acute dietary risk assessment was not conducted because no endpoint of concern following a single exposure was identified in the available studies. A chronic dietary exposure assessment was completed and performed using the Dietary Exposure Evaluation Model DEEM-FCID
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3.
Isethionic acid and its salts may be used as inert ingredients in pesticide products that are registered for specific uses that may result in indoor or outdoor residential inhalation and dermal exposures. A screening level residential exposure and risk assessment was completed utilizing conservative residential exposure assumptions. The Agency assessed short- and intermediate-term dermal and inhalation exposures for residential handlers that would result from low pressure hand wand, hose end sprayer and trigger sprayer for each pesticide type, herbicide, insecticide, and fungicide. The Agency assessed post-application short-term dermal exposure for children short-term hand-to-mouth and dermal exposure for children and adults from contact with treated lawns.
4.
EPA has not found isethionic acid and its salts to share a common mechanism
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i. The toxicity database for isethionic acid and its salts contains the following acceptable studies: Subchronic, reproduction/developmental screening study, and a mutagenicity study. The database is considered to be adequate to assess prenatal and postnatal toxicity.
ii. There is no indication that isethionic acid and its salts are neurotoxic chemicals and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UF) to account for neurotoxicity.
iii. There is no indication that isethionic acid and its salts are immunotoxic chemicals. Although increased spleen weights and microscopic changes in the spleen were observed in the 90-day toxicity study in rats those effects were due to red blood cell destruction and therefore not considered an immuno toxic effect. In any event, the cRfD is based on this study and is protective of these effects. Therefore, there is no need for an Immunotoxicity study or additional UFs to account for Immunotoxicity.
iv. There is no evidence that isethionic acid and its salts result in increased susceptibility for infants and children.
v. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to isethionic acid and its salts in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by isethionic acid and its salts.
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Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 187 for adults and 123 for children. Because EPA's level of concern for isethionic acid and its salts are MOEs of 100 or below, these MOEs are not of concern.
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An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
Therefore, exemptions from the requirement of a tolerance are
This action establishes exemptions from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemptions in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) Region 2 announces the deletion of the Crown Vantage Landfill Superfund Site (Site), located in Alexandria Township, Hunterdon County, New Jersey, from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). EPA and the State of New Jersey, through the New Jersey Department of Environmental Protection, have determined that all appropriate response actions under CERCLA, other than long-term maintenance and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund.
This action is effective August 28, 2015.
U.S. Environmental Protection Agency, Region 2, Superfund Records Center, 290 Broadway, Room 1828, New York, NY 10007-1866,
Milford Public Library, Crown Vantage Landfill Site Repository File, 40 Frenchtown Road, Milford, NJ 08848,
Alison Hess, Remedial Project Manager, U.S. Environmental Protection Agency, Region 2, 290 Broadway, 19th Floor, New York, NY 10007-1866;
The site to be deleted from the NPL is: Crown Vantage Landfill Superfund Site, Alexandria Township, New Jersey. A Notice of Intent to Delete for this Site was published in the
EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Deletion from the NPL does not preclude further remedial action. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazards ranking system. Deletion of a site from the NPL does not affect the responsible party liability in the unlikely event that future conditions warrant further actions.
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For reasons set out in the preamble, 40 CFR part 300 is amended as follows:
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Final rule.
GSA is amending the Federal Travel Regulation (FTR) by removing the meals and incidental expenses (M&IE) breakdown table from the regulation. The table will continue to be published on GSA's Web site at
Ms. Marcerto Barr, Office of Government-wide Policy (MAE), General Services Administration, at 202-208-7654 or email at
In order to be more efficient and consistent, and in an effort to eliminate duplication, GSA is removing the M&IE breakdown table from the FTR and solely maintaining it on GSA's Web site at
Executive Orders (E.O.s.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a “significant regulatory action,” and therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. The final rule has been reviewed by the Office of Management and Budget. This final rule is not a major rule under 5 U.S.C. 804.
This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the Federal Travel Regulation do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.
Government employees, per diem reimbursement, M&IE allowance, Travel and transportation.
For the reasons set forth in the preamble, under 5 U.S.C. 5701-5707, GSA is amending 41 CFR part 301-11, as set forth below:
5 U.S.C. 5707.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), are listing the Honduran emerald hummingbird (
This final rule is effective August 28, 2015.
Janine Van Norman, Chief, Branch of
We are listing the Honduran emerald hummingbird as endangered under the Endangered Species Act (ESA or Act) (16 U.S.C. 1531
This action lists the Honduran emerald hummingbird as endangered on the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).
The ESA was passed to prevent extinction of species by providing measures to help alleviate the loss of species and their habitats. Before a plant or animal species can receive the protection provided by the ESA, it must first be added to one of the Federal Lists of Endangered and Threatened Wildlife and Plants. Section 4 of the ESA and its implementing regulations at part 424 of title 50 of the Code of Federal Regulations (CFR) set forth the procedures for adding species to these lists.
On June 23, 2010, we published a 90-day finding (75 FR 35746) on the petition announcing that we would initiate a status review to determine if listing this species is warranted. On January 2, 2013, we published a 12-month finding and proposed rule (78 FR 59) to list this species as endangered under the Act.
We base this final rule on a review of the best scientific and commercial information available, including all information we received during the public comment period. In the January 2, 2013, proposed rule (78 FR 59), we requested that all interested parties submit information that might contribute to development of a final rule. The public comment period was open for 60 days, ending March 4, 2013. We also contacted appropriate scientific experts and organizations, and invited them to comment on the proposed listing in accordance with our peer review policy, described in the section below. We received five (5) comments during the comment period including two from peer reviewers, one comment from the Petitioner, one comment containing three reports, and one non-substantial comment. These comments are available at
In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” that was published on July 1, 1994 (59 FR 34270), we sought the expert opinion of three appropriate independent specialists regarding this rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analysis. We sent copies of the proposed rule to the peer reviewers immediately following publication in the
We reviewed all comments we received for substantive issues and new information regarding the proposed listing of this species; we address those comments in the section that follows. Comments that provided support or opposition without substantive information were noted, but not addressed in this final rule.
This final rule incorporates the comments we received on our proposed listing and newly available scientific and commercial information. Peer reviewers generally commented that the proposed rule was thorough and comprehensive. New reports relevant to the Honduran emerald hummingbird and its habitat were submitted during the comment period. Two resources were provided which provided new population estimates. The estimated number of Honduran emerald hummingbirds in one study (INGTELSIG 2013) was estimated to be larger than other estimates; however, there were several aspects of the methodology, assumptions, and study design that were questioned by other scientists to the extent that we did not have confidence in the population estimate provided in the study (Anderson
This hummingbird species was first taxonomically described by Lawrence in 1867, and placed in the Trochilidae family as
The Honduran emerald hummingbird is one of more than 325 hummingbird species. Hummingbirds exhibit a wide range of flight-related morphology and behavior based on ecological factors (Altshuler and Dudley 2002, p. 2,325). As do all hummingbirds, the Honduran emerald hummingbird exhibits slight sexual dimorphism (physical differences between the females and males), which is demonstrated in the coloring of its plumage. This species is a medium-sized hummingbird with an average length of 9.5 centimeters (3.7 inches) (BLI 2008, p. 2). The male has an iridescent blue-green throat and upper chest and occasionally has a grey mottled coloring. Its back is an emerald green color, the ventral (underneath) side of the bird is pale grey with mottled green sides, and the tail is bright green with a bronze hint on the upper tail coverts (BLI 2008, p. 1). The plumage of the female is less brilliant (BLI 2008, p. 2). The tail of the female contains a grey tip, and the band of distinctive color on the throat of the female hummingbird is narrower, with pale edges (BLI 2008, p. 2; Monroe 1968, p. 183). Juveniles have grayish throats spotted with turquoise (BLI 2008, p. 2).
Hummingbird bills vary among species and are adapted for specialized feeding. The bill of the Honduran emerald hummingbird is black and slightly curved with a red mandible and dark tip and is slightly longer and more decurved (downward curving) bill than the closely related species
The Honduran emerald hummingbird historically has preferred arid interior valleys of thorn forest and shrubs. The Aguán River Valley area rarely receives more than 76 centimeters (30 inches) of rain per year (Perez and Thorn 2012, pers. comm.; Gallardo 2010,
In Honduras, this habitat occurs primarily along the Gulf of Fonseca, in the Agalta Valley in the Olancho Department, and in the Aguán Valley in the Yoro Department (for a map of the Honduran emerald populations, see our proposed rule, 78 FR 63). This species tends to be found in similar altitudes, although it has recently been observed at higher elevations (Germer 2013, pp. 1-2). Most of the hummingbird's occurrences have been noted at elevations between 150 and 600 meters (492 and 1,968.5 feet (ft)) above sea level; however, other observations were recorded at 845 and 1,220 meters (2,772 and 4,003 ft) (Germer 2012; pp. 55-56; Sanchez et al. 2011, p. 69).
The Honduran emerald hummingbird nests in March and April, and its nest has been observed in a Guayabillo tree (
Emerald hummingbirds are somewhat aggressive and territorial (Collar et al. 1992, p. 493; Howell and Webb 1989, p. 643), due to competition with other hummingbird species for resources. This species has been observed feeding at heights between 0.5 to 10 meters (2 to 32 ft) (Howell and Webb 1989, p. 643). Some aspects of this species' behavior remain unclear, such as how far individuals disperse, what habitats are important for dispersal, and how the populations are linked genetically (Perez and Thorn 2012 pers. comm.; Anderson et al. 2010, p. 7).
As with all hummingbird species, the Honduran emerald hummingbird relies on nectar-producing flowers for food and energy, and relies on insects and spiders as sources of protein (Germer 2012, p. 2; Collar et al. 1992, p. 494). Thorn et al. (2000, p. 23) observed that habitat with abundant flowers, red in particular, appeared to be a critical characteristic for suitable habitat. Additionally, suitable habitat requirements include similar ecological conditions such as access to nectar and insects, rainfall, humidity and temperature. During one field study in Santa Barbara, Honduran emerald hummingbirds were observed hunting arthropods about 50 percent of their time (Stiles 1985).
Hummingbirds are known to “disperse” rather than “migrate” in the sense that they do not follow routine, standard, round-trip movements; they follow sources of food availability (Berthold et al. 2003, pp. 40-41). Hummingbirds are the most specialized nectar-feeding birds in the New World (Graham et al. 2009, p. 19,673). Hummingbirds quickly shift to the best available sources of nectar; their choice of habitat may change concurrent with loss of their preferred food sources (Gill 1987, p. 785; Montgomerie et al. 1984). When a hummingbird's habitat does not provide its required resources, research indicates that they tend to abandon a territory and move to more productive areas (Feinsinger and Colwell 1978; Kodric-Brown and Brown 1978 in Justino et al. 2012, p. 194). Emerald hummingbirds are habitat generalists in the sense that they do not rely exclusively on a single species of plant for nourishment; rather, they utilize a wide variety of nectar-producing plants to meet their nutritional requirements (Graham et al. 2009, p. 19,675).
Germer (2011) found that during the dry season, the Honduran emerald hummingbird can be found in gallery forests (forests that grow in corridors along wetlands or rivers, projecting into sparsely treed areas), or near bodies of water where humidity and abundance of small arthropods is greater. Its use of these areas is believed to reduce its metabolic cost and escape heat during the driest seasons (pp. 52-53). High variability between detections was observed, which could imply that the
In Yoro, the Honduran emerald hummingbird uses the species Pedilanthus camporum, which produces flowers year-round, and Nopalea hondurensis, which flowers generally between February and April, 90 percent of the time observed. In the Coyoles area in the Aguán Valley, the thorn forest is primarily comprised of Mimosaceae (herbaceous and woody species), Cactaceae (cactus species), and Euphorbiaceae (herbs, shrubs, trees, and some succulent species) (Collar et al. 1992, p. 494). In western Honduras, 90 percent of foraging observations were on Aphelandra scabra and Helicteres guazaumifolia. A list of plant species utilized by Honduran emerald hummingbirds is available in our proposed rule, 78 FR 63.
In our proposed rule (78 FR 59), we noted that several attempts have been made to estimate the population status of the Honduran emerald. In 2007, the total population was estimated to be between 200 and 1,000 individuals (Anderson
During the public comment period, we received additional information indicating that the total population estimate for Honduran emerald may be higher than previously believed. One study, published in 2013, suggested that the population of Honduran emerald hummingbirds was significantly larger, estimated to be between 50,000 and 106,000 individuals (INGTELSIG 2013). We find this to be an overestimate due to several erroneous assumptions in the study design and sampling methodology, which were described in Anderson
The Honduran emerald hummingbird is the only known endemic bird species in Honduras (Anderson and Devenish 2009, p. 258; Portillo 2007, p. 17; Thorn
• Catacamas, Olancho (1937 and 1991) (Howell and Webb 1992, pp. 46-47; Monroe 1968, p. 182).
• Cofradía, Cortes (1933) (Monroe 1968, p. 182).
• Coyoles, Yoro (1948 and 1950) (Monroe 1968, p. 182).
• El Boquerón, Olancho (recorded September 1937) (Monroe 1968, p. 182).
• Olanchito, Yoro (1988) (Howell and Webb 1989, pp. 642-643).
• Santa Bárbara, Santa Bárbara (1935) (Monroe 1968, p. 182).
Between 1950 and 1988 there were no recorded observations of the Honduran emerald hummingbird. In 1988, the species was described as common in Olanchito and Coyoles, which are located 16 km (9 miles) apart (BLI 2008, p. 2). In 1991, between 22 and 28 individuals were found in a patch of habitat measuring 500 by 50 meters (1,640 x 164 ft) near Olanchito (Howell and Webb 1992, pp. 46-47). In 1996, the bird was found in the Agalta Valley on less than 1 km
Prior to its 1988 rediscovery in Olanchito and Coyoles, it was thought that habitat loss had restricted the Honduran emerald hummingbird to isolated patches of arid thorn-forest and scrub of the interior valleys of northern Honduras. Between 2007 and 2013, this species was documented in seven valleys in Honduras (Anderson
In 2007, this species was observed in the Agalta Valley and in the Telica Valley, both in the Olancho Department (Anderson and Hyman 2007, p. 6). The Agalta Valley is described as a remote region in the mountains of eastern Honduras containing over 1,000,000 ha (2,471,054 acres) of land characterized as dry basin. Here, the Honduran emerald hummingbird's habitat primarily is on large, privately owned cattle ranches that have restricted access (Anderson
This hummingbird species is known in the Aguán Valley, Yoro Department, in the areas of Olanchito and Coyoles, and is reported as relatively common, but only within its remaining suitable habitat (Gallardo 2010, p. 186; Thorn
The lands along the Aguán River have periodically been devastated by banana diseases, floods, and hurricanes, particularly Hurricane Fifi in 1974 and Hurricane Mitch in 1998 (NOAA 2012, p. 2; Winograd 2006; USGS 2002, p. 5). This valley is on the south side of the Nombre de Dios Mountain Range, primarily in the Yoro Department (Gallardo 2010, p. 185). The Aguán River Watershed is 10,546 km
In 2000, a survey was conducted for the Honduran emerald hummingbird and concluded that it occurs in dry tropical forest (Anderson and Hyman 2007, pp. 1-4; Thorn
The Honduran emerald hummingbird is listed as endangered by the IUCN (2012). The category of this species was reclassified as endangered from critically endangered following its recent discovery in the western part of Honduras, which increased its known range (BLI 2012, pp. 1-2). Its IUCN classification is based on its very small and severely fragmented range and population. However, this status under IUCN conveys no actual protections to the species. The Honduran emerald hummingbird has been listed in Appendix II of CITES since October 22, 1987, at which time all hummingbird species not previously listed in the Appendices were listed in Appendix II. Honduras and the United States are both Parties to CITES, an international treaty among 180 nations through which member countries, called Parties, work together to ensure that international trade in CITES-listed animals and plants is not detrimental to the survival of wild populations. This goal is achieved by regulating import, export, and re-export of CITES-listed animal and plant species and their parts and products through a permitting system (
The most serious threat affecting this species is the continued degradation and fragmentation of existing habitat, and the complete loss of habitat (estimated to be 90 percent) over the past 100 years due to land conversion from prime thorn forest habitat to banana plantations, agriculture, and cattle pastures (Komar
Honduras has been steadily losing thorn forest cover, particularly since the early 1960s, mostly due to the conversion of thorn forest areas to agricultural areas, such as cattle pastures and coffee, bean, corn, and banana plantations (World Wildlife Fund 2008, p. 11; Anderson pers. comm. 2008 in Petition 2008, p. 11; Portillo 2007, p. 75). In Yoro, there are only four large patches of suitable habitat for this species remaining (Perez and Thorn 2012, pers. comm.; Anderson 2010). The four largest fragments are between 360 and 476 ha (890 and 1,176 acres), for a combined total of 1,704 ha (4,210 acres) (Anderson 2010, p. 6). In the Aguán Valley, as of 2000, suitable habitat for the Honduran emerald had reduced in size to an estimated 8,495 ha (20,991 acres) from 16,000 ha (39,537 acres) in 1977, and 30,000 ha (74,132 acres) in 1938 (Thorn
In the last ~100 years, the Aguán region has experienced three periods of agricultural economic growth (WWF 2008, p. 11). Thorn forests were initially cleared in the Aguán Valley to create banana and plantain plantations and rice farms, as well as pasture for cattle (Stattersfield and Capper 2000, p. 311). However, after an outbreak of Panama disease occurred in bananas, the Aguán Valley was largely abandoned, and much of the land reverted to pasture or forest. As a result of the agricultural reforms of the 1960s and 1970s, Honduran campesinos (farmers) received farmland in the Aguán Valley and proceeded to clear and develop the Valley that was previously forested into an agricultural region. In the late 1970s, lands were again cultivated with disease-resistant varieties of bananas. In the Aguán Valley, 10,319 ha (25,500 ac) now consist of banana plantations in an area known as the Barisma farm (Dole 2011, p. 67). One of the best patches of optimal Honduran emerald hummingbird habitat in the Aguán Valley has practically disappeared due to its proximity to a nearby town (Thorn 2012, pers. comm.). Now, only a single forest remnant larger than 100 ha (247 ac) that is suitable for this species is known to exist in this valley (Anderson 2010, p. 6). Habitat suitable for Honduran emerald hummingbirds continues to be cleared by private landowners in order to plant pasture grass for grazing cattle (Hyman 2012 pers. comm.).
Several hummingbird species have persisted in fragmented tropical landscapes (Stouffer & Bierregaard 1995 in Hadley & Betts 2009, p. 207). However, hummingbird persistence at the landscape scale does not indicate that the population is at the same level it was prior to deforestation (Hadley & Betts 2009, p. 207). Flight paths used by the green hermit hummingbird (
Nectar is the primary source of carbohydrates for hummingbirds, and insects or pollen is the primary sources of protein for hummingbirds (Araújo
Because approximately 84 percent of the Honduran emerald's suitable habitat is privately owned, it is difficult to provide protections to this species (Steiner 2012 pers. comm.; FAO 2010, p. 238). In many cases, the only sites in Honduras that have maintained a viable ecosystem in somewhat of a natural state are places with irregular topography. Subsequently, these areas have become protected or private nature reserves (Portillo 2007, p. 75). Much of this species' original habitat, thorn forest, has been cleared for housing, towns, agriculture, and cattle grazing (Stattersfield and Capper 2000, p. 311; Thorn
Although palm oil plantations in the Aguán River Basin have not been directly implicated as the cause of Honduran emerald habitat loss, palm oil plantations have replaced pasture lands that were left behind after the banana plantations diminished from their initial success during the first part of the 20th century (WWF 2008, p. 30). The palm oil production in the Aguán River Basin is concentrated between Sava and Tumbaderos (WWF 2008, p. 17) and covers 28,082 ha (69,392 ac.). The area includes plantations, processing plants, nurseries, palm oil collecting sites, and other infrastructure. Honduras' palm oil industry exported over $21 million U.S. dollars' worth of palm oil in 2004, and Honduras is expected to increase its production of palm oil for biofuel (Silvestri 2008, pp. ii-iii). Other countries are encouraging Honduras to increase production of palm oil, which would likely affect the Aguán River Basin (Silvestri 2008, pp. 47; WWF 2008, pp. 37-38). These changes in land use have had an environmental cost (WWF 2008, pp. 30, 53-54), such as land degradation through deforestation and exposure to fertilizers and pesticides, which are discussed below. Although the conversion to palm oil plantations may not be occurring directly in Honduran emerald hummingbird habitat, its effects may impact this species via the development of roads, habitat conversion, and settlements.
To provide perspective on the magnitude of the production in this valley, the Aguán Valley Palm Producers Association (APROVA) is a cooperative of 154 oil palm farmers (USDA 2012, pp. 1-3). In 2009, APROVA opened its first palm oil processing plant, which processes up to five tons of palm oil per day (USDA 2012, pp. 1-3); there are now five processing plants. As of 1938, within the Aguán Valley 30,000 ha (74,131 ac) were the arid, thorn forest preferred by the Honduran emerald (Tierra America 2012, pp. 1-2). By 1977, suitable habitat for the Honduran emerald hummingbird had been reduced to 16,000 ha (39,537 ac), and in 2000, only 8,495 ha (20,991 ac) remained. Of that area, only 3,900 ha (9,637 ac) can be considered preserved well enough to sustain significant populations of the Honduran emerald hummingbird (Mejía pers. comm. in Tierra America 2012).
The World Wide Fund for Nature (WWF) notes that agricultural production yield level can only be increased with the use of agrochemicals such as fertilizer and pesticides, which in turn all have an environmental impact. Before palm oil tree canopies fully develop, sunlight is able to penetrate the ground resulting in aggressive weed growth and frequent weed control is needed. Mechanical weed mowers hauled by agricultural tractors are used to keep weeds at a manageable height in between rows. Before the canopy is fully developed, areas around young plants are kept free of competing weeds mostly by chemical herbicides and by manually removing them (WWF 2008, pp. 24-25). However, these plantations are approximately 161 km (100 miles) north of the Honduran emerald hummingbird's habitat, and are not known to directly affect this species (Hyman 2012, pers. comm.). Therefore, we do not find pesticides and fertilizers to be a threat to the continued existence of this species.
Honduras is ranked among the countries with the lowest development of road networks in Central America (Acevedo
Existing roads have been negatively impacted by hurricanes, flooding, and neglect after the crash of the banana industry. The Aguán and Agalta valleys, which contain this species' preferred habitat, are some of the most productive agricultural areas of the country, and this change in land use has decreased the available suitable habitat for the Honduran emerald hummingbird (Acevedo
Growth in this economic sector is impeded by the lack of access to the most productive agricultural areas of the country due to poor road infrastructure. The road improvement project (Central Road, Route no. 23) is funded by the World Bank through the “Second Reconstruction and Improvement Project Road” (World Bank 2013, pp. 1-3; World Bank 2011, pp. 1-3; Proceso Digital 2010). The road improvement project will likely bring more traffic, which will increase land speculation and settlement of homes along the road, ultimately impacting surrounding Honduran emerald hummingbird habitat (Perez and Thorn 2012, pers. comm.; Steiner and Coto 2011, pp. 1-2). Roads through prime Honduran emerald hummingbird habitat, which is presently affected by cultivation of bananas and plantains, link the river valley to the ports at Tela, La Ceiba, Trujillo, and Puerto Cortés.
There are plans to pave the road between Olanchito (Yoro Department) and San Lorenzo (Valle Department (southcentral Honduras)), an approximately 57-km (35-mile) stretch that currently passes through the Aguán Valley, which will further impact this species' habitat (Hyman 2012; pers. comm.; World Bank 2011, pp. 1-3; Anderson pers. comm. 2008 in Petition 2008; Hyman 2007, p. 10). This project has been contingent on several factors,
The Agalta Valley is traversed by a highway that has been proposed to be repaved (Inter-American Development Bank 2013, pp. 1-2; Hyman 2012, pers. comm). This region is an area with a high rate of poverty, and this highway is, in part, intended to improve the economic conditions in this region. This region contains approximately 50,000 human inhabitants. The highway will complete the second paved transit route between the Pacific and Atlantic oceans in Honduras. The road is being improved in order to provide a better link between Tegucigalpa and the Atlantic coast of Honduras and will better connect the Departments of Francisco Morazán, Olancho, and Colón. It is unclear how this highway will affect the remaining 5,000 ha (12,355 ac) of this species' habitat (Bonta 2011, pers. comm.) in this valley.
The construction of several development projects could possibly affect this species' habitat (Bonta 2012, pers. comm.) in the Agalta Valley and the Tencoa Valley. At least two hydroelectric projects have become operational in recent years (Bonta 2012, pers. comm.). These projects could likely result in more infrastructure development in the Valley, which could also affect the Honduran emerald hummingbird's habitat. Additionally, several agricultural development projects may be underway in the Agalta Valley (Bonta 2012, pers. comm.). Bonta indicates that the following projects, which can be located at
• AGR112: Production of Transgenic Certified Maize,
• AGR126: Cultivation of Piñón,
• AGR401: Cultivation of Piñón (5,000 ha in the Agalta Valley),
• AGR402: Cultivation of Piñón,
• FOR204: Teak (
Although highway construction, agricultural development, and resulting infrastructure is likely to occur in the Agalta Valley, it is unclear how these activities would negatively affect the Honduran emerald hummingbird in this valley. To mitigate the effects of development in this area, a Honduran emerald hummingbird conservation strategy paper for the Agalta Valley was funded by the Inter-American Development Bank (IADB) and partially developed by the American Bird Conservancy. In the area of influence of IADB project HO-L1003, the strategy paper identified 20 remaining fragments of suitable Honduran emerald hummingbird habitat; all but one of these fragments is located on private land. The paper recommended development of a payments-for-ecosystem-services scheme (PES scheme) as the most viable conservation option. This concept would compensate landowners for conserving or restoring Honduran emerald hummingbird habitat found on their land in the Agalta Valley; however, it is unclear whether this has been implemented (IADB 2013, pp. 1-2).
Data obtained from the United Nations Environment Programme—World Conservation Monitoring Center (UNEP-WCMC) show that, since its listing in CITES Appendix II in 1987, only two Honduran emerald hummingbird specimens have been recorded in international trade, involving two carcasses of unknown origin from Germany to the United States in 1996 (UNEP-WCMC 2009b). Therefore, international trade is not a factor influencing the species' status in the wild. We are not aware of any other information that indicates that collection or overutilization of the Honduran emerald hummingbird is affecting this species.
The Intergovernmental Panel on Climate Change (2014, pp. 1530-1532) suggests that the distribution of some disease vectors may change as a result of climate change. However, after conducting a status review of the Honduran emerald hummingbird and consulting with experts, we have no information at this time to suggest that any specific diseases are or may become problematic to this species.
In our proposed rule (78 FR 59), we found that the species' small population size (at the time of our proposal, estimated to be 200-1,000 individuals) combined with its highly restricted and severely fragmented range, increased the species' vulnerability to adverse natural events. The species' potential exposure to extreme weather events such as hurricanes, extended periods of drought, or flooding, in combination with habitat loss and degradation was believed to be affecting the continued existence of the species throughout its range.
During the public comment period, we received new information indicating that the population estimates were much higher than previously believed (5,000-10,000 breeding pairs) (see Population Estimates). Based upon this updated estimate, we have re-evaluated whether the populations are susceptible to the risks associated with small and declining populations as described in detail below.
Endemic to Honduras, Honduran emeralds hummingbirds have been found in seven populations. In the Santa Barbara Department (western Honduras), they have been found in three separate valleys, Tencoa Valley, Jicatuyo/Ulua river valley, and the Quimistan Valley. Anderson et al. (2013, p. 14) estimates a combined population for these three valleys to be roughly 2,500-5,000 breeding pairs; however, the researcher notes that no comprehensive, peer-reviewed population estimate has been completed for this area and as such, there is no current information indicating how the populations are distributed between the three separate valleys. Anderson et al. (2010, p. 258) stated that during research in Tencoa Valley alone, they found individuals in five habitat fragments, each fragment measuring between 5 to 60 hectares (ha), separated from each other by at least 5 km. A single individual was found in a 40 ha forest fragment in Quimistan Valley (Anderson et al. 2010, p. 258). In the Yoro Department, a single population
Despite the increased total population estimate of 5,000-10,000 breeding pairs, research suggests the individual populations are small, including one population that is presumably extirpated. Research illustrates that the populations are both geographically and genetically isolated from one another. According to Anderson
Species endemic to a few, widely dispersed locations are inherently more vulnerable to extinction than widespread species because of the higher risks from genetic bottlenecks, random demographic fluctuations, climate change, and localized catastrophes such as hurricanes, landslides, and drought (Lande 1988, p. 1,455; Mangel and Tier 1994, p. 607; Pimm
Although new population estimates have increased the worldwide population estimate from 200-1,000 individuals to 5,000 to 10,000 breeding pairs, the individual populations of Honduran emerald are small and declining. Additionally, the species range is restricted within Honduras and the individual populations are geographically and genetically isolated from one another. The Honduran emeralds small and declining populations combined with their highly restricted and severely fragmented range increase the species' vulnerability to adverse natural events and are affecting the continuing existence of the species throughout its range.
Small, declining populations can also be especially vulnerable to environmental disturbances such as flooding, drought, or hurricanes (O'Grady 2004, pp. 513-514). The Honduran emerald relies on arid, thorn forest habitat to provide nectar-producing plant species for energy and insects for protein in order to meet the biological requirements for breeding, feeding, and nesting. In 2012, Honduras was determined to be one of the countries most affected by climate change due to its geographic location, which is in the direct path of many tropical storms and hurricanes (Harmeling 2012, pp. 5-6). Research and modeling have explored how changes in climate might affect areas such as Honduras (Gasner
Climate change models, like all other scientific models, produce projections that have some uncertainty because of the assumptions used, the data available, and the specific model features. The science supporting climate model projections, as well as models assessing their impacts on species and habitats, will continue to be refined as more information becomes available. While projections from regional climate model simulations are informative, various methods to downscale projections to more localized areas in which the species lives are still imperfect and under development (Solman 2011, p. 20; Nuñez
Honduras appears to have entered a more active period of hurricane activity (Pielke
Arid-zone species are assumed to be more resilient to high temperatures and low humidity (Şekercioğlu
Climate models are not always able to predict the possible effects of ecological interactions, adaptation, or how species, particularly pollinators, might disperse in response to climate change (Buermann
Several mechanisms are in place which are intended to provide protections to the Honduran emerald hummingbird. These protections include involvement by nongovernmental organizations (NGOs), wildlife protection laws, and a reserve designated to protect its habitat. These mechanisms are described below.
Honduras has made significant progress in conservation of its natural resources (Portillo 2007, p. 60; Vreugdenhil
In Honduras, several NGOs, such as The Nature Conservancy (TNC) and the Honduran Biodiversity Research Coalition, are participating in the conservation and management of this species. One protected area, the Honduran Emerald Reserve (Reserve), was established by the Honduran Government in 2005, with support from TNC. TNC has provided both technical and financial support to the government and local community groups to complete a 10-year management plan for the Reserve. This Reserve was established in connection with funding from the World Bank to finish building the main highway linking the capital with Olanchito, Yoro, via Cedros Francisco Morazán (Steiner and Coto 2011, pp. 1-2) (refer to
In 2009, the National Conservation and Forestry Institute (ICF) began a management plan for the protected area specifically for the Honduran emerald. This was with the participation of nearby municipalities, Arenal Olanchito, the department of Yoro, SOPTRAVI Honduras Armed Forces (HAF), the Ministry of Education through the Regional Environmental Education Center, CREATE, the Ministry of Tourism, and the Ministry of Environment and Natural Resources (Steiner and Coto 2011, pp. 1-2; Portillo 2007, p. 99). The Interagency Technical Committee for Monitoring and Honduran Emerald Hummingbird Habitat Management Area was formed. In 2010, the ICF, with financial support from TNC, finalized the management plan for the protected area (Resolution No. DE-MP-147-2010).
This reserve is located 34 km (21 miles) west of the city Olanchito in the Aguán Valley. The reserve encompasses 1,217 ha (3,007 ac) and spans elevations between 220 and 800 meters (722 and 2,625 ft). As of 2012, there were 651 ha (1,609 ac) of dry forest habitat remaining that is suitable for the Honduran emerald hummingbird (Perez and Thorn 2012, pers. comm.; Thorn et al. 2000 in Anderson 2010, p. 6). The Honduran Emerald Reserve is guarded by Honduran Air Force soldiers, who patrol the reserve and do not allow visitors into the protected area without prior permission (Hyman 2012 pers. comm.). However, cattle from neighboring land owners are frequently found grazing uncontrolled on the property within Honduran emerald habitat (Steiner 2011, p. 1; House 2004, p. 30). Despite conservation efforts, land owners around the protected area want to expand their properties and are cutting more suitable habitat in order to plant grass for cattle grazing (Hyman and Steiner 2012, pers. comm.). Because encroachment and livestock grazing continue to occur both around and in the protected area, and this species requires more suitable habitat than what exists in this protected area, this area is insufficient to provide adequate suitable habitat for this species.
Another entity working towards conservation of the Honduran emerald is the Honduran Biodiversity Research Coalition, which is a group of scientists and conservationists established in 2011 that undertakes and promotes biodiversity research and conservation in Honduras. The American Bird Conservancy is another NGO working to protect this species. One of its current goals is to work towards the development of a payment for ecosystems services project in the Agalta Valley to restore and protect Honduran emerald hummingbird habitat.
In conclusion, Honduras is improving its management of its resources (Food and Agriculture Organization of the United Nations 2010). However, most of the habitat required by the Honduran emerald hummingbird is privately owned, and the thorn forests are being converted to other uses that are not suitable for this species. Despite the progress made in Honduras with respect to laws and regulatory mechanisms in place to protect the Honduran emerald hummingbird, the species continues to face habitat degradation and fragmentation.
A species is “endangered” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range. A species is “threatened” for purposes of the Act if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of
In assessing whether the Honduran emerald hummingbird meets the definition of an endangered species or a threatened species, we considered the five factors in section 4(a)(1) of the Act. We conducted a review of the status of this species and assessed whether the Honduran emerald hummingbird is endangered or threatened throughout all or a significant portion of its range. We also reviewed all information we received during the public comment period. We have assessed the best scientific and commercial information available regarding the past, present, and future threats affecting this species.
This species requires a constant source of energy, primarily in the form of nectar and insects. In order to meet its energy and nutritional requirements, this species needs access to intact, suitable habitat with a diversity of plant species that contain abundant energy sources throughout the year.
We find that habitat loss due to conversion to agricultural development and cattle pastures is the main factor affecting the Honduran emerald hummingbird throughout its range (Factor A) (Komar et al. 2013, p. 40; Anderson et al. 2013, pp. 1-15; Bonta 2012 pers. comm.; Perez and Thorn 2012 pers. comm.). Habitat degradation and loss continue to occur and affect the species throughout its range. Uncontrolled clearing of the Honduran emerald's dry forest habitat for pastures or plantation agriculture has restricted the species to a few small, isolated “islands” of suitable dry forest habitat surrounded by banana plantations or cattle ranches (Perez and Thorn 2012, pers. comm.). Its current occupied and suitable range has been greatly reduced and is severely fragmented. This hummingbird species is expending more energy in order to find food sources to meet its nutritional needs, and as its suitable habitat becomes more scarce and fragmented, these habitat islands are growing farther apart.
Historically, the Honduran emerald hummingbird existed in more continuous, connected habitat. Its suitable habitat has become increasingly limited, and it is not likely to expand in the future. This species' population is estimated to be between 5,000 and 10,000 breeding pairs distributed over seven valleys in Honduras. A lack of a sufficient number of individuals in a local area or a decline in their individual or collective fitness may cause a decline in the population size, despite the presence of suitable habitat patches. In cases where populations are small, effects on the species are exacerbated. Any loss of potentially reproducing individuals could have a devastating effect on the ability of the population to increase.
A species may be affected by more than one factor, and these factors can act in combination. The most significant factor affecting the Honduran emerald hummingbird is the degradation, fragmentation, and loss of suitable habitat (Factor A). Fragmentation and isolation of populations can decrease the fitness and reproductive potential of the species, which exacerbate other threats. Changes in Honduras' climate are acting in combination with other factors to affect this species' habitat. Extreme weather events (an increase in the severity and frequency in hurricanes and increased periods of drought (Factor E)) are impacting this species' habitat.
The species' small population size (Factor E), combined with its restricted and severely fragmented range (factor A), increase the species' vulnerability to adverse natural events (Factor E) that destroy individuals and their habitat. The species' potential exposure to extreme weather events, such as hurricanes, extended periods of drought, or flooding, in combination with habitat degradation and fragmentation, is currently affecting the continued existence of the species throughout its range now and in the future.
In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats affecting this species. We have identified multiple factors that have interrelated impacts on this species. These factors occur at a scale sufficient to affect the status of the species now and in the future. The most significant threat is habitat degradation and fragmentation due to conversion from thorn forest to agriculture and cattle pastures. Both biotic and abiotic ecological interactions influence species' distributions (Jankowski et al. 2010, pp. 1877-1883; Dunn et al. 2009, pp. 3037-3041). This species requires an environment that contains particular temperature and humidity levels, nectar, and insects. As a species' status continues to decline, the species becomes increasingly vulnerable to other impacts. The species' small population size, its reproductive and life-history traits, combined with its highly restricted and severely fragmented range, increases this species' vulnerability to one or more stochastic (random or unpredictable) events, such as hurricanes, drought, or flooding. These factors, in combination, are believed to be affecting the continued existence of the species throughout its range now and in the future.
Based on our evaluation of the best available scientific and commercial information and given the significant loss, degradation, and fragmentation of suitable habitat, we have determined the species is in danger of extinction throughout all of its range and thus meets the definition of an endangered species. Because the species is in danger of extinction now, as opposed to likely to become an endangered species within the foreseeable future, the Honduran emerald hummingbird meets the definition of an endangered species rather than a threatened species. Therefore, we are listing the Honduran
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and interest groups, and individuals.
Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is being designated. However, given that the Honduran emerald hummingbird is not native to the United States, we are not designating critical habitat for this species under section 4 of the Act.
Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits for endangered species are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
A complete list of all references cited in this rule is available on the Internet at
The primary author of this rule is the staff of the Branch of Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.
(h) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason quota transfer.
NMFS is transferring 34 metric tons (mt) of Atlantic bluefin tuna (BFT) quota from the Reserve category to the Longline category for the remainder of the 2015 fishing year. This action is based on consideration of the regulatory determination criteria regarding inseason adjustments, and applies to eligible Atlantic Tunas Longline category (commercial) permitted vessels. As a result of this transfer, current vessel accounts with IBQ will be distributed 0.25 mt of Individual Bluefin Quota (IBQ) allocation each.
Effective July 28, 2015 through December 31, 2015.
Tom Warren or Brad McHale, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
The currently codified baseline U.S. quota is 923.7 mt (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). Among other things, Amendment 7 revised the allocations to all quota categories, implemented an IBQ system, and added additional regulatory determination criteria for inseason (or annual) adjustments to BFT quota (see § 635.27(a)(8), effective January 1, 2015).
The 2015 BFT fishing year, which is managed on a calendar-year basis and subject to an annual quota, began January 1, 2015. The Longline category was provided 137.3 mt of BFT quota, which was distributed among vessel accounts, (
Under § 635.15(b)(5)(ii), as implemented through Amendment 7, additional IBQ may be allocated to vessels with BFT quota share after the initial annual allocations if the U.S. baseline quota increases as a result of an ICCAT recommendation or as a result of a transfer of quota from the Reserve category to the Longline category, pursuant to criteria for quota adjustments. NMFS has considered those criteria in relation to the 2015 and 2016 Longline category fishery and have determined that a quota transfer is warranted, as explained below. Consistent with the criteria for quota adjustments, this action is intended to increase the amount of quota available to pelagic longline permitted vessels with IBQ, and therefore help vessel owners account for BFT landings and dead discards while fostering conditions in which permit holders become more willing to lease IBQ. The revised Longline category quota would support the broader objectives of Amendment 7, which include reducing BFT interactions and dead discards while maintaining an economically viable swordfish and yellowfin directed fishery.
Under Amendment 7, a vessel must have IBQ to account for its BFT landings and dead discards. If a vessel has insufficient IBQ to account for such landings and dead discards, it goes into “quota debt.” Starting in 2016, a permitted vessel will not be allowed to fish in the Longline category if it has outstanding quota debt. In 2015 only, however, the vessel may continue to fish but will accrue quota debt that must be accounted for at the end of the year. If by the end of 2015, a permitted vessel does not have adequate IBQ allocation to settle its debt, the allocation will be reduced in the subsequent year or years until the quota debt is fully resolved.
Approximately one-fifth of active pelagic longline vessels currently have outstanding quota debt, and quota leasing among fishery participants has been limited. NMFS suspects the reason for the limited quota leasing is because the leasing program is so new, and shareholders may be unwilling to lease quota to other shareholders because they do not know if they will have sufficient quota to account for any BFT they may catch. Thus, leasing may be perceived as relatively risky from a business perspective.
As of July 8, 2015, ten vessels are in quota debt, ranging from 108 lb (0.05 mt) to 2,912 lb (1.3 mt), with an average of 1,405 lb (0.64 mt) debt (and a total of 14,045 lb (6.4 mt)). Based on preliminary information, the ten vessels represent 22 percent of the active vessels (monthly average of 45 active vessels in 2015 to date). As of July 8, 2015, there were a total of 18 allocation leases (16 involving Longline category participants and two between Purse Seine category participants), however only four of those leases involved participants with quota debt. Some vessel owners have stated that they have been unable to lease quota from other IBQ shareholders, because of lack of willingness of those owners, and these small businesses face uncertainty in their operations because they do not know if they will have sufficient quota to account for BFT they may catch. Because the leasing program is so new, IBQ shareholders may be reluctant to lease quota to other vessels because they do not know if they will have sufficient quota to account for any bluefin tuna they may catch.
Any adjustments to quotas must be based on consideration of the relevant criteria provided under § 635.27(a)(8), which include: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; the catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made; the projected ability of the vessels fishing under the particular category quota to harvest the additional amount of BFT before the end of the fishing year; the estimated amounts by which quotas for other gear categories of the fishery might be exceeded; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in
Regarding the determination criteria about accounting for dead discards and variations in seasonal distribution or abundance, a quota transfer from the Reserve category to the Longline category would contribute toward full accounting of BFT catch by vessels that have quota debt (
With respect to the effects of the adjustment on rebuilding and overfishing and accomplishing the objectives of the fishery management plan, the fishery is a quota-managed fishery, a measure which supports objectives related to rebuilding and overfishing. The transfer of 34 mt of BFT quota from the Reserve category to the Longline category will result in an adjusted Longline quota of 171.3 mt, which remains within the ICCAT quota and is less than the historical average of landings and dead discards in the fishery (239 mt). The revised Longline category quota would support the broader objectives of Amendment 7, which include reducing BFT interactions and dead discards while maintaining an economically viable swordfish and yellowfin tuna directed fishery. As a result of this quota transfer, 0.25 mt (551 lb) of IBQ will be distributed to each of the 136 permit holders with IBQ shares, provided the permit is associated with a vessel. For those permits that qualified for IBQ shares and are not associated with a vessel at the time of the quota transfer, the IBQ will not be usable by the permit holder (
Regarding the determination criteria “optimizing fishing opportunity,” the ability of pelagic longline vessel owners to account for BFT with allocated quota or lease IBQ at an affordable price is key to the success of the IBQ program. An inseason transfer of quota to the Longline category would facilitate accomplishing the objectives of the 2006 Consolidated HMS FMP by optimizing fishing opportunity, contributing to full accounting for landings and dead discards, and reducing uncertainty in the fishery as a whole. Where fishing opportunity for target species is constrained by BFT quota debt or a low IBQ balance, the additional quota will help reduce this effect. It will also reduce vessel owner uncertainty about whether a vessel owner will have sufficient quota to account for BFT they may catch in the future. Without this inseason quota transfer, it is more likely that permit holders will have difficulty leasing quota to account for BFT catch or reduce quota debt, permit holders may have a reduced ability to make business plans for the future, and a higher number of permitted vessels may be prohibited from fishing during 2016 as a result of quota debt accrued during 2015.
This action is consistent with the rebuilding goals of the 2006 Consolidated HMS FMP because NMFS does not anticipate that the overall U.S. BFT quota will be exceeded. Based on the considerations above, NMFS is transferring 34 mt of Reserve category quota to the Longline category. As a result of this quota transfer, the Reserve category quota will be reduced from 108.8 mt to 74.8 mt, and the Longline category quota will be increased from 137.3 to 171.3 mt. This inseason quota transfer does not preclude future inseason quota transfers to any of the quota categories. This action is supported by the Amendment 7 Final Environmental Impact Statement and final rule, which analyzed and anticipated such an action.
NMFS will continue to monitor the BFT fisheries, including the pelagic longline fishery, closely through the mandatory landings and catch reports. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Pelagic longline vessels are required to report BFT catch through Vessel Monitoring System, as well as through the online IBQ system.
Longline category permit holders are reminded that all BFT discarded dead must be reported through the Vessel Monitoring System, and accounted for in the on-line IBQ system, consistent with requirements at § 635.15(a).
Subsequent inseason actions, if any, will be published in the
The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
The regulations implementing the 2006 Consolidated HMS FMP, as amended, provide for inseason adjustments to quota and other aspects of BFT fishery management, to respond to the diverse range of factors which may affect BFT fisheries, including ecological (
Based on available BFT quota in the Reserve category, the amount of quota debt in the pelagic longline fishery, and the catch of BFT by pelagic longline vessels during 2015 to date, among other considerations, adjustment to the Reserve and Longline category BFT quotas is warranted. Analysis of available data shows that adjustment to the Longline category quota from the initial level would result in minimal risks of exceeding the ICCAT-allocated quota. The regulations implementing the 2006 Consolidated HMS FMP, as amended, provide the flexibility to provide additional quota to the Longline category in order to optimize fishing opportunity, account for dead discards, and accomplish the objectives of the fishery management plan. NMFS provides notification of quota adjustments by publishing the notice in the
Delays in adjusting the Reserve and Longline category quotas would adversely affect those Longline category vessels that would otherwise have an opportunity to reduce or resolve quota debt, lease quota to other vessels, as
This action is being taken under §§ 635.15(b)(5)(ii), 635.15(f), 635.27(a)(8) and (9), and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; area closure.
This action closes the Southern New England/Mid-Atlantic yellowtail flounder Trimester Total Allowable Catch Area to Northeast multispecies common pool trawl and gillnet vessels for the remainder of Trimester 1, through August 31, 2015. The closure is required by regulation because the common pool fishery has caught over 90 percent of its Trimester 1 quota for Southern New England/Mid-Atlantic yellowtail flounder. This closure is intended to prevent the overharvest of the common pool's allocation for this stock.
This action is effective July 29, 2015, through August 31, 2015.
Liz Sullivan, Fishery Management Specialist, (978) 282-8493.
Federal regulations at § 648.82(n)(2)(ii) require the Regional Administrator to close a common pool Trimester Total Allowable Catch (TAC) Area for a stock when 90 percent of the Trimester TAC is projected to be caught. The closure applies to all common pool vessels fishing with gear capable of catching that stock for the remainder of the trimester.
We have determined that 95 percent of the Trimester 1 TAC was caught as of July 21, 2015. The fishing year 2015 common pool sub-annual catch limit (sub-ACL) for Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder is 114.5 mt and the Trimester 1 TAC is 24 mt.
Effective July 29, 2015, the SNE/MA yellowtail flounder Trimester TAC Area is closed for the remainder of Trimester 1, through August 31, 2015, to all common pool vessels fishing with trawl and gillnet gear. The SNE/MA yellowtail flounder Trimester TAC Area consists of statistical areas 537, 538, 539, and 613. The area reopens at the beginning of Trimester 2 on September 1, 2015.
If a vessel declared its trip through the VMS or the interactive voice response system, and crossed the VMS demarcation line prior to July 29, 2015, it may complete its trip within the Trimester TAC Area.
Any overage of a Trimester TAC is deducted from the Trimester 3 TAC, and any overage of the common pool's sub-ACL at the end of the fishing year is deducted from the common pool's sub-ACL for fishing year 2016. Any uncaught portion of the Trimester 1 and Trimester 2 TACs is carried over into the next trimester. However, any uncaught portion of the common pool's sub-ACL may not be carried over into the following fishing year.
Weekly quota monitoring reports for the common pool fishery are on our Web site at:
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be impracticable and contrary to the public interest.
The regulations require the Regional Administrator to close a trimester TAC area to the common pool fishery when 90 percent of the Trimester TAC for a stock has been caught. Updated catch information only recently became available indicating that the common pool fishery has caught over 90 percent of its Trimester 1 TAC for SNE/MA yellowtail flounder as of July 21, 2015. The time necessary to provide for prior notice and comment, and a 30-day delay in effectiveness, prevents the immediate closure of the SNE/MA yellowtail flounder Trimester 1 TAC Area. This increases the likelihood that the common pool fishery exceeds its quota of SNE/MA yellowtail flounder to the detriment of this stock, which could undermine management objectives of the Northeast Multispecies Fishery Management Plan (FMP). Additionally, an overage of the common pool quota could cause negative economic impacts to the common pool fishery as a result of overage paybacks in a future trimester or fishing year.
16 U.S.C. 1801
Office of the Secretary, Department of Homeland Security.
Notice of proposed rulemaking.
This rule proposes to amend the Department of Homeland Security's (DHS) regulations under the Freedom of Information Act (FOIA). The Department (DHS) is proposing to update and streamline the language of several procedural provisions, and to incorporate changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007, among other changes. DHS invites comment on all aspects of this proposal.
Comments and related material must be submitted to the docket for this rulemaking, DHS-2009-0036, on or before September 28, 2015.
You may submit comments, identified by docket number DHS-2009-0036, by one of the following methods:
(1) Federal eRulemaking Portal:
(2)
(3)
James Holzer, Senior Director, FOIA Operations, Office of the Chief Privacy Officer, Department of Homeland Security, at 1-866-431-0486.
The Secretary of Homeland Security has authority under 5 U.S.C. 301, 552, and 552a, and 6 U.S.C. 112(e), to issue FOIA and Privacy Act regulations. On January 27, 2003, the Department of Homeland Security (Department or DHS) published an interim rule in the
In 2005, Executive Order 13392 called for the designation of a Chief FOIA Officer and FOIA Public Liaisons, along with the establishment of FOIA Requester Service Centers as appropriate. Subsequently, the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), Public Law 110-175, required agencies to designate a Chief FOIA Officer who is then to designate one or more FOIA Public Liaisons (5 U.S.C. 552(j) and 552(k)(6)). Sections 6, 7, 9, and 10 of the OPEN Government Act amended provisions of the FOIA by setting time limits for agencies to act on misdirected requests and limiting the tolling of response times (5 U.S.C. 552(a)(6)(A)); requiring tracking numbers for requests that will take more than 10 days to process (5 U.S.C. 552 (a)(7)(A)); providing requesters a telephone line or Internet service to obtain information about the status of their requests, including an estimated date of completion (5 U.S.C. 552(a)(7)(B)); expanding the definition of “record” to include records “maintained for an agency by an entity under Government contract, for the purposes of records management” (5 U.S.C. 552(f)(2)); and introducing alternative dispute resolution to the FOIA process through FOIA Public Liaisons (5 U.S.C. 552(a)(6)(B)(ii) & (l)) and the Office of Government Information Services (5 U.S.C. 552(h)(3)).
DHS now proposes to revise its FOIA regulations at 6 CFR part 5, which apply to all components of DHS. This proposed rule would implement changes required by the OPEN Government Act and make other revisions to DHS FOIA regulations to improve access to Departmental records.
DHS describes the primary proposed changes in the section-by-section analysis below. DHS invites public comment on each of the proposed changes described, as well as any other matters within the scope of the rulemaking.
The proposed rules continue to inform the public of the responsibilities of DHS in conjunction with requests received under the Freedom of Information Act as well as the requirements for filing a proper FOIA request.
DHS is proposing to amend Subpart A to eliminate the provision for “brick and mortar” public reading rooms, amend DHS rules for third-party requests for records, and add information about proactive DHS disclosures.
DHS is proposing to amend this part to incorporate reference to additional DHS policies and procedures relevant to the FOIA process. These resources, which are available at
DHS is proposing to add paragraph (d) to section 5.1, “Unofficial release of DHS information.” This proposed paragraph seeks to inform the public about how information that is not released through official DHS channels will be treated in the FOIA process. DHS does not consider information that is either inadvertently or inappropriately released by means other than the official release process used by DHS, whether in FOIA or otherwise, to be a FOIA release and accordingly, DHS does not waive its ability to assert exemptions to withhold some or all of the same records in response to a FOIA request.
Finally, DHS is proposing to remove at least two additional portions of current section 5.1. First, current paragraph (a)(1) clarifies that “[i]nformation routinely provided to the public as part of a regular DHS activity . . . may be provided to the public without following this subpart.” Second, current paragraph (a)(2) provides that “Departmental components may issue their own guidance under this subpart pursuant to approval by DHS.” DHS considers each of these provisions to be self-evident, and therefore proposes to remove them from the regulation.
DHS proposes to replace prior section 5.2, “Public Reading Rooms,” which was outdated, with a new section describing the proactive disclosure of DHS records. The FOIA requires DHS to make certain records available for public inspection and copying. Such records are available via the internet through the electronic reading rooms of each component. For those individuals with no access to the internet, the DHS Privacy Office or the component Public Liaison can provide assistance with access to records available in the electronic reading rooms. Contact information is provided in Appendix I to this subpart.
DHS proposes to amend paragraph 5.3(a) to eliminate the requirement that third-party requesters of records pertaining to an individual provide a written authorization from the individual that is the subject of the records (or proof of death of the individual) as a prerequisite to making such a request for records. As proposed, paragraph (a)(4) would inform third-party requesters that they may receive greater access if they provide written authorization from, or proof of death of, the subject of the records. In certain circumstances, they may in fact receive no access absent such authorization or proof. This paragraph would further advise that DHS may exercise its administrative discretion in seeking additional information from the requester to ensure that the proper consent has been received from the subject of the records.
DHS also proposes to amend paragraph (b) to direct requesters to contact the FOIA Public Liaison for each component if the requester has questions about how to describe the records that the requester seeks. DHS also proposes to amend this part to eliminate paragraph (c), which would be addressed under section 5.11, “Fees.” DHS proposes to insert a new paragraph (c), which describes the process under which DHS may administratively close a request if a requester fails to comply with a request for additional information.
DHS proposes to insert a new paragraph (c), “Re-routing of misdirected requests,” to advise requesters that a component that is in receipt of a misdirected request within DHS will redirect such a request to the proper component without the need for further action from the requester. In the event that a component receives a request that should be directed outside DHS entirely, the component would inform the requester that DHS does not collect or retain the type of records requested. Proposed paragraph (c) would cover a different situation than current paragraph (c), which only applies “[w]hen a component receives a request for a record in its possession.”
DHS proposes to combine paragraph 5.4(c), “Consultations and referrals,” with current paragraph (d), “Law Enforcement Information,” which covers consultation and referral of law enforcement records. Proposed paragraph (d) would describe the process of consultation, coordination, and referral of all records, to include law enforcement records, consistent with equities of components, agencies, or departments other than the responding component. Proposed paragraph (e) restates much of the current content of section 5.7, “Classified information.”
DHS proposes to revise current paragraph (f), “Notice of referral.” Paragraph (f) currently provides that when a component refers a request to another component or agency, it ordinarily shall notify the requester of such referral. Consistent with current law, DHS proposes to insert an exception to this requirement, such that the component should not refer the records if disclosure of the identity of the component or agency would harm an interest protected by an applicable exemption. Instead, the component should coordinate the response with the other component or agency, as appropriate.
DHS proposes a new paragraph, paragraph 5.4(i), “Electronic records and searches,” to advise requesters of DHS's responsibilities under the FOIA with regard to conducting searches of electronic records and databases. DHS adheres to the requirement in 5 U.S.C. 552(a)(3)(C), which states that agencies will make reasonable efforts to search for records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information systems. Proposed paragraph 5.4(i) seeks to clarify to requesters the types of situations that would amount to “significant interference” with the operation of agency information systems such that DHS would not conduct a search for the requested records.
DHS proposes to amend paragraph 5.5(a) to advise requesters that the response time for misdirected requests that are re-routed under paragraph 5.4(c) will commence on the date the request is received by the proper component, but in any event, no later than ten working days after the request is first received by any component. DHS proposes to amend paragraph (b), “Multitrack Processing,” to include a specific provision for a track for requests granted expedited processing.
DHS proposes to split current paragraph (c), “Unusual Circumstances,” into two separately designated paragraphs. As revised, the rule would include in paragraph 5.5(d) information on how DHS will aggregate multiple related requests submitted by a single requester or a group of requesters acting in concert.
DHS also proposes to redesignate current paragraph 5.5(d), “Expedited Processing,” as paragraph 5.5(e). DHS proposes in proposed paragraph 5.5(e) to amend text that describes the procedures for making a request for expedited processing of an initial request or an appeal (current paragraph (d)), to include two new available justifications for requesting expedited processing.
DHS proposes to move paragraph (b), “Grants of requests,” to paragraph (c). DHS proposes to amend paragraph (b) by removing the description of the treatment of information, both released and redacted in documents provided to the requester. Substantially the same information is now included in a new proposed paragraph, paragraph 5.6(f), “Markings on Released Documents.” DHS proposes to move the remainder of current paragraph 5.6(c), “Adverse determinations of requests,” to two paragraphs, (d) and (e), “Adverse determinations of requests” and “Content of denial.” The language regarding adverse determination of requests remains substantially the same. DHS proposes to describe the content and process for denial letters in the newly proposed paragraph (e), but does not intend this paragraph to significantly change the current regulatory requirements concerning denial letters.
DHS also proposes new paragraph (g), “Use of record exclusions,” which describes the DHS's use of exclusions under 5 U.S.C. 552(c). This paragraph proposes to incorporate the requirement set forth by the Department of Justice's Office of Information Policy (OIP) that all federal agencies obtain the approval of OIP prior to invoking an exclusion. This proposed paragraph also includes a requirement that DHS maintain an administrative record of the process of the invocation of the exclusion and approval by OIP.
DHS proposes to amend the “Notice of intent to disclose” paragraph by splitting it into two paragraphs, proposed new paragraph (f), “Analysis of objections” and proposed new paragraph (g), “Notice of intent to disclose.” The proposed division of the information previously contained in a single paragraph is intended to improve clarity by highlighting in a separate paragraph that DHS will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information. Otherwise, the information contained in the new proposed paragraphs remains substantively the same.
Finally, DHS proposes to include an exception to this section for commercial information provided to U.S. Customs and Border Protection (CBP) by a business submitter. Although CBP's FOIA regulations (located at 19 CFR part 103, subpart A) are displaced by the DHS FOIA regulations, this rule proposes to allow CBP to continue treating commercial information in the same manner as it has since the promulgation of current 19 CFR 103.35.
DHS proposes new paragraph (b) “Adjudication of appeal,” which replaces former paragraph (c) “When appeal is required.” The proposed new paragraph informs requesters that the DHS Office of the General Counsel or its designee component appeals officers are the authorized appeals authority for DHS. New proposed paragraph (b) also informs requesters about the treatment of appeals involving classified information. Finally, former paragraph (a)(3), which informs requesters that appeals will not normally be adjudicated if a FOIA lawsuit is filed, is incorporated into proposed paragraph (b).
DHS proposes to add a new paragraph (c), “Appeal decisions,” which is substantially similar to current paragraph 5.9(b). Proposed paragraph (c) would advise requesters that appeal decisions will be made in writing, and that decisions will inform requesters of their right to file a lawsuit and about mediation services offered by the Office of Government Information Services. Proposed paragraph (c) would also advise requesters of what to expect if the appeals officer reverses or modifies the original administrative decision on appeal. DHS also proposes to add a new paragraph (d), “Time limit for issuing appeal decision,” which advises requesters of the statutory 20-day time limit for responding to appeals, and also of the statutory 10-day extension of the 20-day limit available to the appeals officers in certain circumstances.
Finally, DHS proposes to add paragraph (e), “Appeal necessary before seeking court review,” which advises requesters that an administrative appeal is generally required before seeking judicial review of a component's adverse determination. This language is substantially similar to current paragraph 5.9(c). This proposed paragraph also advises requesters that there is no administrative appeal requirement prior to seeking judicial review of a denial of request for expedited processing.
DHS also proposes to change paragraph (c)(1)(iii), which discusses direct costs associated with conducting any search that requires the creation of a new computer program, as discussed in new proposed paragraph 5.4(i), to locate the requested records. This change is intended to improve comprehension and to more accurately describe the circumstances under which a requester may be charged for a computerized search or a search of electronic records. It does not represent a change in practice, as DHS currently charges direct costs for specialized data searches. Again, because these proposed changes are consistent with current regulations and describe current process, DHS does not expect that they will result in additional costs for the government or the public.
DHS proposes to restructure paragraph (c)(3)(d), “Restrictions on charging fees.” Under this proposal, search fees, and in some cases, duplication fees may not be charged if a component fails to comply with the time limits in which to respond to a request provided no unusual or exceptional circumstances are present. This provision directly tracks a mandatory provision from section 6 of the OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524, 5 U.S.C. 552(a)(4)(A)(viii).
In addition, DHS proposes to renumber former paragraph (d)(2) as paragraph (d)(3), and paragraph (d)(3) as (d)(4). DHS proposes minor changes in paragraph (d)(4) to improve clarity. Current paragraphs (d)(4) and (d)(5) would be combined into proposed paragraph (d)(5). DHS proposes changes to paragraphs (e) and (f) to improve clarity; no significant changes are intended with respect to those paragraphs. DHS proposes no major changes to paragraphs (g), (h), (i), or (j), but proposes to modify a number of procedural provisions consistent with the practices of other agencies in this area. DHS also proposes minor changes to paragraph (k) to improve clarity. DHS proposes to eliminate current paragraph (
As noted above, DHS proposes to include an exception to proposed § 5.7 for commercial information provided to U.S. Customs and Border Protection (CBP) by a business submitter. Although CBP's FOIA regulations (located at 19 CFR part 103, subpart A) are displaced by the DHS FOIA regulations, because of the unique nature of CBP's mission, this rule proposes to allow CBP to continue treating commercial information in the same manner as it has since the promulgation of current 19 CFR 103.35. CBP's FOIA regulations, located at 19 CFR part 103, subpart A, will be removed no later than the effective date of the final rule for this rulemaking. CBP may, however, retain cCurrent 19 CFR 103.35 as an interim measure.
DHS also proposes to remove FEMA's outdated FOIA regulations at 44 CFR part 5, subparts A through E. FEMA is currently operating under DHS's title 6 FOIA regulations for all purposes.
Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget.
DHS has considered the costs and benefits of this proposed rule. Previously in this preamble, DHS has provided a section-by-section analysis of the provisions in this proposed rule and concludes this rule does not impose additional costs on the public or the government. This rule does not collect any additional fee revenues compared to current practices or otherwise introduce new regulatory mandates. The rule's benefits include additional clarity for the public and DHS personnel with respect to DHS's implementation of the FOIA and subsequent statutory amendments.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). 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. DHS has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Based on the previous discussion in this preamble, DHS does not believe this rule imposes any additional direct costs on small entities.
This rule is not a major rule as defined by section 251 of the Small
Classified information, Courts, Freedom of information, Government employees, Privacy.
Administrative practice and procedure, Confidential business information, Courts, Freedom of information, Law enforcement, Privacy, Reporting and recordkeeping requirements.
Courts, Freedom of information, Government employees.
For the reasons stated in the preamble, the Department of Homeland Security proposes to amend 6 CFR chapter I, part 5, 19 CFR chapter I, part 103, and 44 CFR chapter I, part 5, as follows:
5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 301; 6 U.S.C. 101
(a)(1) This subpart contains the rules that the Department of Homeland Security follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended. The Freedom of Information Act applies to third-party requests for documents concerning the general activities of the government and of DHS in particular. When an individual requests access to his or her own records, it is considered a Privacy Act request. Such records are maintained by DHS under the individual's name or personal identifier. Although requests are considered either FOIA requests or Privacy Act requests, agencies process requests in accordance with both laws, which provides the greatest degree of lawful access while safeguarding an individual's personal privacy.
(2) These rules should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget at 52 FR 10012 (March 27, 1987) (hereinafter “OMB Guidelines”). Additionally, DHS has additional policies and procedures relevant to the FOIA process. These resources are available at
(b) As referenced in this subpart, component means the FOIA office of each separate organizational entity within DHS that reports directly to the Office of the Secretary.
(c) DHS has a decentralized system for processing requests, with each component handling requests for its records.
(d)
Records that are required by the FOIA to be made available for public inspection and copying are accessible on DHS's Web site,
(a)
(2) A requester may also send his or her request to the Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW STOP-0655, or via the internet at
(3) A requester who is making a request for records about him or herself must comply with the verification of identity provision set forth in subpart B of this part.
(4) Where a request for records pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by that individual, in compliance with the verification of identity provision set forth in subpart B of this part, or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual, authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (
(b)
(c) If a request does not adequately describe the records sought, DHS may seek additional information from the requester. If the requester does not respond to the request for additional information within thirty (30) days, the request may be administratively closed at DHS's discretion. This administrative closure does not prejudice the requester's ability to submit a new request for further consideration with additional information.
(a)
(b)
(c)
(d)
(1) The component may respond to the request, after consulting with the component or the agency that originated or has a substantial interest in the records involved.
(2) The component may provide a combined or joint response to the request after coordinating with the other components or agencies that originated the record. This may include situations where the standard referral procedure is not appropriate where disclosure of the identity of the component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement component responding to a request for records on a living third party locates records within its files originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if a component locates material within its files originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the component that received the request should coordinate with the originating component or agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the component that originally received the request.
(3) The component may refer the responsibility for responding to the request or portion of the request to the component or agency best able to determine whether to disclose the relevant records, or to the agency that created or initially acquired the record as long as that agency is subject to the FOIA. Ordinarily, the component or agency that created or initially acquired the record will be presumed to be best able to make the disclosure determination. The referring component shall document the referral and maintain a copy of the records that it refers.
(e)
(f)
(g)
(h)
(i)
(2)
(i) Creating computer programs or purchasing additional hardware to extract email that has been archived for emergency retrieval usually are not considered business as usual if extensive monetary or personnel resources are needed to complete the project.
(ii) Creating a computer program that produces specific requested fields or records contained within a well-defined database structure usually is considered business as usual. The time to create this program is considered as programmer or operator search time for fee assessment purposes and the FOIA requester may be assessed fees in accordance with 6 CFR 5.11(c)(1)(iii). However, creating a computer program to merge files with disparate data formats and extract specific elements from the resultant file is not considered business as usual, but a special service, for which additional fees may be imposed as specified in 6 CFR 5.11. Components are not required to perform special services and creation of a computer program for a fee is up to the discretion of the component and is dependent on component resources and expertise.
(3)
(a)
(b)
(c)
(d)
(e)
(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person who is primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.
(2) A request for expedited processing may be made at any time. Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section must be submitted to the component that maintains the records requested. When making a request for expedited processing of an administrative appeal, the request should be submitted to the DHS Office
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that he or she is a person whose primary professional activity or occupation is information dissemination, though it need not be his or her sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful to establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, a component may waive the formal certification requirement.
(4) A component shall notify the requester within ten calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously.
(a)
(b)
(c)
(d)
(e)
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of any records or information withheld, for example, by providing the number of pages or some other reasonable form of estimation. This estimation is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; and
(4) A statement that the denial may be appealed under 6 CFR 5.8(a), and a description of the requirements set forth therein.
(f)
(g)
(2) Any component invoking an exclusion shall maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
(a)
(1)
(2)
(b)
(c)
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) The component has a reason to believe that the requested information may be protected from disclosure under Exemption 4.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d)
(1) The component determines that the information is exempt under the FOIA;
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e)
(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the component after the date of any disclosure decision will not be considered by the component. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(f)
(g)
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h)
(i)
(j)
(a)
(1) A requester may appeal adverse determinations denying his or her request or any part of the request to the appropriate Appeals Officer. A requester may also appeal if he or she questions the adequacy of the component's search for responsive records, or believes the component either misinterpreted the request or did not address all aspects of the request (
(2) An adverse determination by the component appeals officer will be the final action of DHS.
(b)
(2) On receipt of any appeal involving classified information, the Appeals Officer shall consult with the Chief Security Officer, and take appropriate action to ensure compliance with 6 CFR part 7;
(3) If the appeal becomes the subject of a lawsuit, the Appeals Officer is not required to act further on the appeal.
(c)
(d)
(e)
Each component shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 and/or 14 of the National Archives and Records Administration. Records will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
(a)
(2) If the information the requester is seeking is not subject to the Privacy Act (
(b)
(c)
(1) The information is required to be released under the FOIA, as provided by 5 U.S.C. 552a (b)(2); or
(2) In most circumstances, if the individual is deceased.
(d)
(a)
(b)
(1)
(2)
(3)
(4)
These examples are provided for guidance purposes only. Each individual request will be evaluated under the particular facts, circumstances, and information provided by the requester.
(5)
(6)
(7)
(8)
(c)
(1)
(ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be as follows: Managerial—$10.25; professional—$7.00; and clerical/administrative—$4.00.
(iii) Requesters will be charged the direct costs associated with conducting any search that requires the creation of a new computer program, as referenced in section 5.4, to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by an agency at a federal records center operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.
(2)
(3)
(d)
(2) If a component fails to comply with the time limits in which to respond to a request, and if no unusual or exceptional circumstances, as those terms are defined by the FOIA, apply to the processing of the request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees.
(3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(4) Except for requesters seeking records for a commercial use, components will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this
(e)
(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered perfected and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees he or she is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with his or her statutory entitlements, designates that he or she seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. Components are not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component will toll the processing of the request while it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The component shall inquire whether the requester wishes to revise the amount of fees he or she is willing to pay and/or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) Components will make available their FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(f)
(g)
(h)
(i)
(2) When a component determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. A component may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to any component or agency within 30 calendar days of the billing date, a component may require that the requester pay the full amount due, plus any applicable interest on that prior request and the component may require that the requester make an advance payment of the full amount of any anticipated fee, before the component begins to process a new request or continues to process a pending request or any pending appeal. Where a component has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which a component requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the component's fee determination, the request will be closed.
(j)
(k)
(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(2) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government, components will consider the following factors:
(i) The subject of the request must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully
(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as his or her ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent. However, components shall not make value judgments about whether the information at issue is “important” enough to be made public.
(3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components will consider the following factors:
(i) Components shall identify any commercial interest of the requester, as defined in paragraph (b)(1) of this section, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.
(ii) A waiver or reduction of fees is justified where the public interest is greater than any identified commercial interest in disclosure. Components ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(5) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester will be required to pay any costs incurred up to the date the fee waiver request was received.
(6)
(a)
(b)
(1)
(i) The business submitter has in good faith designated the information as commercially- or financially-sensitive information. The business submitter's claim of confidentiality should be supported by a statement by an authorized representative of the business entity providing specific justification that the information in question is considered confidential commercial or financial information and that the information has not been disclosed to the public; or
(ii) CBP has reason to believe that disclosure of the commercial information could reasonably be expected to cause substantial competitive harm.
(2)
(i) CBP determines that the commercial information will not be disclosed;
(ii) The commercial information has been lawfully published or otherwise made available to the public; or
(iii) Disclosure of the information is required by law (other than 5 U.S.C. 552).
(c)
(2)
(d)
(1) A statement of the reasons for which the business submitter's disclosure objections were not sustained;
(2) A description of the commercial information to be disclosed; and
(3) A specified disclosure date which will not be less than 10 days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of intent to disclose the requested information has been issued to the business submitter. Except as otherwise prohibited by law, CBP will also provide a copy of the notice of intent to disclose to the FOIA requester at the same time.
(e)
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
Chief Privacy Officer/Chief FOIA Officer, The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655.
Deputy Chief FOIA Officer, The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655.
Sr. Director, FOIA Operations, The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486, Fax: 202-343-4011, Email:
Public Liaison, FOIA Production and Quality Assurance, The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486, Fax: 202-343-4011, Email:
FOIA Officer/Public Liaison, 90 K Street NE., 9th Floor, Washington, DC 20229-1181, Phone: 202-325-0150, Fax: 202-325-0230.
FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 202-357-1218, Email:
FOIA Officer/Public Liaison, 500 C Street SW., Room 7NE, Washington, DC 20472, Phone: 202-646-3323, Email:
FOIA Officer/Public Liaison, Building #681, Suite 187B, Glynco, GA 31524, Phone: 912-267-3103, Fax: 912-267-3113, Email:
FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 703-235-2211, Fax: 703-235-2052, Email:
Department of Homeland Security, Washington, DC 20598-0628, Phone: 202-298-5454, Fax: 202-298-5445, E-Mail:
FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 202-447-4883, Fax: 202-612-1936, Email:
FOIA Public Liaison, DHS-OIG Counsel, STOP 0305, 245 Murray Lane SW., Washington, DC 20528-0305, Phone: 202-254-4001, Fax: 202-254-4398, Email:
FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 202-447-4156, Fax: 202-282-9811, Email:
FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 202-254-6342, Fax: 202-254-6739, Email:
FOIA Officer/Public Liaison, Freedom of Information Act Branch, 601 S. 12th Street, 11th Floor, East Tower, TSA-20, Arlington, VA 20598-6020, Phone: 1-866-FOIA-TSA or 571-227-2300, Fax: 571-227-1406, Email:
FOIA Officer/Public Liaison, National Records Center, FOIA/PA Office, P.O. Box 648010, Lee's Summit, MO 64064-8010, Phone: 1-800-375-5283 (USCIS National Customer Service Unit), Fax: 816-350-5785, Email:
Commandant (CG-611), 2100 2nd St. SW., Attn: FOIA Officer/Public Liaison, Washington, DC 20593-0001, FOIA Requester Service Center Contact: Amanda Ackerson, Phone: 202-475-3522, Fax: 202-475-3927, Email:
Freedom of Information Act Office, FOIA Officer/Public Liaison, 500 12th Street SW., Stop 5009, Washington, DC 20536-5009.
FOIA Requester Service Center Contact, Phone: 866-633-1182, Fax: 202-732-4265, Email:
Freedom of Information and Privacy Acts Branch, FOIA Officer/Public Liaison, 245 Murray Drive, Building 410, Washington, DC 20223, Phone: 202-406-6370, Fax: 202-406-5586, Email:
Please direct all requests for information from the Office of the Secretary, Citizenship and Immigration Services Ombudsman, Domestic Nuclear Detection Office, Office of the Executive Secretary, Office of Intergovernmental Affairs, Management Directorate, Office of Policy, Office of the General Counsel, Office of Health Affairs, Office of Legislative Affairs, Office of Public Affairs and the Privacy Office, to the DHS Privacy Office at: The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486, Fax: 202-343-4011, Email:
5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31 U.S.C. 9701.
Section 103.31 also issued under 19 U.S.C. 1431; Section 103.31a also issued under 19 U.S.C. 2071 note and 6 U.S.C. 943; Section 103.33 also issued under 19 U.S.C. 1628; Section 103.34 also issued under 18 U.S.C. 1905.
Pub. L. 107-296, 116 Stat. 2135; 5 U.S.C. 301.
Subpoenas duces tecum issued pursuant to litigation or any other adjudicatory proceeding in which the United States is a party shall be referred to the Chief Counsel.
Federal Election Commission.
Rulemaking petition; notice of availability.
On May 14, 2015, the Federal Election Commission received a Petition for Rulemaking that asks the Commission to revise existing rules concerning the reporting of contributions to political committees from corporations and other organizations. The Commission seeks comments on this petition.
Comments must be submitted on or before October 27, 2015.
All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's Web site at
Each commenter must provide, at a minimum, his or her first name, last name, city, state, and zip code. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's Web site and in the Commission's Public Records room. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, or driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential.
Mr. Robert M. Knop, Assistant General Counsel, or Mr. Sean J. Wright, Attorney, Office of General Counsel, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
On May 14, 2015, the Federal Election Commission received a Petition for Rulemaking from Make Your Laws PAC, Inc. and Make Your Laws Advocacy, Inc. The petition asks the Commission to modify its regulations requiring disclosure of contributions from corporations and other organizations to political committees.
The Federal Election Campaign Act, 52 U.S.C. 30101-46 (the “Act”), and Commission regulations require all political committees to abide by certain organizational, record-keeping, and reporting requirements.
The petition asks the Commission to establish a new rule requiring that “any person, other than a natural person, contributing an aggregate of more than $1,000 in any calendar year to any political committee, whether directly or indirectly” (emphasis omitted), must do so from an account subject to certain reporting requirements. Specifically, the petition asks the Commission to require that these accounts disclose “the original source of all election-related contributions and expenditures, traceable through all intermediary entities to a natural person, regardless of the amounts or entities involved” (emphasis omitted). The petition also asks the Commission to apply to these accounts the identification requirements of 11 CFR 100.12; the Act's prohibition on foreign national contributions, 52 U.S.C. 30121; allocation rules for administrative expenses; and, in some circumstances, the Act's limitations on contributions to political committees.
The Commission seeks comments on the petition. The public may inspect the petition on the Commission's Web site at
The Commission will not consider the petition's merits until after the comment period closes. If the Commission decides that the petition has merit, it may begin a rulemaking proceeding. The Commission will announce any action that it takes in the
On behalf of the Commission,
Federal Election Commission, Energy.
Rulemaking petition; notice of availability.
On June 19 and June 22, 2015, the Federal Election Commission received two Petitions for Rulemaking that ask the Commission to issue new rules and revise existing rules concerning: (1) The disclosure of certain financing information regarding independent expenditures and electioneering communications; (2) election-related spending by foreign nationals; (3) solicitations of corporate and labor organization employees and members; and (4) the independence of expenditures made by independent-expenditure-only political committees and accounts. The Commission seeks comments on these petitions.
Comments must be submitted on or before October 27, 2015.
All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's Web site at
Each commenter must provide, at a minimum, his or her first name, last name, city, state, and zip code. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's Web site and in the Commission's Public Records Office. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, or driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential.
Ms. Amy L. Rothstein, Assistant General Counsel, or Ms. Esther D. Gyory, Attorney, Office of General Counsel, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
On June 19, 2015, the Federal Election Commission received a Petition for Rulemaking from Make Your Laws PAC, Inc. and Make Your Laws Advocacy, Inc. On June 22, 2015, the Commission received a Petition for Rulemaking from Craig Holman and Public Citizen. Both petitions, citing
First, the Federal Election Campaign Act, 52 U.S.C. 30101-46 (the “Act”), and Commission regulations require every person who makes an electioneering communication aggregating in excess of $10,000 in a calendar year and every person (other than a political committee) that makes independent expenditures in excess of $250 with respect to a given election in a calendar year to report certain information to the Commission. 11 CFR 104.20(b) and (c), 109.10(b), (e); 52 U.S.C. 30104(c)(1) and (2), (f). The petitions ask the Commission to “[e]nsure full public disclosure of corporate and labor organization independent spending” by “requir[ing] that outside spending groups disclose their donors.”
Second, the Act and Commission regulations prohibit foreign nationals from “directly or indirectly” making contributions, expenditures, and electioneering communications. 11 CFR 110.20; 52 U.S.C. 30121(a). The petitions ask the Commission to “[c]larify that th[is] prohibition on foreign national campaign-related spending restricts such spending by U.S. corporations owned or controlled by a foreign national.”
Third, Commission regulations prohibit corporations and labor organizations from “using coercion . . . to urge any individual to make a contribution or engage in fundraising activities on behalf of a candidate or political committee,” 11 CFR 114.2(f)(2)(iv), and restrict how corporations and labor organizations may solicit contributions to their separate segregated funds from employees and members. 11 CFR 114.5(a)(2) through (5);
Finally, the petitions ask the Commission to “[e]nsure that the expenditures made by” independent-expenditure-only political committees and accounts,
The Commission seeks comments on the petitions. The public may inspect the petitions on the Commission's Web site at
The Commission will not consider the petitions' merits until after the comment period closes. If the Commission decides that the petitions have merit, it may begin a rulemaking proceeding. The Commission will announce any action that it takes in the
On behalf of the Commission,
Occupational Safety and Health Administration (OSHA), Labor.
Notice of proposed rule.
OSHA is proposing to amend its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not
Written comments to this proposed rule must be submitted (postmarked, sent or received) by September 28, 2015. All submissions must bear a postmark or provide other evidence of the submission date.
You may submit comments, identified by Docket No. OSHA-2015-0006, by any of the following methods:
Electronically: You may submit comments and attachments electronically at
Fax: If your submission, including attachments, does not exceed ten pages, you may fax it to the OSHA Docket Office at (202) 693-1648. OSHA does not require hard copies of documents transmitted by facsimile. However, if you have supplemental attachments that are
Mail, express mail, hand delivery, messenger, or courier service: You may submit comments to the OSHA Docket Office, Docket Number OSHA-2015-0006, Technical Data Center, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-2625, Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY number is (877) 889-5627). Please contact the OSHA Docket Office for information about Department of Labor security procedures that could affect the delivery of materials by express mail, hand delivery, and messenger or courier service. Also note that security-related procedures may delay the Agency's receipt of comments submitted by regular mail. The Docket Office will accept deliveries by hand, express mail, or messenger and courier service during the Docket Office's normal business hours, 8:15 a.m. to 4:45 p.m.
Instructions for submitting comments: All submissions must include the Agency's name (OSHA), the title of the rulemaking (Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness), and the docket number (OSHA-2015-0006). OSHA will place comments and other material, including any personal information you provide, in the public docket without revision, and the comments and other materials will be available online at
Docket: To read or download comments or other material in the docket, go to Docket Number OSHA-2015-0006 at
General information and press inquiries:
Copies of this
The Occupational Safety and Health Act of 1970 (OSH Act or Act) arose out of a Congressional finding that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments. See 29 U.S.C. 651(a). Accordingly, the purpose of the statute is to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. See 29 U.S.C. 651(b).
To effectuate the Act's purpose, Congress authorized the Secretary of Labor to promulgate occupational safety and health standards (29 U.S.C. 655); a standard, as defined in the Act, requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment. See 29 U.S.C. 652(8). The Act also grants broad authority to the Secretary to promulgate regulations related to recordkeeping, employer self-inspections, and keeping employees informed of matters related to occupational safety and health. 29 U.S.C. 657(c). OSHA issues citations and assesses monetary penalties when it finds that employers are not complying with applicable standards and regulations. 29 U.S.C. 658, 659, 666.
Section 9(c) of the OSH Act contains a statute of limitations providing that no citation may be issued after the expiration of six months following “the occurrence of any violation.” 29 U.S.C. 658(c). Generally, OSH Act violations continue to occur for as long as employees are exposed to the hazard posed by the non-compliant workplace.
The OSH Act requires the Secretary of Labor to promulgate regulations requiring employers to make and maintain accurate records of work-related injuries and illnesses. 29 U.S.C. 657(c)(1) and (2), 673(a);
OSHA's recordkeeping regulations require employers to record information about certain injuries and illnesses occurring in their workplaces, and to make that information available to employees, OSHA, and the Bureau of Labor Statistics (BLS). Employers must record work-related injuries and illnesses that meet one or more recording criteria, including injuries and illnesses resulting in death, loss of consciousness, days away from work, restricted work activity or job transfer, medical treatment beyond first aid, or a diagnosis of a significant injury or illness by a physician or other licensed health care professional. 29 CFR 1904.7. Employers must document each recordable injury or illness on an “OSHA 300” form, which is a log of all work-related injuries and illnesses. 29 CFR 1904.29(a) through (b)(1). Employers also must prepare a supplementary “OSHA 301 Incident Report” or equivalent form for each recordable injury and illness; the Incident Reports provide additional details about the injuries and illnesses recorded in the 300 Log. 29 CFR 1904.29(b)(2).
At the end of each calendar year, employers must review their 300 Logs to verify that the entries are complete and accurate. 29 CFR 1904.32(a)(1). Employers also must correct any deficiencies identified during the annual review.
Accurate injury and illness records serve several important purposes.
Similarly, employees—who have access to OSHA injury and illness records throughout the five-year retention period (
OSHA also has access to employer injury and illness records during the retention period (
Additionally, BLS uses data derived from employers' injury and illness records to develop national statistics on workplace injuries and illnesses. These statistics include information about the source, nature, and type of the injuries and illnesses that are occurring in the nation's workplaces. To obtain the data to develop national statistics, BLS and participating State agencies conduct an annual survey of employers in almost all sectors of private industry. BLS makes the aggregate survey results available for research purposes and for public information. This data provides information about the incidence of workplace injuries and illnesses and the nature and magnitude of workplace safety and health problems. Congress, OSHA, and safety and health policymakers in Federal, State, and local governments use BLS statistics to make decisions concerning safety and health legislation, programs, and standards. And employers and employees can use BLS statistics to compare the injury and illness data from their workplaces with data from the nation as a whole.
A continuing violation exists when there is noncompliance with “the text of . . . [a] pertinent law [that] imposes a continuing obligation to act or refrain from acting.”
Recordkeeping violations under the OSH Act are likewise continuing violations. OSHA's longstanding position is that an employer's duty to record an injury or illness continues for the full duration of the record-retention-and-access period,
The Occupational Safety and Health Review Commission has upheld OSHA's position on the continuing nature of recordkeeping violations.
A panel of the D.C. Circuit reviewed the Commission's
In a separate concurring opinion in
The
OSHA consulted with the Advisory Committee on Construction Safety and Health (ACCSH) on this rulemaking. The Agency provided ACCSH with a summary and explanation of this proposal and a statement regarding the need for the proposed revisions to 29 CFR part 1904. On December 4, 2014, ACCSH voted to recommend that OSHA proceed with this proposal.
As explained previously, in
“Whether [an] . . . obligation is continuing is a question of statutory construction,”
Section 8(c)(2) requires the Secretary to prescribe regulations requiring employers to “
Moreover, the words “accurate” and “maintain” in section 8(c)(2) of the Act connote a continued course of conduct that includes an ongoing obligation to create records. The word “maintain” means to “[c]ause or enable (a condition or state of affairs) to continue,” an example being when one works to ensure that something stays “in good condition or in working order by checking or repairing it regularly.”
The Fourth Circuit recognized as much in
The “make, keep, and preserve” and “make available” language in section 8(c)(1) similarly envisions a continuing duty to record and provides additional support for the Agency's interpretation of the “maintain accurate records” language in section 8(c)(2). The corresponding authorization to the Secretary to prescribe such recordkeeping regulations as he considers “necessary or appropriate” emphasizes the breadth of the Secretary's discretion in implementing the statute. As mentioned previously, “keep” is a synonym for “maintain,” and both words imply a continued course of conduct, as of course does “preserve.”
The fact that Congress included the word “make” in a phrase with two other terms that both call for a continuing action suggests that “make” was also intended to signify a continuing course of conduct in the recordkeeping context. The most reasonable reading of section 8(c)(1), particularly in light of the “maintain accurate records” language in section 8(c)(2), is that the phrase “make, keep, and preserve” authorizes one continuous recordkeeping requirement that includes both the creation and the keeping of records.
Thus, the Secretary does not believe that section 8(c) authorizes two and only two discrete duties: A duty to create a record that can arise at only one moment in time, and a duty to preserve that record, if it should be created. Such a view would be inconsistent with the most relevant provision of the Act, section 8(c)(2), which is the provision that specifically addresses the Secretary's authority to prescribe regulations for injury and illness recordkeeping,
The requirement in section 8(c)(1) that employers “make available” such records as the Secretary prescribes regarding accidents and illnesses further illustrates that section 9(c)'s statute of limitations does not limit the Secretary to acquiring only six months of injury and illness data. A regulation requiring employers, if requested, to make available accurate records showing injuries and illness that have occurred within the past few years is on its face well within the OSH Act's grant of authority. Nothing in the statutory language suggests that the Secretary can only require employers to provide information regarding work-related injuries and illnesses that have occurred within the past six months. Such a limitation would cripple the Agency's ability to gather complete information and to improve understanding of safety and health issues, contrary to Congressional intent. Furthermore, the duty to make accurate multi-year records available upon request arises when the request is made, and the statute of limitations therefore does not begin to run until the request is made and the employer fails to comply.
It therefore follows that section 8(c) of the Act authorizes the Secretary to enact regulations that impose a continuing obligation on employers to make and maintain accurate records of work-related illnesses and injuries. Not only are such recordkeeping regulations expressly called for by the language of section 8(c), but they are also consistent with Congressional intent and the purpose of the OSH Act. The Supreme Court recognizes a “familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes.”
Finally, the legislative history of the OSH Act also demonstrates that Congress wanted employers to have accurate injury and illness records both for the purpose of making workplaces safer and healthier, and for the purpose of allowing the Agency to study the nation's occupational safety and health problems. As the House Committee on Education and Labor noted, before passage of the OSH Act it was impossible to know the extent of national occupational safety and health issues due to variability in state reporting measures; thus, Congress viewed it as an “evident Federal responsibility” to provide for “[a]ccurate, uniform reporting standards.” H.R. Rep. No. 91-1291, at 15 (1970),
As explained previously, it is section 8(c) of the OSH Act that determines the nature and scope of employers' recordkeeping obligations. The statute of limitations in section 9(c) deals only with the question of
In any event, “statutes of limitation in the civil context are to be strictly construed in favor of the Government against repose,”
Had Congress wanted the statute of limitations to run from the time a violation
Neither OSHA nor the Commission has ever treated section 9(c) as precluding continuing violations. Indeed, continuing violations are common in the OSHA context, with the Commission taking the position that violations of OSHA requirements, including recordkeeping violations, generally continue as long as employees are exposed to the non-complying conditions.
These cases reflect fundamental OSH Act principles. Safety and health standards are rules that require,
In addition, continuing violations have been found to exist under other laws with statutes of limitations that contain language similar to that in section 9(c) of the OSH Act. For example, in
Notably, even the
Moreover, continuing violations have been found even under statutes of limitations that contain language that is arguably
The D.C. Circuit has suggested that suits alleging a continuing failure to act are permissible even under the general statute of limitations governing civil actions against the United States (28 U.S.C. 2401(a)), which provides that claims are barred unless “filed within six years after the right of action first accrues.”
Finally, concerns about stale claims have little bearing on OSHA recordkeeping cases. The Agency recognizes that statutes of limitations are designed to “keep stale claims out of the courts.”
In the vast majority of OSHA cases stemming from an employer's failure to record an injury or illness, the issues will be very straightforward. The first question will be whether a work-related injury or illness occurred that required more than a minimum level of treatment. And the second question will be whether the employer recorded the injury or illness as required by the OSHA regulations. The availability of evidence and witnesses should not be a problem on either question—especially given that even under a continuing violation theory, OSHA must cite the recordkeeping violation within six months after the end of the five-year retention period for injury and illness records.
One can ordinarily ascertain whether an injury or illness occurred, and what treatment was necessary, by looking at medical reports, workers' compensation documents, and other relevant records, even if the affected employee or other witnesses are no longer available. In fact, OSHA's Recordkeeping Policies and Procedure Manual, CPL 02-00-135 (Dec. 30, 2004), directs compliance officers to review medical records to determine whether an employer has failed to enter recordable injuries and illnesses on the OSHA forms. And with respect to whether the employer recorded the injury or illness, the only evidence the parties and the court will need are the employer's OSHA Log and Incident Report Forms, which existing regulations require employers to maintain for five years. Furthermore, given that OSHA ultimately bears the burden of proving that an injury or illness occurred and the employer did not record it, the absence of documents and witnesses generally will be more prejudicial to OSHA's case than to the employer's defense. And, any limited staleness concerns that exist are outweighed by the fact that ongoing recordkeeping requirements are essential to fulfilling the purposes of the OSH Act.
OSHA records “are a cornerstone of the Act and play a crucial role in providing the information necessary to make workplaces safer and healthier.”
Nor is there any meaningful distinction to be drawn between cases involving inadequate training or unsafe machines (which may be seen as involving repeated affirmative acts, for example, sending untrained employees to work in hazardous conditions) and recordkeeping cases (which may be seen as failures to right past wrongs). The lack of access—by employers, employees and OSHA—to accurate records is as much an ongoing non-complying condition under the Act as is an untrained employee or an unguarded machine. Whether the condition was created by an act of omission or of commission, the condition is one that continues to violate the Act until it is abated.
Moreover, under the scheme Congress established in the OSH Act, any distinction that can be drawn between overt action and inaction lacks legal significance. As the Commission recognizes, “unlike other federal statutes in which an overt act is needed to show
Additionally, the legislative history of the Act reflects Congress' concern about harm resulting to employees in workplaces with incomplete records of occupational injuries and illnesses. Most notably, a report of the Senate Committee on Labor and Public welfare stated that “
Incomplete and inaccurate OSHA records therefore result in an
As touched upon previously in this notice, general case law on continuing violations also supports a continuing violation theory for OSHA recordkeeping violations. The
The DC Circuit explicitly recognized the existence of these two types of continuing violation cases in
The Secretary recognizes that one court has said that: “The Supreme Court has made clear . . . that the application of the continuing violations doctrine should be the exception, rather than the rule.”
OSHA is proposing to amend its recordkeeping regulations, 29 CFR part 1904, to clarify that employers covered by the recordkeeping requirements have a continuing obligation to make and maintain accurate records of all recordable injuries and illnesses. This obligation continues for as long as the employer must maintain records for the year in which an injury or illness became recordable, and it does not expire if the employer fails to create a record when first required to do so.
The continuing obligation to make and maintain accurate records of work-related illnesses and injuries is in accord with longstanding OSHA policy. Thus, this proposal is not meant to impose new or additional obligations on employers covered by part 1904. Employers will not be required to make records of any injuries or illnesses for which records are not currently required; nor are the recording requirements themselves changing. As discussed at length previously, the amendments are meant simply to clarify employers' obligations in the wake of the
As discussed in more detail later in this notice, the amendments clarify the following: (1)
OSHA is proposing to revise this section to clarify and emphasize employers' ongoing duties to make and maintain accurate records of each and
OSHA is proposing to add a new sentence at the end of this section to explain what the Agency deems to be an “accurate” record. Records will be considered “accurate” if correct and complete records are made and maintained for each and every recordable injury and illness in accordance with the provisions of part 1904. This concept is not new, as the requirement for employers to maintain accurate records is derived directly from the OSH Act, 29 U.S.C. 657(c)(2).
OSHA is proposing to amend the title of this Subpart to better reflect the content of revised §§ 1904.4 and 1904.29, which address employers' duties to make and maintain accurate records, as well as recordkeeping forms and criteria.
OSHA is proposing to revise this paragraph to reiterate the requirement that employers make and maintain accurate records of every injury and illness that meets the recording criteria in paragraphs (a)(1) through (3) of § 1904.4. The current version of paragraph (a), which requires employers to “record” injuries and illnesses, is less explicit in expressing OSHA's intent that employers both create and keep accurate records. The proposed language is intended to express that an employer's duty includes both creating and preserving accurate records of recordable injuries and illnesses. To be accurate, these records must be correct and complete. The proposed language is also meant to reflect more closely the language of the OSH Act at 29 U.S.C. 657(c)(1) and (2). OSHA is not proposing to change the recording criteria in paragraphs (a)(1) through (3) of existing § 1904.4.
OSHA is proposing to add this note to § 1904.4(a) to clarify the Agency's longstanding position that the duty to make and maintain accurate injury and illness records continues throughout the entire record-retention period set out in § 1904.33(a). This retention period runs for five years from the end of the calendar year that the records cover. An employer who fails to create a required record during the seven-day period provided for in § 1904.29(b)(3) must still create the record so long as the retention period has not elapsed. Given this ongoing duty, OSHA may issue recordkeeping citations to employers that have incomplete or otherwise inaccurate records at any point during the retention period, and, under the six-month statute of limitations set out in 29 U.S.C. 658(c), for up to six months thereafter.
Proposed paragraph (b)(3) of § 1904.29 states the Agency's long-standing requirement that each and every recordable injury and illness must be recorded on both the OSHA 300 Log for that year and a 301 Incident Report within seven calendar days of when the employer gets information that the injury or illness occurred. OSHA is proposing minor wording changes to the first sentence of existing paragraph (b)(3). The remainder of proposed paragraph (b)(3) is designed to make clear that employers that miss this seven-day recording deadline are not excused from the recording obligations after the seven-day period expires. Thus the obligation to record continues until the five-year retention period in § 1904.33(a) has run.
OSHA has always interpreted the seven-day recording period in the existing recordkeeping rules as a grace period when an employer can gather information on an injury or illness without fear of being cited by OSHA for a failure to record. Similarly, OSHA has always interpreted the obligation to record as continuing throughout the record retention period. The amendments to this paragraph simply clarify OSHA's long-held positions.
OSHA is proposing to amend the title of this section to more accurately describe the topics covered by § 1904.32, which include an employer's year-end review of records.
OSHA is proposing revisions to paragraph (a)(1) of § 1904.32 to make clear that employers must examine each year's OSHA 300 Log at the end of the year to ensure that each and every recordable injury and illness is recorded on the Log, and that each entry is accurate. If an employer discovers, during this review, that an injury or illness is missing or that any aspect of an entry is inaccurate, the employer must correct the deficiency.
The Agency is also proposing a new paragraph (a)(2) for § 1904.32. This proposed paragraph provides that after reviewing and verifying the Log entries under § 1904.32(a)(1), employers must verify that all entries on the Log are accurately recorded on OSHA 301 Incident Reports. Proposed paragraph (a)(2) clarifies that if an employer discovers, during the § 1904.32(a)(1) review, that an injury or illness was initially left off of the OSHA 300 Log, the employer must both add it to the log and create an accurate Incident Report for that injury or illness.
OSHA is proposing to move the language from existing paragraph (a)(2) in § 1904.32 to proposed paragraph (a)(3) in the same section. The Agency is proposing to add a clause to that paragraph to explain that the annual summary should be created only after an employer verifies the accuracy of the Log. This language is for clarification purposes only and does not add any new compliance requirements. OSHA is also proposing to renumber existing paragraphs (a)(3) and (4) of § 1904.32 as paragraphs (a)(4) and (5), respectively. The Agency is not proposing any substantive changes to these provisions.
The specific tasks required of employers under § 1904.32(a)—to conduct a year-end review of the Log, and to prepare, certify and post the annual summary—are in addition to the duties described elsewhere in part 1904, and do not supersede or modify them. These other duties include the fundamental continuing obligation for employers to ensure that Logs are accurate and complete and that all recordable cases are included on them. The specific steps required under § 1904.32(a) are supplementary tasks designed to help ensure that employers are maintaining accurate records. These supplementary tasks are to be performed at specified times (at the end of each calendar year, and from February 1 to April 30 for posting). Failure to perform one of these supplementary tasks by the required deadline or during the required time period is a violation of § 1904.32
OSHA is proposing to amend paragraph (b)(1) of § 1904.32 to reflect the proposed revisions to § 1904.32(a)(1). The proposed changes to paragraph (b)(1) reiterate that employers must review the Log and its entries sufficiently to verify that all recordable injuries and illnesses for the relevant year are entered, and that those entries are accurate. In addition, OSHA is proposing one minor, non-substantive change to the heading of existing paragraph (b)(1).
OSHA is proposing to update the title of this section to more accurately reflect the obligations described in proposed § 1904.33.
OSHA is proposing to amend the heading for this paragraph to reflect that employers have recording duties with respect to Incident Reports, as well as OSHA 300 Logs, during the five-year retention period. The Agency is also proposing to amend the text of paragraph (b)(1) of § 1904.33 to provide an introduction to the paragraphs that follow.
OSHA is proposing to add paragraphs (b)(1)(i) through (iii) to § 1904.33 to provide further guidance to employers on the existing duties to update Log entries and Incident Reports. Proposed paragraph (b)(1)(i) clarifies employers' duties to make and keep OSHA 300 Log entries for each and every recordable injury and illness that occurs during the year to which the Log relates. There must also be an associated Incident Report for each illness and injury recorded on the Log. As the proposed language makes explicit, these duties continue until the five-year retention period ends; thus, an employer may be required to make an entry on the OSHA Log or fill out an Incident Report for an illness or injury that occurred several years ago.
Proposed paragraph (b)(1)(ii) addresses changes that must be made to OSHA Logs throughout the retention period. As emphasized throughout this proposed rule, employers' OSHA 300 Logs must be accurate. This means that if an employer discovers that any aspect of a previously-recorded case (such as the classification, description, or outcome of the case) has changed, or that a case was recorded incorrectly at the outset, the employer must amend the entry to reflect the new or corrected information.
Proposed paragraph (b)(1)(iii) reiterates the requirement in proposed paragraph (b)(1)(i) that there must be an Incident Report for each and every recordable injury and illness. The primary purpose of proposed paragraph (b)(1)(iii) is to explain that employers are not required to update or correct existing Incident Reports during the retention period. This principle is currently stated in existing § 1904.33(b)(3).
These proposed requirements are not intended to change, but rather to state more clearly, what is required under the existing rule. The existing rule provides that during the five-year retention period, the employer must update the Logs to include newly discovered recordable injuries and illnesses and to show changes that have occurred in previously recorded cases. It does not explicitly state the employer's continuing duty to record cases it had previously learned about. Judge Garland's concurring opinion in
The existing recordkeeping regulations explain that the employer must promptly record cases on the 300 Log, and that, throughout the five-year retention period, if the employer discovers a case that occurred previously, it must record that case on the applicable Log. As with nearly all rules, this rule is written to describe compliance. As with other rules, it does not assume noncompliance, in other words, it does not explicitly state what an employer must do if it fails to record a case it knows about. By stating that newly discovered cases should be recorded, the Secretary did not intend to signify that other cases the employer had learned about need not be recorded. The command to update was not intended to signify permission to ignore knowledge that had been acquired earlier.
The current regulations also state that the employer is
OSHA is proposing minor changes to paragraph (b)(2) of § 1904.33. These changes are not substantive. Neither the proposed nor the existing rules require employers to update or make changes to annual summaries during the five-year retention period.
OSHA is proposing to delete existing paragraph (b)(3). In the proposal, this paragraph has been moved, in slightly modified form, to paragraph (b)(1)(iii) in § 1904.33.
Paragraph (b)(2) of existing § 1904.35 addresses employee access to records created under part 1904. OSHA is proposing only one minor change to this paragraph—the addition of the word “accurate” to describe the records to which employees, former employees, and their representatives must be given access. Accurate records are described in proposed § 1904.0.
In proposed paragraph (b)(2)(iii) of § 1904.35, OSHA is simply adding the term “accurate” to describe the OSHA 300 Logs to which employees, former employees, and their representatives must be given access. Accurate records are described in proposed § 1904.0. Records are required so they can be used, and records must be accurate if they are to serve this purpose. The duty to provide an accurate record upon request arises when the request is made, not before, so the six-month statute of limitations cannot begin to run until the request is made.
OSHA is proposing to revise the title of Subpart E to more precisely reflect the requirement in the Subpart that government representatives be given access to
OSHA is proposing to revise the title of § 1904.40 to reflect the proposed changes to paragraph (a) of that section.
OSHA is proposing to add the term “accurate” to paragraph (a) of § 1904.40(a) to reflect OSHA's long-standing expectation that employers provide government representatives with
The 27 States and U.S. Territories with their own OSHA-approved occupational safety and health plans must adopt a rule comparable to any amendments that Federal OSHA ultimately promulgates to 29 CFR part 1904. The States and U.S. Territories with OSHA-approved occupational safety and health plans covering private employers and State and local government employees are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. In addition, five States and U.S. Territories have OSHA-approved State plans that apply to State and local government employees only: Connecticut, Illinois, New Jersey, New York, and the Virgin Islands.
Under 29 CFR 1952.4(a), States with approved occupational safety and health plans under section 18 of the OSH Act (29 U.S.C. 667) must adopt recordkeeping and reporting regulations that are “substantially identical” to those set forth in 29 CFR part 1904. State plans' recording and reporting requirements for determining which injuries and illnesses must be recorded, and how they will be recorded, must be the same as the Federal requirements. 29 CFR 1952.4(a). Otherwise, State plans may promulgate injury or illness recording and reporting requirements that are more stringent than, or supplemental to, 29 CFR part 1904, after consulting with, and obtaining approval from, Federal OSHA.
State plans may not grant variances from injury and illness recording and reporting requirements for private sector employers; any such variances must be granted by Federal OSHA. 29 CFR 1952.4(b). And a State may grant such a variance for a State or local government entity only after obtaining Federal OSHA approval.
The proposed revisions to OSHA's recordkeeping rules do not constitute an economically significant regulatory action under Executive Order 12866. (See 58 FR 51735, September 30, 1993). Executive Order 12866 requires regulatory agencies to conduct an economic analysis for significant rules. A rule is economically significant under Executive Order 12866 if it will have an annual effect on the economy of $100 million or more. This proposal does not satisfy that criterion; as explained later in this notice, neither the benefits nor the costs of the proposal equal or exceed $100 million. OSHA has also determined that this proposal does not meet the definition of a major rule under the Congressional Review provisions of the Small Business Regulatory Enforcement Fairness Act (SBREFA). See 5 U.S.C. 804(2).
The Regulatory Flexibility Act of 1980, as amended by SBREFA in 1996, requires OSHA to determine whether the Agency's regulatory actions will have a significant impact on a substantial number of small entities. See 5 U.S.C. 601
This proposal simply reiterates and clarifies employers' existing obligations to record work-related injuries and illnesses. This proposal would not require employers to make records of any injuries or illnesses for which records are not currently required. OSHA estimated the costs to employers of these requirements when the existing regulations were promulgated in 2001,
Moreover, even if the proposed revisions to OSHA's recordkeeping rules would
In 2014, OSHA prepared a Final Economic Analysis for a final rule addressing the industries entitled to a partial exemption from recordkeeping requirements and the reporting of injuries and fatalities to the Agency. In that analysis, OSHA estimated that it takes .38 of an hour to record an injury or illness on all required OSHA forms, taking into account requirements for providing access to records.
Thus, if 24,400 cases would be newly recorded as a result of the proposal, the total cost associated with this regulatory action would be 24,400 times $17.75, or approximately $433,100 per year. (The Agency notes that if it makes the even more conservative assumption that 5 percent of 2.44 million injuries and illnesses (122,000) would be newly recorded as a result of the proposal, the total estimated cost of the proposed
Just as there are no (or minimal) new costs associated with this proposal, the proposal will result in no new economic benefits. OSHA believes the proposed revisions to the recordkeeping rules are technologically feasible because they do not require employers to perform any actions that they are not performing under existing requirements. And because the proposal does not impose any significant new compliance costs, the Agency deems it economically feasible.
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601
OSHA has reviewed the proposed rule in accordance with the requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
OSHA reviewed this proposed rule in accordance with the most recent Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999). This Executive Order requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when clear constitutional authority exists and the problem is national in scope. Executive Order 13132 provides for preemption of State law only with the expressed consent of Congress. Any such preemption must be limited to the extent possible. Because this proposed rulemaking action involves a regulation that is not an occupational safety and health standard under section 6 of the OSH Act, it does not preempt State law.
OSHA cannot enforce compliance with its regulations or standards on “any State or political subdivision of a State.” 29 U.S.C. 652(5). Under voluntary agreement with OSHA, some States enforce compliance with their State standards on public sector entities, and these agreements specify that these State standards must be equivalent to OSHA standards. But the proposed rule does not involve any unfunded mandates being imposed on any State or local government entity. Moreover, as discussed previously, OSHA estimates that that there are no, or minimal, compliance costs associated with the proposed rule. Therefore, this proposed rule would not impose a Federal mandate on the private sector in excess of $100 million in expenditures in any one year. Thus, OSHA certifies that this proposed rule is not a significant regulatory action within the meaning of Section 202 of the Unfunded Mandates Reform Act (2 U.S.C. 1532).
OSHA reviewed this proposed rule in accordance with Executive Order 13175 (65 FR 67249, November 6, 2000) and determined that it does not have “tribal implications” as defined in that order. The proposed rule does not have substantial direct effects 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.
Recordkeeping requirements promulgated under the Occupational Safety and Health Act of 1970 (OSH Act) are regulations, not standards. Therefore, this rulemaking is governed by the notice and comment requirements in the Administrative Procedure Act (APA), 5 U.S.C. 553, rather than by section 6(b) of the OSH Act (29 U.S.C. 655(b)) and 29 CFR part 1911 (both of which apply only to promulgating, modifying or revoking occupational safety or health standards). The OSH Act requirement for the Agency to hold an informal public hearing on a proposed rule, when requested, does not apply to this rulemaking.
The APA, which governs this rulemaking, does not require a public hearing; instead, it states that the agency must “give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. 553(c). To promulgate a proposed regulation, the APA requires the Agency to provide the terms of the proposed rule (or a description of those terms) and specify the time, place, and manner of rulemaking proceedings.
Public Submissions
When submitting comments, please follow the procedures specified in the sections titled
The information collection requirements contained in 29 CFR part 1904 Recording and Reporting Occupational Injuries and Illnesses have been approved by OMB and have been assigned OMB control number 1218-0176. This proposal simply reiterates
• Whether the revised collection of information requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and cost) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility and clarity of the information collected; and
• Ways to minimize the compliance burden on employers, for example, by using automated or other technological techniques for collecting and transmitting information.
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the following paragraphs provide information about this ICR:
Members of the public who wish to comment on the Agency's revised collection of information must send their written comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, OSHA (please reference control number 1218-0176 in order to help ensure proper consideration), Office of Management and Budget, Room 10235, Washington, DC 20503, Fax: 202-395-5806 (this is not a toll-free number), email:
OSHA notes that a federal agency cannot conduct or sponsor a collection of information unless it is approved by OMB under the PRA and displays a currently valid OMB control number, and the public is not required to respond to a collection of information unless the collection of information displays a currently valid OMB control number. Also, notwithstanding any other provision of law, no person shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number.
Health statistics, Occupational safety and health, Safety, Reporting and recordkeeping requirements, State plans.
This document was prepared under the direction of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor. It is issued pursuant to 29 U.S.C. 657, 673; 5 U.S.C. 553; and Secretary of Labor's Order No. 1-2012 (77 FR 3912, January 25, 2012).
Accordingly, the Occupational Safety and Health Administration proposes that part 1904 of title 29 of the Code of Federal Regulations be amended as follows:
29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of Labor's Order No. 3-2000 (65 FR 50017), or 1-2012 (77 FR 3912), and 5 U.S.C. 553.
The purpose of this rule (part 1904) is to require employers to make and maintain accurate records of and report work-related fatalities, injuries, and illnesses, and to make such records available to the Government and to employees and their representatives so that they can be used to secure safe and healthful working conditions. For purposes of this part, accurate records are records of each and every recordable injury and illness that are made and maintained in accordance with the requirements of this part.
Recording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers' compensation or other benefits.
(a)
This obligation to make and maintain an accurate record of each and every recordable fatality, injury, and illness continues throughout the entire record retention period described in § 1904.33.
(b) * * *
(3)
(a)
(1) Review that year's OSHA 300 Log to verify that it contains accurate entries for all recordable injuries and illnesses that occurred during the year, and make any additions or corrections necessary to ensure its accuracy;
(2) Verify that each injury and illness recorded on the 300 Log, including any injuries and illnesses added to the Log following your year-end review pursuant to § 1904.32(a)(1), is accurately recorded on a corresponding 301 Incident Report form;
(3) After you have verified the accuracy of the Log, create an annual summary of injuries and illnesses recorded on the Log;
(4) Certify the summary; and
(5) Post the summary.
(b) * * *
(1)
(b)
(i) The OSHA Logs must contain entries for all recordable injuries and illnesses that occurred during the calendar year to which each Log relates. In addition, each and every recordable injury and illness must be recorded on an Incident Report. This means that if a recordable case occurred and you failed to record it on the Log for the year in which the injury or illness occurred, and/or on an Incident Report, you are under a continuing obligation to record the case on the Log and/or Incident Report during the five-year retention period for that Log and/or Incident Report;
(ii) You must also make any additions and corrections to the OSHA Log that are necessary to accurately reflect any changes that have occurred with respect to previously recorded injuries and illnesses. Thus, if the classification, description, or outcome of a previously recorded case changes, you must remove or line out the original entry and enter the new information; and
(iii) You must have an Incident Report for each and every recordable injury and illness; however, you are not required to make additions or corrections to Incident Reports during the five-year retention period.
(2)
(b) * * *
(2)
(iii)
(a)
Environmental Protection Agency (EPA).
Updates to public hearing.
The Environmental Protection Agency (EPA) published the
The EPA will hold a public hearing on August 11, 2015 in Washington, DC starting at 10 a.m. local time.
The hearing will be held at the Headquarters office of the US EPA, the William Jefferson Clinton East Building, Room 1153, 1201 Constitution Avenue NW., Washington, DC 20004.
Ms. JoNell Iffland, Office of Transportation and Air Quality, Assessment and Standards Division (ASD), Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, Michigan 48105, telephone number: (734) 214-4454, fax number: (734) 214-4816, email address:
EPA published a proposed finding that greenhouse gas emissions from aircraft cause or contribute to air pollution that may reasonably be anticipated to endanger public health and welfare and an advance notice of proposed rulemaking regarding aircraft engine greenhouse gas emissions on July 1, 2015 (80 FR 37758). This action corrects a typographical error in the street address for the public hearing and provides notice of availability of a conference call-in number for the public to listen to the hearing. Additionally, this action provides notice that video recording will be allowed in the hearing room provided that it does not interfere with or interrupt the public hearing.
The
The EPA will hold a public hearing on August 11, 2015 in Washington, DC, at the William Jefferson Clinton East Building, Room 1153, 1201 Constitution Avenue NW., Washington, DC 20004. The EPA will provide the opportunity for the public to listen to the hearing through the following conference call-in line: 1-866-299-3188, conference code 1433527160. Please note that this conference line will allow the public to listen only; persons listening will not be able to give an oral presentation via the conference line.
Additionally, the proposed finding and advance notice of proposed rulemaking stated that no large signs will be allowed in the building, cameras may only be used outside of the building and demonstrations will not be allowed on federal property for security reasons. This update confirms that video recording will be allowed in the hearing room provided that it does not interfere with or interrupt the public hearing.
Health Resources and Services Administration (HRSA), HHS.
Notice of proposed rulemaking (NPRM).
The Secretary proposes to amend the Vaccine Injury Table (Table) by regulation. These proposed regulations will have effect only for petitions for compensation under the National Vaccine Injury Compensation Program (VICP) filed after the final regulations become effective. The Secretary is seeking public comment on the proposed revisions to the Table.
Written comments must be submitted on or before January 25, 2016.
You may submit comments, identified by the Regulatory Information Number (RIN) 0906-AB01 in one of three ways, as listed below. The first is the preferred method. Please submit your comments in only
1.
2.
3.
Because of staffing and resource limitations, and to ensure that no comments are misplaced, Program cannot accept comments by facsimile (FAX) transmission. In commenting, by any of the above methods, please refer to file code (#HRSA-0906-AB01). All comments received on a timely basis will be available for public inspection without change, including any personal information provided, in Room 14-101 of the Health Resources and Services Administration's offices at 5600 Fishers Lane, Rockville, MD, on Monday through Friday of each week from 8:30 a.m. to 5:00 p.m. (excluding Federal holidays). Phone: (301) 443-1785. This is not a toll-free number.
Please visit the National Vaccine Injury Compensation Program's Web site,
The President encourages Federal agencies through Executive Order 13563 to develop balanced regulations by encouraging broad public participation in the regulatory process and an open exchange of ideas. The Department of Health and Human Services (HHS) accordingly urges all interested parties to examine this regulatory proposal carefully and to share your views with us, including any data to support your positions. If you have questions before submitting comments, please see the “For Further Information” box below for the name and contact information of the subject-matter expert involved in this proposal's development. We must consider all written comments received
If you are a person with a disability and/or a user of assistive technology who has difficulty accessing this document, please contact HRSA's Regulations Officer at Parklawn Building, Room 14-101, 5600 Fishers Lane, Rockville, MD 20857; or by telephone at 301-443-1785, to obtain this information in an accessible format. This is not a toll free telephone number. Please visit
A public hearing on this proposed rule will be held before the end of the public comment period. A separate notice will be published in the
The National Childhood Vaccine Injury Act of 1986, title III of Public Law 99-660 (42 U.S.C. 300aa-10
In order to receive an award under this Program, a petitioner must establish a vaccine-related injury or death, either by proving that a vaccine actually caused or significantly aggravated an injury (causation-in-fact) or by demonstrating the occurrence of what has been referred to as a “Table Injury.” That is, a petitioner may show that the vaccine recipient suffered an injury of the type enumerated in the regulations at 42 CFR 100.3—the “Vaccine Injury Table”—corresponding to the vaccination in question, and that the onset of such injury took place within a time period also specified in the Table. If so, the injury is presumed to have been caused by the vaccination, and the petitioner is entitled to compensation (assuming that other requirements are satisfied), unless the respondent affirmatively shows that the injury was caused by some factor other than the vaccination (see sections 300aa-11(c)(1)(C)(i), 300aa-13(a)(1)(B)), and 300aa-14(a) of the Act). Currently, cases are often resolved by settlements reached by both parties and approved by the Court.
When Congress first enacted the Act, it mandated reviews by the Institute of Medicine (IOM) of the National Academy of Sciences with the express purpose of providing a better scientific rationale for any presumptions of vaccine causation. Under sections 312 and 313 of Public Law 99-660, Congress mandated that the IOM review the scientific literature and other information on specific adverse consequences of vaccines covered by the Program. Congress enacted a mechanism for modification of the statutory Table, through the promulgation of regulatory changes by the Secretary, after consultation with the Advisory Commission on Childhood Vaccines (ACCV). By statutory directive, the membership of the ACCV reflects a variety of stakeholders with different perspectives (42 U.S.C. 300aa-19).
Efforts by the Secretary to modify the initial statutory Table, and its definitional counterpart, the Qualifications and Aids to Interpretation (QAI) began with publication of the two congressionally mandated IOM reviews in 1991 and 1994, respectively. With a few exceptions, the approach by the Secretary was straightforward: If the IOM concluded that there was evidence that a condition was “causally related,” it was added to or left on the Table. However, if there was no proven scientific evidence of an association, it was not added to the Table or it was removed. The entire process, from publication of the IOM reports, to promulgation of final rules in 1995 and 1997 took approximately 3 to 4 years.
The IOM has analyzed numerous possible vaccine injury connections over the years and after conducting a third comprehensive review of the scientific literature on vaccines and adverse events, released a report entitled,
The IOM Committee undertook the task of judging whether, based on available scientific evidence, a causal relationship exists between each adverse event examined and exposure to the following eight vaccines: Measles-mumps-rubella vaccine, varicella virus vaccine, seasonal influenza vaccines (which did not include the H1N1 influenza vaccine distributed in 2009), hepatitis A vaccine, hepatitis B vaccine, human papillomavirus vaccine, diphtheria tetanus toxoid and acellular pertussis-containing vaccines, and meningococcal vaccine. The charge to the Committee involved these eight vaccines because they are the vaccines with the vast majority of alleged adverse events in the claims for compensation filed under the Program. In addition, some of these vaccines had not been reviewed previously by the IOM.
Two types of evidence were utilized by the IOM in determining the strength of a causal association: Epidemiologic evidence from studies of populations and mechanistic evidence derived primarily from biological and clinical studies in animals and humans such as case reports. To determine the weight of the evidence, the IOM used a summary classification scheme that incorporated both the quality and quantity of the individual articles and the consistency of the group of articles in terms of direction of effect. Four weight-of-evidence categories were utilized, with epidemiologic evidence assessed to be high, moderate, limited or insufficient, and mechanistic evidence assessments of strong, intermediate, weak or lacking.
The IOM started each adverse event assessment from a position of neutrality, moving in either direction (
1. Evidence convincingly supports a causal relationship;
2. Evidence favors acceptance of a causal relationship;
3. Evidence favors rejection of a causal relationship; or
4. Evidence is inadequate to accept or reject a causal relationship.
The IOM Committee concluded in certain circumstances that the evidence convincingly supports, or favors acceptance of, a causal relationship based only on a mechanistic assessment, even when the epidemiological evidence was inconclusive or absent. The 2012 IOM Report, on pages 17-18 explains that strong mechanistic evidence “always carries sufficient weight for the committee to conclude the evidence convincingly supports a causal relationship. . .This conclusion [attributing the disease to the vaccine and not to other etiologies] can be reached even if the epidemiologic evidence is rated high in the direction of no increased risk or even decreased risk.”
The IOM concluded the evidence convincingly supports 14 specific vaccine-adverse event relationships, with all but one based on strong mechanistic evidence, and the epidemiologic evidence rated as either having limited confidence or being insufficient. Four vaccine adverse events judged to have either epidemiologic evidence of moderate certainty or mechanistic evidence of intermediate weight were placed in the “evidence favors acceptance of a causal relationship” category, while five other vaccine adverse events were placed in the “evidence favors rejection” category. A finding against a causal relationship required high or moderate epidemiologic evidence in the direction of no effect or decreased risk along with the absence of strong or intermediate mechanistic evidence supporting a causal relationship. The vast majority (135 vaccine-adverse event combinations) were placed in the “evidence is inadequate to accept or reject a causal relationship” category.
After release of the report, nine HHS workgroups including HRSA and the Centers for Disease Control and Prevention (CDC) medical staff reviewed the IOM conclusions on 158 vaccine-adverse events, as well as any newly published scientific literature not contained in the IOM report, and developed a set of proposed changes to the Table and QAI. The work of the HHS workgroups ended and HRSA continued to monitor the literature.
In 2006, the ACCV established “Guiding Principles for Recommending Changes to the Vaccine Injury Table” (Guiding Principles) to assist the ACCV in evaluating proposed Table revisions and determining whether to recommend changes to the Table to the Secretary. The Guiding Principles consist of two overarching principles: (1) The Table should be scientifically and medically credible; and (2) where there is credible scientific and medical evidence both to support and to reject a proposed change (addition or deletion) to the Table, the change should, whenever possible, be made to the benefit of petitioners. The Guiding Principles also state, among other factors, that “[t]o the extent that the [IOM] has studied the possible association between a vaccine and an adverse effect, the conclusions of the IOM should be considered by the ACCV and deemed credible but those conclusions should not limit the deliberations of the ACCV.” Although not binding on the Secretary, the ACCV Guiding Principles were utilized by the nine HHS workgroups in the development of the proposed changes to the Table. In particular, recommendations regarding appropriate time intervals for the onset of a Table injury, or diagnostic criteria in the QAI were influenced by the Guiding Principles. As part of its mandate under the Act, the ACCV considered the proposed changes set forth in this NPRM in its quarterly meetings on March 8, 2012, September 5, 2013, December 5, 2013, June 5, 2014, and September 4, 2014. The ACCV deliberations included scientific and public policy considerations, and were also influenced by the 2006 Guiding Principles. For each proposed change by the Secretary, the ACCV voted for one of three options:
1. ACCV concurs with the proposed change(s) to the Table (and QAI) and would like the Secretary to move forward (with or without comments);
2. ACCV does not concur with the proposed change(s) to the Table (and QAI) and would not like the Secretary to move forward; or
3. ACCV would like to defer a recommendation on the proposed change(s) to the Table (and QAI) pending further review at a future ACCV meeting.
In prior Table revisions, the Secretary determined that the appropriate framework for making changes to the Table is to make specific findings as to the illnesses or conditions that can reasonably be determined in some circumstances to be caused or significantly aggravated by the vaccines under review and the circumstances under which such causation or aggravation can reasonably be determined to occur. The Secretary continues this approach based on the 2012 IOM report, the work of the nine workgroups that reviewed the IOM findings, and after giving due consideration to the ACCV's recommendations.
For the vast majority of the vaccine adverse event pairs that were reviewed by the IOM (135), the IOM determined that the evidence is inadequate to accept or reject a causal relationship. With the exception of seasonal influenza vaccine and Guillain-Barré Syndrome (GBS), unless the IOM findings addressed a condition that was already on the Table, the Secretary makes no additional findings and proposes no change to the Table with regard to the vaccine adverse event pairs in this category. For seasonal influenza vaccines, the Secretary proposes to add the injury of GBS to the Table for the policy reasons discussed in this NPRM. For any vaccine adverse event pairs for which future scientific evidence develops to support a finding of a causal relationship, the Secretary will consider future rulemaking to revise the Table accordingly.
Applying the remaining IOM conclusions, with the Guiding Principles, the Secretary intends to make certain changes to the Table, and also intends to leave certain items already on the Table unchanged. In so doing, the Secretary makes the following findings:
1. The scientific evidence convincingly supports a causal relationship between measles-mumps-rubella (MMR) vaccine and measles inclusion body encephalitis.
2. The scientific evidence convincingly supports a causal relationship between varicella vaccine and vaccine disseminated varicella infection (widespread chickenpox rash shortly after vaccination).
3. The scientific evidence convincingly supports a causal relationship between varicella vaccine and disseminated varicella infection with subsequent infection resulting in pneumonia, meningitis, or hepatitis in individuals with demonstrated immunodeficiencies.
4. The scientific evidence convincingly supports a causal relationship between varicella vaccine and vaccine strain viral reactivation.
5. The scientific evidence convincingly supports a causal relationship between varicella vaccine and vaccine strain viral reactivation with subsequent infection resulting in meningitis or encephalitis.
6. The scientific evidence convincingly supports a causal relationship between varicella vaccine and anaphylaxis.
7. The scientific evidence convincingly supports a causal
8. The scientific evidence convincingly supports a causal relationship between meningococcal vaccines and anaphylaxis.
9. The scientific evidence favors acceptance of a causal relationship between human papillomavirus vaccines and anaphylaxis.
10. The scientific evidence convincingly supports a causal relationship between an injection-related event and deltoid bursitis. For reasons detailed below, the Secretary proposed adding a more expansive injury of Shoulder Injury Related to Vaccine Administration (SIRVA) to the Table.
11. The scientific evidence convincingly supports a causal relationship between an injection-related event and syncope.
12. The scientific evidence is inadequate to accept or reject a causal relationship between seasonal influenza vaccines and GBS. However, the Secretary proposes a Table change for the reasons discussed in this NPRM.
1. The scientific evidence convincingly supports a causal relationship between MMR vaccine and anaphylaxis.
2. The scientific evidence convincingly supports a causal relationship between Hepatitis B vaccine and anaphylaxis.
3. The scientific evidence convincingly supports a causal relationship between tetanus toxoid vaccine and anaphylaxis.
4. The scientific evidence is inadequate to accept or reject a causal relationship between tetanus toxoid-containing vaccines (including those containing the acellular pertussis component but not the whole cell pertussis component) and encephalopathy and encephalitis.
5. The scientific evidence is inadequate to accept or reject a causal relationship between MMR vaccine and chronic arthritis in women.
6. The scientific evidence is inadequate to accept or reject a causal relationship between MMR vaccine and chronic arthritis in children.
7. The scientific evidence is inadequate to accept or reject a causal relationship between MMR vaccine and encephalopathy or encephalitis.
1. The scientific evidence convincingly supports a causal relationship between MMR vaccine and febrile seizures.
2. The scientific evidence favors acceptance of a causal relationship between MMR vaccine and transient arthralgia in women.
3. The scientific evidence favors acceptance of a causal relationship between MMR vaccine and transient arthralgia in children.
1. The scientific evidence favors a rejection of a causal relationship between MMR vaccine and autism.
2. The scientific evidence favors a rejection of a causal relationship between MMR vaccine and type 1diabetes.
3. The scientific evidence favors a rejection of a causal relationship between DTaP (tetanus) vaccine and type 1diabetes.
4. The scientific evidence favors a rejection of a causal relationship between inactivated (as opposed to the live intranasal) influenza vaccine and Bell's palsy.
5. The scientific evidence favors a rejection of a causal relationship between inactivated influenza vaccine and exacerbation of asthma or reactive airway disease episodes in children and adults.
The Secretary has examined the recommendations of the ACCV and proposes that the Table set forth at 42 CFR 100.3 be revised as described below. Following each vaccine and adverse event there is a discussion of the IOM conclusion and, where applicable, other relevant conclusions, as well as the Department's proposal. It should be noted that the ACCV concurred with all of the proposals regarding the Table and QAI. Each of the changes proposed by the Department and the rationale for the proposal is described in detail. An important consideration in proposing changes to the Table is the need to make the Table as easy to understand and as clear as possible. With this goal in mind, the Secretary has proposed new language and clarified certain sections of the QAI which must be used by the Special Masters and the parties in understanding when a particular set of symptoms is consistent with a particular Table injury.
As provided in 42 U.S.C. 300aa-14(c)(4), the modified Table will apply only to petitions filed under the Program after the effective date of the final regulation. Petitions must also be filed within the applicable statute of limitations. The general statute of limitations applicable to petitions filed with the VICP, set forth in 42 U.S.C. 300aa-16(a), continues to apply. In addition, the statute identifies a specific exception to this statute of limitations that applies when the effect of a revision to the Table makes a previously ineligible person eligible to receive compensation or when an eligible person's likelihood of obtaining compensation significantly increases. Under this section, an individual who may be eligible to file a petition based on the revised Table may file the petition for compensation not later than 2 years after the effective date of the revision if the injury or death occurred not more than 8 years before the effective date of the revision of the Table (42 U.S.C. 300aa-16(b)). This is true even if such individual previously filed a petition for compensation, and is thus an exception to the “one petition per injury” limitation of 42 U.S.C. 300aa-11(b)(2).
Based on the requirements of the Administrative Procedure Act, the Department publishes a Notice of Proposed Rulemaking in the
In the following sections, background information on different categories of vaccines as well as the Secretary's rationale for any proposed Table change is provided. It should also be noted that the proposed QAIs are designed to define the conditions covered on the Table and to rule out other conditions that are not covered on the Table (and for which there has been no finding of a causal relation to the vaccines). In addition, the QAIs make clear that if certain other circumstances exist that do not, in the Secretary's view, warrant a presumption of causation, the Table presumption will not be apply.
Currently there are four tetanus-diptheria (Td) vaccines licensed in the United States, two of which also contain acellular pertussis vaccines (Tdap and DTap); a diphtheria-tetanus (DT) vaccine for children younger than age 7 years; and one tetanus toxoid vaccine (TT). In addition, there are three combination vaccines approved for use in children, including (DTaP-IPV-HepB), (DTaP-IPV-Hib), and (DTaP-IPV). Immunity to tetanus wanes over time, so booster doses are needed. According to the CDC recommended schedule of immunizations for children, an infant and child should receive four doses of DTaP in the first 18 months of life and a booster dose between 4 to 6 years. Tdap is recommended at age 11 to 12 years.
Since 2005, the Advisory Committee on Immunization Practices (ACIP) and the CDC have recommended a Tdap vaccine booster dose for all adolescents aged 11 through 18 years of age and for adults aged 19 through 64 years who have not received a dose. A Td booster is recommended every 10 years thereafter. As part of wound management care to prevent tetanus, a tetanus toxoid-containing vaccine is recommended for wound management in anyone who has not received a tetanus-containing vaccine for 5 years or more. The CDC recommends that one dose of Tdap be administered to pregnant women during each pregnancy regardless of the interval since the prior Td or Tdap vaccination.
Shoulder Injury Related to Vaccine Administration (SIRVA) is an adverse event following vaccination thought to be related to the technique of intramuscular percutaneous injection (the procedure where access to a muscle is obtained by using a needle to puncture the skin) into an arm resulting in trauma from the needle and/or the unintentional injection of a vaccine into tissues and structures lying underneath the deltoid muscle of the shoulder. As the proposed definition indicates, SIRVA is an injury related to the intramuscular injection of a vaccine. Consequently, by definition, a Table injury of SIRVA will not result for those vaccines that are not administered by intramuscular injection, including oral polio and rotavirus; subcutaneous MMR, MMRV, varicella, and meningococcal-polysaccharide; intranasal influenza; and intradermal influenza. In addition, a Table injury of SIRVA will not result for those vaccines that are administered via a needleless jet device. Jet injectors are needleless systems for vaccine or medication administration that utilize a high-pressure jet of liquid to penetrate the skin. During administration, the needleless syringe is placed against the injection site and as the medication or vaccine passes through the injector under high pressure it forms a jet of fluid that penetrates the skin. These devices do not penetrate the skin to a degree that would result in SIRVA. Current information regarding routes of administration for various vaccine formulations is available on the Centers for Disease Control and Prevention's Web site:
Clinical signs of shoulder pain and restricted motion in the affected shoulder appear shortly after vaccination. Medical review of VICP claims shows more than 30 cases of severe, persistent shoulder pain beginning shortly after vaccination and resulting in prolonged restriction of function. Often these cases were diagnosed as deltoid bursitis. [Atanasoff S, Ryan T, Lightfoot R, and Johann-Liang R, 2010, Shoulder injury related to vaccine administration (SIRVA),
The IOM reviewed the scientific and medical literature finding evidence that convincingly supports a causal relationship between vaccine injection (with a needle) into an arm and deltoid bursitis. The report noted that the published VICP case series (Atanasoff et al.), as described, were clinically consistent with deltoid bursitis. The VICP case series found that 93 percent of patients had the onset of shoulder pain within 24 hours of vaccine administration and 54 percent had immediate pain following vaccine injection. The VICP case series found several diagnoses, beyond deltoid bursitis, that resulted in shoulder pain following vaccination, including tendonitis, impingement syndrome, frozen shoulder syndrome, and adhesive capsulitis. Another case series reported two cases of shoulder pain, weakness and reduced range of motion following vaccination with onset of symptoms within 48 hours of vaccination. [Bodor M, Montalvo E, Vaccination related shoulder dysfunction, Vaccine 25(2007) 585-587.]
In order to capture the broader array of potential injuries, the Secretary proposes to add SIRVA for all tetanus toxoid-containing vaccines that are administered intramuscularly through percutaneous injection into the upper arm. The interval of onset will be less than or equal to 48 hours.
While the Secretary proposes adding SIRVA to the Table for the MMR and Varicella vaccines, to meet the proposed QAI for SIRVA, the vaccine must be one intended for intramuscular administration in the upper arm. The Secretary acknowledges that currently there are no MMR or Varicella vaccines that are administered by intramuscular injection. However, the Secretary proposes that the Table include SIRVA as an injury for those vaccines, recognizing that, presently, the absence of an intramuscular formulation of the vaccines will prevent petitioners from meeting the Table QAI for SIRVA with respect to those vaccines. The advantage of such proposal is that the Table would not require modification should an intramuscular formulation of those vaccines develop. The disadvantage of this proposal could be confusion about whether a Table injury for SIRVA may be satisfied for those vaccines, despite the QAI's requirement that the associated vaccine be intended for intramuscular administration. Accordingly, the Secretary specifically seeks the public's views on her proposal to include SIRVA as a Table injury for the MMR and varicella vaccines notwithstanding the fact that there currently is not an intramuscular formulation. Consequently, by definition, a Table injury of SIRVA will not result for those vaccines that are not administered by intramuscular injection, including oral polio and rotavirus; subcutaneous MMR, MMRV, varicella, and meningococcal-polysaccharide; intranasal influenza; and intradermal influenza.
Vasovagal syncope is the loss of consciousness (fainting) caused by a transient decrease in blood flow to the brain. Vasovagal syncope is usually a benign condition but may result in falling and injury. Vaccination is known to be one cause of vasovagal syncope. Both serious and non-serious injuries can occur as a result of syncope. The types of serious injuries that may occur following a syncopal episode include, but are not limited to, skin lacerations, bone fractures, dental injuries, traumatic brain injuries, and death. Other injuries include traumatic injuries sustained from automobile accidents that occurred due to a vaccinee experiencing syncope while driving within a short time period after vaccine receipt.
The IOM reviewed the literature concerning a possible link between the injection of a vaccine and syncope. Although the Committee found the epidemiologic evidence was insufficient or absent to assess an association
The IOM concluded that the evidence convincingly supports a causal relationship between the injection of a vaccine (with a needle) and syncope. It did not limit this conclusion to a particular vaccine and explained that the evidence from one case report it examined as part of the mechanistic evidence it reviewed suggested “that the injection, and not the contents of the vaccine, contributed to the development of syncope.”
In order to be eligible for compensation, the Act requires that the residual effects of the alleged vaccine injury must have continued for a period of at least 6 months (unless the injury results in in-patient hospitalization and surgery, or death). The Secretary recognizes that in many instances cases involving syncope will not meet the statutory severity criteria, as the reaction can be short-lived and treated effectively. However, there is a known risk of serious residual injury or of death from syncope.
Although syncope typically has no long term consequences, the Program has found that not infrequently, syncope is associated with residual effects lasting more than 6 months. Therefore, the Secretary proposes to add vasovagal syncope to the Table for all tetanus toxoid containing vaccines that are administered through percutaneous injection to permit an award of compensation in serious cases meeting the severity criteria. The proposed time interval of onset is less than or equal to 1 hour following vaccination. Syncope is an injury related to the injection of a vaccine. Consequently, the Secretary does not propose adding syncope as a Table injury for those vaccines that are not administered by injection, including oral polio and rotavirus vaccine. With respect to other vaccines, such as the intranasal influenza vaccine, while syncope is proposed as an injury for the general category of vaccines (
Diphtheria, tetanus, and whole cell pertussis (DTwP) vaccines were used for much of the 20th century to control pertussis (whooping cough) disease. Concerns about the safety of DTwP (also referred to as DTP) vaccine prompted development of vaccines with an acellular pertussis component. With data showing fewer local, systemic, and more serious adverse events after acellular (DTaP) vaccine when compared to whole cell DTwP vaccine, the FDA licensed diphtheria and tetanus toxoids and acellular pertussis (DTaP) vaccines in 1991 for use in children aged 15 months to 6 years, and in 1996 for use in infants and children aged 6 weeks to 6 years. By 2000, DTaP had replaced DTwP and, like the whole cell pertussis vaccine, was subsequently licensed in combination with other vaccines for routine use in children. Further, in 2005, FDA licensed tetanus and diphtheria toxoid (Td) and, acellular pertussis (Tdap) vaccine, for use in persons 10 years of age and older, as this vaccine is thought to decrease the number of pertussis carriers in the population, which would lead to a decrease in the number of pertussis outbreaks.
The Secretary notes that there are significant differences between whole cell and acellular pertussis vaccines. Although both vaccine types were developed for the same purpose (
The initial Table and QAI set forth in the 1986 statute reflected Congress' initial legislative determinations on vaccine-related injuries for DTwP vaccine. Further, modifications to the Table and QAI promulgated by the Secretary in 1995 were based on the scientific findings related to DTwP vaccine, the key study being the British National Childhood Encephalopathy Study (NCES), which found some evidence of acute neurologic illness (encephalopathy) 1 to 7 days after vaccination with the whole cell pertussis vaccine. Similarly, a 10 year NCES follow-up found evidence of chronic nervous system effects. However, the evidence from this follow-up study remained insufficient to indicate the presence or absence of a causal relation between DTP and chronic nervous system dysfunction. On the other hand, a more recent epidemiologic study of whole cell pertussis-containing vaccines did not show a relationship with encephalopathy or encephalitis (Ray et al). The IOM conclusions in 1991 and 1994 were mixed regarding the statistically significant findings of encephalopathy in both the original NCES and its 10 year follow-up. [IOM, Adverse Effects of Pertussis and Rubella Vaccines, 1991. IOM, Adverse Events Associated with Childhood Vaccines, 1994.] In the end, the Secretary, with
Acellular pertussis-containing vaccines were developed because of concerns about events due to whole cell pertussis. Toxicologists argue that components in these two types of pertussis vaccines differ greatly and should be treated as separate entities. Animal models have demonstrated that whole cell pertussis constituents have different effects than those with acellular pertussis. In one study, only whole cell pertussis vaccines caused seizure activity in mice. Levels of inflammatory markers were elevated in the whole cell pertussis group but not the acellular pertussis group. In another study, mice that received whole cell pertussis intravenously succumbed while those that received acellular pertussis did not. [Sato Y, Sato H, Comparison of Toxicities of Acellular Pertussis Vaccine with Whole Cell Pertussis Vaccine in Experimental Animals,
The 2012 IOM report on adverse events found that the evidence was inadequate to accept or reject a causal association between acellular pertussis-containing vaccines and encephalopathy and encephalitis. As previously stated, there is no credible evidence of a causal relationship between acellular pertussis vaccines and encephalopathy/encephalitis. Clinical studies have demonstrated a significant reduction in the number of common adverse events with acellular pertussis vaccine, as compared to whole cell pertussis vaccine, such as crying and fevers, and less common ones, such as febrile seizures. Although there have been large-scale surveillance studies conducted on the effects of acellular pertussis vaccines in infants and young children, such as those done in Canada and Australia, the study design used passive surveillance and therefore, the evidence is not as definitive as a controlled, well-designed epidemiologic study using a case control or cohort design [Le Saux N, et al. e348] [Lawrence G., Menzies R., Burgess M., McIntyre P., Wood N., Boyd I., Purcell P., Isaacs D. Surveillance of adverse events following immunization: Australia, 2000-2002.
In view of the limited epidemiological data, and as influenced by the Guiding Principles, the Secretary does not propose to make any changes to the Table, leaving intact the Table injury of encephalopathy/encephalitis for vaccines containing pertussis antigens, with an onset less than 72 hours from vaccination. However, the Secretary proposes to re-organize, clarify, and update the QAI for acute and chronic encephalopathy, and to include a new definition for acute encephalitis based on the Brighton Collaboration criteria and several other references. The Brighton Collaboration is an international voluntary collaboration that develops globally accepted and standardized case definitions of adverse events following immunizations. More information can be found at:
The Secretary proposes to add SIRVA for pertussis antigen-containing vaccines. [See I.A.] The interval of onset will be less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for pertussis antigen-containing vaccines. [See I.B.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
Since the 1960s, measles, mumps, and rubella (MMR), a live, attenuated virus vaccine, has been routinely administered to children in the U.S. In 2005, the tetravalent measles, mumps, rubella, and varicella (MMRV) vaccine was added to the immunization schedule. MMR vaccine was included in the original statutory Table.
Severe complications associated with the measles virus or a mutated form of the virus, such as measles inclusion body encephalitis (MIBE), can be broadly categorized as measles viral diseases. The Table currently lists “vaccine-strain measles viral infection in an immunodeficient recipient” as a Table injury for vaccines containing measles virus, with an onset of 6 months. This condition is defined in the QAI as “a disease caused by the vaccine-strain that should be determined by vaccine-specific monoclonal antibody or polymerase chain reaction tests.”
MIBE is a rare, slow encephalitis caused by chronic with the measles virus, and is thus a subset of the condition already listed on the Table. MIBE is confined to immunodeficient individuals and is frequently fatal. MIBE occurs primarily in children and young adults, and typically occurs within 1 year of the initial infection or vaccination. A gradual decline in intellectual abilities and behavioral alterations are followed by progressive myoclonus; muscle spasticity; seizures; dementia; autonomic dysfunction; and ataxia. Death usually occurs 1 to 3 years after disease onset. Pathologic features include perivascular cuffing, eosinophilic cytoplasmic inclusions, neurophagia, and fibrous gliosis.
The IOM concluded that the evidence convincingly supports a causal relationship between MMR vaccine and MIBE in individuals with demonstrated immunodeficiencies. Out of the five case reports the IOM found, two had wild-type measles infection and these did not contribute to the weight of evidence. Only one out of the three
For the reasons discussed above and in keeping with the spirit of the Guiding Principles, the Secretary proposes to change the injury of “vaccine-strain measles viral infection in an immunodeficient recipient” to “vaccine-strain measles viral disease in an immunodeficient recipient.” Because MIBE is a type of measles virus-associated disease occurring in immunodeficient individuals, the Secretary proposes a new time interval of onset of up to 12 months from the date of vaccination for those cases in which the typing of vaccine strain was not performed, because most cases of vaccine-strain disease occur within 1 year of vaccination. There is no time interval for onset proposed if the vaccine strain of the virus is identified, as it can be concluded that the vaccine was a contributing cause of the injury. Cases in which wild-type measles strain is isolated will be excluded. Revisions to the Table will distinguish between cases in which the measles vaccine strain is identified versus those cases in which laboratory testing was not done or the results were inconclusive. In addition, the Secretary proposes adding diagnostic criteria to the QAI.
The IOM concluded that the evidence is inadequate to accept or reject a causal relationship between MMR vaccine and encephalopathy or encephalitis. Not only is there limited epidemiologic evidence on a possible causal association, the mechanistic evidence is weak, based on current knowledge about natural infection and few case reports. Natural (wild-type) infection (measles, mumps, and/or rubella virus) is thought to cause neurologic illness through damage to the neurons by direct viral invasion. This is thought to be either from direct viral infection and/or viral reactivation (particularly in immunocompromised patients). These same mechanisms may be responsible for vaccine-associated encephalopathy/encephalitis, but evidence linking these mechanisms directly to MMR vaccine strains (detection of viral antigens or antibodies) has not been shown. [Makela A., J. P. Nuorti, and H. Peltola. 2002. Neurologic disorders after measles-mumps-rubella vaccination.
In view of the limited mechanistic data, and as influenced by the Guiding Principles, the Secretary does not propose to make any changes to the Table, leaving intact the Table injury of encephalopathy/encephalitis for MMR vaccines, with an onset not less than 5 days and no more than 15 days from vaccination. However, the Secretary proposes to re-organize, clarify, and update the QAI for acute and chronic encephalopathy and include a new definition for acute encephalitis based on the Brighton Collaboration criteria and several other references. [Ford-Jones L., MacGregor D., Richardson S., et al. Acute childhood encephalitis and meningoencephalitis: Diagnosis and management. Paediatr Child Health (1988). Jan-Feb;3(1):33-40] [Ball R., Halsey N., Braun M., et al. Development of case definitions for acute encephalopathy, encephalitis, and multiple sclerosis reports to the Vaccine Adverse Event Reporting System. Journal of Clinical Epidemiology (2002). 55:819-824.]
Febrile seizures are a common cause of convulsions in young children. Generally viewed as benign and not indicative of brain disease, they occur in two to four percent of children up to age 5 years. Febrile seizures are often seen as the body temperature increases rapidly; but, may develop as the fever is declining. Most events last a minute or two, although some can be as brief as a few seconds. A family history of febrile seizures increases the child's risk of occurrence. Anything that causes fever, such as viral or bacterial infections, can bring on a febrile seizure.
The IOM Committee concluded that the evidence convincingly supports a causal relationship between MMR vaccine and febrile seizures. Based on seven epidemiologic studies, the Committee had a high degree of confidence that there is an increased risk of febrile seizures after receipt of MMR vaccine. The Committee assessed the mechanistic evidence regarding an association between MMR vaccine and febrile seizures as intermediate based on 12 cases presenting clinical evidence. [Farrington, P., S. Pugh, A. Colville, A. Flower, J. Nash, P. Morgan-Capner, M. Rush, and E. Miller. 1995. A new method for active surveillance of adverse events from diphtheria/tetanus/pertussis and measles/mumps/rubella vaccines.
Patients who had post-MMR vaccination febrile seizures had no higher risk of subsequent seizure or neurodevelopmental disability than other children with febrile seizures in the absence of vaccine administration. The long-term rate of epilepsy was not increased in children who had febrile seizures following MMR vaccination compared with children who had febrile seizures of a different etiology [Vestergaard, M., A. Hviid, K. M. Madsen, J. Wohlfahrt, P. Thorsen, D. Schendel, M. Melbye, and J. Olsen. 2004. MMR vaccination and febrile seizures: Evaluation of susceptible subgroups and long-term prognosis.
Although febrile seizures can be alarming to parents and other family members, the overwhelming majority of children who have febrile seizures recover quickly and have no lasting effects. Only very rarely can febrile seizures lead to serious injury or disability.
The National Childhood Vaccine Injury Act of 1986 requires the effects of the alleged vaccine injury must have continued for at least 6 months (unless the injury results in in-patient hospitalization
Arthralgia means joint pain without signs of inflammation (
There were seven epidemiologic studies of children that consistently reported an increased risk of arthralgia after MMR vaccination. The IOM had a moderate degree of confidence in the epidemiologic evidence based on the seven studies with sufficient validity and precision to assess an association between MMR vaccine and transient arthralgia in children. The mechanistic evidence was weak based on knowledge about natural rubella infection. [Peltola, H., and O. P. Heinonen. 1986. Frequency of true adverse reactions to measles-mumps-rubella vaccine.
Because transient arthralgia is a subjective symptom that frequently lacks objective evidence for confirmation and has no long-term effects or consequences, this condition is not being proposed for inclusion on the Table.
The IOM concluded that the evidence was inadequate to accept or reject a causal relationship between MMR vaccine and chronic arthropathy in women and children, as well as arthropathy in men. The committee had limited confidence in the epidemiologic evidence for rubella vaccine and chronic arthralgia or arthritis. The epidemiologic evidence was insufficient or absent to assess an association between measles or mumps vaccine and chronic arthralgia or chronic arthritis in women. The IOM assessed the mechanistic evidence regarding rubella vaccine and chronic arthralgia or chronic arthritis in women as low-intermediate; and as lacking between measles or mumps vaccine and chronic arthralgia or chronic arthritis in women. In children, the IOM found the epidemiologic evidence to be insufficient or absent for the association between MMR and chronic arthropathy. The IOM found the mechanistic evidence between rubella vaccine and chronic arthropathy to be weak and they found the evidence to be lacking for measles and mumps vaccines. The IOM had limited confidence in the epidemiologic evidence for an association between MMR vaccine and arthropathy in men. The IOM found the mechanistic evidence regarding the association between rubella vaccine and arthropathy in men to be weak. The IOM found the mechanistic evidence between measles or mumps vaccine and arthropathy in men as lacking. [Ray, P., S. Black, H. Shinefield, A. Dillon, J. Schwalbe, S. Holmes, S. Hadler, R. Chen, S. Cochi, and S. Wassilak. 1997. Risk of chronic arthropathy among women after rubella vaccination.
In spite of the limited epidemiological and mechanistic data, based on the Guiding Principles, the Secretary does not propose to make any changes to the Table, leaving intact the Table injury of chronic arthritis for MMR vaccines, with an onset not less than 7 days and no more than 42 days from vaccination. However, the Secretary proposes to
The Secretary proposes to add SIRVA to the Table for vaccines containing measles, mumps and/or rubella virus. [See section I.A above.] The interval of onset will be less than or equal to 48 hours. However, the Secretary recognizes that there currently is no intramuscular formulation of this vaccine available and therefore, petitioners alleging an injury of SIRVA associated with this vaccine presently cannot meet the QAI for SIRVA. Please see section I.A., above, for additional discussion on this point.
The Secretary proposes to add vasovagal syncope to the Table for vaccines containing measles, mumps and/or rubella virus. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
Since 2000, inactivated polio vaccine (IPV) has been the only polio vaccine used in the United States, although live virus oral polio vaccine (OPV) is still used in many parts of the world. The Secretary proposes changes to the Table related only to IPV, as an injected vaccine. OPV was included in the original statutory Table and remains on the regulatory Table.
The Secretary proposes to add SIRVA as a Table injury for vaccines containing polio inactivated virus. [See Section I.A above.] The interval of onset will be less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for vaccines containing polio inactivated virus. [See Section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
The recombinant hepatitis B vaccine was first licensed by the FDA in 1986. Produced from cultured and purified yeast cells, it is the current form of vaccine used in the United States. Prior to 1991, the vaccine was recommended only for high risk individuals. However, the recommendation was extended to include all infants, since infected infants and children are at higher risk for developing chronic liver disease with subsequent liver cancer, and approximately one-third of those who acquire hepatitis B infection do not have any identified risk factors, and, therefore, were frequently not immunized. The effective date of coverage for hepatitis B vaccine is August 6, 1997.
The Secretary proposes to add SIRVA as a Table injury for hepatitis B vaccines. [See section I.A above.] The interval of onset will be less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for hepatitis B vaccines. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
Haemophilus influenzae type b (Hib) conjugate vaccines were first licensed by the FDA in 1987 and have been recommended by the CDC for routine use since 1991. The vaccine is given to infants and children up to the age of school entry. The effective date of coverage for Hib vaccines is August 6, 1997, with no injuries or conditions specified.
In order for a category of vaccines to be covered under the VICP, the category of vaccine must be recommended for routine administration to children by the Centers for Disease Control and Prevention (for example, vaccines that protect against seasonal influenza), subject to an excise tax by Federal law, and added to the Program by the Secretary of Health and Human Services. The Internal Revenue Code defines a “taxable vaccine” as including “[a]ny HIB vaccine”.
The Secretary proposes to add SIRVA as a Table injury for Hib vaccines. [See section I.A above.] The interval of onset will be less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for Hib vaccines. [See I.B.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
The varicella (chickenpox) virus vaccine, which was first licensed by the Food and Drug Administration in 1995, contains a live, attenuated strain of the varicella virus. Chickenpox is a highly contagious disease and although usually mild, infants, adolescents, adults, pregnant women, and immunocompromised individuals are at higher risk for serious complications. Since the introduction of the vaccine there has been a significant decrease in the number of cases of the disease with the greatest effect in states with the highest vaccination coverage. Varicella vaccine is listed on the Table, effective August 6, 1997, with no injuries or conditions specified.
Disseminated varicella vaccine-strain viral disease is a condition in which the affected individual develops the varicella rash caused by the vaccine strain that spreads beyond the dermatome (an area of skin supplied by the nerve fibers of a single spinal root) involved in the vaccination and/or there is involvement of other organs such as the brain, lungs, and liver. For organs other than the skin, disease, not just mildly abnormal laboratory values, must be demonstrated in the involved organ. In this section, the word “disseminated” is defined by the IOM as the spreading of the rash (or the virus) beyond the dermatome involved in the vaccination.
The IOM reviewed the evidence for vaccine causation of disseminated varicella disease with and without involvement of organs beyond the skin. They found three case reports in which vaccinated individuals developed lesions confined to the skin after immunization, and in whose lesions the vaccine strain of the varicella virus was identified. In addition, the IOM identified 550 cases reported to passive surveillance systems in which an attempt was made to identify the virus from skin lesions in individuals who developed disseminated varicella disease after vaccination without involvement of another organ. The wild-type virus was identified in 210 cases; the vaccine-strain virus was identified in 125 cases; and in the remaining cases either the sample was inadequate, the virus could not be identified, or there
The IOM found the evidence convincingly supports a causal relationship between varicella vaccine and disseminated varicella disease, both for cases confined to the skin and for cases where the spread involves other organs. However, the IOM limited their finding of causation in cases in which organs beyond the skin were involved to those with demonstrated immunodeficiencies. The Secretary notes that there is a significant overlap in the time-frames involved in the onset of disseminated disease in both immunocompetent and immunocompromised individuals. The Secretary further notes that although the IOM found convincing support for disseminated disease with other organ involvement only in immunocompromised individuals, the Secretary proposes, in accordance with the ACCV Guiding Principles, that the Table injury apply to all individuals, regardless of the status of their immune system, because it is possible that an individual so affected may not have been completely evaluated for an existing immunodeficiency, or suffered from an immunodeficiency that is subtle and beyond our current ability to test.
The Secretary proposes to add disseminated vaccine-strain infection, both with and without other organ involvement, as a Table injury for varicella-containing vaccines. There is no time interval for onset if the vaccine strain of the virus is identified. However, if testing is not done or does not identify the virus, it is proposed that the injury qualify as a Table injury if the onset is 7 to 42 days following vaccination. If the wild-type virus or another non-vaccine-strain virus is identified, there will be no presumption of causation and it will not meet the Table criteria. If there is involvement of an organ beyond the skin, and no virus was identified in that organ, the involvement of all organs must occur as part of the same discrete illness.
Varicella vaccine-strain viral reactivation disease is defined as the presence of the rash of herpes zoster (shingles) with or without concurrent disease in another organ. Shingles is a painful, blistering skin rash due to the reactivation of varicella (chickenpox) virus that involves one or more sensory dermatomes. After natural varicella infection, the virus lies dormant in the spinal dorsal root ganglia. Shingles occurs after the virus becomes active again.
There is a significant body of literature showing that the vaccine-strain of the virus can cause shingles without other organ involvement. However, the wild-type chickenpox virus has been identified in many of the cases occurring after vaccination. The Committee reviewed 111 cases in which individuals who received a varicella-containing vaccine developed reactivated varicella disease without other organ involvement and in whom the vaccine-strain of the virus was identified. The IOM found six cases in which individuals who had received varicella vaccine developed reactivated disease in another organ, and in all the cases, the vaccine-strain of the virus was identified in the other organ. In four of those cases, the vaccine-strain of the virus was also identified in the skin. The findings for other organ involvement in these case reports were limited to the meninges and brain. The IOM concluded that the evidence convincingly supports a causal relationship between varicella vaccine and vaccine-strain viral reactivation, with or without involvement of an organ other than the skin. [Chaves, S. S., P. Haber, K. Walton, R. P. Wise, H. S. Izurieta, D. S. Schmid, and J. F. Seward. 2008. Safety of varicella vaccine after licensure in the United States: Experience from reports to the vaccine adverse event reporting system, 1995-2005.
The Secretary proposes to add vaccine-strain viral reactivation, both with and without other organ involvement, as a Table injury for varicella-containing vaccines. Although the IOM specified whether they considered immunocompetent or immunocompromised individuals, their causality conclusions for vaccine-strain reactivation, with and without other organ involvement, did not differentiate between these two groups. Because disease caused by varicella virus reactivation can occur many years, or even decades, after the initial disease or vaccination, the Secretary proposes that the QAI require laboratory confirmation of the presence of the vaccine-strain of the virus. With such confirmation, the status of the affected individual's immune system is not relevant. In addition, there is no proposed time interval for this injury, as laboratory confirmation of vaccine-strain virus obviates the need for such a proposal. Since petitioners must demonstrate the presence of vaccine-strain varicella infection, the presumption includes the involvement of skin and other organs.
Anaphylaxis is a single discrete event that presents as a severe and potentially life threatening multi-organ reaction, particularly affecting the skin, respiratory tract, cardiovascular system, and the gastrointestinal tract. The diagnosis of anaphylaxis requires the simultaneous involvement of two or more organ systems. In an anaphylactic reaction, an immediate reaction generally occurs within minutes after exposure, and in most cases, the individual develops signs and symptoms within 4 hours after exposure to the antigen. The immediate reaction
Symptoms may include swelling, itching, rash, trouble breathing, chest tightness, and/or dizziness. Death, if it occurs, usually results from airway obstruction caused by laryngeal edema (throat swelling) or bronchospasm and may be associated with cardiovascular collapse.
Other significant clinical signs and symptoms may include the following: cyanosis (bluish coloration in the skin due to low blood oxygen levels), hypotension (low blood pressure), bradycardia (slow heart rate), tachycardia (fast heart rate), arrhythmia (irregular heart rhythm), edema (swelling) of the pharynx and/or larynx (throat or upper airway) with stridor (noisy breathing on inspiration), dyspnea (shortness of breath), diarrhea, vomiting, and abdominal pain. Autopsy findings may include acute emphysema (a type of lung abnormality), which results from lower respiratory tract obstruction, edema (swelling) of the upper airway, and minimal findings of eosinophilia (an excess of a type of white blood cell associated with allergy) in the liver. When death occurs within minutes of exposure without signs of respiratory distress, lack of significant pathologic findings would not exclude a diagnosis of anaphylaxis.
Anaphylaxis may occur following exposure to allergens from a variety of sources including food, aeroallergens, insect venom, drugs, and immunizations. Most treated cases resolve without sequela. Anaphylaxis can be due to an exaggerated acute systemic hypersensitivity reaction, especially involving immunoglobulin E antibodies, as in allergic anaphylaxis, or it could be a non-immunologically mediated reaction leading to similar clinical symptomatology as in non-immune anaphylaxis. Non-immune anaphylaxis cannot be detected by skin tests or in vitro allergy diagnostic procedures. As stated, anaphylaxis is a single discrete event. It is not an initial episode of a chronic condition such as chronic urticaria (hives).
Anaphylaxis following immunization is a rare occurrence with estimates in the range of 1-10 per 1 million doses distributed, depending on the vaccine studied. [The Brighton Collaboration Anaphylaxis Working Group, “Anaphylaxis: Case Definition and Guidelines for Data Collection, Analysis, and Presentation of Immunization Safety Data, Vaccine, Aug. 2007; 5676.] The IOM has reported that the evidence favors acceptance of a causal relationship between certain vaccines and anaphylaxis based on case reports and case series. The IOM has reported that causality could be inferred with reasonable certainty based on one or more case reports because of the unique nature and timing of anaphylaxis following vaccine administration and provided there is an absence of likely alternative causes. [Institute of Medicine (IOM), Immunization Safety Review Vaccination and Sudden Unexpected Death in Infancy, Washington, DC: The National Academies Press, 2003) 55.] The IOM concluded that the scientific evidence convincingly supports a causal relationship between varicella vaccine and anaphylaxis. There are multiple, well-documented reports in the literature that anaphylaxis occurs after receipt of the varicella vaccine. One case series reported 16 cases of anaphylaxis after vaccination against varicella, with nearly all demonstrating anti-gelatin immunoglobulin E (IgE) antibodies. [Sakaguchi, M., T. Nakayama, H. Fujita, M. Toda, and S. Inouye. 2000b. Minimum estimated incidence in Japan of anaphylaxis to live virus vaccines including gelatin.
There is a long history of including anaphylaxis as a known adverse effect of vaccines, including in the initial Table contained in the Act. The time-frame for the first symptom or manifestation of onset contained in the original statutory Table was shortened from 24 hours to 4 hours in the Table changes promulgated in 1995. Since that time, anaphylaxis has been added as an injury for the Hepatitis B vaccine.
The statute requires that injuries eligible for compensation under the Program be of sufficient seriousness to cause continued effects for more than 6 months, result in death, or result in inpatient hospitalization and surgical intervention. The Secretary continues to recognize that in many instances, cases involving anaphylaxis will not meet the statutory severity criteria, as the reaction can be short-lived and treated effectively. However, because there is a known risk of serious residual injury or death from anaphylaxis, the Secretary continues to recommend that anaphylaxis be included on the Table for other vaccines, and be added for varicella virus vaccines.
The Secretary proposes to add anaphylaxis as a Table injury for varicella virus-containing vaccines, with an onset less than or equal to 4 hours from the administration of the vaccine. In addition, the Secretary proposes to update the definition of anaphylaxis in the QAI. (see proposed regulation text at proposed paragraph (c)(1)).
The Secretary proposes to add SIRVA as a Table injury for varicella virus-containing vaccines. [See section I.A above.] The interval of onset will be less than or equal to 48 hours. However, the Secretary recognizes that there currently is no intramuscular formulation of this vaccine available, and therefore petitioners alleging an injury of SIRVA associated with this vaccine presently cannot meet the QAI for SIRVA. Please see section I.A., above, for additional discussion on this point.
The Secretary proposes to add vasovagal syncope to the Table for varicella virus-containing vaccines. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
Pneumococcal conjugate vaccines were first licensed by FDA in 2000. Over the next decade, the heptavalent (seven serotypes) vaccine dramatically reduced the rate of invasive pneumococcal disease in young infants and nasal carriage of the vaccine serotypes among all age groups, including the immunocompromised and older individuals. A 13-valent pneumococcal conjugate vaccine licensed in 2010 has replaced the 7-valent product in the infant schedule. Pneumococcal conjugate vaccines are included on the Table, with an effective date of coverage of December 19, 1999, with no injuries or conditions specified.
The Secretary proposes to add SIRVA as a Table injury for pneumococcal conjugate vaccines. [See section I.A above.] The interval of onset will be less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for pneumococcal conjugate vaccines. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
Hepatitis A vaccine was first licensed by FDA in 1996 and introduced incrementally, first for children living in
The Secretary proposes to add SIRVA as a Table injury for hepatitis A vaccines. [See section I.A above.] The interval of onset will be less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for hepatitis A vaccines. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
All seasonal trivalent influenza vaccines have been covered under the VICP since July 1, 2005. At that time, all seasonal influenza vaccines were trivalent. Quadrivalent vaccines for seasonal influenza became available for general use for the 2013-14 influenza season. On June 25, 2013, Public Law 113-15 was enacted, extending the applicable excise tax on trivalent influenza vaccines to also include any other vaccines against seasonal influenza.
There are currently six types of seasonal influenza vaccines distributed during flu season. The standard dose trivalent inactivated influenza vaccine (IIV3) contains three killed virus strains and is injected. IIV3 is indicated in individuals 6 months of age or older, including healthy people and those with chronic medical conditions (such as asthma, diabetes, or heart disease). High dose trivalent inactivated influenza vaccine (IIV3 High dose) is indicated in individuals who are 65 years of age or older. Trivalent recombinant influenza vaccine (RIV3) is indicated for individuals between the ages of 18 and 49 years. The standard dose quadrivalent inactivated influenza vaccine (IIV4) has the same indications as IIV3. The quadrivalent live attenuated influenza vaccine (LAIV4) is indicated for healthy, non-pregnant persons aged 2-49 years. The cell-culture based inactivated influenza vaccine (ccIIV3) is indicated for individuals who are 18 years of age and older.
The covered injuries proposed for seasonal influenza vaccines are the same as those proposed for trivalent influenza vaccines. The trivalent influenza vaccine and the quadrivalent influenza vaccine, distributed each year during flu season, are types of seasonal influenza vaccines.
The Secretary proposes to add anaphylaxis as a Table injury for seasonal influenza vaccines. [See section VII.C above.] The IOM concluded that the scientific evidence convincingly supports a causal relationship between trivalent influenza vaccines and anaphylaxis. Sensitivity to eggs has long been known to cause allergic reactions to influenza vaccination in some individuals. The IOM assessed the mechanistic evidence as strong, including the following: 21 case reports of potential anaphylaxis following influenza vaccine; a strong temporal relationship between vaccine administration and anaphylactic reaction; isolation of anti-gelatin IgE in two cases; positive skin testing as a positive re-challenge in two cases; and repeated symptoms to vaccination against influenza on two occasions. Their conclusion made no distinction between the intranasal live attenuated vaccine and the injected vaccine. [Coop, C.A., S.K. Balanon, K.M. White, B. A. Whisman, and M.M. Rathkopf. 2008. Anaphylaxis from the influenza virus vaccine.
The Secretary proposes to add anaphylaxis as a Table injury for seasonal influenza vaccines, with an onset of less than or equal to 4 hours from the administration of the vaccine. In addition, the Secretary proposes to update the definition of anaphylaxis in the QAI.
The Secretary proposes to add SIRVA only for seasonal influenza vaccines that are injected intramuscularly (as detailed in the proposed QAI). As proposed, this injury would not apply to formulations of the live attenuated influenza vaccine (LAIV), as LAIV is not administered intramuscularly with a needle. [See section I.A above.] In addition, this injury would not apply to the formulations of influenza vaccine where the route of administration is intradermal, such as the formulation that delivers 0.1 milliliters of vaccine through a prefilled microinjection system that contains a needle that is only 1.5 millimeters long. This needle is not long enough to enter the deltoid bursa or any other structure in the shoulder related to the development of SIRVA. SIRVA would apply only to formulations of the seasonal influenza vaccine that are administered through intramuscular injection. The interval of onset will be less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for injected vaccines only (as detailed in the proposed QAI). As proposed, this injury would apply to the seasonal inactivated influenza vaccine that is injected intramuscularly but not to the LAIV, as LAIV is not administered with a needle, and the syncopal reaction appears to be related to the act of injection. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
GBS is an acute paralysis caused by dysfunction in the peripheral nervous system (
GBS may present as one of several clinicopathological subtypes. The most common type in North America and Europe, comprising more than 90 percent of cases, is acute inflammatory demyelinating polyneuropathy (AIDP), which has the pathologic and electrodiagnostic features of focal demyelination of motor and sensory peripheral nerves and roots. Demyelination refers to a loss or disruption of the myelin sheath, which wraps around the axons of some nerve cells and which is necessary for the normal conduction of nerve impulses in those nerves that contain myelin. Polyneuropathy refers to the involvement of multiple peripheral nerves. Motor nerves affect muscles or glands. Sensory nerves transmit sensations. The axon is a portion of the nerve cell that transmits nerve impulses away from the nerve cell body. Another subtype of GBS, called acute motor axonal neuropathy (AMAN), is generally seen in other parts of the world and is predominated by axonal damage that primarily affects motor nerves. AMAN lacks features of demyelination. Another less common subtype of GBS includes acute motor and sensory neuropathy (AMSAN), which is an axonal form of GBS that is similar to AMAN, but also affects the axons of sensory nerves and roots.
The diagnosis of the AIDP, AMAN, and AMSAN subtypes of GBS requires bilateral flaccid (relaxed with decreased muscle tone) limb weakness and decreased or absent deep tendon reflexes in weak limbs, and a monophasic illness pattern with the interval between onset and nadir of weakness between 12 hours and 28 days with a subsequent clinical plateau. The clinical plateau leads to either stabilization at the nadir of symptoms, or subsequent improvement without significant relapse. Death may occur without clinical plateau. Treatment-related fluctuations in all subtypes of GBS can occur within 9 weeks of GBS symptom onset and recurrence of symptoms after this time-frame would not be consistent with GBS. In addition, there must not be a more likely alternative diagnosis for the weakness.
Other factors in all subtypes of GBS that add to diagnostic certainty, but are not required for diagnosis, include electrophysiologic findings consistent with GBS or cytoalbuminologic dissociation (
The weakness in the AIDP, AMAN, and AMSAN subtypes of GBS is usually, but not always, symmetric and usually has an ascending pattern of progression from legs to arms. However, other patterns of progression may occur. The cranial nerves can be involved. Respiratory failure can occur due to respiratory involvement. Fluctuations in the degree of weakness prior to reaching the point of greatest weakness or during the plateau or improvement phase may occur, especially in response to treatment. These fluctuations occur in the first 9 weeks after onset and are generally followed by eventual improvement.
According to the Brighton Collaboration, Fisher Syndrome (FS), also known as Miller Fisher Syndrome, is a subtype of GBS characterized by ataxia, areflexia, and ophthalmoplegia, and overlap between FS and GBS may be seen with limb weakness. [James J. Sejvar et. al. Guillain-Barre Syndrome and Fisher Syndrome: Case definitions and guidelines for collection, analysis, and presentation of immunization safety data Vaccine 29(3):599-612]. The diagnosis of FS requires bilateral ophthalmoparesis; bilateral reduced or absent tendon reflexes; ataxia; the absence of limb weakness (the presence of limb weakness suggests a diagnosis of AIDP, AMAN, or AMSAN); a monophasic illness pattern; an interval between onset and nadir of weakness between 12 hours and 28 days; subsequent clinical plateau (the clinical plateau leads to either stabilization at the nadir of symptoms or subsequent improvement without significant relapse); no alteration in consciousness; no corticospinal track signs; and the absence of an identified, more likely, alternative diagnosis. Death may occur without a clinical plateau.
Exclusionary criteria for the diagnosis of GBS include the ultimate diagnosis of any of the following conditions: Chronic inflammatory demyelinating polyneuropathy (CIDP), carcinomatous meningitis, brain stem encephalitis (other than Bickerstaff brainstem encephalitis), myelitis, spinal cord infarct, spinal cord compression, anterior horn cell diseases such as polio or West Nile virus infection, subacute inflammatory demyelinating polyradiculoneuropathy, multiple sclerosis, cauda equina compression, metabolic conditions such as hypermagnesemia or hypophosphatemia, tick paralysis, heavy metal toxicity (such as arsenic, gold, or thallium), drug-induced neuropathy (such as vincristine, platinum compounds, or nitrofurantoin), porphyria, critical illness neuropathy, vasculitis, diphtheria, myasthenia gravis, organophosphate poisoning, botulism, critical illness myopathy, polymyositis, dermatomyositis, hypokalemia, or hyperkalemia. The above list is not exhaustive. [Sejvar 599-612].
For all subtypes of GBS (AIDP, AMAN, AMSAN, and FS), the onset of symptoms less than 3 days (72 hours) after exposure excludes that exposure as a cause because the immunologic steps necessary to create symptomatic disease require a minimum of 3 days.
CIDP is clinically and pathologically distinct from GBS. The onset phase of CIDP is generally greater than 8 weeks and the weakness may remit and relapse. CIDP is also not monophasic. [Sejvar 599-612.]
In the past, GBS has been causally associated with certain vaccines. For example, the 1976 influenza A (swine flu) vaccine was found by the IOM to be causally associated with GBS. The risk of developing GBS in the 6 week period after receiving the 1976 swine flu vaccine was 9.2 times higher than the risk for those who were not vaccinated. [Lawrence B. Schonberger,
The IOM published a thorough scientific review of the peer-reviewed literature in 2004 and concluded that people who received the 1976 swine influenza vaccine had an increased risk for developing GBS [IOM, Immunization Safety Review: Influenza Vaccines and Neurological Complications, 25]. Based on its review of the published literature, the IOM also decided that the evidence linking GBS and influenza vaccines in influenza seasons other than 1976 was not clear. This led to the IOM's conclusion that the evidence was inadequate to accept or reject a causal relationship between influenza immunization and GBS for years other than 1976.
In 2012, the IOM published another report that evaluated the association of seasonal influenza vaccine and GBS. Pandemic vaccines, such as the influenza vaccine used in 1976 and the monovalent 2009 H1N1 influenza vaccine, were specifically excluded and not evaluated. The IOM concluded that the evidence is inadequate to accept or reject a causal relationship between seasonal influenza vaccine and GBS. (IOM, Adverse Effects of Vaccines 334). It is important to note that monovalent vaccines are usually only given in response to an actual or potential pandemic, while seasonal influenza vaccines are offered annually. The monovalent 2009 H1N1 vaccine, a type of pandemic vaccine, is covered under the Countermeasures Injury Compensation Program. The VICP does not cover pandemic influenza vaccines, such as the 2009 H1N1 Influenza vaccine.
A meta-analysis of the VSD, EIP (Emerging Infections Program—an active population-based surveillance program), and PRISM (Post-Licensure- Rapid Immunization Safety Monitoring—a cohort-based active surveillance network) data was performed and published, together with additional data from safety surveillance studies performed by Medicare, the Department of Defense, and the Department of Veterans Affairs, which, in total, analyzed data from 23 million people who were vaccinated with the influenza A (H1N1) 2009 monovalent vaccine. [Daniel A. Salmon et al., “Association between Guillain-Barré syndrome and influenza A (H1N1) 2009 monovalent inactivated vaccines in the USA: a meta-analysis,” Lancet, electronically published March 13, 2013,
Considering the totality of the evidence with the enhanced surveillance studies and meta-analysis performed to monitor the safety of the monovalent 2009 H1N1 vaccine, scientific evidence demonstrates a small increased risk of GBS in the 6 weeks following administration of the monovalent 2009 H1N1 vaccines.
Presently, there is no scientific evidence demonstrating that current formulations of the seasonal influenza vaccine, which contain the H1N1 virus, can cause GBS. However, the degree of surveillance needed to detect an increased risk of one case per million vaccinations, as was seen with the monovalent 2009 H1N1 vaccine, is unlikely to be routinely performed as the strains in the flu vaccines change from year to year. Nonetheless, numerous studies have been conducted in order to determine whether a possible association between seasonal influenza vaccines and GBS exists, and almost all have not shown any causal relationship. The IOM reviewed literature concerning such studies and concluded that the evidence was inadequate to accept or reject a causal association for all versions of seasonal influenza vaccines since 1976.
Using studies demonstrating a causal association between the 2009 H1N1 and 1976 swine flu vaccines and GBS as background, the Secretary proposes to add the injury of GBS to the Table for seasonal influenza vaccines. Although the scientific evidence does not show a causal association for current formulations of seasonal flu vaccines and GBS, the Secretary proposes including the injury of GBS for seasonal influenza vaccines on the Table in accordance with the ACCV Guiding Principles, acknowledging the fact that seasonal influenza vaccine formulations, unlike other vaccines, change from year-to-year and that enhanced surveillance activities may not occur with each virus strain change. This is done even though it appears that any instances of GBS caused by seasonal influenza vaccines, if they exist at all, are very rare. The Secretary proposes adding GBS to the Table for seasonal influenza vaccines and recognizes that this will create a presumption of causation that will result in compensation for numerous instances of GBS that are not vaccine-related.
While there is no evidence demonstrating that current formulations of the seasonal influenza vaccine can cause GBS, the totality of the evidence, particularly the enhanced surveillance studies and meta-analysis performed to monitor the safety of the 2009 H1N1 vaccine, provides compelling evidence of a small increased risk of GBS in the 6 weeks following the administration of the 2009 H1N1 vaccine. Utilizing this scientific data as background, the Secretary proposes an onset interval of 3-42 days for GBS presumed to be caused by the seasonal influenza vaccine to be covered under the proposed Table. Day 3 begins 72 hours after administration of the vaccination and takes into account the time interval needed to show first signs or symptoms after exposure. [Peripheral Neuropathy (Philadelphia, PA: Elsevier Saunders, 2005, 626].
There are two types of meningococcal vaccines administered in the United States. The polysaccharide vaccine was licensed by the FDA in 1978, and is indicated for persons 2 years of age and older; the meningococcal conjugate vaccines were licensed starting in 2005. The conjugate vaccines were developed with the expectation that they would provide more long-lasting immunity, a more rapid immune response upon exposure to Neisseria meningitidis, and the development of “herd immunity” through reduction of the asymptomatic carrier state. The meningococcal polysaccharide and conjugate vaccines were added to the Table with an effective date of February 1, 2007.
The Secretary proposes to add anaphylaxis as a Table injury for meningococcal vaccines. [See section VII.C above.] The IOM Committee, following an extensive review of the scientific and medical literature, concluded that the evidence convincingly supported a causal relationship between meningococcal vaccines and anaphylaxis. The Institute of Medicine based their conclusion on a case report of anaphylaxis with onset
The Secretary proposes to add anaphylaxis as a Table injury for meningococcal vaccines, with an onset less than or equal to 4 hours from the administration of the vaccine. In addition, the Secretary proposes to update the definition of anaphylaxis in the QAI.
The Secretary proposes to add SIRVA as a Table injury for meningococcal vaccines. [See section I.A above.] The interval of onset will be less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for meningococcal vaccines. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
The first human papillomavirus (HPV) vaccine was licensed by the FDA in June 2006 for females between the ages of 9-26 years. In 2011, one of the two licensed HPV vaccines was given a permissive use recommendation in males by the CDC and other recommending bodies (
The Secretary proposes to add anaphylaxis as a Table injury for HPV vaccines. [See VII.C] The IOM Committee concluded that the evidence favors acceptance of a causal relationship between human papillomavirus vaccines and anaphylaxis. They based their conclusion on temporality and clinical symptoms consistent with anaphylaxis in 9 reports from VAERS over 31 months of surveillance. [Slade, B.A., L. Leidel, C. Vellozzi E.J. et al. Post licensure safety surveillance for quadrivalent human papillomavirus recombinant vaccine.
The Secretary notes that there are limitations to the VAERS passive reporting system. First, there is underreporting; not all adverse events following vaccines are reported to the system. The rates of underreporting have been examined for different disorders and are greatest for adverse events of mild severity. Second, many reports are filed before a complete clinical evaluation has been conducted. Therefore, the presumptive diagnosis that has been provided at the time of the report may not be the correct diagnosis. Third, investigations conducted after the initial report sometimes reveal alternative causes for the adverse event. In many instances, incomplete information is provided in the initial report. Follow-up of the reports by the CDC and FDA may be conducted to collect additional information from the healthcare providers. The primary purpose of VAERS is to look for signals for evidence of unexpected adverse events that would require other investigations to try to determine causal relationships. Although conclusions about causation are not possible for most adverse events reported to VAERS, the IOM found likely causality based on the distinctive nature of anaphylactic reactions and the temporal relationship between the HPV vaccine administration and the event. The Secretary proposes to add anaphylaxis as a Table injury for HPV vaccines, with an onset of less than or equal to 4 hours from the administration of the vaccine. In addition, the Secretary proposes to update the definition of anaphylaxis in the QAI.
The Secretary proposes to add SIRVA as a Table injury for HPV vaccines. [See section I.A above.] The proposed time interval of onset is less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for HPV vaccines. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
Category XVII of the current Table pertains to any new vaccine recommended by the CDC for routine administration to children, after publication by the Secretary of a notice of coverage. This category pertains to vaccines that are covered under the Program, but with respect to which the Secretary has not yet finalized actions adding the vaccines as separate categories to the Table. Through this rule, the Secretary proposes retaining this category and adding two associated injuries for vaccines covered by this category.
The Secretary proposes to add SIRVA for the category of vaccines captured under Category XVII of the Table. [See section I.A above.] As detailed in the proposed QAI, this injury would only apply to intramuscular vaccines injected into the upper arm. The interval of onset will less than or equal to 48 hours.
The Secretary proposes to add vasovagal syncope to the Table for this category of vaccines. As detailed in the proposed QAI, this injury would apply only to injected vaccines as the syncopal reaction appears to be related to the act of injection. [See section I.B above.] The proposed time interval of onset is less than or equal to 1 hour following vaccination.
The Secretary is proposing a number of organizational and structural changes to the Table and QAI designed to increase clarity and scientific accuracy, including the addition of a glossary of terms used within the Table and the QAI.
• To streamline the Table, the Secretary proposes a new paragraph (b),
• To further streamline the Table, the Secretary proposes the deletion of redundant wording in the various definitions, particularly with regard to any references to the presumption of causation, and the importance of the entire medical record. These elements have been included in paragraph (b). In addition, complicated language previously included in the definition of encephalopathy, which indicated that idiopathic injuries do not rebut the Table presumption, has been simplified and made generally applicable to all injuries. This has also been included in paragraph (b).
• The QAI (proposed paragraph (c)) contain definitions for those terms that are used in the Table (paragraphs (a) and (b)).
• The newly added glossary (proposed paragraphs (d)) defines terms used in multiple places in the QAI (proposed paragraph (c)). Most of these terms were formerly contained in the QAI, and have been moved to the glossary so that each reference is consistent. These definitions include: chronic encephalopathy, significantly decreased level of consciousness, injected, and seizure.
• The proposed Table and QAI include some changes made by the Final Rule adding Intussusception as an Injury for Rotavirus Vaccines to the Vaccine Injury Table (80 FR 35848, June 23, 2015).
• The Secretary proposes to add definitions for new Table injuries, including SIRVA, disseminated varicella-strain virus disease, varicella vaccine-strain viral reactivation disease, GBS, and vasovagal syncope.
• The Secretary proposes to add definitions of terms that had been on the Table or in the QAI, but that previously were undefined, including encephalitis, injected, and immunodeficient recipient.
• The Secretary proposes additional changes to the QAI to address certain changes in scientific nomenclature. Definitions, such as acute encephalopathy and acute encephalitis, both of which lead to chronic encephalopathy, have been harmonized. Definitions for brachial neuritis and SIRVA have also been harmonized.
• The Secretary proposes modification of category XIV on the Table from “Trivalent influenza vaccines” to “Seasonal influenza vaccines”.
• The Secretary proposes modification of category IX on the Table from “Haemophilus influenzae type b polysaccharide conjugate vaccines” to “Haemophilus influenzae type b vaccines”.
• Minor technical changes resulting from updated medical information have been included in the definitions of anaphylaxis, encephalopathy, chronic arthritis, brachial neuritis, thrombocytopenic purpura, and seizure.
All of the proposed changes were discussed and approved by the ACCV, although the ACCV expressed some reservations regarding the definition of “immunodeficient recipient”. The discussion was reviewed, and the Secretary has modified the definition to address the concerns raised by the ACCV.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when rulemaking is necessary, to select regulatory approaches that provide the greatest net benefits (including potential economic, environmental, public health, safety, distributive, and equity effects). In addition, under the Regulatory Flexibility Act, if a rule has a significant economic effect on a substantial number of small entities the Secretary must specifically consider the economic effect of a rule on small entities and analyze regulatory options that could lessen the impact of the rule.
Executive Order 12866 requires that all regulations reflect consideration of alternatives, of costs, of benefits, of incentives, of equity, and of available information. Regulations must meet certain standards, such as avoiding an unnecessary burden. Regulations that are “significant” because of cost, adverse effects on the economy, inconsistency with other agency actions, effects on the budget, or novel legal or policy issues require special analysis.
The Secretary has determined that no resources are required to implement the requirements in this rule. Compensation will be made in the same manner. This proposed rule only lessens the burden of proof for potential petitioners. Therefore, in accordance with the Regulatory Flexibility Act of 1980 (RFA), and the Small Business Regulatory Enforcement Act of 1996, which amended the RFA, the Secretary certifies that this rule will not have a significant impact on a substantial number of small entities.
The Secretary has also determined that this proposed rule does not meet the criteria for a major rule as defined by Executive Order 12866 and would have no major effect on the economy or Federal expenditures. We have determined that the proposed rule is not a “major rule” within the meaning of the statute providing for Congressional Review of Agency Rulemaking, 5 U.S.C. 801. Similarly, it will not have effects on State, local, and tribal governments and on the private sector such as to require consultation under the Unfunded Mandates Reform Act of 1995.
Nor on the basis of family well-being will the provisions of this rule affect the following family elements: family safety; family stability; marital commitment; parental rights in the education, nurture and supervision of their children; family functioning; disposable income or poverty; or the behavior and personal responsibility of youth, as determined under section 654(c) of the Treasury and General Government Appropriations Act of 1999.
This rule is not being treated as a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget.
As stated above, this proposed rule would modify the Vaccine Injury Table based on legal authority.
This proposed rule will have the effect of making it easier for future petitioners alleging injuries that meet the criteria in the Vaccine Injury Table to receive the Table's presumption of causation (which relieves them of having to prove that the vaccine actually caused or significantly aggravated the injury).
This proposed rule has no information collection requirements.
Biologics, Health insurance, Immunization.
Accordingly, 42 CFR part 100 is proposed to be amended as set forth below:
Secs. 312 and 313 of Public Law 99-660 (42 U.S.C. 300aa-1 note); 42 U.S.C. 300aa-10 to 300aa-34; 26 U.S.C. 4132(a); and sec. 13632(a)(3) of Public Law 103-66.
(a) In accordance with section 312(b) of the National Childhood Vaccine Injury Act of 1986, title III of Public Law 99-660, 100 Stat. 3779 (42 U.S.C. 300aa-1 note) and section 2114(c) of the Public Health Service Act, as amended (PHS Act) (42 U.S.C. 300aa-14(c)), the following is a table of vaccines, the injuries, disabilities, illnesses, conditions, and deaths resulting from the administration of such vaccines, and the time period in which the first
(b)
(2) In determining whether or not an injury is a condition set forth in paragraph (a) of this section, the Court shall consider the entire medical record.
(3) An idiopathic condition that meets the definition of an illness, disability, injury, or condition set forth in paragraph (c) of this section shall be considered to be a condition set forth in paragraph (a) of this section.
(c)
(1)
(2)
(i)
(
(
(B) For adults and children 18 months of age or older, an acute encephalopathy is one that persists at least 24 hours and is characterized by at least two of the following:
(
(
(
(C) The following clinical features in themselves do not demonstrate an acute encephalopathy or a significant change in either mental status or level of consciousness: sleepiness, irritability (fussiness), high-pitched and unusual screaming, poor feeding, persistent inconsolable crying, bulging fontanelle, or symptoms of dementia.
(D) Seizures in themselves are not sufficient to constitute a diagnosis of encephalopathy and in the absence of other evidence of an acute encephalopathy seizures shall not be viewed as the first symptom or manifestation of an acute encephalopathy.
(ii) Regardless of whether or not the specific cause of the underlying condition, systemic disease, or acute event (including an infectious organism) is known, an encephalopathy shall not be considered to be a condition set forth in the Table if it is shown that the encephalopathy was caused by:
(A) An underlying condition or systemic disease shown to be unrelated to the vaccine (such as malignancy, structural lesion, psychiatric illness, dementia, genetic disorder, prenatal or perinatal central nervous system (CNS) injury); or
(B) An acute event shown to be unrelated to the vaccine such as a head trauma, stroke, transient ischemic attack, complicated migraine, drug use (illicit or prescribed) or an infectious disease.
(3)
(i)
(A) Evidence of neurologic dysfunction consists of either:
(
(
(B) Evidence of an inflammatory process in the brain (central nervous system or CNS inflammation) must include cerebrospinal fluid (CSF) pleocytosis (>5 white blood cells (WBC)/mm
(
(
(
(ii) Regardless of whether or not the specific cause of the underlying condition, systemic disease, or acute event (including an infectious organism) is known, encephalitis shall not be considered to be a condition set forth in the Table if it is shown that the encephalitis was caused by:
(A) An underlying malignancy that led to a paraneoplastic encephalitis;
(B) An infectious disease associated with encephalitis, including a bacterial, parasitic, fungal or viral illness (such as herpes viruses, adenovirus, enterovirus, West Nile Virus, or human immunodeficiency virus), which may be demonstrated by clinical signs and symptoms and need not be confirmed by culture or serologic testing; or
(C)
(4)
(ii) For purposes of paragraph (a) of this section, the following shall not be considered to be a Table intussusception:
(A) Onset that occurs with or after the third dose of a vaccine containing rotavirus;
(B) Onset within 14 days after an infectious disease associated with intussusception, including viral disease (such as those secondary to non-enteric or enteric adenovirus, or other enteric viruses such as Enterovirus), enteric bacteria (such as Campylobacter jejuni), or enteric parasites (such as Ascaris lumbricoides), which may be demonstrated by clinical signs and symptoms and need not be confirmed by culture or serologic testing;
(C) Onset in a person with a preexisting condition identified as the lead point for intussusception such as intestinal masses and cystic structures (such as polyps, tumors, Meckel's diverticulum, lymphoma, or duplication cysts);
(D) Onset in a person with abnormalities of the bowel, including congenital anatomic abnormalities, anatomic changes after abdominal surgery, and other anatomic bowel abnormalities caused by mucosal hemorrhage, trauma, or abnormal intestinal blood vessels (such as Henoch Scholein purpura, hematoma, or hemangioma); or
(E) Onset in a person with underlying conditions or systemic diseases associated with intussusception (such as cystic fibrosis, celiac disease, or Kawasaki disease).
(5)
(i) Chronic arthritis may be found in a person with no history in the 3 years prior to vaccination of arthropathy (joint disease) on the basis of:
(A) Medical documentation recorded within 30 days after the onset of objective signs of acute arthritis (joint swelling) that occurred between 7 and 42 days after a rubella vaccination; and
(B) Medical documentation (recorded within 3 years after the onset of acute arthritis) of the persistence of objective signs of intermittent or continuous arthritis for more than 6 months following vaccination; and
(C) Medical documentation of an antibody response to the rubella virus.
(ii) The following shall not be considered as chronic arthritis: Musculoskeletal disorders such as diffuse connective tissue diseases (including but not limited to rheumatoid arthritis, juvenile idiopathic arthritis, systemic lupus erythematosus, systemic sclerosis, mixed connective tissue disease, polymyositis/determatomyositis, fibromyalgia, necrotizing vasculitis and vasculopathies and Sjogren's Syndrome), degenerative joint disease, infectious agents other than rubella (whether by direct invasion or as an immune reaction), metabolic and endocrine diseases, trauma, neoplasms, neuropathic disorders, bone and cartilage disorders, and arthritis associated with ankylosing spondylitis, psoriasis, inflammatory bowel disease, Reiter's Syndrome, blood disorders, or arthralgia (joint pain), or joint stiffness without swelling.
(6)
(i) Pain in the affected arm and shoulder is a presenting symptom and occurs within the specified time-frame;
(ii) Weakness:
(A) Clinical diagnosis in the absence of nerve conduction and electromyographic studies requires weakness in muscles supplied by more than one peripheral nerve.
(B) Nerve conduction studies (NCS) and electromyographic (EMG) studies localizing the injury to the brachial plexus are required before the diagnosis can be made if weakness is limited to muscles supplied by a single peripheral nerve.
(iii) Motor, sensory, and reflex findings on physical examination and the results of NCS and EMG studies, if performed, must be consistent in confirming that dysfunction is attributable to the brachial plexus; and
(iv) No other condition or abnormality is present that would explain the vaccine recipient's symptoms.
(7)
(8)
(9)
(10)
(i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the patient's symptoms (
(11)
(12)
(13)
(14)
(15)
(ii) The most common subtype in North America and Europe, comprising more than 90 percent of cases, is acute inflammatory demyelinating polyneuropathy (AIDP), which has the pathologic and electrodiagnostic features of focal demyelination of motor and sensory peripheral nerves and nerve roots. Another subtype called acute motor axonal neuropathy (AMAN) is generally seen in other parts of the world and is predominated by axonal damage that primarily affects motor nerves. AMAN lacks features of demyelination. Another less common subtype of GBS includes acute motor and sensory neuropathy (AMSAN), which is an axonal form of GBS that is similar to AMAN, but also affects the sensory nerves and roots. AIDP, AMAN, and AMSAN are typically characterized by symmetric motor flaccid weakness, sensory abnormalities, and/or autonomic dysfunction caused by autoimmune damage to peripheral nerves and nerve roots. The diagnosis of AIDP, AMAN, and AMSAN requires:
(A) Bilateral flaccid limb weakness and decreased or absent deep tendon reflexes in weak limbs;
(B) A monophasic illness pattern;
(C) An interval between onset and nadir of weakness between 12 hours and 28 days;
(D) Subsequent clinical plateau (the clinical plateau leads to either stabilization at the nadir of symptoms, or subsequent improvement without significant relapse; however, death may occur without a clinical plateau); and,
(E) The absence of an identified more likely alternative diagnosis.
(iii) Fisher Syndrome (FS), also known as Miller Fisher Syndrome, is a subtype of GBS characterized by ataxia, areflexia, and ophthalmoplegia, and overlap between FS and AIDP may be seen with limb weakness. The diagnosis of FS requires:
(A) Bilateral ophthalmoparesis;
(B) Bilateral reduced or absent tendon reflexes;
(C) Ataxia;
(D) The absence of limb weakness (the presence of limb weakness suggests a diagnosis of AIDP, AMAN, or AMSAN);
(E) A monophasic illness pattern;
(F) An interval between onset and nadir of weakness between 12 hours and 28 days;
(G) Subsequent clinical plateau (the clinical plateau leads to either stabilization at the nadir of symptoms, or subsequent improvement without significant relapse; however, death may occur without a clinical plateau);
(H) No alteration in consciousness;
(I) No corticospinal track signs; and
(J) The absence of an identified more likely alternative diagnosis.
(iv) Evidence that is supportive, but not required, of a diagnosis of all subtypes of GBS includes electrophysiologic findings consistent with GBS or an elevation of cerebral spinal fluid (CSF) protein with a total CSF white blood cell count below 50 cells per microliter. Both CSF and electrophysiologic studies are frequently normal in the first week of illness in otherwise typical cases of GBS.
(v) To qualify as any subtype of GBS, there must not be a more likely alternative diagnosis for the weakness.
(vi) Exclusionary criteria for the diagnosis of all subtypes of GBS include the ultimate diagnosis of any of the following conditions: chronic immune demyelinating polyradiculopathy (“CIDP”), carcinomatous meningitis, brain stem encephalitis (other than Bickerstaff brainstem encephalitis), myelitis, spinal cord infarct, spinal cord compression, anterior horn cell diseases such as polio or West Nile virus infection, subacute inflammatory demyelinating polyradiculoneuropathy, multiple sclerosis, cauda equina compression, metabolic conditions such as hypermagnesemia or hypophosphatemia, tick paralysis, heavy metal toxicity (such as arsenic, gold, or thallium), drug-induced neuropathy (such as vincristine, platinum compounds, or nitrofurantoin), porphyria, critical illness neuropathy, vasculitis, diphtheria, myasthenia gravis, organophosphate poisoning, botulism, critical illness myopathy, polymyositis, dermatomyositis, hypokalemia, or hyperkalemia. The above list is not exhaustive.
(d)
(ii) Individuals who return to their baseline neurologic state, as confirmed by clinical findings, within less than 6 months from the first symptom or manifestation of onset or of significant aggravation of an acute encephalopathy or encephalitis shall not be presumed to have suffered residual neurologic damage from that event; any subsequent chronic encephalopathy shall not be presumed to be a sequela of the acute encephalopathy or encephalitis.
(2)
(3)
(4)
(i) Decreased or absent response to environment (responds, if at all, only to loud voice or painful stimuli);
(ii) Decreased or absent eye contact (does not fix gaze upon family members or other individuals); or
(iii) Inconsistent or absent responses to external stimuli (does not recognize familiar people or things).
(5)
(e)
(2) Hepatitis B, Hib, and varicella vaccines (Items VIII, IX, and X of the Table) are included in the Table as of August 6, 1997.
(3) Rotavirus vaccines (Item XI of the Table) are included in the Table as of October 22, 1998.
(4) Pneumococcal conjugate vaccines (Item XII of the Table) are included in the Table as of December 18, 1999.
(5) Hepatitis A vaccines (Item XIII of the Table) are included on the Table as of December 1, 2004.
(6) Trivalent influenza vaccines (Included in item XIV of the Table) are included on the Table as of July 1, 2005. All other seasonal influenza vaccines (Item XIV of the Table) are included on the Table as of November 12, 2013.
(7) Meningococcal vaccines and human papillomavirus vaccines (Items XV and XVI of the Table) are included on the Table as of February 1, 2007.
(8) Other new vaccines (Item XVII of the Table) will be included in the Table as of the effective date of a tax enacted to provide funds for compensation paid with respect to such vaccines. An amendment to this section will be published in the
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), are proposing to revise the rule for the African elephant promulgated under section 4(d) of the Endangered Species Act of 1973, as amended (ESA), to increase protection for African elephants in response to the alarming rise in poaching of the species to fuel the growing illegal trade in ivory. The African elephant was listed as threatened under the ESA effective June 11, 1978, and at the same time a rule issued under section 4(d) of the ESA (a “4(d) rule”) was promulgated to regulate import and use of specimens of the species in the United States. This proposed rule would update the current 4(d) rule with measures that are appropriate for the current conservation needs of the species. We are proposing measures that are necessary and advisable to provide for the conservation of the African elephant as well as appropriate prohibitions from section 9(a)(1) of the ESA. Among other things, we propose to incorporate into the 4(d) rule certain restrictions on the import and export of African elephant ivory contained in the African Elephant Conservation Act (AfECA) as measures necessary and advisable for the conservation of the African elephant. We are not, however, revising or reconsidering actions taken under the AfECA, including our determinations in 1988 and 1989 to impose moratoria on the import of ivory other than sport-hunted trophies from both range and intermediary countries. We are proposing to take these actions under section 4(d) of the ESA to increase protection and benefit the conservation of African elephants, without unnecessarily restricting activities that have no conservation effect or are strictly regulated under other law.
In preparing the final decision on this proposed rule, we will consider comments received or postmarked on or before September 28, 2015.
You may submit comments by one of the following methods:
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We will not accept email or faxes. We will post all comments on
Craig Hoover, Chief, Wildlife Trade and Conservation Branch, Division of Management Authority; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, MS: IA; Falls Church, VA 22041 (telephone, (703) 358-2093).
In the United States, the African elephant is primarily protected and managed under the Endangered Species Act (ESA) (16 U.S.C. 1531
Under the ESA, species may be listed either as “threatened” or as “endangered.” When a species is listed as endangered under the ESA, certain actions are prohibited under section 9 (16 U.S.C. 1538), as specified at 50 CFR 17.21. These include prohibitions on take within the United States, within the territorial seas of the United States, or upon the high seas; import; export; sale and offer for sale in interstate or foreign commerce; and delivery, receipt, carrying, transport, or shipment in interstate or foreign commerce in the course of a commercial activity.
The ESA does not specify particular prohibitions and exceptions to those
Under section 4(d) of the ESA, the Service may also develop specific prohibitions and exceptions tailored to the particular conservation needs of a threatened species. In such cases, the Service issues a 4(d) rule that may include some of the prohibitions and authorizations set out at 50 CFR 17.31 and 17.32, but that also may be more or less restrictive than the general provisions at 50 CFR 17.31 and 17.32.
CITES entered into force in 1975, and is currently implemented by 180 countries (called Parties), including the United States. The aim of CITES is to regulate international trade in listed animal and plant species, including their parts and products, to ensure the trade is legal and does not threaten the survival of species. CITES regulates both commercial and noncommercial international trade through a system of permits and certificates that must be presented when leaving and entering a country with CITES specimens. Species are listed in one of three appendices, which provide different levels of protection. In some circumstances, different populations of a species are listed at different levels. Appendix I includes species that are threatened with extinction and are or may be affected by trade. The Convention states that Appendix-I species must be subject to “particularly strict regulation” and trade in specimens of these species should only be authorized “in exceptional circumstances.” Appendix II includes species that are not necessarily threatened with extinction now, but may become so if international trade is not regulated. Appendix III includes species that a range country has identified as being subject to regulation within its jurisdiction and as needing cooperation of other Parties in the control of international trade.
Import and export of CITES species is prohibited unless accompanied by any required CITES documents. Documentation requirements vary depending on the appendix in which the species or population is listed and other factors. CITES documents cannot be issued until specific biological and legal findings have been made. CITES does not regulate take or domestic trade of listed species. It contributes to the conservation of listed species by regulating international trade and, in order to make the necessary findings, encouraging assessment and analysis of the population status of species in trade and the effects of international trade on wild populations to ensure that trade is legal and does not threaten the survival of the species.
The AfECA was enacted in 1988, to “perpetuate healthy populations of African elephants” by regulating the import and export of certain African elephant ivory to and from the United States. Building from and supporting existing programs under CITES, the AfECA called on the Service to establish moratoria on the import of raw and worked ivory from both African elephant range countries and intermediary countries (those that export ivory that does not originate in that country) that failed to meet certain statutory criteria. The statute also states that it does not provide authority for the Service to establish a moratorium that prohibits the import of sport-hunted trophies that meet certain standards.
In addition to authorizing establishment of the moratoria and prohibiting any import in violation of the terms of any moratorium, the AfECA prohibits: The import of raw African elephant ivory from any country that is not a range country; the import of raw or worked ivory exported from a range country in violation of that country's laws or applicable CITES programs; the import of worked ivory, other than certain personal effects, unless the exporting country has determined that the ivory was legally acquired; and the export of all raw (but not worked) African elephant ivory. While the AfECA comprehensively addresses the import of ivory into the United States, it does not address other uses of ivory or African elephant specimens other than ivory and sport-hunted trophies. The AfECA does not regulate the use of ivory within the United States and, other than the prohibition on the export of raw ivory, does not regulate export of ivory from the United States. The AfECA also does not regulate the import or export of live African elephants.
Ghana first listed the African elephant in CITES Appendix III on February 26, 1976. Later that year, the CITES Parties agreed to add African elephants to Appendix II, effective February 4, 1977. In October 1989, all populations of African elephants were transferred from CITES Appendix II to Appendix I (effective in January 1990), which ended much of the previous legal commercial trade in African elephant ivory.
In 1997, based on proposals submitted by Botswana, Namibia, and Zimbabwe and the report of a Panel of Experts (which concluded, among other things, that populations in these countries were stable or increasing and that poaching pressure was low) the CITES Parties agreed to transfer the African elephant populations in these three countries to CITES Appendix II. The Appendix-II listing included an annotation that allowed noncommercial export of hunting trophies, export of live animals to appropriate and acceptable destinations, export of hides from Zimbabwe, and noncommercial export of leather goods and some ivory carvings from Zimbabwe. It also allowed for a one-time export of raw ivory to Japan (which took place in 1999), once certain conditions had been met. All other African elephant specimens from these three countries were deemed to be specimens of a species listed in Appendix I and regulated accordingly.
The population of South Africa was transferred from CITES Appendix I to Appendix II in 2000, with an annotation that allowed trade in hunting trophies for noncommercial purposes, trade in live animals for reintroduction purposes, and trade in hides and leather goods. (At that time, the Panel of Experts reviewing South Africa's proposal concluded, among other things, that South Africa's elephant population was increasing, that there were no apparent threats to the status of the population, and that the country's anti-poaching measures were “extremely effective.”) Since then, the CITES Parties have revised the Appendix-II listing annotation three times. The current annotation, in place since 2007, covers the Appendix-II populations of Botswana, Namibia, South Africa, and Zimbabwe and allows export of: Sport-hunted trophies for
The African elephant was listed as threatened under the ESA, effective June 11, 1978 (43 FR 20499, May 12, 1978). A review of the status of the species at that time showed that the African elephant was declining in many parts of its range and that habitat loss, illegal killing of elephants for their ivory, and inadequacy of existing regulatory mechanisms were factors contributing to the decline. At the same time the African elephant was designated as a threatened species, the Service promulgated a 4(d) rule to regulate import and certain interstate commerce of the species in the United States (43 FR 20499, May 12, 1978).
The 1978 4(d) rule for the African elephant stated that the prohibitions at 50 CFR 17.31 applied to any African elephant, alive or dead, and to any part, product, or offspring thereof, with certain exceptions. Specifically, under the 1978 rule, the prohibition at 50 CFR 17.31 against importation did not apply to African elephant specimens that had originated in the wild in a country that was a Party to CITES if they had been exported or re-exported in accordance with Article IV of the Convention, and had remained in customs control in any country not party to the Convention that they transited
The 4(d) rule has been amended twice in response to changes in the status of African elephants and the illegal trade in elephant ivory, and to more closely align U.S. requirements with actions taken by the CITES Parties. On July 20, 1982, the Service amended the 4(d) rule for the African elephant (47 FR 31384) to ease restrictions on domestic activities and to more closely align its requirements with provisions in CITES Resolution Conf. 3.12,
Following enactment of the AfECA (in October 1988), the Service established, on December 27, 1988, a moratorium on the import into the United States of African elephant ivory from countries that were not parties to CITES (53 FR 52242). On February 24, 1989, the Service established a second moratorium on all ivory imports into the United States from Somalia (54 FR 8008). On June 9, 1989, the Service put in place the current moratorium, which bans the import of ivory other than sport-hunted trophies from both range and intermediary countries (54 FR 24758).
The 4(d) rule was revised on August 10, 1992 (57 FR 35473), following establishment of the 1989 moratorium under the AfECA on the import of African elephant ivory into the United States, and again on June 26, 2014 (79 FR 30400, May 27, 2014), associated with the update of U.S. CITES implementing regulations. In the 2014 revision of the 4(d) rule, we removed the CITES marking requirements for African elephant sport-hunted trophies. At the same time, these marking requirements were updated and incorporated into our CITES regulations at 50 CFR 23.74. The purpose of this change was to make clear what is required under CITES (at 50 CFR part 23) for trade in sport-hunted trophies and what is required under the ESA (at 50 CFR part 17).
We have reevaluated the provisions of the 4(d) rule and considered other administrative actions in response to unprecedented increases in the illegal killing of elephants, an alarming growth in illegal trade of elephant ivory, recommendations adopted by the CITES Parties in March 2013 to help curb the illegal killing and illegal trade, issuance of Executive Order 13648 on Combating Wildlife Trafficking in July 2013, and the stated priorities in the National Strategy for Combating Wildlife Trafficking, issued by President Obama in February 2014.
The increase in poaching of elephants and the escalation of the illegal trade in ivory are described in documents made available at CoP16. See, in particular, CoP16 Doc. 53.1,
CoP16 Doc. 53.1 and its Addendum (prepared by the CITES Secretariat), the December 2013 report for the African Elephant Summit (prepared by the CITES Secretariat, the International Union for Conservation of Nature (IUCN), and TRAFFIC, the Wildlife Trade Monitoring Network), and Annex 1 to SC65 Doc. 42.1 (prepared by the IUCN/Species Survival Commission Asian and African Elephant Specialists Groups, the CITES Secretariat, the United Nations Environment Programme's World Conservation Monitoring Centre (UNEP-WCMC), and TRAFFIC) provide analyses of trends in levels of illegal killing of elephants based on data from the CITES Monitoring the Illegal Killing of Elephants (MIKE) program. MIKE is a site-based monitoring system intended to measure levels and trends in the illegal killing of elephants and to determine changes in these trends over time. Data are collected by ranger patrols and others at established MIKE sites and reported to the CITES Secretariat. The reports in CoP16 Doc. 53.1 and its Addendum contain analyses of data collected between 2002
MIKE data are used to evaluate relative poaching levels based on the Proportion of Illegally Killed Elephants (PIKE), which is calculated as the number of illegally killed elephants found divided by the total number of elephant carcasses encountered by patrols or other means, aggregated by year for each site. The data in these reports show a steady increase in levels of illegal killing starting in 2006, with 2011 having the highest levels of poaching since MIKE records began in 2002. In 2012 and 2013, there appears to be a gradual decline, with 2013 levels close to those recorded in 2010. Despite the decline since 2011, poaching levels overall remain alarmingly high, with nearly two-thirds of dead elephants found in 2013 deemed to have been illegally killed. These reports state that the PIKE levels translate to 17,000 elephants killed at African MIKE sites in 2011, and 15,000 elephants killed at African MIKE sites in 2012. These numbers were estimated using models. The authors of the 2014 report prepared for SC65 note that it was not possible to derive an estimate for 2013 using the same method as in previous years because some of the required covariates for 2013 were not yet available. However, the authors provide a “preliminary and rough calculation” using a different method that estimates more than 14,000 elephants were killed at MIKE sites in 2013. The authors stress that this estimate must be treated with caution, but they state that “there are good reasons to believe that the number of elephants illegally killed in Africa in 2013 ran, as in previous years, into the tens of thousands, perhaps in the order of 20 to 22 thousand.”
A joint press release, issued by the CITES Secretariat, IUCN, and TRAFFIC International on December 2, 2013, at the opening of the African Elephant Summit in Gabarone, Botswana, asserted that the figures for MIKE sites amount to an estimated 25,000 elephants killed illegally across Africa in 2011, and 22,000 killed illegally in 2012. Others have suggested that the numbers killed continent-wide are likely even higher. The statistical model used to evaluate MIKE data estimates that the “threshold of sustainability” at MIKE sites was crossed in 2010, with poaching rates remaining above the population growth rate of 4 to 5 percent for healthy elephant populations every year since.
A recent study, published in the Proceedings of the National Academy of Sciences (in July 2014), reaffirmed these assertions. Wittemyer et al. (2014) used MIKE data to analyze the impacts of illegal killing on elephant populations across the African continent, using two different approaches. The results demonstrate “an over-harvest driven decline in African elephants likely began in 2010.” The authors assumed an average annual population increase in the absence of illegal killing of 4.2 percent. They estimated that illegal killing rates averaged about 6.8 percent between 2010 and 2012, which the authors estimate corresponds to more than 33,000 elephants killed per year (based on current population estimates). They also noted that preliminary data for 2013 suggest regional and continental levels were slightly lower than for 2012, but still unsustainable.
CoP16 Doc. 53.2.2 and Annex 1 to SC65 Doc. 42.1 contain reports, prepared by TRAFFIC, on data in the CITES Elephant Trade Information System (ETIS). ETIS is a system for collecting and compiling law enforcement data on seizures and confiscations in order to monitor the pattern and scale of illegal trade in elephant specimens. TRAFFIC receives seizure and confiscation data from CITES Parties, manages and coordinates the ETIS system, and produces a comprehensive report for meetings of the CoP and updates for meetings of the Standing Committee.
The report in CoP16 Doc. 53.2.2 covers the period 1996 through 2011, and the report in SC65 Doc. 42.1 covers the period 1996 through 2012 (data for 2013 were not yet complete when the report was prepared). The data set used for the analysis presented in SC65 Doc. 42.1 includes 14,070 separate raw or worked ivory seizure records from 72 countries or territories during 1996-2012. Using 1998 as a baseline (because it is the first full year after some populations of African elephant were transferred from Appendix I to Appendix II and, at the same time, the development of monitoring systems, including ETIS, was mandated by the Parties), the reports examine trends in both the frequency of illegal ivory trade transactions and the scale of the illegal trade in ivory.
Illegal trade activity (frequency of transactions) remained at or slightly above 1998 levels up to 2006. In 2006, a gradual increase in activity began and grew with each successive year, with a “major surge” in 2011. The authors report that the frequency of illegal ivory trade transactions in 2011 represented “a three-fold increase in illegal trade activity since 1998.”
The scale of illegal trade was assessed by evaluating the weight of ivory traded illegally. The authors caution that there is more uncertainty in evaluating the weight of ivory in illegal trade than in evaluating the frequency of illegal transactions, but the trend is clear. Like the trend in frequency of transactions, there was relative stability in the weight of ivory in illegal trade through 2007, followed by a sharp increase in the following years. The authors estimate that the quantity of illegal ivory in trade in 2011, measured by weight, was nearly three times 1998 levels, and, although 2012 data show a slight decrease compared to 2011, levels in 2012 represent a value that is about two and a half times the 1998 levels. This upward trend reflects a major increase in large consignments of ivory (over 100 kg) in illegal trade, which, the authors note, points to the increasing involvement of international criminal syndicates. In its 2014 report to SC65, TRAFFIC states that the frequency of large-scale ivory seizures has increased greatly since 2000, and that the “upward surge in the weight of ivory seized from 2009 through 2012 has been primarily driven by increased seizures in the large ivory weight class.” Although 2013 data were not complete when the report was written and, therefore, were not included in the analysis, the authors note that the 18 seizures made in 2013 for which they had data “collectively constitute the greatest quantity of ivory derived from large-scale seizure events going back to 1989.”
The CITES Parties have taken steps to address the growing illegal trade in ivory, including, at CoP16, calling on countries to ensure that they have comprehensive measures in place to regulate the domestic trade in raw and worked ivory. At SC65, the Standing Committee took steps to hold countries that have been identified as being significantly involved in illegal ivory trade (either as source, transit, or destination countries for illegal ivory) accountable. Identified countries that fail to take actions to resolve problems by the agreed deadlines may be subject to CITES trade sanctions.
Demand for ivory is driving the current poaching crisis. Although the primary markets are in Asia, particularly in China and Thailand, the United States continues to play a role as a destination and transit country for illegally traded elephant ivory. Service wildlife inspectors stationed at major U.S. ports intercept smuggled wildlife and ensure that wildlife importers and exporters comply with declaration, permit, and other requirements for international trade in elephants and other wildlife species. Over the years, seizures of unlawfully imported and exported elephant specimens at U.S. ports have ranged from whole elephant tusks and large ivory carvings to knife handles, jewelry made from ivory or hair, and tourist souvenirs including items made from elephant feet and bones. The Service provides seizure data to TRAFFIC annually for inclusion in the CITES ETIS database. Since 1990, the annual number of seizure cases involving elephant specimens at U.S. ports has ranged from over 450 (in 1990) to 60 (in 2008); in most other years the number falls between 75 and 250 cases. In 2012, the most recent year for which we have complete data, there were about 225 seizure cases involving elephant specimens, which resulted in seizure of over 1,500 items that contained or consisted of elephant parts or products. Nearly 1,000 of those items contained or consisted of elephant ivory. (About 300 of the items were elephant hairs.)
Service special agents have investigated multiple smuggling operations involving the trafficking of elephant ivory for U.S. markets. Some examples of major investigations are provided here. In September 2012, the owner of a Philadelphia African art store was arrested and pleaded guilty to smuggling African elephant ivory into the United States. Approximately one ton of elephant ivory was seized from his store; it was the largest ivory seizure in U.S. history. According to the indictment, the art store owner paid a co-conspirator to travel to Africa to purchase raw elephant ivory and have it carved to his specifications and stained or dyed so that the carvings would appear old. He sold the carvings at his store in Philadelphia and elsewhere in the United States as “antiques.”
The arrest in Philadelphia was an outgrowth of a multi-year investigation that documented over 20 shipments of newly carved elephant ivory smuggled into the United States in air and ocean cargo from Cameroon, Ivory Coast, Nigeria, and Uganda. The smuggled ivory came into the country through New Jersey and New York, and was distributed to collectors and retailers across the United States, including to Chicago, Houston, Memphis, New York City, Philadelphia, and Trenton. A total of 10 individuals were charged and later convicted as part of this investigation. Much of the ivory in this case was sent via parcel accompanied by fraudulent shipping and customs documents, and disguised with clay and other substances to look like musical instruments and wooden statues.
Service investigators teamed with officers from the New York Department of Environmental Conservation to probe illegal ivory sales by a New York City jeweler distributor and two Manhattan retailers. This investigation documented a booming and unauthorized trade in ivory. Prosecutions were pursued by the Attorney General for the State of New York based on violations of State laws regulating the sale of elephant ivory. The stores prosecuted paid $50,000 in fines and forfeited over one ton of elephant ivory (which was destroyed at the Service's “ivory crush” described below). The distributor forfeited 70 pounds of elephant ivory valued at $30,000 and paid $10,000 in restitution.
Service special agents worked with the Thai Royal Police to secure the 2010 U.S. indictment of two businessmen (the owner of a Los Angeles area donut shop and a Thai trafficker) and four arrests in Thailand in a case that exposed transcontinental trafficking in elephant ivory. Over the course of this 5-year undercover investigation, officers showed that ivory was being smuggled from Africa into Thailand by Thai operatives who then sold it to clients in the United States and other countries. The investigation began in 2006, when Service wildlife inspectors conducting an inspection “blitz” at the international mail facility in Los Angeles intercepted a package of elephant ivory that had been mailed from Thailand to a U.S. business and labeled as toys. The U.S. defendant pleaded guilty to Federal charges.
Operation Scratchoff was a multi-year investigation, launched by the Service in New York in 2006. It documented and disrupted the illegal activities of both international smugglers who were bringing ivory into the country from Africa and U.S. retailers involved in this black market trade. Special agents documented smuggled ivory entering the United States from Cameroon, Gabon, Ghana, Ivory Coast, Kenya, Nigeria, and Uganda. Most of the ivory smuggled by defendants in this case was shipped from Africa via mail parcel through John F. Kennedy International Airport. The shipments were accompanied by fraudulent shipping and customs documents identifying their contents as African wooden handicrafts or wooden statues. The ivory itself was painted to look like wood; covered with clay; or hidden inside wooden handicrafts, such as traditional African musical instruments. Work on this investigation resulted in the arrest and conviction of eight individuals in the United States on felony smuggling and/or Lacey Act (16 U.S.C. 3371
In 2008, a Canadian citizen was sentenced to 5 years in prison and ordered to pay a $100,000 fine for illegally smuggling ivory from Cameroon into the United States for sale here. The perpetrator operated art import and export businesses in Montreal, Canada and in Cameroon that were fronts for smuggling products made from protected wildlife species, including raw elephant ivory. She ran a sophisticated smuggling operation that utilized local artists and craftsmen in Cameroon, operatives within international shipping companies, contacts in the illegal ivory trade, her business in Canada, and partners in three countries. Two of her shipments,
In 2006, Service special agents secured a 20-count criminal indictment against Primitive Art Works, a Chicago art gallery specializing in high-end exotic artifacts from around the world, and its two owners for smuggling elephant ivory and products made from other protected species into the United States. The Service seized over 1,000 ivory carvings and tusks from the defendants, who were asking as much as $50,000 a piece for these items. Both owners pleaded guilty to wildlife violations later that year.
In 2001, during Operation Loxa, Service officers in Los Angeles intercepted more than 250 pounds of smuggled African elephant ivory, the largest ivory seizure ever on the west coast of the United States. The two shipments, which were smuggled from Nigeria, were declared to customs as handcrafted furniture. The ivory included whole tusks and pieces hidden inside furniture and concealed in beaded cloth. Four individuals were arrested and indicted for conspiracy to smuggle elephant ivory into the United States. Three of them were convicted.
Service special agents have also investigated cases involving smuggling of elephant ivory out of the United States to other markets, particularly in Asia. In an investigation, known as Operation Crash, an Asian antique dealer was convicted for his role in the conspiracy to smuggle items made from elephant ivory and rhinoceros horn valued at over $1,000,000. The investigation revealed that this individual worked in the United States as a buyer for four different Asian dealers, who were purchasing numerous ivory carvings from auction houses in the United States. After purchasing the ivory at auctions, the antique dealer smuggled the ivory (through the mail) to various locations in Hong Kong, using false declarations to avoid export controls.
In 2011, a Chinese national was intercepted at John F. Kennedy International Airport prior to boarding a plane to Shanghai, China. Service investigators found 18 elephant ivory carvings concealed in his luggage. This individual was an Asian art dealer who purchased the carvings at various U.S. auction houses during a week-long buying trip. Upon arrest, he told agents that he wrapped the ivory carvings in tin foil to avoid x-ray detection.
At auctions in the United States, Service law enforcement officers have documented foreign buyers placing absentee bids on wildlife items, including those made from African elephant ivory. In some cases, the ivory items are smuggled directly to the foreign buyers. In many instances, however, the foreign buyers employ couriers with residences in the United States to collect the elephant ivory and smuggle it overseas on their behalf. We are concerned that foreign ivory buyers and couriers view the United States as a significant source and market for elephant ivory.
In November 2013, the Service destroyed nearly six tons of contraband African and Asian elephant ivory that had been either seized at U.S. ports or as part of law enforcement investigations over the past 25 years for violation of wildlife laws. We crushed this contraband ivory, which had been stored at the Service's National Wildlife Property Repository, to raise public awareness about the current African elephant poaching crisis and to send a clear message that the United States will not tolerate ivory trafficking and the toll it is taking on wild elephant populations. The six tons of ivory crushed in 2013 underscores the continuing U.S. role in the illegal market and the need for us to take further actions to curtail that role.
There is also a legal market for ivory within the United States. We do not have comprehensive information on the U.S. domestic ivory market.
In a 2006-2007 survey of selected metropolitan areas across the United States, Martin and Stiles (2008) identified retail establishments trading in worked ivory, including ivory from African elephants. In each area surveyed, the surveyors visited major flea markets, antique markets, main shopping areas for antiques and crafts, department stores, and luxury hotel gift shops. The study does not identify all establishments trading in ivory, but gives a general idea of the number of establishments and geographic scope. In the 16 areas surveyed, the authors identified a total of 652 retail outlets offering a total of more than 23,000 ivory products for sale. Of the areas surveyed, those with the most retail outlets and the greatest number of ivory products for sale were: New York City (124 retail outlets containing a total of 11,376 ivory products); San Francisco Bay area (40 retail outlets containing a total of 2,777 ivory products); and greater Los Angeles (170 retail outlets containing a total of 2,605 ivory products). Martin and Stiles estimated that as much as one-third of the items they found were imported illegally after the 1989 AfECA import moratorium.
In March and April of 2014, one of the authors of the 2008 study conducted a follow-up survey (Stiles 2015) in Los Angeles and San Francisco, California. He found a total of more than 1,250 ivory items offered for sale by 107 vendors in these two California cities, “with 777 items and 77 vendors in Los Angeles and well over 473 ivory items and 30 vendors in San Francisco.” While there were “significantly fewer venders” offering ivory for sale, compared to the 2006-2007 survey, Stiles noted “a much higher incidence of what appears to be ivory of recent manufacture in California, roughly doubling from approximately 25% in 2006 to about half in 2014. In addition, many of the ivory items seen for sale in California advertised as antiques (
It is often impossible to distinguish ivory legally imported into the United States from that which has been smuggled into the country, which significantly undermines enforcement efforts and provides an opportunity for illegal ivory to be laundered through U.S. markets. In addition, U.S. citizens may be involved in the global ivory market with ivory that has never been imported into the United States. The Service has reevaluated our domestic controls, given the current poaching crisis in Africa and the associated increase in illegal trade in ivory, the
These new restrictions would facilitate enforcement efforts within the United States and improve regulation of both domestic and foreign trade in elephant ivory by U.S. citizens. Improved domestic controls will make it more difficult to launder illegal elephant ivory through U.S. markets, which will contribute to a reduction in poaching of African elephants.
This proposed action is consistent with Executive Order 13648 on Combating Wildlife Trafficking signed by President Obama on July 1, 2013, to “address the significant effects of wildlife trafficking on the national interests of the United States.” The Executive Order calls on executive departments and agencies to take all appropriate actions within their authority to “enhance domestic efforts to combat wildlife trafficking, to assist foreign nations in building capacity to combat wildlife trafficking, and to assist in combating transnational organized crime.” Increased control of the U.S. market for elephant ivory is also among the administrative actions called for in the National Strategy for Combating Wildlife Trafficking, issued by President Obama on February 11, 2014. Director's Order No. 210, issued by the Director of the U.S. Fish and Wildlife Service, established policy and procedures for the Service to follow in implementing the National Strategy with regard to trade in African elephant ivory and parts and products of other ESA-listed species.
This proposal is also in line with international efforts. At CoP16, in March 2013, the CITES Parties adopted a revised resolution on trade in elephant specimens (Resolution Conf. 10.10 (Rev. CoP16)), which, among other things, urges Parties with a legal domestic ivory market to ensure that they have in place “comprehensive internal legislative, regulatory, enforcement and other measures to regulate the domestic trade in raw and worked ivory.” Wittemyer et al. (2014) concluded that it is obvious that stemming the rate of illegal killing of elephants is paramount. They call for a global response, including heavy
In developing this proposed rule, we have also considered the provisions already in place for protection of African elephants under CITES, the AfECA, and the guidance provided in Director's Order No. 210. Provisions for African elephants under CITES and the AfECA can help to address current threats to the species, but the ESA can reach activities that are not regulated under these other laws. For each type of activity and specimen, the available protections provided through the combination of all applicable laws are analyzed to explain why the overall proposed regulatory framework is appropriate for the conservation of this species.
We are proposing to revise the 4(d) rule for the African elephant, in 50 CFR 17.40(e), so that all of the provisions at 50 CFR 17.31 and 17.32 would apply unless specifically indicated otherwise in the rule. Any activity that would be prohibited or exempted under 50 CFR 17.31 and any activity that would require authorization under 50 CFR 17.32 would be regulated as indicated in those sections except as provided in this proposed rule. This legal framework provides far greater protections for African elephants compared to the current rule, which regulates only certain import to and export from the United States; possession, sale, offer for sale, transport, and similar activities with any African elephant specimen illegally imported into the United States; and sale or offer for sale of any sport-hunted trophy imported into the United States in violation of a permit condition. The protections that would be offered to African elephants through this proposed rule and reasons each of the measures is appropriate for the conservation of the species are explained below.
Nothing in this rule would affect other legal requirements applicable to African elephants and their parts and products under other laws such as the AfECA and CITES. For example, while an import into the United States that met all standards as a noncommercial transshipment under section 10(i) of the ESA would not be a violation of the ESA, it would remain a violation of the import moratorium under the AfECA. In addition, any person importing or exporting African elephants or their parts and products to or from the United States would need to comply with all applicable CITES requirements beyond what are described in this proposed rule, as well as the general wildlife import/export requirements found at 50 CFR part 14 and general permitting requirements in 50 CFR part 13. These additional requirements, when applicable, are noted in the text of the rule.
The current 4(d) rule does not regulate the taking of live African elephants. Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct, an ESA-protected species and therefore includes both lethal and certain non-lethal effects on protected wildlife. Under the proposed rule, the taking of any live African elephant would be prohibited within the United States, within the U.S. territorial sea, or upon the high seas (with the latter two acts possibly occurring during transport of a live elephant, such as during transport to or from the United States). Take of endangered or threatened species is not regulated under the ESA beyond these geographic areas, so this change to the 4(d) rule would not have any effect on the ability of U.S. citizens to travel to countries that allow hunting of African elephants and engage in sport hunting. However, the import of any associated sport-hunted trophy into the United States would be regulated as described below. For any African elephant held in captivity within the United States, take would not include animal husbandry practices that meet minimum standards under the Animal Welfare Act (AWA; 7 U.S.C. 2131
The proposed rule would help to ensure that elephants held in captivity receive an appropriate standard of care. Any activities that qualify as take, including those beyond the standard veterinary care, breeding procedures, and AWA care standards described in the definition of “harass,” would have to qualify for one of the purposes that allow for issuance of a threatened species permit under 50 CFR 17.32. While the taking of live African elephants held in captivity within the United States or being transported is not a threat to the species, including a prohibition against take, even for species that are not native to the United States, is a standard protection for threatened species and ensures an adequate level of care for wildlife held in captivity.
The current 4(d) rule for the African elephant does not regulate sale or offer for sale in interstate or foreign commerce or delivery, receipt, carrying, transport, or shipment in interstate or foreign commerce in the course of a commercial activity of African elephants (including live animals, parts and products, and sport-hunted trophies). The only commercial activities regulated under the current 4(d) rule are possession, sale or offer for sale, and receipt, delivery, transport, or shipment of African elephants (including parts and products) that were illegally imported into the United States and sale or offer for sale of any sport-hunted trophy imported into the United States in violation of a permit condition. These restrictions will remain in place through the ESA section 9(c)(1) prohibition on possession of any CITES specimen that was imported or exported contrary to the Convention, prohibitions under the Lacey Act (16 U.S.C. 3371
The poaching crisis is driven by demand for elephant ivory. There is no information to indicate that commercial activities involving live elephants or commercial use of elephant parts and products other than ivory has had any effect on the rates or patterns of illegal killing of elephants and the illegal trade in ivory. Live animals are occasionally removed from the wild and placed in captivity, often from populations in small management areas where there have been local over-population issues and consequent negative impacts to habitat. African elephant parts other than ivory (such as hides) that are commercialized generally become available when animals are culled for management purposes, during salvage of animals poached for their ivory, or when problem animals have to be killed. African elephants are not killed primarily for their hides or for parts other than ivory. In addition, the import and export of live African elephants and parts and products are regulated under CITES and other U.S. law. This includes import into and export from the United States for both commercial and noncommercial purposes. It is only commercial activity associated with interstate or foreign commerce not involving import or export that would not be regulated. We have no information indicating that such commercial activity is having any effect on the conservation status of African elephants. Requiring individuals to obtain a threatened species permit under 50 CFR 17.32 when the removal of a small number of live elephants or the incidental harvest of their hides or hair has no negative impact on the species would provide no meaningful protective measures for African elephants, especially when activities that also involve import or export to or from the United States are already regulated under CITES. For these reasons, we have determined that it is not necessary to propose restrictions on commercial activities in interstate or foreign commerce with live African elephants, leather goods, and other African elephant non-ivory parts and products.
We do, however, propose to prohibit sale or offer for sale of ivory in interstate or foreign commerce and delivery, receipt, carrying, transport, or shipment of ivory in interstate or foreign commerce in the course of a commercial activity, with some exceptions, and to prohibit the same commercial activities with sport-hunted African elephant trophies. “Foreign commerce” is defined in section 3 the ESA (16 U.S.C. 1532(9)). “Commercial activity” as used in the term “in the course of a commercial activity” is also defined in section 3 the ESA and means “all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling” (16 U.S.C. 1532(2)). The Service has defined “industry or trade” at 50 CFR 17.3 to mean “the actual or intended transfer of wildlife . . . from one person to another person in the pursuit of gain or profit.” The ESA definition of “commercial activity” includes an exception for “exhibitions of commodities by museums or similar cultural or historical organizations.” “Person” is defined in the ESA to include corporations, partnerships, trusts, associations, or any other private entity along with Federal, State, local, and foreign governments, as well as individuals. Activities that would be prohibited could be authorized through a threatened species permit under 50 CFR 17.32 for scientific purposes, enhancement of propagation or survival of the species, zoological exhibition, educational purposes, or other special purposes consistent with the purposes of the ESA. The ESA does not reach sale or offer for sale or activities in the course of a commercial activity that occur solely within the boundaries of a State (
There are a number of potential activities involving ivory or sport-hunted trophies that would not be prohibited under these ESA standards, provided the activity did not qualify as “sale” or “offer for sale.” Under our definition of “industry or trade,” commercial use of threatened specimens does not fall under the prohibition for “commercial activity” unless the transaction involves the
As explained in the section Need for Regulatory Actions, while there has long been poaching of African elephants for their ivory and illegal trade in that ivory, since 2006, there has been an unprecedented increase in the illegal killing of African elephants, with estimates exceeding 20,000 per year in recent years. Concurrent with this increase in illegal killing there has been an alarming increase in illegal trade in ivory. Recent law enforcement efforts have demonstrated that the United States plays a role in the illegal trade and the associated illegal killing. The study by Martin and Stiles (2008) estimated that as much as one-third of the ivory found in selected metropolitan areas had been imported into the United States illegally since the 1989 AfECA moratorium. Stiles estimated, in his 2014 follow-up study, that as much as one half of the ivory for sale in two California cities during his survey had been imported illegally. All of this demonstrates the need to impose restrictions on commercializing elephant ivory within the United States. The proposed rule would restrict commercial activities with African elephant ivory consistent with the restrictions in place for endangered species and those in place for other threatened species, with a narrow exception for manufactured items containing a small (
For the same reasons that it is appropriate for the conservation of African elephants to restrict commercial activities involving ivory in interstate and foreign commerce, it is appropriate to restrict commercial activities involving sport-hunted trophies in interstate and foreign commerce. African elephant trophies contain raw or worked ivory, and in fact sometimes only the raw or worked ivory from the animal is imported into the United States as the trophy. Sport hunting is considered a noncommercial activity and CITES regulation of import and export of sport-hunted trophies reflects this approach. For example, the listing of the African elephant in CITES Appendix II for Botswana, Namibia, South Africa, and Zimbabwe is specifically annotated to note that trade in hunting trophies is for noncommercial purposes only. In Resolution Conf. 12.3 (Rev. CoP16), the CITES Parties have specified that a hunting trophy is an animal that was taken for the hunter's personal use. In addition, a CITES import permit for an African elephant trophy hunted in an Appendix I country can only be issued if the importing government finds that the specimen is not to be used for primarily commercial purposes. Reflecting these restrictions, CITES permits for African elephant sport-hunted trophies include a permit condition that the specimen can be used for noncommercial purposes only.
Consistent with these and similar restrictions for other CITES species, in the 2007 revisions to our CITES-implementing regulations, we clarified that in situations where commercial import would be prohibited under CITES, an item imported for noncommercial purposes could not be used for commercial purposes after import into the United States. Under our CITES regulations, Appendix-I specimens (except those imported under a CITES exemption document or before the species was listed in Appendix I), CITES Appendix-II specimens with an annotation that trade is for noncommercial purposes only, and CITES Appendix-II specimens without a noncommercial annotation but listed as threatened under the ESA can only be used within the United States for noncommercial purposes (see 50 CFR 23.55). This restriction under the authority of CITES reaches intrastate as well as interstate and foreign commerce. We propose to prohibit the commercialization of sport-hunted African elephant trophies in a manner consistent with other legal standards under CITES, including the commercialization of any manufactured items that might otherwise qualify under the
Since announcing our intentions to remove or revise the 4(d) rule, we have received input from the public, including musicians and musical instrument manufacturers, museums, antique dealers, and others who may be impacted by these proposed changes. Having considered relevant information provided by these groups, in this proposed rule we would allow for continued commercialization of African elephant ivory in interstate and foreign commerce that is not contributing to the poaching of elephants and where we believe the risk of illegal trade is low.
We propose to allow sale and offer for sale of ivory in interstate or foreign commerce along with delivery, receipt, carrying, transport, or shipment of ivory in interstate or foreign commerce in the course of a commercial activity without a threatened species permit for manufactured items containing
• For items located in the United States, the ivory was imported into the United States prior to January 18, 1990 (the date the African elephant was listed in CITES Appendix I) or was imported into the United States under a CITES pre-Convention certificate with no limitation on its commercial use;
• For items located outside the United States, the ivory is pre-Convention (removed from the wild prior to February 26, 1976 (the date the African elephant was first listed under CITES));
• The ivory is a fixed component or components of a larger manufactured item and is not, in its current form, the primary source of value of the item;
• The manufactured item is not made wholly or primarily of ivory;
• The total weight of the ivory component or components is less than 200 grams;
• The ivory is not raw; and
• The item was manufactured before the effective date of the final rule for this action.
We have included the phrase “in its current form” in the criterion stating that the ivory is not the primary source of value of the item, to make clear that we would consider the value added by the craftsmanship (carving, etc.) that went into the ivory component, not just the value of the ivory itself. We use the phrase “wholly or primarily” (in the next criterion) as those terms are commonly defined in the dictionary. We consider “wholly” to mean “entirely, totally, altogether” and “primarily” to mean “essentially, mostly, chiefly, principally.” We have chosen 200 grams
We have intentionally crafted this exception to allow commercial activity in a very narrow class of items. While we have given careful consideration to the types of items containing African elephant ivory for which we could allow continued commercialization in interstate and foreign commerce (because we do not believe the trade is contributing to the poaching of elephants and we believe the risk of illegal trade is low) we seek comment from the public on the specific criteria we have proposed to qualify for this
Examples of items that we do not expect would qualify for the
Our law enforcement experience over the last 25 years (see the
The information we have about the domestic market, including the surveys conducted by Martin and Stiles and our own investigations, indicates that trade in the types of manufactured items that would qualify for this proposed
The requirement that the ivory is either pre-Convention (removed from the wild prior to February 26, 1976) or was imported into the United States prior to 1990, and the requirement that the item must have been manufactured before the effective date of a final rule would make it unlikely that commercialization of ivory under this exception would directly contribute to the future illegal killing of elephants. Noting the types of items that make up the illegal trade, and requiring that the ivory be a fixed component of a larger manufactured item, that the ivory is not raw, that it is not the primary source of value of the item, that the total weight of the ivory is less than 200 grams, and that the manufactured item is not made wholly or primarily of ivory would minimize the possibility of the ivory contributing to either global or U.S. illegal ivory markets or that the
These changes will allow us to appropriately regulate the U.S. domestic market in ivory as well as U.S. participation in global markets for ivory and achieve our goal of conserving the African elephant, while allowing limited continued trade that is not contributing to the poaching of elephants. Improved domestic controls will make it more difficult to launder illegal elephant ivory through U.S. markets, which we believe will ultimately contribute to a reduction in the illegal killing of African elephants.
Since announcing our intention to revise the 4(d) rule for the African elephant and prohibit sale and offer for sale of African elephant ivory in interstate commerce, we have heard from a number of representatives of the U.S. museum community. They have expressed their concern about how prohibitions on interstate commerce will impact their ability to acquire items for museum collections. We recognize that museums can play a unique role in society by curating objects that are of historical and cultural significance. We are considering including an exception to the prohibitions on interstate commerce for museums, either through this rulemaking process or through a separate rulemaking under the ESA. We seek comment from the public on this issue. Additionally, we seek comment on how to best define museums in this regard, given the diverse interests that they serve.
Under the current 4(d) rule, African elephants and African elephant parts and products other than sport-hunted trophies and ivory (
As noted earlier, the import into the United States of live elephants, including those with tusks, is not regulated under the AfECA. In section 4202(2) (16 U.S.C. 4202(2)) of the statute, Congress found that it is the large illegal trade in ivory that is the
When establishing regulations for threatened species under the ESA, the Service has generally adopted restrictions on the import and export of live as well as dead animals and their parts and products, either through a 4(d) rule or through the provisions of 50 CFR 17.31. In this case, import and export of both live and dead African elephants and all parts and products are already carefully regulated under CITES. Under CITES and the U.S. regulations that implement CITES at 50 CFR part 23, the United States regulates and monitors all commercial and noncommercial trade in African elephants and any parts and products that are imported into or exported from the country. All African elephant populations are protected under CITES, with most populations listed in Appendix I and only four populations (those in Botswana, Namibia, South Africa, and Zimbabwe) listed in Appendix II. Import into and export from the United States of African elephant specimens will continue to require CITES documentation.
Under CITES, for nearly all live or dead elephants and elephant parts or products, including those from Appendix II populations, the exporting country must issue an export permit that is supported by findings that the specimen was legally acquired under national laws, that the export will not be detrimental to the survival of the species, and, for live animals, that the elephant will be shipped in a manner that minimizes the risk of injury, damage to health, or cruel treatment. The CITES export permit must be presented upon export and must also be presented to U.S. officials upon import into the United States. For nearly all Appendix-I African elephant specimens, a CITES import permit would also have to be issued by the Service after finding that the import will be for purposes that are not detrimental to the survival of the species, that the specimen will not be used for primarily commercial purposes, and, for a live animal, that the proposed recipient is suitably equipped to house and care for the elephant. Any later re-export of African elephant specimens would require additional CITES documents.
Some limited exceptions to these permitting requirements exist. Consistent with an exception in the Convention, the Service provides an exemption from permitting requirements for personal and household effects, but only for dead specimens and not for most Appendix-I specimens. Personal and household effects must be personally owned for noncommercial purposes, and the quantity imported or exported must be necessary or appropriate for the nature of the trip or household use. The exemption is extremely limited for items containing African elephant ivory (see 50 CFR 23.15(f)). Not all CITES countries have adopted the personal and household effects exemption, so individuals who might cross an international border with an African elephant item and want to take advantage of this exemption would need to check with the Service and any country of transit in advance for documentation requirements. There is also an exemption for pre-Convention animals and parts or products, but a person who wants to transport an item under this exemption must obtain and present to government officials upon export and import a CITES pre-Convention certificate that verifies that the specimen was acquired before the Convention applied to it.
In addition to the requirements under CITES, individuals who import or export wildlife and wildlife products into or from the United States must file wildlife declaration forms with the Service's Office of Law Enforcement and must use designated ports. Individuals who are in the business of importing and exporting wildlife and wildlife products must be licensed by the Service. These requirements allow us to monitor the species and quantity of wildlife that are imported into and exported from the United States and ensure that such trade is legal.
The need to address the increase in illegal killing and illegal trade of African elephants is linked to the economic value of and international market in ivory. There is no information indicating that the conservation status and management needs of the species are linked to the occasional import of live elephants into the United States for captive propagation programs or public education and display, or to the market in hides and other non-ivory parts or products. The Service monitors U.S. imports and exports of elephant specimens through wildlife declaration forms, and all CITES Parties are required to submit annual reports on trade in CITES species and the number and types of CITES permits and certificates issued each year. This information verifies that import and export of live African elephants and parts or products other than ivory and sport-hunted trophies is small and does not affect the conservation of the species. There is no evidence of an illegal market in live elephants or parts and products other than ivory.
In addition, as noted above, import and export of African elephant specimens would continue to be strictly regulated through the documentation procedures and required findings under CITES. Particularly relevant to the major threats facing African elephants, these CITES documents are not issued unless the importing or exporting countries find that the import or export would not be detrimental to the survival of the species, that the live animal or part or product was legally acquired, and that the specimen will not be used for primarily commercial purposes. Requiring individuals to obtain an ESA threatened species permit in addition to the required CITES documents prior to import or export of live animals and parts or products other than ivory and trophies would add no meaningful protection for the species and would be an unnecessary overlay of authorization on top of existing documentation that
As noted earlier, the ESA does not prohibit U.S. hunters from traveling to other countries and taking threatened species, but authorization may be required under the ESA to import the sport-hunted trophy into the United States. We are proposing to limit the number of sport-hunted African elephant trophies that may be imported into the United States to two per hunter per year. This action is intended to address a small number of circumstances in which U.S. hunters have participated in legal elephant culling operations and imported, as sport-hunted trophies, a large number of elephant tusks from animals taken as part of the cull. We propose to disallow this activity, which has resulted, in some cases, in the import of commercial quantities of ivory as sport-hunted trophies. Based on our import records, we expect this proposed change to impact fewer than 10 hunters per year.
This proposed change is consistent with the purposes of the ESA and CITES. Sport hunting is meant to be a personal, noncommercial activity. Engaging in hunting that results in acquiring quantities of ivory that exceed what would reasonably be expected for personal use and enjoyment is inconsistent with sport hunting as a noncommercial activity. Given the current conservation concerns with escalating illegal trade in ivory and the associated levels of illegal killing to supply that trade, it is consistent with the purposes of the ESA and other provisions in this proposed rule regulating commercialization of ivory to more closely regulate activities that have resulted in the import of large quantities of raw ivory into the United States.
This provision is also consistent with Congress' intent under the AfECA. Congress included in the AfECA an exemption from the import moratorium for sport-hunted trophies legally taken in an elephant range country, but that was on the basis of finding that sport hunting does not directly or indirectly contribute to the illegal trade in African elephant ivory. The escalating illegal trade of ivory is currently driving unprecedented increases in the illegal killing of elephants. We therefore find it is necessary to use our authority under section 4(d) of the ESA to ensure that ivory imported into the United States as sport-hunted trophies is in fact the result of sport hunting and is not commercialized. Section 4241 of the AfECA (16 U.S.C. 4241) expressly states that the Service's authority under the AfECA is in addition to and does not affect the Service's legal authority under the ESA, which includes our legal authority under section 4(d). The AfECA therefore does not preclude us from using our authority under the ESA to limit the number of African elephant trophies imported by an individual hunter each year to appropriate levels. For certain species, the parties to CITES have set limits on the number of trophies that any one hunter may import in a calendar year, which currently for leopards is no more than two, for markhor is no more than one, and for black rhinoceros is no more than one. See 50 CFR 23.74(d). Taking into consideration these decisions by the parties to CITES, we similarly propose to set the limit at two African elephants per hunter per year.
We are also proposing to require issuance of a threatened species permit under 50 CFR 17.32 for import of all African elephant sport-hunted trophies. The current 4(d) rule provides conditions under which sport-hunted African elephant trophies may be imported into the United States, one of which is that the Service has made a determination that the killing of the trophy animal would enhance the survival of the species.
For elephant trophies taken from CITES Appendix-I populations, we issue a combined CITES/ESA import permit and the ESA finding is communicated through that permit. Under the current 4(d) rule, we do not issue an import permit for trophies from Appendix-II populations and the ESA finding is communicated through public notification, including in the
For the import of sport-hunted trophies from Appendix-II populations, revision of the 4(d) rule would mean that the enhancement finding required under the current 4(d) rule would be communicated through the threatened species permitting process under 50 CFR 17.32. This change in procedure would not result in any significant burden to U.S. hunters and would not affect whether future hunters would be able to obtain trophy import permits. The standards for making enhancement findings for each African elephant range country under the current 4(d) rule are the same as the standards for making findings for import permits for sport-hunted trophies of other species classified as threatened, where such findings are required. The standards for making enhancement findings under the current 4(d) rule are also the same as the standards that would be used in the future for making enhancement findings for African elephant trophy imports through the threatened species permit process. Permits have always been required for the import of African elephant trophies from any Appendix-I country, so it is only trophies from the four Appendix-II countries that would now also require import authorization through a threatened species permit. Hunters would benefit from the consistency of having all African elephant import authorizations provided through the permitting process (we expect it would reduce confusion regarding the process for obtaining import authorization, depending on the country) and benefit from a process that would allow them to submit relevant information through the permit application. Hunters seeking authorization to import a trophy from an Appendix-II population would also now be able to take advantage of the process for requesting reconsideration and appeal of a permit denial under 50 CFR 13.29. The Service would benefit from having a consistent process for authorizing ESA importation of African elephant sport-hunted trophies, as well as having the ability to obtain current information from hunters that is relevant to making the enhancement findings.
As provided in section 9(c)(2) (16 U.S.C. 1538(c)(2)) and our regulations at 50 CFR 17.8, the ESA provides a limited exemption for the import of some threatened species, which is frequently used by hunters to import sport-hunted trophies. Importation of threatened species that are also listed under CITES Appendix II are presumed not to be in violation of the ESA if the importation is not made in the course of a commercial activity, all CITES requirements have been met, and all general wildlife import requirements under 50 CFR part 14 have been met. This presumption can be rebutted, however, when information shows that
Our proposal to require issuance of threatened species enhancement permits under 50 CFR 17.32 for the import of any African elephant hunting trophy would change the procedure for issuing ESA authorization but not change the requirement that an enhancement finding be made prior to import into the United States. As described in the Need for Regulatory Actions section, the overall conservation status of African elephants has deteriorated in the years following the transfer of the four populations of African elephants to CITES Appendix II. Extensive and well-documented information indicates that the escalating rate of illegal killing of African elephants is driven by the illegal markets for elephant ivory. This information affirms the need to continue making enhancement findings prior to allowing the import of sport-hunted trophies that consist entirely or in part of the ivory tusks from the elephant. Authorizing importation of all sport-hunted trophies through threatened species enhancement permits would allow us to more carefully evaluate trophy imports in accordance with legal standards and the conservation needs of the species. For example, the issuance of threatened species enhancement permits under 50 CFR 17.32 would mean that the standards under 50 CFR part 13 would also be in effect, such as the requirement that an applicant submit complete and accurate information during the application process and the ability of the Service to deny permits in situations where the applicant has been assessed a civil or criminal penalty under certain circumstances, failed to disclose material information, or made false statements. Therefore, we have determined that the additional safeguard of requiring the issuance of threatened species enhancement permits under 50 CFR 17.32 prior to the import of sport-hunted trophies is warranted.
In addition, the 4(d) rule would incorporate certain restrictions under the AfECA on the import and export of sport-hunted trophies. We do not have separate AfECA regulations and consider that including restrictions in the 4(d) rule that have their source in the AfECA would provide hunters and other members of the public easy access to information on all requirements that apply to activities with African elephant sport-hunted trophies. All of these provisions are also appropriate conservation measures for the species under the ESA that ensure that hunting of African elephants by U.S. citizens is sustainable and legal under the laws of the range country and that any ivory associated with the trophy does not contribute to the illegal killing of elephants. Adopting these AfECA provisions as appropriate conservation measures for the species under section 4(d) of the ESA would also make a violation of relevant provisions of the AfECA a violation of the ESA, thus increasing protections for African elephants when a person violates the AfECA.
The AfECA provides for the import of sport-hunted African elephant trophies but only if the trophy was legally taken in an African elephant range country that has declared an ivory export quota to the CITES Secretariat. These requirements have been incorporated into the proposed 4(d) rule. Also, the AfECA provides an exemption from any moratorium for the import of African elephant sport-hunted trophies, but the exemption applies to import only, not export. The export of all raw ivory is prohibited under section 4223(2) of the AfECA (16 U.S.C. 4223(2)). We propose to incorporate into the 4(d) rule the AfECA prohibition on the export of raw ivory. Export of raw ivory would not be allowed even under an ESA threatened species permit because the AfECA prohibition would still stand; similarly, export of raw ivory that qualified as an antique under the ESA, while not regulated under the proposed 4(d) rule, would still be prohibited under the AfECA. We have also proposed minor revisions to the 4(d) rule to clarify that general wildlife import requirements under 50 CFR part 14 also apply to the import of sport-hunted trophies and to more closely align import requirements with the recommendations in CITES Resolution Conf. 10.10 (Rev. CoP16),
The revised 4(d) rule would also allow the noncommercial export of worked ivory that was imported as part of a sport-hunted trophy provided it meets one of the exceptions we have proposed for scientific or law enforcement purposes or as part of a musical instrument, traveling exhibition, or household move or inheritance. Worked ivory that had been imported as a sport-hunted trophy could also be exported if it qualifies as an ESA antique.
Under the current 4(d) rule, import of raw or worked ivory other than sport-hunted trophies is allowed only if it is a
Under the proposed revisions to the 4(d) rule, import of ivory other than sport-hunted trophies would be prohibited, with limited, narrow exceptions including: the import of raw ivory by a government agency for law enforcement purposes or for a genuine scientific purpose that will contribute to the conservation of the African elephant; and the import of worked ivory under these same exceptions for law enforcement or scientific purposes that will contribute to the conservation of the species, or as part of a musical instrument, an item in a traveling exhibition, or as part of a household move or inheritance. The export of raw ivory would be prohibited under the proposed revisions to the 4(d) rule and the export of worked ivory would be limited to those items that qualify for the exceptions described above. Section 4(d) of the ESA does not apply to items that qualify as antiques and therefore these proposed prohibitions on import and export of ivory do not apply to ESA antiques. However, as noted previously, the prohibitions on import and export of ivory under the AfECA would still apply, regardless of the age of the item. The proposed revisions are consistent with the 1989 AfECA moratorium, and are generally consistent with the Service's Director's Order No. 210, as amended on May 15, 2014. We have determined that these provisions are appropriate under the ESA for the conservation of the African elephant.
Restrictions on import and export are appropriate under both the AfECA and the ESA because strict regulation of the import and export of ivory are necessary to prevent U.S. citizens and others
On June 9, 1989, the Service established the current moratorium on the importation of both raw and worked ivory (other than that from sport-hunted trophies) after finding that most ivory was traded outside of the CITES Ivory Trade Control System that existed at that time and that illegal and excessive taking of elephants was taking place at unsustainable levels (54 FR 24758). African elephant range countries were unable to effectively control taking of elephants and intermediary countries could not ensure that all ivory in trade originated from legal sources. Specifically, the Service found that most ivory range countries had such low elephant populations that the countries had determined that no sustainable harvest was possible and had requested no ivory export quota for that year; that there was likely no sustainable harvest of elephants throughout most of Africa, even for those countries that had export quotas, due to declining populations; and that most African elephant range countries had significant poaching problems. For intermediary countries, the Service determined that all major intermediary countries that were parties to CITES at that time had engaged in import of raw ivory from other intermediary countries (alone a criterion for establishment of a moratorium under the AfECA) and that due to the virtual impossibility of distinguishing legal from illegal ivory, it was no longer possible for any intermediary country to ensure that it was not importing ivory from a range country in violation of the laws of that country.
In recent years, many of the conditions that supported imposing the moratorium have continued or even worsened. In particular, recent information shows that for elephant range countries, the taking of elephants is not effectively controlled and the amounts of raw ivory that are being illegally exported from these countries are undermining the conservation of elephants. For intermediary countries, recent information on the scope and extent of illegal ivory trade shows that these countries are importing (through illegal trade) raw or worked ivory that originates in range countries in violation of the laws of the range countries. However, some actions in the United States, in other countries, and through CITES, have been taken to strengthen controls on poaching and illegal trade. In January 1990, all populations of African elephants were transferred from CITES Appendix II to Appendix I, which generally ended legal commercial trade in African elephant ivory. In 1997, based on proposals submitted by Botswana, Namibia, and Zimbabwe and the report of a Panel of Experts, the CITES Parties agreed to transfer the African elephant populations in these three countries to CITES Appendix II. The Appendix-II listing included an annotation that allowed noncommercial export of hunting trophies, export of live animals to appropriate and acceptable destinations, export of hides from Zimbabwe, and noncommercial export of leather goods and some ivory carvings from Zimbabwe. It also allowed for a one-time export of raw ivory to Japan (which took place in 1999), once certain conditions had been met. All other African elephant specimens from these three countries were deemed to be specimens of a species listed in Appendix I and regulated accordingly.
The population of South Africa was transferred from CITES Appendix I to Appendix II in 2000, with an annotation that allowed trade in hunting trophies for noncommercial purposes, trade in live animals for reintroduction purposes, and trade in hides and leather goods. Since then, the CITES Parties have revised the Appendix-II listing annotation three times. The current annotation, in place since 2007, covers the Appendix-II populations of Botswana, Namibia, South Africa, and Zimbabwe and allows export of: Sport-hunted trophies for noncommercial purposes; live animals to appropriate and acceptable destinations; hides; hair; certain ivory carvings from Namibia and Zimbabwe for noncommercial purposes; and a one-time export of specific quantities of raw ivory, once certain conditions had been met (this export, to China and Japan, took place in 2009). As in previous versions of the annotation, all other African elephant specimens from these four populations are deemed to be specimens of species included in Appendix I and the trade in them is regulated accordingly.
Most recently, the Service determined in April 2014 that import of sport-hunted trophies from Tanzania and Zimbabwe could not be allowed until new information is received, because the killing of African elephants for trophies does not meet the enhancement standard under the current 4(d) rule. The Service understands that Botswana has closed its sport-hunting program on government land for 2014 (although hunting on private concessions continues) and is not currently allowing exports. South Africa and Namibia continue to have well-managed elephant conservation programs; the Service's findings remain in place that the killing of trophy animals from these countries for import into the United States enhances the survival of the species.
All of this information, along with the recent levels of illegal killing and illegal trade as described in the section Need for Regulatory Actions, indicates that the circumstances facing African elephants and involving ivory in both range countries and intermediary countries support adoption of these restrictions for the species under the ESA. The threats facing the species call for all appropriate actions to restrict the import of African elephant ivory where that import is likely to contribute to commercializing elephant ivory. We believe that it is appropriate to allow certain limited exceptions to these import restrictions under the 4(d) rule, however, where import either would be beneficial to law enforcement or the conservation of the species, or where import of certain worked ivory meets strict criteria and is regulated in such a manner that it does not contribute to the illegal trade in ivory and poses no risk to elephant populations.
We propose to allow the import of raw or worked ivory into the United States or the export of worked ivory from the United States when it would be directly beneficial for law enforcement efforts. Under this exception, raw or worked ivory could be imported into the United States and worked ivory could be exported from the United States only by an employee or agent of a Federal, State, or tribal government agency for law enforcement purposes. Specimens from protected species are frequently used as evidence to prosecute violations of law in the United States, and this may require the import of ivory from other countries. Likewise, there may be situations where worked ivory would
We also propose to allow the import or export of ivory when it would contribute to the conservation of African elephants. Under this exception, either raw or worked African elephant ivory could be imported into the United States and worked ivory could be exported from the United States for genuine scientific purposes that would benefit elephant conservation. For example, researchers in the United States have developed techniques to determine the origin of ivory, and the import of ivory samples is essential to this work. In such instances, prohibition of import would hinder science that could assist in protecting the species from poaching or illegal trade in ivory, or could result in valuable information that addresses other threats to the species. Similarly, the export of worked African elephant ivory could assist both U.S. scientists that are located outside the United States and scientists from other countries in their work to conserve the species. We believe that allowing under the 4(d) rule import and export of ivory in these circumstances is necessary and appropriate for the conservation of the African elephant; it is also consistent with the AfECA's purpose to “perpetuate healthy populations of African elephants.” Any ivory imported or exported under this exception would be strictly for genuine scientific purposes, and could not subsequently be sold or offered for sale in interstate or foreign commerce or delivered, received, carried, transported, or shipped in interstate or foreign commerce in the course of a commercial activity, even if it qualified under the
We are also proposing to allow the noncommercial import or export of carefully regulated items containing worked elephant ivory that are appropriate exceptions to the import moratorium and appropriate provisions under the 4(d) rule. None of these exceptions allows the import or export of raw ivory. The exceptions are for qualifying musical instruments, items in certain travelling exhibitions, and qualifying items that are part of an inheritance or household move.
Under all three of these exceptions, the importer or exporter would need to show that the African elephant ivory in the item was legally acquired and removed from the wild prior to February 26, 1976 (the date the African elephant was first listed under CITES). This does not necessarily mean that the current owner of an item containing ivory, a musical instrument, for example, acquired the instrument or the ivory in the instrument prior to February 1976. It means that there is sufficient information to show that the ivory was harvested (taken from the wild) prior to February 26, 1976, even though the instrument may not have been manufactured until after that date. It also means that there is sufficient information to show that the ivory was harvested in compliance with all applicable laws of the range country and that any subsequent import and export of the ivory and the instrument containing the ivory was legal under CITES and other applicable laws (understanding that the instrument may have changed hands many times before being acquired by the current owner).
These requirements would ensure that any item imported or exported under one of these three exceptions originated from elephants that were legally taken prior to the date that African elephants were first protected under CITES, the ESA, and the AfECA and therefore before contemporary laws and programs were developed to address current threats to the species. The ivory would have originated from elephants taken prior to development of the conservation programs of African countries and the CITES Secretariat referenced in section 4203 of the AfECA that the AfECA was enacted to support. This would also mean that any ivory imported or exported under the exceptions originated before U.S. citizens and other individuals subject to the jurisdiction of the United States were first regulated under these laws. The showing that the ivory was legally acquired would ensure that the ivory contained in the item was not previously part of the global market in illegal ivory. Thus these requirements would minimize the chances that the worked ivory in items imported or exported under these three exceptions contributed to the killing of elephants that the AfECA and listing under the ESA and CITES were designed to address or that the owner or others who may have owned the ivory played a role in the taking of the elephant in contravention of U.S. laws to protect the species.
Under all three of these exceptions, the importer or exporter would have to obtain the appropriate CITES document showing that the import or export is in full compliance with CITES requirements. The requirement to obtain appropriate CITES documents would ensure that each item imported or exported under one of these three exceptions qualifies under CITES' strict standards and that all such import and export will be monitored and reported to the CITES Secretariat in each Party's annual report. Any musical instrument or item in a traveling exhibition would also have to be securely marked or uniquely identified so that authorities at U.S. and foreign ports can verify that the item presented for import or export is actually the specimen for which the CITES document was issued. While items imported or exported under a CITES pre-Convention certificate (as part of a household move or inheritance) do not specifically need to be marked or identified, port authorities would verify that the description and quantity of any items presented for import or export match what is
A CITES musical instrument certificate or equivalent CITES document would be issued for the import and export of personally owned instruments containing African elephant ivory to facilitate the frequent, noncommercial, cross-border movement of instruments that are being used for noncommercial purposes. Noncommercial purposes could include personal use, performance, display, or competition where the musician is financially compensated for his or her participation, but does not include financial gain through activities such as sale or lease of the instrument itself. Under the terms for obtaining a CITES musical instrument certificate (contained in CITES Resolution Conf. 16.8,
A CITES traveling exhibition certificate would be issued for the import and export of items consisting of or containing African elephant ivory to facilitate the frequent cross-border movement of items that are part of an orchestra, museum, or similar exhibition registered in the country in which the traveling exhibition is based. Under the terms for obtaining the CITES certificate (contained in CITES Resolution 12.3 (Rev. CoP16),
Items imported or exported as part of an inheritance or a household move under the final exception would need to be for personal use only and accompanied by a valid CITES pre-Convention certificate. To qualify for a pre-Convention certificate, the importer or exporter of an item containing African elephant ivory would need to present sufficient information to show that the ivory was removed from the wild prior to February 26, 1976. There must also be sufficient information to show that the ivory was harvested in compliance with all applicable laws of the range country and that any subsequent import and export of the ivory and the instrument containing the ivory was legal under CITES and other applicable laws. For any item imported or exported as an inheritance, the importer or exporter would also need to show that the item was received through an inheritance. For any item imported or exported as part of a household move, the importer or exporter would need to show that they own the item, that it was legally acquired, and that they are moving it for personal use. Any such items would need to be imported or exported within 1 year of changing residence from one country to another and the shipment would need to contain only ivory items purchased, inherited, or otherwise acquired prior to the change in residence. Finally, the type and quantity of ivory items imported or exported under this exception would need to be appropriate for a household move. Because any ivory imported or exported under this exception would be solely for personal use, any such ivory could not subsequently be sold or offered for sale in interstate or foreign commerce or delivered, received, carried, transported, or shipped in interstate or foreign commerce in the course of a commercial activity, even if
All of these requirements would help to ensure that any imports or exports under these proposed exceptions did not contribute to past poaching and smuggling, did not contribute to the recent increase in illegal killing of elephants and illegal trade of ivory, and would be in compliance with AfECA requirements. In addition, the requirements that items under most of the exceptions must be imported or exported for personal or noncommercial use only, the limits on sale or other disposal of musical instruments and exhibition items while the item is traveling under the CITES certificate, the requirement that inherited items must be documented as acquired through an inheritance and not purchase, the requirement that household move items are limited to the number and type that would reasonably be expected for a person's move of their household, the requirement that household move items must be imported or exported within 1 year of a documented change of residence, and the prohibition on commercialization of inherited or household move items even if they qualify under the
Because of the strict requirements that must be met to be eligible for import or export of any item under these three exceptions, we are proposing that no additional threatened species permit would be required under 50 CFR 17.32. The requirements to obtain the relevant CITES document, the findings that must be made before the CITES document can be issued, and the requirement to present the item along with all required CITES and general wildlife import/export documents to Federal officials upon import or export would ensure that each import or export is legal and adequately monitored. Presentation of the items and documents upon import or export would also provide Federal officials the opportunity to make sure that all other requirements have been met. Requiring individuals to obtain an ESA threatened species permit in addition to the required CITES documents prior to import or export of items under these limited exceptions would be an unnecessary overlay of documents on top of existing CITES documentation that ensures that such import or export is not contributing to the illegal killing of elephants.
All of these exceptions are identical or similar to the exceptions to the AfECA import moratorium that were provided as a matter of law enforcement discretion through Director's Order No. 210, as amended on May 15, 2014. The only substantive change is that the Director's Order contained an additional standard that any musical instrument, item in a traveling exhibition, item in a household move, or inherited item containing ivory could not be imported if it had been transferred from one person to another person for financial gain or profit since February 25, 2014 (the date of the original Director's Order). We have determined that this restriction is not needed because with this proposed rule it would be a violation of the ESA for any person to sell or offer for sale ivory or sport-hunted trophies in interstate or foreign commerce or to deliver, receive, carry, transport, or ship ivory or sport-hunted trophies in interstate or foreign commerce in the course of a commercial activity except for certain manufactured items that would qualify under the
Under the current 4(d) rule, worked ivory may be exported in accordance with the requirements in 50 CFR parts 13 and 23, and raw ivory may not be exported from the United States for commercial purposes under any circumstances. Under the AfECA, the export of all raw ivory is prohibited. We propose to revise the 4(d) rule to prohibit export of raw ivory, consistent with the AfECA prohibition, with the exception of antiques. For the same reasons discussed above, we also propose to prohibit export of worked ivory, other than antiques, except in the same limited circumstances and for the same limited purposes allowed for import: By a government agency for law enforcement purposes, for a genuine scientific purpose that will contribute to the conservation of the African elephant, as part of a qualifying musical instrument, as a qualifying item in a traveling exhibition, or as a qualifying item that is part of a household move or inheritance.
In developing this proposed rule, we have given very careful consideration to the types of circumstances and purposes for which we could allow exceptions to the prohibitions on import and export of African elephant ivory. However, we seek information and comment regarding the need for and advisability of finalizing a rule that includes a broader exception to those prohibitions for the noncommercial import or export of worked ivory in circumstances that are not covered by the exceptions for musical instrument, traveling exhibitions, household moves or inheritances, or genuine scientific purposes. In particular, we seek information from individuals who may wish to engage in noncommercial import or export of worked African elephant ivory that would be prohibited by this proposed rule. We are also interested in the potential impacts of these prohibitions on segments of the trade not covered by these exceptions.
Information regarding the illegal killing of elephants and the alarming growth in illegal trade in elephant ivory shows that all appropriate actions are needed to restrict the export of raw and worked African elephant ivory where that export is likely to contribute to commercializing elephant ivory. It is appropriate, however, to allow certain limited exceptions to the export prohibition where export either would be beneficial to law enforcement or the conservation of the species, or where export of certain articles of worked ivory meet strict criteria and are regulated in such a manner that their export would not contribute to the illegal trade in ivory and pose no risk to elephant populations. Export of worked African elephant ivory would also be available by threatened species permit under 50 CFR 17.32, provided the person met all of the requirements of that section as well as the general permitting requirements under 50 CFR part 13.
As noted previously, Section 4(d) of the ESA does not apply to items that qualify as antiques. While the prohibitions on import and export of ivory proposed here thus do not apply to ESA antiques, the prohibitions on import and export of ivory under AfECA would still apply, regardless of the age of the item. In addition, certain worked ivory items that qualify under the ESA section 9(b)(1) “pre-Act” exemption (see below) could also be exported (see below). No ESA permit would be required for any worked ivory that qualified under any of these provisions, but it would still need to be accompanied by any required CITES document and meet all requirements under the Service's general wildlife import/export regulations.
The ESA provides an exemption in section 9(b)(1) from any prohibitions contained in a 4(d) rule for specimens of threatened species “held in captivity or in a controlled environment” on the date the ESA entered into effect
Persons wishing to engage in activities that otherwise would be prohibited under this 4(d) rule would have the burden of showing that their activities qualify for this “pre-Act” exemption. The statutory exemption would not change with revision of the 4(d) rule, but it is also important to remember that nothing in the ESA provides that an exemption under that law modifies or supersedes provisions in other applicable statutes such as the AfECA. (See
The pre-Act exemption would apply to the following examples if the activity met all requirements of the ESA: The prohibition against take for qualifying live elephants that were held in captivity on May 12, 1978; the prohibition on the export of worked ivory that was held in a controlled environment on May 12, 1978; and the requirement to get a threatened species permit for the export of worked ivory to be used for genuine scientific purposes for ivory that was held in a controlled environment on May 12, 1978, provided that in each case the holding and any subsequent holding or use of the live animal or specimen since 1978 did not include transfer from one person to another person in the pursuit of gain or profit.
In addition, if the holding as of May 12, 1978, or any subsequent holding or use included a transfer from one person to another person in the pursuit of gain or profit, the exemption would still be available if the activities qualified as exhibition of commodities by a museum or similar cultural or historical organization. All import and export requirements under CITES and the general wildlife import/export regulations at 50 CFR part 14 would still need to be met. Section 9(b)(1) of the ESA provides an exemption from ESA threatened-species prohibitions only, not from requirements that arise under CITES and the general import/export requirements under the ESA.
Section 10(h) of the ESA provides an exemption for antique articles that are: (a) Not less than 100 years of age; (b) composed in whole or in part of any endangered species or threatened species; (c) have not been repaired or modified with any part of any such species on or after the date of the enactment of the ESA; and (d) are entered at a port designated for ESA antiques. Any person who is conducting activities with a qualifying ESA antique is exempt from, among other things, any restrictions provided in a 4(d) rule for that species, including restrictions on import; export; sale or offer for sale in interstate or foreign commerce; and delivery, receipt, carrying, transport, or shipment in interstate or foreign commerce and in the course of a commercial activity. The taking prohibition would not apply to dead specimens such as antiques. Anyone wishing to engage in activities under this antiques exception must be able to demonstrate that the item meets the requirements of the ESA.
Items that qualify as antiques under the ESA are not subject to the prohibitions in the proposed 4(d) rule. The ESA antiques exemption does not apply, however, to prohibitions imposed under the AfECA on the import of raw and worked African elephant ivory into the United States and the export of raw ivory from the United States. As with the ESA section 9(b)(1) “pre-Act” exemption, nothing in the ESA provides that an exemption under that law modifies or supersedes provisions in other applicable statutes such as the AfECA. The provisions in the AfECA regarding the import and certain export of African elephant ivory were specifically enacted to address conservation concerns with African elephants and were enacted later in time than the earlier, more general ESA exemption applicable to all endangered and threatened species, so the later, more specific restrictions on import and export in the AfECA take precedence over the earlier, more general exemption in the ESA. As noted previously, section 4241 of the AfECA (16 U.S.C. 4241) specifies that the authority of the Service under the AfECA is in addition to and does not affect the authority of the Service under the ESA.
A qualifying ESA antique containing African elephant ivory could thus only be imported if it also qualified for one of the exceptions from enforcement of the AfECA moratorium created by Director's Order No. 210: antique raw or worked ivory for law enforcement purposes, antique raw or worked ivory for scientific purposes, antique worked ivory that is part of a musical instrument, antique worked ivory in a traveling exhibition, antique worked ivory that is part of a household move, or antique worked ivory that was inherited. As noted previously, we believe these exceptions are consistent with Congressional intent in enacting the AfECA, which focused on the harm caused by poaching to supply the illegal trade in ivory. An antique sport-hunted trophy could not qualify for import because it would not be able to meet the requirements under the AfECA that it was taken from an elephant range country with an elephant quota declared to the CITES Secretariat (which did not exist 100 years ago). Because the prohibition on the export of all raw ivory is under the AfECA, the ESA antique exemption also could not be used to export antique raw ivory.
For qualifying ESA antiques containing African elephant ivory that could be imported as described above and antiques containing African elephant ivory that meet all of the requirements under section 10(h) of the ESA and were imported before the AfECA import moratorium was put in place in 1989, whether those antiques could be commercialized in interstate or foreign commerce would depend on whether restrictions are based on the ESA or CITES. Any restrictions that are based on CITES or laws other than the ESA would remain in place.
As discussed earlier, one of the requirements to qualify for the ESA antiques exemption is that the antique must have been imported into the United States through a port designated for the import of ESA antiques. These ports were first designated on September 22, 1982. Therefore, under the terms of the ESA, no item that contains parts of any endangered or threatened species (including African elephant ivory) can qualify under the ESA antiques exemption unless it was imported into the United States through one of the designated ESA antiques ports on some date after September 22, 1982.
On February 25, 2014 (as amended on May 15, 2014), the Service issued Director's Order No. 210, which, among other things, provides direction to Service employees on implementation and enforcement of the ESA antiques exemption. Appendix A to Director's Order No. 210 reiterates the four statutory requirements for an item to qualify as an ESA antique and states that, as a matter of law enforcement discretion, the prohibitions under the ESA would not be enforced for antiques that meet the requirements of being at least 100 years old; being composed of an endangered or threatened species; and not having been repaired or modified with any part of an endangered or threatened species since December 28, 1973, but were imported prior to September 22, 1982, or were created in the United States and never imported and therefore do not meet the requirement of having been imported at a designated ESA antiques port. This Director's Order remains in place. The Service will apply its law enforcement discretion regarding otherwise qualifying antiques that were imported prior to September 22, 1982, or were produced in the United States and never imported, allowing them to be exported, sold or offered for sale in interstate or foreign commerce, and delivered, received, carried, transported, or shipped in interstate or foreign commerce in the course of a commercial activity, provided all other legal requirements are met. Appendix A of the Director's Order also contains guidance on documentation needed and other information for conducting activities with ESA antiques. Director's Order No. 210, as amended on May 15, 2014, including Appendix A can be found at
As described in Director's Order No. 210, the person claiming the benefit of the ESA antiques exemption must provide evidence to demonstrate that the item qualifies as an ESA antique. This evidence may include a qualified appraisal, documents that provide detailed provenance, and/or scientific testing. Since issuance of the Director's Order, we have heard from some people who are concerned about what the Service might require in terms of documentation or authentication of their antique items. We want to be clear that establishing provenance does not necessarily require destructive testing; there may be other ways to establish provenance, such as a qualified appraisal or another method that documents the age by establishing the origin of the item. We have listed scientific testing (in the Appendix to Director's Order No. 210) as an option for people who may want to make use of it in certain circumstance for certain items. However, this is only one option, in a suite of possible options. The provenance may be determined through a detailed history of the item, including but not limited to family photos, ethnographic fieldwork, or other information that authenticates the item and assigns the work to a known period of time or, where possible, to a known artist. Scientific testing could be necessary if there is no other way to establish the provenance of an item.
In addition, we want to be clear that we do not require scientific testing of the ivory components in a manufactured antique item. Where a person can demonstrate that an item, for example a table with ivory inlays, is older than 100 years, and that the table has not been repaired or modified with ivory (or any other threatened or endangered species) since December 28, 1973, the Service considers the age criteria in Section 10(h) to be met. We would not require testing of the ivory itself to determine its age. Of course, to qualify for the ESA antiques exemption a person must demonstrate that all four of the criteria in Section 10(h) of the ESA have been met.
We also want to clarify that these documentation requirements are not new. The ESA itself places the burden of proof on the person claiming the benefit of the exemption (Sec. 10(g)) and the Service has required documentation for antique items since the 1970s. This documentation requirement is also not unique to African elephant ivory; it applies to specimens of any species listed under the ESA when a person is claiming the benefit of this exemption from prohibitions. Over the years, the Service has provided information regarding acceptable documentation for establishing age and provenance; most recently, in the Appendix to Director's Order No. 210. Our CITES regulations at 50 CFR 23.34 also provide information on the kinds of records a person can use to show the origin of a specimen. We seek comment from the public on whether additional guidance is needed in the regulatory code regarding implementation of the ESA antiques exemption.
Section 4(d) of the ESA states that the “Secretary shall issue such regulations as [s]he deems necessary and advisable to provide for the conservation” of species listed as threatened. Additionally, section 4(d) of the ESA provides that the Secretary “may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1).” Thus regulations promulgated under section 4(d) of the ESA provide the Secretary, as delegated to the Service, discretion to select appropriate provisions for threatened species, including prohibitions, exceptions, and required authorizations. Some of the ESA prohibitions and exceptions from section 9(a)(1) of the ESA and from 50 CFR 17.31 and 17.32 may be appropriate for the species and be incorporated into a 4(d) rule. However, the 4(d) rule may also include other provisions that take into account other applicable laws and are tailored to the specific conservation needs of the listed species, and therefore may be more or less restrictive than the general provisions for threatened species. As noted by Congress when the ESA was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to [her] with regard to the permitted activities for those species. [She] may, for example, permit taking, but not importation of such species, or [she] may choose to forbid both taking and importation but allow the transportation of such species,” as long as the measures will “serve to conserve, protect, or restore the species concerned in accordance with the purposes of the [ESA]” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
This proposed rule includes appropriate provisions that are necessary and advisable to provide for the conservation of the African elephant, while also including appropriate prohibitions from Section 9(a)(1) of the ESA. The primary threat to the African elephant is poaching of elephants for their tusks and the associated illegal trade in both raw and worked ivory. To restrict this illegal trade, the proposed provisions under this rule prohibit the import of African elephant ivory, with certain narrow exceptions, restrict the import of sport-hunted trophies, and prohibit the export of raw ivory. The rule provides two exceptions from the prohibition on import of ivory that would directly benefit law enforcement efforts that involve African elephants and science that would contribute to the conservation of the species. The rule provides three additional exceptions, which apply to the noncommercial import or export of worked ivory only, for qualifying musical instruments, items in a traveling exhibition, inherited items, and items that are part of a household move. Any worked ivory imported or exported under these
For the same reasons that the import and export of raw and worked ivory need to be carefully regulated, the import and export of African elephant sport-hunted trophies must be regulated in a manner that would ensure that the import and export does not contribute to the illegal trade of ivory. The proposed rule would require that the import of all sport-hunted trophies, regardless of the CITES status of the source population, be authorized through the issuance of a threatened species permit under 50 CFR 17.32. Authorizing importation through threatened species enhancement permits would allow us to more carefully evaluate trophy imports in accordance with legal requirements and the conservation needs of the species. The limitation of two trophies per hunter per year would ensure that the importation of African elephant trophies is actually the result of personal, noncommercial sport hunting and would prevent the importation of commercial quantities of ivory.
Perhaps the biggest change from the current 4(d) rule would be new restrictions on the commercialization of ivory in interstate and foreign commerce. The proposed rule would prohibit the sale or offer for sale of ivory and sport-hunted trophies in interstate or foreign commerce and the delivery, receipt, carrying, transport, or shipment of ivory and sport-hunted trophies in interstate or foreign commerce in the course of a commercial activity. Exceptions would be available for qualifying antiques and for certain items manufactured before the date of the final rule for this rulemaking that contain less than 200 grams of ivory and meet other conditions, while certain commercial activities could also be authorized through a threatened species permit under 50 CFR 17.32. However, the
The proposed rule, however, would continue to allow certain activities that pose no risk to African elephants. Live elephants and elephant parts or products other than ivory and sport-hunted trophies could continue to be imported into or exported from the United States, sold or offered for sale in interstate or foreign commerce, and delivered, received, carried, transported, or shipped in interstate or foreign commerce in the course of a commercial activity, provided all other requirements under CITES and the Service's general import/export regulations were met. CITES requirements, including findings that must be made before documents can be issued, would continue to ensure that all import and export of live animals and parts or products other than ivory and sport-hunted trophies remain legal and non-detrimental to the survival of the species. There is no information that indicates that import, export, or commercialization of live elephants or non-ivory parts and products as currently regulated under CITES has any negative effect on African elephants or is contributing in any way to the current crisis involving the killing of elephants for their ivory. The new restriction on the taking of live elephants held in captivity within the United States or during transport would help to ensure that animals in captivity receive an appropriate standard of care.
In addition to this proposed rule being necessary and advisable to provide for the conservation of the species and including appropriate prohibitions from section 9(a)(1) of the ESA, it also is consistent with other efforts to improve elephant conservation. With this rule, the United States would ensure that we have in place comprehensive internal regulatory and enforcement measures to regulate domestic trade in raw and worked ivory, as called for at the 16th meeting of the Conference of the Parties to CITES in March 2013 (see Resolution Conf. 10.10 (Rev. CoP16)). More broadly, the proposed rule would respond to the President's Executive Order of July 1, 2013, calling for all Federal agencies to take action to combat wildlife trafficking in all wildlife and to reduce demand for illegally traded wildlife, both at home and abroad. All of the proposed revisions to the African elephant 4(d) rule would allow us to better regulate the U.S. domestic market and U.S. participation in the global market for African elephant ivory, which we believe will lead to a reduction of the illegal killing of elephants for their ivory.
A brief assessment to identify the economic costs and benefits associated with this proposed rule follows. The Service has prepared an economic analysis, as part of our review under the National Environmental Policy Act (NEPA), which we will make available for review and comment (see the paragraph in this Required Determinations section on the
This rule would regulate only African elephants and African elephant ivory. Asian elephants and parts or products from Asian elephants, including ivory, are regulated separately under the ESA. Ivory from other species such as walrus is also regulated separately under the Marine Mammal Protection Act (16 U.S.C. 1361
Impacted markets include those involving U.S. citizens or other persons subject to the jurisdiction of the United States that buy, sell, or otherwise commercialize African elephant ivory products across State lines and those that buy, sell, or otherwise commercialize such specimens in international trade. Examples of products in trade containing African elephant ivory include cue sticks, pool balls, knife handles, gun grips, furniture inlay, jewelry, artwork, and musical instrument parts.
The market for African elephant products, including ivory, is not large enough to have major data collections or reporting requirements, which results in a limited amount of available data for economic analysis. Some import and export data are available from the Service's Office of Law Enforcement and Division of Management Authority, and from reports produced by other organizations. On the whole, the available data provide a general overview of the African elephant ivory market. Using this information, we can make reasonable assumptions to approximate the potential economic impact of revision of the 4(d) rule for the African elephant. With this proposed rule, we solicit public input on impacts to sales, percentage of revenue impacted, and the number of businesses affected, particularly with regard to interstate and foreign commerce, for which we have the least amount of information, to help quantify these costs and benefits. Please see the Public Comments section at the end of
From 2007 to 2011, the total declared value of worked African elephant ivory exported from the United States varied widely from $32.1 million to $175.7 million. The declared value of items containing African elephant ivory that were less than 100 years old (and, therefore, could not qualify as ESA antiques) ranged from $607,000 to $3.7 million annually during the same time period. As this rule would no longer permit the commercial export of non-antique ivory, we expect based on the information currently available that, on average, commercial export of worked ivory would decrease by about 2 percent annually.
Revising the 4(d) rule for African elephant, as proposed here, would improve domestic regulation of the U.S. market as well as foreign markets where commercial activities involving elephant ivory are conducted by U.S. citizens and facilitate enforcement efforts within the United States. We are proposing to take this action to increase protection for African elephants in response to the alarming rise in poaching of African elephants, which is fueling the rapidly expanding illegal trade in ivory. As noted in the preamble to this proposed rule, the United States continues to play a role as a destination and transit country for illegally traded elephant ivory. Increased control of the U.S. domestic market and foreign markets where commercial activities involving elephant ivory are conducted by U.S. citizens would benefit the conservation of the African elephant.
The U.S. Small Business Administration (SBA) defines a small business as one with annual revenue or employment that meets or is below an established size standard. To assess the effects of the rule on small entities, we focus on businesses that buy or sell elephant ivory. Businesses produce a variety of products from elephant ivory including cue sticks, pool balls, knife handles, gun grips, furniture inlay, jewelry, and instrument parts. Depending on the type of product produced, these businesses could be included in a number of different industries, including (1) Musical Instrument Manufacturing (North American Industry Classification System (NAICS) 339992), where small businesses have less than $10.0 million revenue; (2) Sporting and Recreational Goods and Supplies Merchant Wholesalers (NAICS 423910), where small businesses have fewer than 100 employees; (3) All Other Miscellaneous Wood Product Manufacturing (NAICS 321999), where small businesses have fewer than 500 employees; (4) Metal Kitchen Cookware, Utensil, Cutlery, and Flatware (except Precious) Manufacturing (NAICS 332215), where small businesses have fewer than 500 employees; (5) Jewelry and Silverware Manufacturing, (NAICS 339910), where small businesses have fewer than 500 employees; (6) Used Merchandise Stores (NAICS 453310), where small businesses have less than $7.5 million in revenue; and (7) Art Dealers (NAICS 453920), where small businesses have less than $7.5 million in revenue. Table 2 describes the number of businesses within each industry and the estimated percentage of small businesses. The U.S. Economic Census does not capture the detail necessary to determine the number of small businesses that are engaged in commerce with African elephant ivory products within these industries. Based on the distribution of small businesses with these industries as shown in Table 2, we expect that the majority of the entities involved with trade in African elephant ivory would be considered small as defined by the SBA.
The impact on individual businesses is dependent on the percentage of interstate and export sales that involve non-antique African elephant ivory that would not fall under the
Based on the available information, we do not expect these changes to have a substantial impact on small entities within the five affected industries listed above. We, therefore, certify that this proposed rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule would create no substantial fee or paperwork changes in the permitting process. The regulatory changes would require issuance of ESA permits for import of sport-hunted African elephant trophies. We estimate that we would issue 300 ESA permits per year for these sport-hunted trophies, with a fee of $100 per permit. These changes are not major in scope and would create only a modest financial or paperwork burden on the affected members of the general public. The authority to regulate activities involving ESA-listed species already exists under the ESA and is carried out through regulations contained in 50 CFR part 17.
a. Would not have an annual effect on the economy of $100 million or more. This proposed rule revises the 4(d) rule for African elephant, which makes the African elephant subject to the same of the provisions applied to other threatened species not covered by a 4(d)
b. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, tribal, or local government agencies; or geographic regions.
c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
a. This proposed rule would not significantly or uniquely affect small governments. A Small Government Agency Plan is not required. The proposed rule imposes no unfunded mandates. Therefore, this proposed rule would have no effect on small governments' responsibilities.
b. This proposed rule would not produce a Federal requirement of $100 million or greater in any year and is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, please send us comments by one of the methods listed under
We are seeking comments on the impact of the provisions in this proposed rule on the affected public. You may submit your comments and materials concerning this proposed rule by one of the methods listed under
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
A list of references cited is available online at
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
For the reasons given in the preamble, we propose to amend title 50, chapter I,
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(e) African elephant (
(1)
(2)
(3)
(i) If the item is located within the United States, the ivory was imported into the United States prior to January 18, 1990, or was imported into the United States under a Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-Convention certificate with no limitation on its commercial use;
(ii) If the item is located outside the United States, the ivory was removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed component or components of a larger manufactured item and is not in its current form the primary source of the value of the item;
(iv) The ivory is not raw;
(v) The manufactured item is not made wholly or primarily of ivory;
(vi) The total weight of the ivory component or components is less than 200 grams; and
(vii) The item was manufactured before [
(4)
(5)
(i)
(A) The ivory was legally acquired prior to February 26, 1976;
(B) The instrument containing worked ivory is accompanied by a valid CITES musical instrument certificate or equivalent CITES document;
(C) The instrument is securely marked or uniquely identified so that authorities can verify that the certificate corresponds to the musical instrument in question; and
(D) The instrument is not sold, traded, or otherwise disposed of while outside the certificate holder's country of usual residence.
(ii)
(A) The ivory was legally acquired prior to February 26, 1976;
(B) The item containing worked ivory is accompanied by a valid CITES traveling exhibition certificate (See the requirements for traveling exhibition certificates at 50 CFR 23.49);
(C) The item containing ivory is securely marked or uniquely identified so that authorities can verify that the certificate corresponds to the item in question; and
(D) The item containing worked ivory is not sold, traded, or otherwise disposed of while outside the certificate holder's country of usual residence.
(iii)
(6)
(A) The trophy was legally taken in an African elephant range country that declared an ivory export quota to the CITES Secretariat for the year in which the trophy animal was killed;
(B) A determination is made that the killing of the trophy animal will enhance the survival of the species and the trophy is accompanied by a threatened species permit issued under § 17.32;
(C) The trophy is legibly marked in accordance with 50 CFR part 23;
(D) The requirements in 50 CFR parts 13, 14, and 23 have been met; and
(E) No more than two African elephant sport-hunted trophies are
(ii) It is unlawful to sell or offer for sale in interstate or foreign commerce or to deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any sport-hunted African elephant trophy. The exception in paragraph (e)(3) of this section regarding manufactured items containing
(iii) Except as provided in paragraph (e)(9) of this section, raw ivory that was imported as part of a sport-hunted trophy may not be exported from the United States. Except as provided in paragraphs (e)(5), (7), (8), and (9) of this section, worked ivory imported as a sport-hunted trophy may not be exported from the United States. Parts of a sport-hunted trophy other than ivory may be exported from the United States without a threatened species permit issued under § 17.32 of this part, provided the requirements of 50 CFR parts 13, 14, and 23 have been met.
(7)
(8)
(A) It is accompanied by a threatened species permit issued under § 17.32; and
(B) The requirements of 50 CFR parts 13, 14, and 23 have been met.
(ii) It is unlawful to sell or offer for sale in interstate or foreign commerce and to deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any African elephant ivory that was imported into or exported from the United States for genuine scientific purposes. The exception in paragraph (e)(3) of this section regarding manufactured items containing
(9)
Forest Service, USDA.
Notice of meeting.
The Siskiyou County Resource Advisory Committee (RAC) will meet in Yreka, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act.
The meeting will be held August 24, 2015, at 6:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Klamath National Forest (NF) Supervisor's Office, Conference Room, 1312 Fairlane Road, Yreka, California.
Written comments may be submitted as described under
Natalie Stovall, RAC Coordinator, by phone at 530-841-4411 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is:
1. Project update and financial status;
2. Identifying a Chair for the RAC;
3. Review current RAC committee charter;
4. Recruitment for new committee members; and
5. Time frames for new proposals submissions.
6. Approval of funding for RAC administration and travel for RAC Committee members.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 17, 2015, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Natalie Stovall RAC Corrdinator, 1711 S. Main Street, Yreka, California 96097; by email to
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a public meeting of the West Virginia Advisory Committee to the Commission will convene at 9:00 a.m. (EDT) on Friday, August 14, 2015 in the House Government Organization Committee Room E-215 in Building 1 of the West Virginia State Capitol Complex, located at 1900 Kanawha Blvd., East, Charleston, WV 25305. The purpose of the meeting is to hear from government officials, advocates, and other experts as well as the public on the topic of the treatment by the West Virginia criminal justice system and mental health court of persons with mental health disabilities, including persons who are intellectually and developmentally disabled. In addition, the Committee will discuss the next steps that should be planned for completing the Committee's mental health project.
For persons who plan to attend the meeting and are hearing-impaired or require other accommodations, please contact Evelyn Bohor at
Time will be set aside after the experts have completed their presentations so that members of the public may address the Committee. Persons interested in the issue are also invited to submit written comments; the comments must be received in the regional office by Monday, September 14, 2015. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available by clicking on the “Meeting Details” and “Documents” links at the following link:
Date: Friday, August 14, 2015 (EDT).
Address: House Government Organization Committee Room E-215 in Building 1 of the West Virginia State Capitol Complex, located at 1900 Kanawha Blvd., East, Charleston, WV 25305.
Ivy L. Davis at
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on polyethylene terephthalate film, sheet, and strip (PET Film) from Taiwan. The period of review (POR) is July 1, 2013, through June 30, 2014. This review covers respondents Nan Ya Plastics Corporation (Nan Ya) and Shinkong Materials Technology Corporation (SMTC), producers and exporters of PET Film from Taiwan. The Department preliminarily determines that sales of subject merchandise have not been made below normal value (NV) by Nan Ya. We preliminarily find that SMTC had no shipments during the POR. Interested parties are invited to comment on these preliminary results.
Milton Koch or Jacqueline Arrowsmith at (202) 482-2584 or (202) 482-5255, respectively; 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.
The merchandise subject to the order is PET Film. The PET Film subject to the order is currently classifiable under subheading 3920.62.00.90 of the Harmonized Tariff Schedule of the United States. A full description of the scope of the order is contained in the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments: Polyethylene Terephthalate Film, Sheet, and Strip from Taiwan; 2013-2014” (Preliminary Decision Memorandum), which is hereby adopted by this notice.
The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
The Department conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export price is calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
Based on our analysis of U.S. Customs and Border Protection (CBP) information and information provided by SMTC and its affiliate Shinkong Synthetic Fibers Corp. (SSFC), we preliminarily determine that SMTC had no shipments of the subject merchandise, and, therefore, no reviewable transactions, during the POR.
As a result of this review, we preliminarily determine the following weighted-average dumping margin for the period July 1, 2013, through June 30, 2014.
The Department intends to disclose to interested parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS, within 30 days after the date of publication of this notice.
Unless extended, the Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h).
Upon completion of the administrative review, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries in accordance with 19 CFR 351.212(b)(1). We intend to issue instructions to CBP 15 days after the date of publication of the final results of this review.
If Nan Ya's weighted-average dumping margin is not zero or
The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the POR produced by Nan Ya for which it did not know that its merchandise was destined for the United States. Furthermore, this clarification applies to all POR entries entered under the case number for SMTC if we continue to make a final determination of no shipments of subject merchandise because it certified that it made no POR shipments of subject merchandise for which it had knowledge of the U.S. destination. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate of 2.40 percent
The following deposit requirements will be effective for all shipments of PET Film from Taiwan entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the company under review will be the rate established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
John Conniff, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1009.
On February 2, 2015, the Department of Commerce (the Department) published a notice of opportunity to request an administrative review of the countervailing duty order on certain
Pursuant to requests from Dongkuk Steel Mill Co., Ltd. (DSM),
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if the parties that requested a review withdraw the request within 90 days of the date of publication of the notice of initiation of the requested review. The Department published the
The Department will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. For the companies for which this review is rescinded countervailing duties shall be assessed at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, during the period January 1, 2014, through December 31, 2014, in accordance with 19 CFR 351.212(c)(1)(i).
The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
This notice serves as a final reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under an APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 20, 2015, the U.S. Trade Representative (USTR) instructed the Department of Commerce (Department) to implement its determinations under section 129 of the Uruguay Round Agreements Act (URAA) regarding the antidumping duty (AD) investigations on aluminum extrusions from the People's Republic of China (PRC); certain circular welded carbon quality steel line pipe from the PRC; certain kitchen appliance shelving and racks (kitchen racks) from the PRC; certain magnesia carbon bricks from the PRC; certain oil country tubular goods from the PRC; certain potassium phosphate salts from the PRC; certain steel grating from the PRC; certain tow behind lawn groomers and certain parts thereof from the PRC; circular welded
Lisa Wang or Erin Begnal, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5673 or (202) 482-1442.
On January 28, 2015, the Department informed parties that it was initiating proceedings under section 129 of the URAA to implement the findings adopted by the WTO Dispute Settlement Body in DS 449 with respect to the above-referenced AD investigations and administrative reviews concerning the Department's imposition of ADs calculated on the basis of the methodology for nonmarket economy countries prescribed by section 773(c) of the Tariff Act of 1930 (the Act), as amended, concurrently with the imposition of countervailing duties upon the same products without having assessed whether so-called “double remedies,” (
On February 10, 2015, and April 14, 2015, the Department issued questionnaires to the mandatory respondents and accepted voluntary respondents in the underlying investigations and administrative reviews, concerning the issue of double remedies. None of the respondents in the underlying investigations or administrative reviews subject to this notice responded to the double remedies questionnaires. In the preliminary determinations, because no party responded to the Department's requests for information in these section 129 proceedings, we preliminarily determined that, without the requested information, there is no basis for making an adjustment for potential overlapping remedies under section 777A(f) of the Act. Between April 15, 2015, and May 28, 2015, the Department issued the preliminary determinations and provided interested parties an opportunity to comment. Following the comment period, the Department issued its final determinations for the section 129 proceedings on June 26, 2015 and July 10, 2015, which were unchanged from the preliminary determinations.
In its July 20, 2015 letter, the USTR notified the Department that, consistent with section 129(b)(3) of the URAA, consultations with the Department and the appropriate congressional committees with respect to the June 26, 2015, and July 10, 2015 determinations have been completed. Also on July 20, 2015, in accordance with section 129(b)(4) of the URAA, the USTR directed the Department to implement these determinations.
Section 129 of the URAA governs the nature and effect of determinations issued by the Department to implement findings by WTO dispute settlement panels and the Appellate Body.
Specifically, section 129(b)(2) of the URAA provides that “notwithstanding any provision of the Tariff Act of 1930,” upon a written request from the USTR, the Department shall issue a determination that would render its actions not inconsistent with an adverse finding of a WTO panel or the Appellate Body.
To the extent that issues were raised by interested parties during the period for comment following the issuance of the preliminary determinations, those issues are addressed in the respective final determinations. The final determinations are public documents and are available to the public via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
The recalculated AD rates, as included in the final determinations and which remain unchanged from the preliminary determinations for each company, are as follows:
On July 20, 2015, in accordance with sections 129(b)(4) and 129(c)(1)(B) of the
This notice of implementation of these section 129 final determinations is published in accordance with section 129(c)(2)(A) of the URAA.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) has determined that two requests for new shipper reviews of the antidumping duty order on multilayered wood flooring from the People's Republic of China (“PRC”) meet the statutory and regulatory requirements for initiation. The period of review (“POR”) for these two new shipper reviews is December 1, 2014, through May 31, 2015.
Maisha Cryor or Robert Galantucci, AD/CVD Operations, Office 4, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-5831 or 202-482-2923, respectively.
The Department published the antidumping duty order on multilayered wood flooring from the PRC on December 8, 2011.
In their submissions, Zhangshi and Muyun certified that they are both the producers and exporters of the subject merchandise upon which their respective review requests were based.
In addition to the certifications described above, pursuant to 19 CFR 351.214(b)(2)(iv), Zhangshi and Muyun submitted documentation establishing the following: (1) The date on which each company first shipped multilayered wood flooring for export to the United States and the date on which the multilayered wood flooring was first entered, or withdrawn from warehouse, for consumption; (2) the volume of its first shipment; and (3) the date of its first sale to an unaffiliated customer in the United States.
The Department conducted U.S. Customs and Border Protection (“CBP”) database queries and confirmed that Zhangshi and Muyun's shipments of subject merchandise had entered the United States for consumption and that liquidation of such entries had been properly suspended for antidumping duties. The Department also confirmed by examining CBP data that Zhangshi and Muyun entries were made during the POR specified by the Department's regulations.
Pursuant to 19 CFR 351.214(c), an exporter or producer may request a new shipper review within one year of the date on which its subject merchandise was first entered. Moreover, 19 CFR 351.214(d)(1) states that if the request for the review is made during the six-month period ending with the end of the semiannual anniversary month, the Secretary will initiate a new shipper review in the calendar month immediately following the semiannual anniversary month. Further, 19 CFR 315.214(g)(1)(i)(B) states that if the new shipper review was initiated in the month immediately following the semiannual anniversary month, the POR will be the six-month period immediately preceding the semiannual anniversary month. Within one year of the dates on which their multilayered wood flooring was first entered Zhangshi and Muyun made the requests for new shipper reviews in June, which is the semiannual anniversary month of the
Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.214(b), and the information on the record, the Department finds that the requests submitted by Zhangshi and Muyun meet the threshold requirements for initiation of new shipper reviews for the shipments of multilayered wood flooring from the PRC produced and exported by these companies.
It is the Department's usual practice, in cases involving non-market economies, to require that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate provide evidence of
The Department will instruct CBP to allow, until the completion of the review, at the option of the importer, the posting of a bond or security in lieu of a cash deposit for each entry of the subject merchandise from Zhangshi and Muyun, in accordance with section 751(a)(2)(B)(iii) of the Act and 19 CFR 351.214(e). Because Zhangshi and Muyun certified that they produced and exported the subject merchandise, the Department will apply the bonding privilege only for subject merchandise that the respondent both produced and exported. To assist in its analysis of the
Interested parties requiring access to proprietary information in these new shipper reviews should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 19 CFR 351.306.
This initiation and notice are in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 19 CFR 351.221(c)(1)(i).
National Institute of Standards and Technology, Department of Commerce.
Notice of closed meeting.
The Judges Panel of the Malcolm Baldrige National Quality Award (Judges Panel) will meet in closed session on Wednesday, August 26, 2015, from 9:00 a.m. until 3:30 p.m. Eastern Time. The purpose of this meeting is to review the results of examiners' scoring of written applications. Panel members will vote on which applicants merit site visits by examiners to verify the accuracy of quality improvements claimed by applicants. The meeting is closed to the public in order to protect the proprietary data to be examined and discussed at the meeting.
The meeting will be held on Wednesday, August 26, 2015, from 9:00 a.m. until 3:30 p.m. Eastern Time. The entire meeting will be closed to the public.
The meeting will be held at the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899.
Robert Fangmeyer, Director, Baldrige Performance Excellence Program, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, Maryland 20899-1020, telephone number (301) 975-2360, email
15 U.S.C. 3711a(d)(1) and the Federal Advisory Committee Act, as amended, 5 U.S.C. App.
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the Judges Panel of the Malcolm Baldrige National Quality Award will meet on Wednesday, August 26, 2015, from 9:00 a.m. until 3:30 p.m. Eastern Time. The Judges Panel is composed of twelve members, appointed by the Secretary of Commerce, chosen for their familiarity with quality improvement operations and competitiveness issues of manufacturing companies, services companies, small businesses, health care providers, and educational institutions. Members are also chosen who have broad experience in for-profit and nonprofit areas. The purpose of this meeting is to review the results of examiners' scoring of written applications. Panel members will vote on which applicants merit site visits by examiners to verify the accuracy of quality improvements claimed by applicants. The meeting is closed to the public in order to protect the
The Chief Financial Officer and Assistant Secretary for Administration, with the concurrence of the Acting, Assistant General Counsel for Administration, formally determined on May, 19 2015, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended by Section 5(c) of the Government in Sunshine Act, Public Law 94-409, that the meeting of the Judges Panel may be closed to the public in accordance with 5 U.S.C. 552b(c)(4) because the meeting is likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential and 5 U.S.C. 552b(c)(9)(B) because for a government agency the meeting is likely to disclose information that could significantly frustrate implementation of a proposed agency action. The meeting, which involves examination of current Award applicant data from U.S. organizations and a discussion of these data as compared to the Award criteria in order to recommend Award recipients, will be closed to the public.
National Institute of Standards & Technology (NIST), Commerce.
Notice of public workshop.
NIST announces the Genome in a Bottle Consortium meeting to be held on Thursday and Friday, August 27 and 28, 2015. The Genome in a Bottle Consortium is developing the reference materials, reference methods, and reference data needed to assess confidence in human whole genome variant calls. A principal motivation for this consortium is to enable performance assessment of sequencing and science-based regulatory oversight of clinical sequencing. The purpose of this meeting is to update participants about progress of the consortium work, continue to get broad input from individual stakeholders to update or refine the consortium work plan, continue to broadly solicit consortium membership from interested stakeholders, and invite members to participate in work plan implementation. Topics of discussion at this meeting will include progress and planning of the Analysis Group, which is analyzing and integrating the large variety of sequencing data for four candidate NIST Reference Materials, as well as potential future Reference Materials.
The Genome in a Bottle Consortium meeting will be held on Thursday, August 27, 2015 from 9:00 a.m. to 5:30 p.m. Eastern Time and Friday, August 28, 2015 from 9:00 a.m. to 12:45 p.m. Eastern Time. Attendees must register by 5:00 p.m. Eastern Time on Thursday, August 20, 2015.
The meeting will be held in the Green Auditorium, Building 101, National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899. Please note admittance instructions under the
For further information contact Justin Zook by email at
Clinical application of ultra high throughput sequencing (UHTS) for hereditary genetic diseases and oncology is rapidly growing. At present, there are no widely accepted genomic standards or quantitative performance metrics for confidence in variant calling. These standards and quantitative performance metrics are needed to achieve the confidence in measurement results expected for sound, reproducible research and regulated applications in the clinic. On April 13, 2012, NIST convened the workshop “Genome in a Bottle” to initiate a consortium to develop the reference materials, reference methods, and reference data needed to assess confidence in human whole genome variant calls (
At the August 2012 meeting, the consortium established work plans for four technical working groups with the following responsibilities:
(1) Reference Material (RM) Selection and Design: Select appropriate sources for whole genome RMs and identify or design synthetic DNA constructs that could be spiked-in to samples for measurement assurance.
(2) Measurements for Reference Material Characterization: Design and carry out experiments to characterize the RMs using multiple sequencing methods, other methods, and validation of selected variants using orthogonal technologies.
(3) Bioinformatics, Data Integration, and Data Representation: Develop methods to analyze and integrate the data for each RM, as well as select appropriate formats to represent the data.
(4) Performance Metrics and Figures of Merit: Develop useful performance metrics and figures of merit that can be obtained through measurement of the RMs.
The products of these technical working groups will be a set of well-characterized whole genome and synthetic DNA RMs along with the methods (documentary standards) and reference data necessary for use of the RMs. These products will be designed to help enable translation of whole genome sequencing to regulated clinical applications. The pilot NIST whole genome RM was released in May 2015 and is available at
There is no cost for participating in the consortium. No proprietary
All visitors to the NIST site are required to pre-register to be admitted. Anyone wishing to attend this meeting must pre-register at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of applications for incidental harassment authorization (IHA); request for comments and information.
NMFS has received multiple requests for authorization under the Marine Mammal Protection Act (MMPA) to take marine mammals incidental to conducting geophysical survey activity in the Atlantic Ocean. NMFS is announcing receipt of these requests and invites information, suggestions, and comments on the applications.
Comments and information must be received no later than August 28, 2015.
Comments on the applications should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
Electronic copies of the applications may be obtained by visiting the Internet at:
In 2014, the Bureau of Ocean Energy Management produced a Programmatic Environmental Impact Statement (PEIS) to evaluate potential significant environmental effects of geological and geophysical (G&G) activities on the Mid- and South Atlantic Outer Continental Shelf (OCS), pursuant to requirements of the National Environmental Policy Act. These activities include geophysical surveys in support of oil and gas exploration and development, as are proposed in the MMPA applications before NMFS. The PEIS is available at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
The incidental taking of small numbers of marine mammals may be allowed only if NMFS (through authority delegated by the Secretary) finds that the total taking by the specified activity during the specified time period will (i) have a negligible impact on the species or stock(s) and (ii) not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking must be set forth, either in specific regulations or in an authorization.
The allowance of such incidental taking under section 101(a)(5)(A), by harassment (which is defined to include behavioral harassment and injury), serious injury, death, or a combination thereof, requires that regulations be promulgated for the specific activity. Subsequently, a Letter of Authorization may be issued pursuant to the prescriptions established in such regulations, providing that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. Under section 101(a)(5)(D), NMFS may authorize such incidental taking by harassment only, for periods of not more than one year, pursuant to requirements and conditions contained within an IHA. The proposed incidental take authorization and establishment of prescriptions through either specific regulations or an IHA requires notice and opportunity for public comment.
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, section 3(18) of 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].”
The use of sound sources such as those described in the applications (
In 2014, we received four separate requests for authorization for take of marine mammals incidental to oil and gas industry geophysical surveys in the Atlantic Ocean. Upon review of these requests, we submitted questions, comments, and requests for additional information to the individual applicant companies. As a result of these interactions, the applicant companies provided revised versions of the applications and we have determined that these revised versions are sufficiently complete to begin processing.
On August 18, 2014, we received an application from Spectrum Geo Inc., followed by revised versions on November 25, 2014, May 14, 2015, and July 6, 2015. TGS-NOPEC Geophysical Company submitted an application on August 25, 2014, followed by revised versions on November 17, 2014, and July 21, 2015. We also received a request from ION GeoVentures on September 5, 2014, followed by a revised version on June 24, 2015. Finally, TDI-Brooks International, Inc. submitted a request for authorization on October 22, 2014.
All requested authorizations would be for the statutory maximum of one year from the date of effectiveness, with the exception of ION GeoVentures, which has requested a period of validity from July through December 2016. The first four applicants propose to conduct 2D marine seismic surveys using airgun arrays, whereas the fourth (TDI-Brooks) proposes to conduct deep water multibeam bathymetry and sub-bottom profiler data acquisition (
NMFS is seeking public input on these requests for authorization as outlined below and request that interested persons submit information, suggestions, and comments concerning the applications (see
• Best available scientific information and appropriate use of such information in assessing potential effects of the specified activities on marine mammals and their habitat;
• Application approaches to estimating acoustic exposure and take of marine mammals;
• Appropriate mitigation measures and monitoring requirements for these activities.
Comments indicating general support for or opposition to oil and gas exploration and development are not relevant to this request for information and will not be considered. Comments should be supported by data or literature citations as appropriate. We will consider all relevant information, suggestions, and comments related to the requests during the development of proposed authorizations governing the incidental taking of marine mammals.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that the NMFS Southwest Fisheries Science Center (SWFSC), 8901 La Jolla Shore Dr., La Jolla, CA 92037, [Responsible Party: Lisa Ballance, Ph.D.], has applied in due form for a permit to conduct research on five species of pinnipeds, over 50 species of cetaceans, and five species of sea turtles.
Written, telefaxed, or email comments must be received on or before August 28, 2015.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the 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.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Amy Hapeman or Brendan Hurley, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The SWFSC proposes to conduct research on over 55 species of marine mammals and five species of sea turtles in all oceans of the world, with special focus on the eastern Pacific Ocean. This includes research on ESA listed species: North Atlantic right (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Applications for six new scientific research permits, and fourteen research permit renewals.
Notice is hereby given that NMFS has received 20 scientific research permit application requests relating to Pacific salmon, sturgeon, and eulachon. The proposed research is intended to increase knowledge of species listed under the Endangered Species Act (ESA) and to help guide management, conservation, and recovery efforts. The applications may be viewed online at:
Comments or requests for a public hearing on the applications must be received at the appropriate address or fax number (see
Written comments on the applications should be submitted to the Protected Resources Division, NMFS, 777 Sonoma Avenue, Room 325, Santa Rosa, CA 95404. Comments may also be submitted via fax to 707-578-3435 or by email to
Jeff Abrams, Santa Rosa, CA (ph.: 707-575-6080), Fax: 707-578-3435, email:
The following listed species are covered in this notice:
Chinook salmon (
Coho salmon (
Steelhead (
North American green sturgeon (
Eulachon (
Scientific research permits are issued in accordance with section 10(a)(1)(A) of the ESA (16 U.S.C. 1531
Anyone requesting a hearing on an application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (see
The Interagency Ecological Program (IEP), a consortium of nine state and federal agencies, is seeking to renew Permit 1440 for a period of five years. The permit would authorize IEP to take CVSR Chinook salmon, SRWR Chinook salmon, CCV steelhead, CCC steelhead and sDPS green sturgeon while conducting 11 surveys in the San Francisco Bay-Delta region. The studies would examine the abundance, and temporal and spatial distribution of various life stages of pelagic fishes of management concern, including listed species, and their food (
The Fishery Foundation of California is seeking to renew permit 13675 to annually take juvenile CVSR Chinook salmon, SRWR Chinook salmon, CCV steelhead, and sDPS green sturgeon while conducting research designed to monitor the use of the Fremont Landing Conservation Bank (FLCB) at the confluence of the Sacramento and Feather rivers in California's Central Valley. The requested permit would authorize take for a period of five years. FLCB is a restored area that provides mitigation for impacts to listed salmonid species in the Central Valley. The proposed monitoring would evaluate the use of the FLCB by listed fish, provide data directly related to success criteria described in the FLCB management plan, and benefit listed fish by informing adaptive management strategies being conducted at the FLCB. The researchers would use beach seines and fyke nets to capture listed fish. Once captured, all listed fish would be identified to species and released. A subsample would be measured for fork length. No anesthesia would be used, and no additional handling procedures would be implemented. Captured fish would remain completely wetted at all times to minimize stress. Any fish exhibiting signs of physiological stress would be immediately released. The researchers are not proposing to kill any of the fish they capture, but some may die as an unintended result of the research.
The United States Fish and Wildlife Service (USFWS), Stockton Fish and Wildlife Office (SFWO), has requested to renew Permit 13791 for a period of four years. The permit would authorize SFWO to annually take juvenile and smolt CVSR Chinook salmon, SRWR Chinook salmon, CCV steelhead, and juvenile and larval sDPS green sturgeon while conducting seven research studies. The purpose of the studies is to evaluate/monitor the: (1) Abundance, temporal and spatial distribution, and survival of salmonids and other fishes in the lower Sacramento and San Joaquin rivers and the San Francisco Estuary (SFE); (2) occurrence and habitat use of fishes, especially early life history stages, within the Liberty Island and Cache Slough Complex, (3) relative gear efficiencies for all IEP fish survey nets, and also the distribution of delta smelt; (4) littoral habitat use of juvenile Chinook salmon within the Delta; (5) the effect of projected water operations on delta smelt; (6) length at date race criteria of SRWR Chinook salmon sized juvenile Chinook salmon; and (7) SRWR and CVSR Chinook salmon floodplain usage in the Yolo bypass. These studies would result in capture/handle/release take, tissue sampling, and/or intentional directed mortality. Intentional directed mortality would apply to only juvenile hatchery adipose clipped salmonids and larval green sturgeon. Capture methods would include Kodiak trawl, midwater trawl, beach seine, zooplankton net, larval net, gill net, fyke net, purse seine, and boat electrofishing. All listed fish except adipose fin clipped SRWR and CVSR Chinook salmon would be immediately collected from the sampling gears, placed in containers filled with river water collected at the location being sampled, processed, held in a recovery container filled with aerated river water, and subsequently released at the sampled location. A fin tissue sample would be collected from a subset of natural origin SRWR and CVSR Chinook salmon for stock determination. The purpose of intentional mortality of hatchery origin (adipose clipped) SRWR and CVSR Chinook salmon would be to collect coded wire tags (CWT), and up ten green sturgeon larvae would be killed during larval fish collections in order to identify the contents of the larval trawl net, which can only be achieved in the lab. The data provided by these studies would provide natural resource managers real-time biological and population data on fishes to evaluate the effect of water operations and fish management practices within the SFE, thereby benefiting listed fish.
Dr. Jerry Smith, Associate Professor in the Department of Biological Sciences at San Jose State University, is requesting to renew permit 14516 for a period of five years. The permit would authorize Dr. Smith to annually take multiple life stages of CCC coho salmon and CCC steelhead while conducting two studies: (1) Stream and lagoon surveys in Gazos Creek, Waddell Creek, and Scott Creek; and (2) lagoon surveys in Pescadero Creek Lagoon and San Gregorio Lagoon. The purpose of the studies is to: (1) Provide an annual index of relative abundance for juvenile listed salmonids, provide data on lagoon and upstream habitat utilization and growth, and provide an assessment of trends and year to year response to variations in habitat conditions; and (2) determine juvenile listed salmonid abundance and growth, and provide adult life history information in the lagoons. Capture methods would include backpack electrofishing, and beach seine. Captured salmonids would be measured, and a subset of juvenile captures and all adults would have scale samples taken, before being released at the capture location. A subsample of juvenile steelhead would also be marked via caudal fin clip to perform a mark-recapture analysis. Scale and fin tissue samples would be taken from adult fish carcasses. Captured live fish would be held in flow-through live cars, covered with a towel to provide shade and cover to calm fish. Adult fish would be processed and released first. In lagoons, live cars would be kept in deeper water with cooler temperatures and less turbidity to prevent warming above ambient temperatures or a decrease in dissolved oxygen. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.
The California Department of Fish and Wildlife (CDFW), Fisheries Branch, Fish Health Laboratory, is applying for a permit to take endangered SRWR Chinook salmon, CCC coho salmon and SC steelhead for a period of five years. The purpose of the proposed research is to investigate wild fish kills/disease outbreaks that could occur in California that involve federally listed endangered species. The research would benefit the listed species by providing fisheries managers with the necessary information to help alleviate future outbreaks of fish disease through proper management of fishery and water resources. The proposed research would only be conducted in the event of elevated and unexplained endangered species mortality or the presence of clinically diseased animals. Given such a triggering event, endangered fish would be collected in any of the state waters of California in which a disease outbreak/fish die-off occurred. Adult and juvenile endangered fish would be collected by hand or dip-net, as only dead and/or moribund fish, or fish displaying clinical signs of disease, would be collected. Moribund or clinically diseased fish would be euthanized (
The Mendocino Redwood Company (MRC) is seeking to renew Permit 1181-Modification 1 for a period of five years. The permit would authorize MRC to take CC Chinook salmon, SONCC coho salmon, CCC coho salmon, NC steelhead, and CCC steelhead while conducting research and monitoring to assess juvenile and adult populations of salmonids and their distribution in streams within MRC's property. Research would be conducted in several watersheds within Mendocino and northern Sonoma counties. The data gathered would benefit listed fish by informing a better understanding of salmonid distribution, abundance, and habitat utilization in these areas. Juvenile salmonids would be captured by backpack electrofishing, anesthetized, weighed, measured to fork length, and released. A subsample of juvenile salmonids would be fin clipped to mark and to collect tissue samples for genetic analysis. Live adults and/or juveniles would be observed via snorkel surveys and spawning surveys. Carcasses would be measured and then marked to ensure duplicate measurements were not made. Outmigrant trapping would be conducted using a rotary screw trap or weir/pipe trap; captured outmigrants would be anesthetized, measured, and released. A subsample of outmigrants would be marked (dye, elastomer, or fin clip) or Passive Integrated Transponder (PIT) tagged. All anesthetized fish would be allowed to recover in a bucket containing aerated natal water prior to being released back into the stream from which they were taken. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.
The United States Forest Service (USFS), Redwood Sciences Laboratory is requesting to renew permit 1071 for a period of five years to perform eight studies that together would take CC Chinook salmon, SONCC coho salmon, CCC coho salmon, NC steelhead, CC steelhead, and SC steelhead. The purposes of the eight studies are: (1) To investigate the invasion history of non-listed speckled dace in the Van Duzen River and the Eel River, (2) to investigate the invasion history of non-listed California roach in the Van Duzen River and the Eel River, (3) to develop an Individual Based Modeling (IBM) approach to predict the effects of management practices on salmonid population in Northern California, (4) to link abiotic factors (
Dr. Peter Moyle, with the University of California at Davis, Department of Wildlife, Fish and Conservation Biology, has applied for a five year renewal of Permit 17077 to take listed species while conducting research designed to develop a better understanding of how physical habitat, flow and other factors interact to maintain assemblages of native and non-native aquatic species in the upper SFE. This study would provide knowledge about food web and habitat support for native fishes, including listed anadromous fish, which are suspected of utilizing such habitats during development. While listed fish are not the target species for this study, the study would benefit listed fish by improving management decisions regarding creating additional habitat, and helping to anticipate the effects of drought and climate change on food and habitat availability. Sampling would be conducted in three distinct regions of the SFE: (1) The Cache-Lindsey complex, (2) the Sherman Lake complex and (3) Suisun Marsh, and would take juvenile and adult CVSR Chinook salmon, SRWR Chinook Salmon, CCV steelhead, and sDPS green sturgeon. Capture methods would be similar for each of these regions, and would include otter trawling, beach seining and boat electrofishing, however electrofishing would be suspended immediately upon encountering a listed species. All sampled fish would be placed in a bucket with ambient water and an aerator, examined for responsiveness and returned to the water as soon as possible with a minimum of handling, after identification and length estimates were made. Juvenile SRWR and CVSR Chinook salmon would be identified using published size-at-date criteria. Only adult green sturgeon captures would receive additional processing beyond identification and measuring for length. Adult green sturgeon would be scanned for the presence of a PIT tag, and a soft pelvic fin tissue sample would be collected. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.
The NMFS Southwest Fisheries Science Center, Fishery Ecology Division (FED), requests a five-year renewal of permit 1044-Modification 4 for research throughout California that would include take of SRWR Chinook salmon, CVSR Chinook salmon, SONCC coho salmon, CCC coho salmon, NC steelhead, CCC steelhead, CCV steelhead, S-CCC steelhead, SC steelhead, and juvenile sDPS green sturgeon. The proposed research would benefit listed fish by supporting conservation and management of listed anadromous salmonids and green sturgeon in California by directly addressing information needs identified by NMFS and other agencies. FED studies address priority topics identified
Research and take would involve various life stages (juvenile, smolt, adult, and carcass). Listed fish would be observed during spawning surveys, and captured by electrofishing, beach seine, rotary screw trap, and/or hook-and-line. The majority of captured fish would be anesthetized, measured to fork length, and released. A subsample of captured fish would be further sampled by collection of scales, fin clips, gill clips or stomach contents; and/or marking or tagging including fin tissue clips, PIT tags, elastomer tags, acoustic tags, or radio tags. Species care after capture would include use of aerated buckets or live cars for holding and recovery, and minimization of handling time. The majority of fish captured would be released alive at their point of capture following recovery from handling. However, in limited cases some fish would be: (1) Retained in enclosures in streams for short-term growth and survival experiments and then released, or (2) euthanized for analysis of otoliths and/or parasitological/pathological studies of parasites and diseases of wild juvenile steelhead.
The USFWS, Arcata Fish and Wildlife Office Fisheries Program (AFWO) is seeking to renew permit 1068-Modification 2 for a period of five years. The requested permit would authorize AFWO to take multiple life stages of hatchery and wild SONCC coho salmon via monitoring and research activities in Northwest California. Five studies are proposed, the purposes of which are to monitor: (1) Chinook salmon fry production and disease incidence in the Klamath River below Iron Gate dam, (2) Chinook salmon escapement in the mainstem Klamath River below the Shasta River confluence, (3) Chinook salmon escapement in the mainstem Klamath River from Iron Gate dam to the Shasta River confluence, (4) coho salmon escapement between Iron Gate Dam and the Indian Creek confluence, and (5) long-term salmonid disease incidence in the lower Klamath River. Trained AFWO crews would conduct redd surveys, on foot and from rafts, which could observe/harass spawning SONCC coho salmon. Crews would spend minimal time around redds and avoid walking on redds. Trained AFWO crews would also capture juvenile SONCC coho salmon using rotary-screw traps, frame nets, and beach seines. Traps would be thoroughly cleaned at least once a day. Juvenile coho salmon would be held in aerated holding buckets filled with fresh river water then anesthetized, measured for fork length, weighed, and released back into the river. There would be some intentional mortality of hatchery juvenile coho salmon for disease analysis. Aside from these hatchery fish, the researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities. The proposed studies would benefit listed coho salmon by informing the AFWO goal to develop conservation strategies for aquatic resources and to evaluate the success of aquatic habitat restoration efforts that will lead to the recovery and conservation of fish populations and fisheries in northern California.
The Green Diamond Resource Company (GDRC) has applied for a five year renewal of research permit 1060-Modification 1 to take listed salmonids while conducting research and monitoring under an existing Aquatic Habitat Conservation Plan (AHCP). The AHCP, which was approved in 2007 and is valid until 2057, identifies potential threats to three listed fish species that may result from GDRC's timber harvest activities and describes minimization and mitigation measures and effectiveness monitoring to address potential threats. The requested take limits would allow for implementation of monitoring and research activities in several northern California watersheds including the Winchuk River, Smith River, Lower Klamath basin tributaries, Mad River, Little River, several Humboldt Bay tributaries, and Eel River. The three species identified which would be taken as a direct result of this monitoring are CC Chinook salmon, SONCC coho salmon, and NC steelhead. Research and take would involve various life stages (fry, juvenile, smolt, adult, and carcass). Trained GDRC crews would observe listed salmonids during snorkel surveys and spawning surveys. Crews would avoid walking in suitable spawning habitats (
The USFWS, Anadromous Fish Restoration Program (AFRP) has applied for a five year permit to take listed fish while conducting research designed to: (1) Provide data necessary to evaluate the effectiveness of AFRP restoration projects, including appraisal of spawning gravel augmentation, in-channel and floodplain habitat enhancement actions, and water allocation/flow regime alteration actions; and (2) provide reconnaissance-level population and biological data on contemporary anadromous fish population patterns within the Central Valley of California, in order to prioritize and select future restoration projects to benefit anadromous salmonids. All AFRP restoration monitoring projects would serve to benefit anadromous salmonids by providing data on restoration project effectiveness, and providing valuable information relating to adaptive management procedures. Take of listed species including various life stages of CVSR Chinook salmon, CCV steelhead, and sDPS green sturgeon would result from activities in the following five proposed projects: (1) Bobcat flat restoration effectiveness monitoring in the lower Tuolumne River; (2) adult sturgeon acoustic telemetry in the lower San Joaquin basin; (3) San Joaquin River sturgeon spawning habitat assessment; (4) steelhead sampling and acoustic tracking in the lower Stanislaus, Tuolumne and Merced Rivers; and (5) fish reconnaissance in the San Joaquin River system. Observe/harass take
The Humboldt Redwood Company (HRC) is seeking to renew permit 1074-Modification 1 for a period of five years. The permit would authorize HRC to take juvenile and adult CC Chinook salmon, SONCC coho salmon and NC steelhead while conducting research and monitoring that satisfies two objectives: (1) To comply with CDFW's Restorable Class I policy by sampling reaches through snorkel and electrofishing methods to identify Class I habitat within proposed timber harvest plans, and (2) to monitor fish occupancy trends at the reach, sub basin, watershed and HRC property level over time by repeated snorkel surveys at index and randomly selected reaches. Adult and juvenile salmonids would be observed during snorkel surveys, and juvenile salmonids would be captured by backpack electrofishing. Snorkel surveys would be the preferred method of detecting presence/absence of fish species. Captured fish would be identified, and transported upstream of the project area. All captured specimens would be kept in aerated buckets, observed closely, and not released until fully recovered. The proposed monitoring would help to achieve HRC's fisheries program's general goal, which is to determine the occurrence, distribution, population and habitat conditions of anadromous fishes on HRC lands as well as to monitor, protect, restore and enhance the anadromous fishery resources in watersheds owned by HRC. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.
The United States Bureau of Reclamation (BOR) is requesting to renew Permit 1072—Modification 2 for a period of five years. BOR is applying for this permit as a contingent of the Trinity River Restoration Program (TRRP), an inter-agency partnership of the BOR, USFWS, Hoopa Valley Tribe, Yurok Tribe, CDFW, Trinity County, USFS, NMFS, and the California Department of Water Resources. The TRRP benefits listed species by conducting large-scale channel restoration and habitat restoration activities in the Trinity River mainstem and watershed as a means of restoring declining fishery resources. The following six specific studies are proposed: (1) Trinity River juvenile salmonid outmigrant monitoring, (2) juvenile Chinook salmon density monitoring, (3) Trinity River Chinook salmon redd and carcass survey, (4) Trinity River invasive brown trout predation on coho investigation, (5) Trinity River juvenile coho salmon ecology study, and (6) watershed rehabilitation/research. The requested permit would authorize BOR to take juvenile, smolt, adult and carcasses of SONCC coho salmon via: (1) Observation/harassment by way of snorkel surveys, hand netting that specifically targets other species, and spawning surveys; and (2) capture by rotary screw trap, boat electrofishing, hook-and-line, beach seine, fyke net, or minnow trapping. Fin tissue samples would be collected from carcasses. The majority of captured juvenile coho salmon would be anesthetized, measured to fork length and released, but a subsample would also be PIT tagged. Tagged fish would be held in recovery pens post tagging to monitor and enhance post-tagging health. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.
The Bureau of Land Management (BLM), Arcata Field Office, is seeking to renew permit 1088-Modificaiton 1 for a period of five years to monitor the effects of current management actions related to the Northwest Forest Plan's Aquatic Conservation Strategy on anadromous salmonids and their habitats. In order to monitor land management actions and implement the Northwest Forest Plan in northern California, BLM needs to obtain updated information on fish distribution and habitat. Sampling would occur in various watersheds, including the Mattole River, Eel River, Lost Coast region tributaries to the Pacific Ocean, and Humboldt Bay tributaries. Take of CC Chinook salmon, SONCC coho salmon, and NC steelhead would result from this monitoring and research. The preponderance of requested take would result from spawning surveys, snorkel surveys, and presence/absence surveys from the bank, all of which would result in observe/harass take of juvenile and/or adult salmonids. Capture methods that would take juvenile salmonids include backpack electrofishing and beach seine. A small number of salmonid fry may also be captured during kick net activities intended to sample invertebrates. Electrofishing would be used only when stream conditions prohibit less invasive sampling methods, and electrofishing activities would follow the NMFS 2000 Electrofishing Guidelines. Personnel handling fish would have wet hands and experience in fish handling. After length measurements were complete, fish would be placed in a bucket of freshwater for longer than 30 minutes to allow for recovery prior to being released. Recovering fish would be kept in cool, shaded, aerated water and would not be overcrowded. This research would benefit listed fish by informing adaptive management strategies intended to aid in the recovery of at-risk anadromous salmonids. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.
The CDFW, Bay Delta Region (Region III), requests a five year renewal of permit 10094 to authorize take related to two research projects, the Watershed Restoration Project (WRP) and the Fisheries Management Project (FMP), designed to assess and restore the productivity of CC Chinook salmon, CCC coho salmon, NC steelhead, CCC steelhead, and S-CCC steelhead in Sonoma, Mendocino, Napa, Marin, San Mateo, Santa Cruz and Monterey counties in north central California. Program staff would accomplish this goal by conducting habitat and
H.T. Harvey & Associates has requested a permit to complete a project that is intended to meet three Marine Protected Area (MPA) monitoring goals set by the MPA Monitoring Enterprise: (1) To assess trends in the condition of ecosystems inside and outside of MPA's, (2) to evaluate the effects of specific MPA design criteria such as MPA size and distance between MPAs, and (3) to evaluate the effect of visitors on MPAs. The project would contribute to the goals of the monitoring enterprise by describing the baseline biological community in four northern California estuaries: (1) Mad River Estuary in Humboldt County, (2) South Humboldt Bay State Marine Recreational Management Area in Humboldt County, (3) Ten Mile Estuary State Marine Conservation Area (SMCA) in Mendocino County, and (4) Big River Estuary SMCA in Mendocino County. Sampling related to this project may take juvenile and smolt CC Chinook salmon, SONCC coho salmon, CCC coho salmon, NC steelhead, and adult sDPS eulachon. Beach seines and fyke nets would be used to capture fish whereby take (
The Scripps Institution of Oceanography, University of California, San Diego, California Sea Grant (CSG) College Program is seeking a five year permit to annually take listed CC Chinook salmon, CCC coho salmon, and CCC steelhead while monitoring the status and trends of listed salmonids in the Russian River watershed. CSG is proposing to collect data to estimate population metrics such as abundance, survival, growth, and spatial distribution of multiple life stages of salmonids, and relate them to different recovery actions including hatchery releases, habitat enhancement projects, and stream flow improvement projects. Data collection would be designed to meet four specific study objectives: (1) Evaluation of the Russian River Coho Salmon Captive Broodstock Program, (2) implementation of the California Coastal Salmonid Monitoring Plan, (3) comparing juvenile coho salmon oversummer survival with stream flow, and (4) evaluation of habitat enhancement projects. The four proposed studies would provide resource agencies with valuable information that would help guide future decisions regarding recovery actions. Fish populations would be monitored in many tributaries of the Russian River watershed and several methods that could observe/harass and/or capture fish would be employed, including: Snorkel surveys, spawning surveys, redd surveys, downstream migrant trapping (pipe/funnel trap), minnow trapping, operation of PIT tag detection systems (
The United States Geological Survey, California Water Survey has applied for a five year permit for take associated with completing two main objectives: (1) To examine research applications of the SmeltCam that have been developed and coordinated with the IEP, and (2) to provide fisheries science support for the BOR's compliance with Biological Opinions. The studies are intended to: (1) Provide new quantitative data addressing the potential benefits of habitat restoration to the SFE and Delta ecosystem and its native fish populations, and (2) determine the vertical and lateral distribution of delta smelt, and the continued evaluation and application of SmeltCam technology for
ICF consulting has requested a five year permit to take juvenile CVSR Chinook salmon and SRWR Chinook salmon while conducting a study to investigate if longfin smelt in San Pablo Bay shift their vertical distribution under different environmental and biological conditions. Although this study principally targets longfin smelt, ESA listed Chinook salmon would be encountered during sampling. ICF proposes to collect data that would be useful to local researchers on captured and/or photographed listed Chinook salmon, including abundance, length, and potentially tissue samples. Fish would be sampled using a midwater trawl, however the majority of tows would be conducted with only a video device (
This notice is provided pursuant to section 10(c) of the ESA. NMFS will evaluate the applications, associated documents, and comments submitted to determine whether the applications meet the requirements of section 10(a) of the ESA and Federal regulations. The final permit decisions will not be made until after the end of the 30-day comment period. NMFS will publish notice of its final action in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that NMFS Southwest Fisheries Science Center (SWFSC), 8901 La Jolla Shore Dr., La Jolla, CA 92037, [Responsible Party: Lisa Ballance, Ph.D.], has applied in due form for a permit to take green (
Written, telefaxed, or email comments must be received on or before August 28, 2015.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the 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.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Amy Hapeman or Brendan Hurley, (301) 427-8401.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The SWFSC requests a five-year research permit proposes to continue long-term monitoring of resident green sea turtles in southern California to characterize population structure, foraging ecology, and migration patterns. Up to 60 green, five olive ridley, and five loggerhead sea turtles would be captured annually using entanglement, seine, or dip net and have the following procedures performed before release: photography/video; temporary marking the carapace; flipper tagging and passive integrated transponder tagging; ultrasound; morphometrics; tetracycline injection; biological sampling; cloacal and oral swabbing; lavage; and up two transmitter attachments. Animals with transmitters may be surveyed and tracked by vessel after release. The permit would be valid for five years from the date of issuance.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for a permit modification.
Notice is hereby given that Raymond Carthy, Ph.D., University of Florida, Florida Cooperative Fish and Wildlife Research Unit, 117 Newins-Ziegler Hall, P.O. Box 110450, Gainesville, FL 32611, has requested an modification to scientific research Permit No. 17183-01.
Written, telefaxed, or email comments must be received on or before August 28, 2015.
The modification request and related documents are available for review by selecting “Records Open for Public Comment” from the Features box on the Applications and Permits for Protected Species (APPS) home page,
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Amy Hapeman or Brendan Hurley, (301) 427-8401.
The subject modification to Permit No. 17183, issued on May 6, 2013 (78 FR 26323) is requested under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Permit No. 17183-01 authorizes the permit holder to continue long-term research on the demographics and movements of green (
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (“PRA”), this notice announces that the Information Collection Request (“ICR”) abstracted below has been forwarded to the Office of Management and Budget (“OMB”) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before August 28, 2015.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Commodity Futures Trading Commission, 725 17th Street NW., Washington, DC 20503, within 30 days of the notice's publication, or by email at
Comments may also be mailed to: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, by Hand Deliver/Courier at the same address, or to the Federal eRulemaking Portal:
A copy of the supporting statements for the collection of information discussed above may be obtained by visiting
Robert Wasserman, Chief Counsel, Division of Clearing and Risk, Commodity Futures Trading Commission, (202) 418-5092; email:
This is a request for an extension of a previously approved collection—Extension.
There are estimated to be no capital costs or operating and maintenance costs associated with this collection.
44 U.S.C. 3501
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (“PRA”), this notice announces that the Information Collection Request (“ICR”) abstracted below has been forwarded to the Office of Management and Budget (“OMB”) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before August 28, 2015.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Commodity Futures Trading Commission, 725 17th Street NW., Washington, DC 20503, within 30 days of the notice's publication, by email at
Comments may also be mailed to: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, or by Hand Deliver/Courier at the same address, or to the Federal eRulemaking Portal:
A copy of the supporting statements for the collection of information discussed above may be obtained by visiting
Robert Schwartz, Deputy General Counsel, Office of General Counsel, Commodity Futures Trading Commission, (202) 418-5958; email:
This is a request for an extension of a previously approved collection—Extension.
44 U.S.C. 3501
Consumer Product Safety Commission.
Notice; correction.
The Consumer Product Safety Commission published a document in the
Todd A. Stevenson, Office of the Secretary, 4330 East West Highway, Bethesda, MD 20814 (301) 504-7923.
In the
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by August 28, 2015.
Under the U.S.-International Atomic Energy Agency (IAEA) Additional Protocol, the United States is required to declare a wide range of public and private nuclear-related activities to the IAEA and potentially provide access to IAEA inspectors for verification purposes. The U.S.-IAEA Additional Protocol permits the United States unilaterally to declare exclusions from inspection requirements for activities with direct national security significance.
The clause at 252.204-7010 is included in contracts for research and development or major defense acquisition programs involving fissionable materials (
The clause requires a contractor to provide written notification to the applicable DoD program manager and a copy of the notification to the contracting officer if the contractor is required to report its activities under the U.S.-IAEA Additional Protocol. Upon such notification, DoD will determine if access may be granted to IAEA inspectors, or if a national security exclusion should be applied.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at: Public Collections Program, WHS/ESD/Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by August 28, 2015.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503. You may also submit comments, identified by docket number and title, by the following method:
Follow the instructions for submitting comments.
Written requests for copies of the information collection proposal should be sent to Mr. Licari at: Publication Collections Program, WHS/ESD Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by August 28, 2015.
Written comments and recommendations on the proposed
You may also submit comments, identified by docket number and title, by the following method:
Written requests for copies of the information collection proposal should be sent to Mr. Licari at: Publication Collections Program, WHS/ESD Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
On June 30, 2015, Dan Sullivan filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA), as amended by section 4 of the Hydropower Regulatory Efficiency Act of 2013 (HREA). The proposed Drake Cottonwood Hydropower Project would have an installed capacity of 14 kilowatts (kW) and would be located on the existing irrigation canal off Cottonwood Creek; 1.5 miles of the canal will be enclosed with a 15-inch-diameter pipe. The project would be located near Hotchkiss in Delta County, Colorado.
A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.
Deadline for filing motions to intervene is 30 days from the issuance date of this notice.
Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.
The Commission strongly encourages electronic filing. Please file motions to intervene and comments using the Commission's eFiling system at
Take notice that the Commission received the following electric rate filings:
Description: Baseline eTariff Filing: NextEra Energy Transmission West, LLC Transmission Owner Tariff to be effective 10/20/2015.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On July 14, 2015, Sweetwater Authority filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA), as amended by section 4 of the Hydropower Regulatory Efficiency Act of 2013 (HREA). The proposed Perdue Water Treatment Plant Hydroelectric Project would have an installed capacity of 700 kilowatts (kW) and would be located on San Diego County Water Authority's existing raw water Pipeline 3, which carries raw water to a 24-inch diameter turnout pipe which in turn transports water into the Perdue Water Treatment Plant. The project would be located near Spring Valley in San Diego County, California.
A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.
Deadline for filing motions to intervene is 30 days from the issuance date of this notice.
Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.
The Commission strongly encourages electronic filing. Please file motions to intervene and comments using the Commission's eFiling system at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the WB XPress Project involving construction and operation of facilities by Columbia Gas Transmission, LLC (Columbia) in Kanawha, Grant, Upshur, Randolph, Pendleton, Clay, Braxton, and Hardy Counties, West Virginia and Fairfax, Shenandoah, Warren, Clark, Fauquier, and Loudoun Counties, Virginia. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before August 24, 2015.
If you sent comments on this project to the Commission before the opening of this docket on April 1, 2015, you will
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
For your convenience, there are four methods you can use to submit your comments to the Commission. The Commission will provide equal consideration to all comments received, whether filed in written form or provided verbally. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the eComment feature on the Commission's Web site (
(2) You can file your comments electronically by using the eFiling feature on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (PF15-21-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
(4) In lieu of sending written or electronic comments, the Commission invites you to attend the public scoping meeting(s) its staff will conduct in the project area, scheduled as follows.
We
Columbia representatives will be present one hour prior to the start of the scoping meeting to provide additional information about the project and answer questions.
Please note this is not your only public input opportunity; please refer to the review process flow chart in appendix 1.
Columbia plans to construct and operate approximately 28.7 miles of various diameter pipeline, perform modifications to seven existing compressor stations, construct two new compressor stations, and uprate the maximum allowable operation pressure (MAOP) on various segments of the existing WB and VB natural gas transmission pipeline systems. According to Columbia, its project would expand the capacity of its pipeline system by 1.3 billion cubic feet per day to provide firm bi-directional transportation service along Columbia's existing Line WB natural gas pipeline system to meet growing market demands in western West Virginia and northern Virginia.
The WB XPress Project would consist of the following facilities:
• One new West Virginia Compressor Station: a new, natural gas-fired compressor station at approximately MP 0.3 of the Line WB-5 Extension in Kanawha County, West Virginia.
• Installation of new valve sites and launcher/receiver facilities along Line WB-5 in Kanawha, Grant and Clay Counties, West Virginia.
• Modifications to increase horsepower at four (4) existing Compressor Stations including Cleveland, Files Creek, Seneca, and Lost River Compressor Stations in Upshur, Randolph, Pendleton, and Hardy Counties, West Virginia, respectively.
• Modifications to existing natural gas pipeline appurtenances at the Frametown Compressor Station in Braxton County, West Virginia.
• Modifications to four existing Valve Sites including Glady Valve Site in Randolph County, West Virginia; Dink Valve Site in Clay County, West Virginia; Whitmer and Smokehole in Pendleton County, West Virginia; and one regulator station, Panther Mountain Regulator Station, in Kanawha County, West Virginia.
• Line WB-5 Extension: Installation of approximately 0.3 mile of new 36-inch-diameter natural gas transmission pipeline from the planned new Compressor Station to the Panther Mountain Regulator Station in Kanawha County, West Virginia.
• Line WB-22: Installation of approximately 0.6 mile of new 36-inch-diameter natural gas transmission pipeline from the proposed new West Virginia Compressor Stations to the Panther Regulator Station, ending at the proposed WB-22 Receiver Site in Kanawha County, West Virginia.
• Line WB: Generally lift and lay replacement of approximately 25.3
• Line WB: Replacement of 5 sections, totaling approximately 0.3 mile of 26-inch-diameter natural gas transmission pipeline between Mileposts (MP) 134.6 and 146.4 in Pendleton, Grant, and Hardy Counties, West Virginia.
• Line WB-5: Replacement of approximately 1,185 feet (0.2 mile) of 36-inch-diameter natural gas transmission pipeline between MP 4.5 and MP 4.7 in Grant County, West Virginia.
• Line WB-5: Incremental pressure increase of approximately 72.4 miles of the Line WB-5 Segment to restore this segment to its originally certificated MAOP of 1,000 square inch gauge (psig) in Upshur, Randolph, Pendleton, Grant and Hardy Counties, West Virginia.
• Line WB-6: Incremental pressure increase of approximately 2.4 miles of the Line WB-6 to 1,000 psig MAOP in Randolph County, West Virginia.
• Line WB-5: Incremental pressure increase of approximately 22.1 miles of the Line WB-5 Segment to 1,000 psig in Pendleton, Grant, and Hardy Counties, West Virginia.
• One new, electric-driven compressor station at approximately MP 0.0 of the proposed new Line VA-1 in Fairfax County, Virginia.
• Installation of a receiver facility at the end of the proposed Line VA-1, in Fairfax County, Virginia.
• Modifications to increase horsepower at the existing Strasburg Compressor Station located in Shenandoah County Virginia, in order to increase capacity for the transportation of additional volume along Columbia's Line VB natural gas pipeline system.
• Modifications to existing natural gas pipeline appurtenances at the Loudoun Compressor Station in Loudoun County, Virginia.
• Modifications to the existing Dysart Valve Site, in Shenandoah County, Virginia and one metering station, Nineveh Meter Station, in Warren County, Virginia.
• Line VA-1: installation of approximately 2.0 miles of new 12-inch-diameter natural gas transmission pipeline and associated appurtenances in Fairfax County, Virginia.
• Line VB-5: Incremental pressure increase of approximately 70.4 miles of the Line VB-5 Segment to restore this segment to its originally certificated MAOP of 1,000 psig in Shenandoah, Warren, Clark, Fauquier, and Loudoun Counties, Virginia.
The general location of the project facilities is shown in appendix 1.
Construction of the planned facilities would disturb about 605.5 acres of land, which includes 257.6 acres of existing right-of-way, 36.3 acres of proposed new permanent right-of-way, 97.1 acres of existing fenced facilities, and 16.7 acres of new proposed aboveground facilities that would be retained for operational activities. Approximately 311.6 acres of temporary workspace, staging areas, and access roads would be used temporarily during construction and would revert back to pre-construction conditions. The entire planned pipeline route parallels existing pipeline, utility, or road rights-of-way.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as scoping. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of the issues to address in the EA. We will consider all filed comments during the preparation of the EA.
In the EA we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife, including migratory birds;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the FERC receives an application. As part of our pre-filing review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the EA.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office(s) (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
Once Columbia files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site. Please note that the Commission will not accept requests for intervenor status at this time. You must wait until the Commission receives a formal application for the project.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that on July 10, 2015, Equitrans, L.P. (Equitrans), having its principal place of business at 625 Liberty Avenue, Suite 1700, Pittsburgh, Pennsylvania 15222, filed in the above referenced docket an application pursuant to sections 7(b) and 7(c) of the Natural Gas Act (NGA), and Part 157 of the Commission's regulations requesting authorization for the replacement of existing segment located in Armstrong and Indiana Counties, Pennsylvania (the TP-371 Pipeline Replacement Project), all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site web at
Any questions concerning this application may be directed to Matthew Eggerding, Counsel—Midstream, EQT Corporation, 625 Liberty Avenue, Suite 1700, Pittsburgh, PA 15222; by calling (412) 553-5786; by faxing (412) 553-7781; or by emailing
Specifically, the applicant proposes to replace approximately 21 miles of 12-inch diameter pipe with 20-inch diameter pipe and install a pig launcher and receiver in order to improve system integrity, reliability, and safety of the TP-371 pipeline. The cost of the project will be approximately $93.6 million, and was included as part of the sales agreement when Equitrans acquired the TP-371 pipeline.
Pursuant to section 157.9 of the Commission's rules (18 CFR 157.9), within 90 days of this Notice, the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS)
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Federal Energy Regulatory Commission, Energy.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork
Comments on the collection of information are due September 28, 2015.
You may submit comments (identified by Docket No. IC15-10-000) by either of the following methods:
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Ellen Brown may be reached by email at
The FERC-732 regulations require that transmission organizations (that are public utilities with one or more organized electricity markets) choose one of two ways to file:
• File tariff sheets making long-term firm transmission rights available that are consistent with each of the guidelines established by FERC
• File an explanation describing how their existing tariffs already provide long-term firm transmission rights that are consistent with the guidelines.
FERC-732 enables the Commission to exercise its wholesale electric rate and electric power transmission oversight and enforcement responsibilities in accordance with the FPA, the Department of Energy Organization Act (DOE Act), and EPAct 2005.
The total estimated annual cost burden to respondents would be $84,960 [1,180 hours * $72.00/hour
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces the availability of The Environmental Protection Agency's (EPA) Responsiveness Summary Concerning EPA's March 10, 2015 Public Notice of Proposed Decisions to Add Waters and Pollutants to Louisiana's 2014 Section 303(d) List.
On March 10, 2015 EPA published a notice in the
Based on the Responsiveness Summary, EPA finds no new information or persuasive arguments as to why the 43 water quality limited segments should not be added to the 2014 Louisiana Section 303(d) list as proposed. Therefore, EPA is taking Final Action on the addition of 43 water quality limited segments and associated 93 waterbody-pollutant combinations to the final Louisiana 2014 Section 303(d) list. The basis for these decisions is described in EPA's Decision Document for the Louisiana 2014 Section 303(d) list, available at
Copies of EPA's Responsiveness Summary Concerning EPA's July 21, 2015 Public Notice of Final Decisions to Add Waters and Pollutants to Louisiana's 2014 Section 303(d) list can be obtained at EPA Region 6's Web site at
Evelyn Rosborough at (214) 665-7515.
Section 303(d) of the Clean Water Act (CWA) requires that each state identify those waters for which existing technology-based pollution controls are not stringent enough to attain or maintain state water quality standards. For those waters, states are required to establish Total Maximum Daily Loads (TMDLs) according to a priority ranking.
EPA's Water Quality Planning and Management regulations include requirements related to the implementation of Section 303(d) of the CWA (40 CFR 130.7). The regulations require states to identify water quality limited waters still requiring TMDLs every two years. The list of waters still needing TMDLs must also include priority rankings and must identify the waters targeted for TMDL development during the next two years (40 CFR 130.7).
Consistent with EPA's regulations, Louisiana submitted to EPA its 2014 listing decisions under Section 303(d) on August 19, 2014. On February 26, 2015, EPA approved Louisiana's 2014
Environmental Protection Agency (EPA).
Notice.
EPA is announcing the availability of draft guidance,
Comments must be received on or before August 28, 2015.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2015-0422 by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Monique Perron, Health Effects Division (7509P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 347-0395; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. 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:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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Section 408(b)(2)(D)(v) of the Federal Food, Drug, and Cosmetic Act (FFDCA) requires EPA to take into account available evidence concerning the cumulative effects of pesticide residues and other substances that have a common mechanism of toxicity. The Office of Pesticide Programs (OPP) has previously developed two guidance documents:
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The process described in those documents results in a highly refined CRA but requires an extensive amount of resources, large amounts of toxicology and exposure data, and may involve sophisticated modelling. The process involves developing science policy documents that establish a CMG before conducting a highly refined CRA. To date, OPP has established five CMGs: Organophosphates (OPs),
The level of refinement provided by this approach is not necessary or even feasible for all existing pesticide classes. The 2002 CRA guidance notes that not all cumulative assessments need to be of the same depth and scope and that it is important to determine the need for a comprehensive risk assessment by considering the exposure profile. The 2011 World Health Organization International Programme on Chemical Safety guidance on CRA which are available at
Specifically, the draft
Based on the proposed screening guidance,
The cumulative assessment was done in conjunction with pending actions for abamectin to expand the use of abamectin on Caneberry subgroup 13-07A, soybeans, sweet corn, ear tags for lactating dairy cattle, and golf course turf. A draft copy of the human health risk assessment considering both aggregate and cumulative risks is included in the docket to provide an example of how the EPA would implement the,
FFDCA § 408(b) [21 U.S.C. 346 a(b)].
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's receipt of an application (88877-EUP-E) from the University of Kentucky's Department of Entomology requesting an experimental use permit (EUP) for
Comments must be received on or before August 28, 2015.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2015-0374, by one of the following methods:
•
•
•
Robert McNally, Director, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
This action is directed to the public in general. Although this action may be of particular interest to those persons who conduct or sponsor research on pesticides, EPA has not attempted to describe all the specific entities that may be affected by this action.
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Under section 5 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136c, EPA can allow manufacturers to field test pesticides under development. Manufacturers are required to obtain an EUP before testing new pesticides or new uses of pesticides if they conduct experimental field tests on 10 acres or more of land or one acre or more of water.
Pursuant to 40 CFR 172.11(a), EPA has determined that the following EUP application may be of regional and national significance, and therefore is
Following the review of the application and any comments and data received in response to this solicitation, EPA will decide whether to issue or deny the EUP request, and if issued, the conditions under which it is to be conducted. Any issuance of an EUP will be announced in the
7 U.S.C. 136
Office of External Affairs and Environmental Education, Environmental Protection Agency.
Notice.
The National Environmental Education and Training Foundation (doing business as The National Environmental Education Foundation or NEEF) was created by Section 10 of Public Law 101-619, the National Environmental Education Act of 1990. It is a private 501(c)(3) non-profit organization established to promote and support education and training as necessary tools to further environmental protection and sustainable, environmentally sound development. It provides the common ground upon which leaders from business and industry, all levels of government, public interest groups, and others can work cooperatively to expand the reach of environmental education and training programs beyond the traditional classroom. The Foundation promotes innovative environmental education and training programs such as environmental education for medical healthcare providers and broadcast meteorologists; it also develops partnerships with government and other organizations to administer projects that promote the development of an environmentally literal public. The Administrator of the U.S. Environmental Protection Agency, as required by the terms of the Act, announces the following appointment to the National Environmental Education Foundation Board of Directors. The appointee is Dr. Martin Philbert, Dean, School of Public Health at the University of Michigan, Ann Arbor (UM).
For information regarding this Notice of Appointment, please contact Mr. Brian Bond, Senior Advisor to the Administrator for Public Engagement, U.S. EPA 1200 Pennsylvania Ave. NW., Washington, DC 20460. General information concerning NEEF can be found on their Web site at:
Dr. Martin Philbert is the Dean, School of Public Health at the University of Michigan, Ann Arbor (UM). In addition, Dr. Philbert is well known to the EPA, especially through Dr. Ken Olden, EPA's Director of the National Center for Environmental Assessment. Martin Philbert became Dean of the UM School of Public Health on January 1, 2011, having previously served as Senior Associate Dean for Research at the school since 2004. He arrived at UM in 1995 from Rutgers University's Neurotoxicology Laboratories, where he was a research assistant professor. He has maintained a continuously federally funded portfolio of basic research activities throughout his career. Most recently his work has been funded by the National Institutes of Health, the Department of the Air Force and the National Cancer Institute. At the national level, he is recognized for his expertise in neurotoxicology and experimental neuropathology. He is the author of numerous research publications in top peer-reviewed journals, and one book. Dr. Philbert received his Ph.D., Neurochemistry/Experimental Neuropathology from London University in 1987, and his B.Sc. (Honors), Biology/Chemistry, CCAT from Cambridge in 1984.
This appointee will join the current Board members which include:
The Foundation is a charitable and nonprofit corporation whose income is exempt from tax, and donations to which are tax deductible to the same extent as those organizations listed pursuant to section 501(c) of the Internal Revenue Code of 1986. The Foundation is not an agency or establishment of the United States. The purposes of the Foundation are—
(A) Subject to the limitation contained in the final sentence of subsection (d) herein, to encourage, accept, leverage, and administer private gifts for the benefit of, or in connection with, the environmental education and training activities and services of the United States Environmental Protection Agency;
(B) to conduct such other environmental education activities as will further the development of an environmentally conscious and responsible public, a well-trained and environmentally literate workforce, and an environmentally advanced educational system;
(C) to participate with foreign entities and individuals in the conduct and coordination of activities that will further opportunities for environmental education and training to address environmental issues and problems involving the United States and Canada or Mexico.
The Foundation develops, supports, and/or operates programs and projects to educate and train educational and environmental professionals, and to assist them in the development and delivery of environmental education and training programs and studies.
The Foundation has a governing Board of Directors (hereafter referred to in this section as `the Board'), which consists of 13 directors, each of whom shall be knowledgeable or experienced in the environment, education and/or training. The Board oversees the activities of the Foundation and assures that the activities of the Foundation are consistent with the environmental and education goals and policies of the Environmental Protection Agency and with the intents and purposes of the Act. The membership of the Board, to the extent practicable, represents diverse points of view relating to environmental education and training. Members of the Board are appointed by the Administrator of the Environmental Protection Agency.
Within 90 days of the date of the enactment of the National Environmental Education Act, and as appropriate thereafter, the Administrator will publish in the
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 34.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Federal Deposit Insurance Corporation.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime 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 August 24, 2015.
A. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
B. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
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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 August 13, 2015.
A. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by Section 2112(b)(2) of the Public Health Service (PHS) Act, as amended. While the Secretary of Health and Human Services is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact the Clerk, United States Court of Federal Claims, 717 Madison Place NW., Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 11C-26, Rockville, MD
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the U.S. Court of Federal Claims at the address listed above (under the heading
Office of the Secretary, Department of Health and Human Services.
Notice.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) is hereby giving notice that the National Advisory Committee on Children and Disasters (NACCD) will be holding a meeting via teleconference. The meeting is open to the public.
The August 27, 2015, NACCD meeting is scheduled from 3:00 p.m. to 4:00 p.m. EST. The agenda is subject to change as priorities dictate. Please check the NACCD Web site, located at
To attend the meeting via teleconference, call toll-free: 1-888-989-6485, international dial-in: 1-312-470-0178. The pass-code is: 5885575. Please call 15 minutes prior to the beginning of the conference call to facilitate attendance. Pre-registration is required for public attendance. Individuals who wish to attend the meeting should submit an inquiry via the NACCD Contact Form located at
Please submit an inquiry via the NACCD Contact Form located at
Pursuant to the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), and section 2811A of the Public Health Service (PHS) Act (42 U.S.C. 300hh-10a), as added by section 103 of the Pandemic and All Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113-5), the HHS Secretary, in consultation with the Secretary of the U.S. Department of Homeland Security, established the National Advisory Committee on Children and Disasters (NACCD). The purpose of the NACCD is to provide advice and consultation to the HHS Secretary with respect to the medical and public health needs of children in relation to disasters. The Office of the Assistant Secretary for Preparedness and Response (ASPR) provides management and administrative oversight to support the activities of the NACCD.
Office of the Secretary, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for renewal of the approved information collection assigned OMB control number 0990-0331, scheduled to expire on 08/31/2015. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before August 28, 2015.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the OMB control number 0990-0331 and document identifier HHS-OS-0990-0331-30D for reference.
Data collection for the entire evaluation is expected to last 7 years, from the time the first participant was enrolled in late 2008 until the last qualitative follow-back interview is administered. The burden table below includes completion of a set of follow-back qualitative interviews with a small group of respondents (previously approved under OMB No. 0990-0331). The current approval expires on August 21, 2015, and we are requesting an extension until December 31, 2015, to enable us to complete all of the interviews that have been previously approved by OMB under this information collection.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.); notice is hereby given of a meeting of the Board of Scientific Counselors, NIAAA.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute on Alcohol Abuse and Alcoholism, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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.
National Protection and Programs Directorate, DHS.
Notice; correction.
The Department of Homeland Security published a document in the
Kendall Carpenter, 703-235-4087.
In the
Comments are encouraged and will be accepted until August 3, 2015.
Written comments should reach the contact person listed no later than August 3, 2015.
U.S. Immigration and Customs Enforcement, DHS.
Notice of establishment of advisory committee and solicitation of membership nominations.
The Department of Homeland Security (DHS) announces the establishment of the U.S. Immigration and Customs Enforcement (ICE) Advisory Committee on Family Residential Centers (ACFRC) and invites the public to nominate individuals for one-year, two-year, and three-year term appointments.
Submit nominations for committee membership by August 1, 2015.
Nominations must be in writing and be submitted to: John Amaya, Senior Advisor to the Director, U.S. Immigration and Customs Enforcement, Office of the Director, 500 12th Street SW., 11th Floor, Washington, DC 20536; or by email to
John Amaya at the above address or by telephone 202-732-3000 or email
Under the Secretary of DHS's authority in Title 6, United States Code (U.S.C.), section 451, this Committee is established in accordance with and operates under the provisions of the Federal Advisory Committee Act (FACA) (Title 5, U.S.C., Appendix). The committee will provide advice and recommendations to the Secretary of DHS through the Assistant Secretary of ICE on matters concerning ICE's family residential centers on matters relating to detention management, family and youth services, health, and education.
The Committee shall be composed of up to 15 members who are appointed by and serve at the pleasure of the Secretary of DHS. The membership shall consist of experts and advocates from the fields of primary education, immigration law, physical and mental health, trauma-informed services, family and youth services, detention management, and detention reform, and other fields as the Secretary determines to be appropriate. Members will be appointed to represent their respective academic institution or organization and will not be Special Government Employees (SGEs) as defined in Title 18, U.S.C., section 202(a).
For the initial appointments to the Committee, approximately one-third of the members shall serve 1-year terms of office, one-third shall serve 2-year terms of office, and one-third shall serve 3-year terms of office. Thereafter, members will serve terms of office of up to three years, with approximately one-third of members' terms of office expiring each year. A member appointed to fill an unexpired term serves the remainder of that term. ICE and DHS will strive to fill a Committee vacancy no later than six months after the position is vacated. In the event the Committee terminates, all appointments to the Committee terminate.
The Designated Federal Official (DFO) may approve the establishment of subcommittees for any purpose consistent the Committee's charter. Subcommittees shall be composed of Committee members as determined by the DFO. Subcommittees may not work independently of the chartered Committee and must present their work to the Committee for full deliberation and discussion. Subcommittees have no authority to make decisions on behalf of the Committee and may not report directly to the Federal Government or any other entity.
The Committee is expected to meet two times each year. Additional meetings may be held with the approval of the DFO.
Members may be reimbursed for travel and per diem, and all travel for Committee business must be approved in advance by the DFO.
ICE and DHS will consider nominations of all qualified individuals to ensure that the Committee includes the areas of subject matter expertise noted above (see “Structure”). Individuals may nominate themselves or other individuals, and professional associations and organizations may nominate one or more qualified persons for membership on the Committee. Nominations must state that the nominee is willing to serve as a member of the Committee. Potential candidates will be asked to provide detailed information concerning financial interests, consultancies, research grants, and/or contracts that might be affected by recommendations of the Committee to permit evaluation of possible sources of conflicts of interests.
A nomination package should include the following information for each nominee:
(1) A letter of nomination stating the name, affiliation, and contact information for the nominee, the basis for the nomination (
(2) A biographical sketch of the nominee and a copy of his/her curriculum vitae and/or resume.
(3) The name, return mailing address, email address, and daytime phone number at which the nominator can be contacted.
To ensure a diverse nominee pool, ICE and DHS encourage nominations for appropriately qualified candidates of every gender, age, race, ethnicity, national origin, religion, sexual orientation, gender identity, disability, and geographic region.
All nominations should be provided in a single, complete package. All nominations should be sent to the submission address and contact provided above.
Please note this notice is not intended to be the exclusive method by which ICE and DHS will solicit membership nominations and expressions of interest to identify qualified candidates. However, all candidates for membership on the Committee will be subject to the same evaluation criteria.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
Through this notice, HUD solicits comment, for a period of 60-
Interested persons are invited to submit comments regarding this proposal. Questions or comments should be directed by email to
Bryan Herdliska, Office of Community Planning and Development, U.S. Department of Housing and Urban Development, 451 7th Street SW., Washington, DC, 20410; telephone number 202-402-6758. This is not a toll-free number. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
In his 2013 State of the Union address, President Obama announced the establishment of the Promise Zones Initiative to partner with high-poverty communities across the country to create jobs, increase economic security, expand educational opportunities, increase access to quality, affordable housing, and improve public safety.
The first five Promise Zones were selected through a competitive process following an invitation to eligible communities to apply for a designation, which was issued on October 30, 2013 with an application deadline of November 26, 2013.
The second round Promise Zone selection process opened on August 29, 2014 with an application deadline of November 21, 2014.
The Promise Zones Initiative seeks to revitalize high-poverty communities across the country by creating jobs, increasing economic activity, improving educational opportunities, reducing violent crime, leveraging private capital, and assisting local leaders in navigating federal programs. Promise Zones will not receive grant funding. The Promise Zone designation partners the Federal government with local leaders who are addressing multiple community revitalization challenges in a collaborative way and have demonstrated a commitment to results. Promise Zone Designees will receive: The opportunity to engage Five AmeriCorps VISTA members in the Promise Zone; a federal liaison assigned to assist with navigating federal programs; preferences for certain competitive federal programs; technical assistance from participating agencies; and Promise Zone tax incentives if enacted by Congress.
Altogether, this package of assistance will help local leaders accelerate efforts to revitalize their communities. The Promise Zone designation will be for a term of 10 years, and may be extended as necessary to capture the full term of availability of the Promise Zones tax incentives, if enacted by Congress. During this term, the specific benefits made available to Promise Zones will vary from year to year, and sometimes more often than annually, due to changes in an agency's policies and changes in appropriations and authorizations for relevant programs. All assistance provided to Promise Zones is subject to applicable regulations, statutes, and changes in Federal agency policies, appropriations, and authorizations for relevant programs. Subject to these limitations, the Promise Zone designation commits the Federal government to partner with local leaders who are addressing multiple community revitalization challenges in a collaborative way and have demonstrated a commitment to results.
A third and final round of Promise Zone designations is currently in the selection process planning stage with announcements of the designees expected in spring 2016. HUD anticipates making at least seven designations in the third round in the urban, rural and tribal categories, depending on resources available. As a result of the third round competition, the Department of Housing and Urban Development (HUD) intends to designate five urban communities and the Department of Agriculture (USDA) intends to designate one rural and one tribal community. This third round of selections with bring the total number of Promise Zone designations to 20, including the five designations announced in January, 2014, and the eight announced in April, 2015.
Due to the nature of the Initiative, Promise Zone activities are likely to be carried out by a variety of organizations and organization types. Eligible lead applicants for Urban Promise Zone designations are:
1. Units of General Local Government (UGLG or local government);
2. An office or department within local government or a county government with the support of the UGLG;
3. Non-profit organizations
4. Public Housing Agencies, Community Colleges, Local Education Agencies (LEAs), or Metropolitan Planning Organizations (MPO) applying with the support of the UGLG.
For eligible lead applicants for Rural and Tribal Promise Zone designations please refer to the Rural and Tribal Promise Zone Application Guide located at
The selection process under consideration is that any community meeting the community eligibility criteria set forth in the
i. Proposed Promise Zone must have one contiguous boundary and cannot include separate geographic areas;
ii. The rate of overall poverty or Extremely Low Income rate (whichever is greater) of residents within the Promise Zone must be at or above 32.5 percent;
iii. Promise Zone boundaries must encompass a population of at least 10,000 but no more than 200,000 residents;
iv. The Promise Zone application must affirmatively demonstrate support from all mayors or chief executives of UGLGs that include any geographical area within the proposed Promise Zone boundary, where such city(is), county(ies), parish(es), or county equivalent(s) is(are) the sole UGLG(s) providing general government services for such geographical area(s), subject to the following conditions:
a. The chief executive of a city, county, parish, or county equivalent may only affirmatively demonstrate support for the Promise Zone Plan of one proposed Promise Zone containing a geographical area in which the city, county, parish or county equivalent is the sole provider of general public services;
b. Subject to the limitation in paragraph a. above, the chief executive of a county, parish, or county equivalent may affirmatively demonstrate support for the Promise Zone Plan of any proposed Promise Zone located in the county, parish, or county equivalent where another UGLG also provides general government services;
c. With the exception of paragraph b. above, if the Mayor or chief executive of a county, parish or county equivalent demonstrates affirmative support for the Promise Zone Plan of more than one proposed Promise Zone in which the UGLG he or she represents is the sole provider of general government services, all of the applications from that UGLG will be disqualified from the competition;
d. Where the proposed Promise Zone boundaries cross UGLG boundaries, one Lead Applicant must be identified for the Promise Zone application, and commitment must be demonstrated by the mayors or chief executives of all of the UGLGs that are sole providers of general government services for any part of the proposed Promise Zone geographical area; and
e. If a Promise Zone designated in Round 1 or 2 is located within a UGLG in which a new application is being submitted, the applicant must include an explanation of how, if a second Promise Zone designation is made, the UGLG that is the sole provider of general government services plans to work with both of the Promise Zone designees at the same time and sustain the level of effort, resources and support committed to each Promise Zone under its respective Promise Zone Plan for the full term of each Promise Zone designation. This explanation must be evidenced by commitments from the UGLG in materials submitted by the mayor or chief executive in support of the application.
HUD is soliciting public comments on the proposed selection process, criteria, and submissions for the third round of the Promise Zone Initiative that has been announced through this
Comments are due by September 28, 2015 and may be submitted at
HUD has created a MAX Survey stage site in order to allow both applicants and other stakeholders an opportunity to experience the proposed intake mechanism for the third round selection process and provide specific feedback on its operation and functionality. To access the MAX Survey platform, please go to:
Questions or comments may also be directed by postal mail to: Office of the Deputy Assistant Secretary for Economic Development, U.S. Department of Housing and Urban Development, 451 Seventh Street SW., Room 7136, Washington, DC 20410, ATTN: Third Round Promise Zone selections.
In addition to providing comments on the proposed selection process, criteria, and submissions for the third round of the Promise Zone Initiative, commenters are encouraged to address any or all of the following questions.
For communities considering a Promise Zone application:
1. Are the programs that provide preferential access for designated Promise Zones helpful? Are there policy areas or issues that you need to address that are not represented?
2. If your community is not designated, but you and your partners intend to continue community revitalization efforts, please explain what particular types of information, technical assistance, peer exchange, introductions or other non-competitive assistance would be helpful to you as you move your work forward?
3. Do you find the MAX SURVEY sufficiently easy to use compared to other federal application systems (
4. Would you be willing to provide the type of information requested in the Goals and Activities template for purposes of potentially connecting you to federal and private partners/peers that could facilitate your community's development work if it were not part of a competition for a federal designation? (See MAX SURVEY at
For users of the Community Development Marketplace (a database of strategy and activity information Second Round applicants permitted HUD and USDA to share):
5. What kind of potential user are you? HUD has heard from foundations, investors, communities, researchers and national intermediaries and stakeholder networks, but there may be others who can use this data.
6. Does the Third Round template capture information that would be useful to you? (See MAX SURVEY at
7. Are there additional pieces of information that would assist you in filtering and searching for information you would like to have?
8. Is the Web site clear and easy to use? If not, what elements would be more helpful? (See
9. Is the interagency program information presented on the Web site well-matched to your community's needs? If not, what type of information would be helpful to add?
10. Do you find Promise Zone communications, through emails, webinars, written documents and other means, useful to organizations working in your community? Please elaborate on what is useful or what could be done to make it more useful.
11. How can HUD communicate more clearly/effectively with residents and community based organizations about the way that the Promise Zone Initiative operates and how it supports local work?
12. How can the Promise Zone Initiative better engage new Americans and immigrant stakeholders?
13. How can the Promise Zones make use of the EPA Smart Location database?
14. Does the Promise Zone framework for tracking data address the issue of burdening designees in terms of data access and reporting? Are there other ways we could accomplish this?
15. Is the Promise Zone table of core indicators, measures, and data sources useful for community development outcome tracking? Are there other measures that should be added?
Bureau of Indian Affairs, Interior.
Notice of corrections to Final Decision On Remand.
This notice announces that the Department of the Interior (Department) through the Assistant Secretary—Indian Affairs (AS-IA) issued corrections to the “Summary under the Criteria and Evidence for Final Decision on Judicial Remand” dated July 2, 2015 (Final Decision on Remand) that declined to acknowledge that the Duwamish Tribal Organization (DTO), c/o Cecile Maxwell-Hansen, is an Indian tribe within the meaning of Federal law. This notice supplements the notice of final decision on remand published in the
The Final Decision on Remand (corrected) is final for the Department on publication of this notice.
Requests for a copy of the Final Decision on Remand (corrected) should be addressed to the Office of the Assistant Secretary—Indian Affairs, Attention: Office of Federal Acknowledgment, 1951 Constitution Avenue NW., MS 34B-SIB, Washington, DC 20240. It is also available through
Mr. R. Lee Fleming, Director, Office of Federal Acknowledgment, (202) 513-5650.
On July 2, 2015, the Department issued a “Summary under the Criteria and Evidence for Final Decision on Judicial Remand” (Final Decision on Remand) declining to acknowledge that the Duwamish Tribal Organization (DTO), c/o Cecile Maxwell-Hansen, is an Indian tribe within the meaning of Federal law. On July 8, 2015, the Department published a notice of the Final Decision on Remand in the
The Final Decision on Remand dated July 2, 2015, was incomplete. It omitted language that the AS-IA has determined should have been included in the final decision and it omitted an appendix referenced in the text. The Final Decision on Remand dated July 23, 2015, corrects these omissions.
This notice announces the corrections to the Final Decision on Remand. The Final Decision on Remand (corrected) dated July 23, 2015 does not affect the determination that the petitioner does not satisfy all seven mandatory criteria in the either the 1978 or 1994 regulations, 25 CFR part 83. This notice supplements the
The Final Decision on Remand (corrected) is final for the Department on publication of this notice in the
Bureau of Indian Affairs, Interior.
Notice of Tribal-State Class III Gaming Compact taking effect.
This notice publishes the Indian Gaming Compact between the State of New Mexico and the Pueblo of Taos governing Class III gaming (Compact) taking effect.
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.
Under section 11 of the Indian Gaming Regulatory Act (IGRA) Public Law 100-497, 25 U.S.C. 2701
National Park Service, Interior.
Notice of intent.
The National Park Service (NPS) is preparing an Environmental Impact Statement (EIS) for the Visitor Use Management Plan for Delaware Water Gap National Recreation Area (DEWA), in New Jersey and Pennsylvania. This effort will examine current and potential visitor opportunities and will develop long-term strategies for protecting resources while providing access, connecting visitors to key visitor experiences, and managing use. The planning process will also involve evaluating the zones in the 1987 General Management Plan (GMP), and may include updating the zoning scheme as needed through a GMP amendment. This notice initiates the public participation and scoping process for the EIS. The public is invited to comment on the purpose, need, objectives, preliminary management options, or any other issues associated with the proposal.
The public scoping period will commence on the date this notice is published in the
A scoping brochure and other materials describing the overall purpose, issues, and possible management strategies may be obtained from the PEPC Web site:
If you wish to comment on the scoping brochure or any other issues associated with the Plan, you may mail or hand-deliver comments to Delaware Water Gap National Recreation Area Attn: VUM Plan, 1978 River Road, Bushkill, PA 18324; or comment via the Internet at
Leslie Morlock, Chief of Strategic Planning and Project Management, Delaware Water Gap National Recreation Area, 1978 River Road, Bushkill, PA 18324, telephone (570) 296-6952 extension 10, or by email at
In recent years, areas within Delaware Water Gap National Recreation Area have experienced changes in the amounts and patterns of use by visitors and local residents. This use is affecting park natural and cultural resources in ways unanticipated since the finalization of the park's General Management Plan in 1987. As a result, and pursuant to Section 102(2)(C) of the National Environmental Policy Act of 1969, the NPS is beginning a comprehensive planning and environmental impact statement process to determine how best to protect park resources and values while providing appropriate opportunities for visitor use, experience, and enjoyment of the recreation area. Delaware Water Gap National Recreation Area encompasses a portion of a national scenic trail and a wild and scenic river.
Several statutes, including the National Parks and Recreation Act, Wild and Scenic Rivers Act, and National Trails System Act, expressly require federal agencies to address visitor capacity. Therefore, the comprehensive understanding of visitor use throughout the park would also assist in setting visitor capacities for the river and feed into future planning. This Plan will: (1) Be grounded in the recreation area's purpose, significance, and fundamental and other important resources and values; (2) clearly define the necessary conditions for park visitors to understand, enjoy, and appreciate these resources and values; (3) identify the desired conditions for visitor experiences linked to these resources and values; (4) establish indicators, standards, and management strategies for maintaining these desired conditions; and (5) establish visitor capacities where needed.
A range of management strategies, including the potential rezoning of some park areas, will be developed to address long term management of visitor use and protection of natural and cultural resources in the national recreation area. These will be presented for public comment during public scoping to help develop alternatives, including a “no-action alternative,” for the Plan. The Plan will also explore management approaches that can be adapted to changing conditions, identifying indicators and thresholds, develop monitoring systems to assure the protection of resources, and continue to provide a quality visitor experience.
Before including your address, phone number, email address, or other personal identifying information in any comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice of termination.
The National Park Service (NPS) is preparing a general management plan (GMP) for Martin Van Buren National Historic Site. A Notice of Intent to prepare an environmental impact statement (EIS) for the GMP was published in the
The GMP/EA is expected to be distributed for public review and comment during the summer of 2015. The NPS will provide information on when the GMP/EA will be released for public review, the dates of the public comment period, and the dates that public meetings will be held on the park's planning Web site at
Refer to the park's planning Web site at
Jim O'Connell, Project Manager; NPS/Northeast Region; 15 State Street; Boston, MA 02019 or Sarah Olson, Superintendent; Martin Van Buren NHS; 1013 Old Post Road; Kinderhook, NY 12106.
The GMP for Martin Van Buren National Historic Site will provide long-term guidance for resource management, visitor services, and interpretive programming. The three GMP alternatives evaluated in the GMP/EA focus on management of lands added to the park in 2009, maintaining and protecting resources, visitor use, facilities, access, interpretation, and NPS operations in the park as a whole. GMP planning and alternatives development incorporated input from park partners and cooperators; participants in local community meetings; consultation with local, regional, and national government agencies; and comments gathered at a 2009 public scoping session. The public was informed about the process and invited to participate through newsletters, emails, letters, and response cards.
The GMP was originally scoped as an EIS; however, internal discussions and input received during public and agency scoping did not raise any potentially significant environmental issues nor has the impact analysis identified any potentially significant adverse impacts. It is also noted that many of the actions proposed in the GMP/EA will have benefits to the park's resources, operational needs, and visitor experiences. For these reasons the NPS determined that an EA is the appropriate level of environmental review for the GMP.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the presiding administrative law judge has issued a final initial determination and recommended determination on remedy and bonding in the above-captioned investigation. The Commission is soliciting comments on public interest issues raised by the recommended relief, specifically a limited exclusion order against certain marine sonar imaging systems, products containing the same, and components thereof, imported by respondents Garmin International, Inc.; Garmin North America, Inc.; Garmin USA, Inc., each of Olathe, Kansas, and Garmin Corporation of New Taipei City, Taiwan, and a cease and desist order against the domestic respondents. This notice is soliciting public interest comments from the public only. Parties are to file public interest submissions pursuant to 19 CFR 210.50(a)(4).
Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3042. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on August 21, 2014, based on a Complaint filed by Enterprise Systems Technologies S.a.r.l. of Luxembourg (“Enterprise”). 79 FR 49537-38 (Aug. 21, 2014). The Complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain communications or computing devices and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 6,691,302 (“the '302 patent”); 5,870,610; 6,594,366; and 7,454,201. The notice of investigation named the following respondents: HTC Corporation of Taoyuan, Taiwan; HTC America, Inc. of Bellevue, Washington; LG Electronics Inc. of Seoul, Republic of Korea; LG Electronics USA, Inc. of Englewood Cliffs, New Jersey; LG Electronics MobileComm U.S.A., Inc. of San Diego, California; Samsung Electronics Co. Ltd. of Seoul, Republic of Korea; Samsung Electronics America, Inc. of Ridgefield Park, New Jersey; Samsung Telecommunications America, LLC of Richardson, Texas (collectively, “Remaining Respondents”); Apple Inc. of Cupertino, California (“Apple”); and Cirrus Logic Inc. of Austin, Texas (“Cirrus”). The Office of Unfair Import Investigations was also named as a party to the investigation.
On September 9, 2014, the ALJ issued an initial determination, Order No. 6, granting intervenor status to Google Inc. of Mountain View, California (“Google”). On March 9, 2015, the ALJ issued an ID, Order No. 20, terminating the investigation as to Cirrus. On June 5, 2015, the ALJ issued an ID, Order No. 37, terminating the investigation as to Apple. The Commission determined not to review those IDs.
On May 21, 2015, the ALJ issued Order No. 34, an initial determination terminating the '302 patent from the investigation based upon a lack of standing. Enterprise filed a petition for review on May 28, 2015. The parties subsequently moved for a 60-day extension to file any further briefing on the issue. The Commission granted the motion on June 1, 2015, and extended the date for determining whether to review Order No. 34 to August 21, 2015. Thus, Order No. 34 remains outstanding.
On June 22, 2015, Enterprise, Remaining Respondents, and Google jointly moved to terminate the investigation in its entirety based upon settlement. On June 29, 2015, the Commission investigative attorney filed a response in support of the motion. No other responses to the motion were received.
The ALJ issued the subject ID on July 1, 2015, and a corrected version on July 17, 2015, granting the joint motion for termination. The ALJ found that the settlement agreement satisfies the requirements of Commission Rule 210.21(b). She further found, pursuant to Commission Rule 210.50(b)(2), that there is no indication that termination of the investigation would adversely impact the public interest. No one petitioned for review of the ID.
The Commission has determined not to review the ID as corrected. In light of the settlement, the Commission has determined to vacate Order No. 34 as moot.
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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 19) by the presiding administrative law judge (“ALJ”) terminating the above-captioned investigation based on settlement.
Clark S. Cheney, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone 202-205-2661. 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 (
The Commission instituted this investigation on September 29, 2014, based on a complaint filed by Advanced Research Corporation of White Bear Lake, Minnesota (“ARC”). 79 FR 58382-83 (Sept. 29, 2014). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), based on infringement of five U.S. patents. The notice of investigation, as amended, named the following respondents: Fujifilm Holdings Corporation of Tokyo, Japan; Fujifilm Corporation of Tokyo, Japan; Fujifilm Recording Media USA, Inc., of Bedford, Massachusetts; Oracle Corporation of Redwood Shores, California; Oracle America, Inc., of Redwood Shores, California; and International Business Machines Corp. of Armonk, New York. The Office of Unfair Import Investigations was also named as a party.
On June 19, 2015, ARC and all respondents filed a joint motion to terminate the investigation based on a settlement agreement between ARC and all respondents. On June 26, 2015, the Commission investigative attorney filed a response supporting the motion.
On June 29, 2015, the ALJ issued the subject ID, granting the motion to terminate the investigation. The ALJ found that the motion complied with Commission Rules and that termination would be in the public interest. No petitions for review of the ID were filed.
The Commission has determined not to review the ID.
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 June 29, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Kyocera Telecommunications Research Center (KTRC), Fremont, CA; The Associated General Contractors of America, Arlington, VA; RCES Center from Univ. of Texas at El Paso, El Paso, TX; Arizona Public Service Company, Phoenix, AZ; California Independent System Operator Corporation, Folsom, CA; CenterPoint Energy Houston Electric, Houston, TX; Clevest Solutions, Inc., Richmond, British Columbia, CANADA; Coordinated Science Laboratory—University of Illinois, Urbana, IL; HomePlug Powerline Alliance, Inc., Beaverton, OR; India Smart Grid Forum (ISGF), New Delhi, INDIA; Kottage Industries LLC, Worthington, OH; Mitsubishi Electric Research Labs, Cambridge, MA; MobiComm Communications, The Hague, NETHERLANDS; Telecommunications Industry Association (TIA), Arlington, VA; Tennessee Valley Authority, Chattanooga, TN; UPnP Forum,
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and MSGIP 2.0 intends to file additional written notifications disclosing all changes in membership.
On February 5, 2013, MSGIP 2.0 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 April 7, 2015. A notice was published in the
Notice is hereby given that, on July 1, 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 identities of the parties to the venture are: BHP Billiton Petroleum (Americas) Inc., Houston, TX; Murphy Exploration and Production Company, Houston, TX; ConocoPhillips Company, Houston, TX; Marathon Oil Company, Houston, TX; and Pioneer Natural Resources USA, Inc., Irving, TX. The general area of Eagle Ford II's planned activity is to examine the influence that mechanical stratigraphy exerts on natural and induced fracture systems in the oil and gas window of the Eagle Ford productive trend. Eagle Ford II will (i) expand the outcrop characterization; (ii) relate outcrop based results to the subsurface geology and geomechanics of the productive Eagle Ford trend; and (iii) perform numerical geomechanical modeling to understand the natural and induced hydraulic fracturing to validate and improve the modeling approach and to simulate a range of stratigraphic and stress conditions within the Eagle Ford productive trend and associated deformation features.
Notice is hereby given that, on July 6, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, BlackBerry Limited, Waterloo, CANADA; castLabs GmbH, Berlin, GERMANY; Cellebrite, Petah Tikva, ISRAEL; CETECOM GmbH, Essen, GERMANY; Cisco Systems Inc., San Jose, CA; Cybage Software Private Limited, Pune, INDIA; Digicert SSL Certificate Authority, Lindon, UT; Fraunhofer Gesellschaft e.V., Erlangen, GERMANY; General Dynamics Broadband UK, Chippenham, UNITED KINGDOM; iYogi Inc., New York, NY; Kochar Infotech, Amritsa, INDIA; LG Electronics Inc., Seoul, REPUBLIC OF KOREA; Logos Solvo Ltd., Ebène, MAURITIUS; Masang Soft., Inc., Seoul, REPUBLIC OF KOREA; Metaswitch Networks Ltd., Enfield, UNITED KINGDOM; Morpho Cards GmbH, Paderborn, GERMANY; Rogers Wireless Inc., Toronto, CANADA; Scanbuy, Inc., New York, NY; setcom wireless products GmbH, Munich, GERMANY; Solaiemes, Madrid, SPAIN; Sony Mobile Communications AB, Stockholm, SWEDEN; Stream Communications, Glagow, UNITED KINGDOM; Synthesis AG, Zurich, SWITZERLAND; Telefonica S.A., Madrid, SPAIN; Telular, Chicago, IL; Thales, Toulouse, FRANCE; and Wistron Corporation, New Taipei City, TAIWAN have withdrawn as parties to this venture.
The following members have changed their names: Bluefish Technologies Holdings APD to Bluefish Technologies Europe A/S., Birkerod, DENMARK; and Zeebric, Inc. to Qliktag Software, Inc., Newport Beach, CA.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and OMA intends
On March 18, 1998, OMA 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 July 8, 2014. A notice was published in the
Notice is hereby given that, on July 13, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Audio Partnership Plc, London, UNITED KINGDOM; Beijing Winner Micro Electronics Co., Ltd., Beijing, PEOPLE'S REPUBLIC OF CHINA; EXO U Inc., Montreal, Quebec, CANADA; Lets GOWEX S.A., Madrid, SPAIN; Geo Semiconductor Inc., San Jose, CA; Razer USA Ltd., Carlsbad, CA; and Robert Bosh LLC, Palo Alto, CA, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and AllSeen Alliance intends to file additional written notifications disclosing all changes in membership.
On January 29, 2014, AllSeen Alliance 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 May 1, 2015. A notice was published in the
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the 80 FR 29749, on May 22, 2015, allowing for a 60 day comment period.
The purpose of this notice is to allow for an additional 30 days for public comment until August 27, 2015.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Thomas DiDomenico at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• 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,
(1)
(2)
(3)
(4)
(5)
(6)
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Mine Mapping and Records of Opening, Closing, and Reopening of Mines,” 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 August 28, 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-MSHA, 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
This ICR seeks to extend PRA authority for the Mine Mapping and Records of Opening, Closing, and Reopening of Mines information collection requirements codified in regulations 30 CFR part 75. This collection is intended to protect miners by assuring that up-to-date, accurate mine maps contain the information needed to clarify the best alternatives for action during an emergency operation. Coal mine operators routinely use maps to create safe and effective development plans.
Mine maps are schematic depictions of critical mine infrastructure, such as water, power, transportation, ventilation, and communication systems. Using accurate, up-to-date maps during a disaster, mine emergency personnel can locate refuges for miners and identify sites of explosion potential; they can know where stationary equipment was placed, where ground was secured, and where they can best begin a rescue operation. During a disaster, maps can be crucial to the safety of the emergency personnel who must enter a mine to begin a search for survivors. Mine maps may describe the current status of an operating mine or provide crucial information about a long-closed mine that is being reopened.
Coal mine operators use map information to develop safe and effective plans and to help determine hazards before beginning work in areas, such as abandoned underground mines or the worked out and inaccessible areas of an active underground or surface mine. Abandoned mines or inaccessible areas of active mines may have water inundation potentials, explosive levels of methane or lethal gases. If an operator that is unaware of the hazards were to mine into such an area, miners could be killed or seriously injured. Federal Mine Safety and Health Act of 1977 section 103(h) authorizes this information collection.
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 August 31, 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
• 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,
44 U.S.C. 3507(a)(1)(D).
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) revision titled, “Ventilation Plans, Tests, and Examinations in Underground Coal Mines,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before August 28, 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-MSHA, 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:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
This ICR seeks approval under the PRA for revisions to the Ventilation Plans, Tests, and Examinations in Underground Coal Mines information collection requirements codified in regulations 30 CFR 75.310, 75.312, 75.342, 75.351, 75.360 through 75.364, 75.370, 75.371, and 75.382. An underground mine is a maze of tunnels that must be adequately ventilated with fresh air to provide a safe environment for miners. Ground conditions are subject to frequent changes, and mechanical ventilation equipment of sufficient capacity must operate at all times while miners are in the mine; therefore, sufficient tests and examinations are necessary to ensure the integrity of the ventilation system and to detect any changes that may require adjustments in the system. Records of tests and examinations are necessary to ensure the ventilation system is being maintained and changes that could adversely affect the integrity of the system or the safety of the miners are not occurring. The subject examination, reporting, and recordkeeping requirements also incorporate examinations of other critical aspects of the underground work environment, such as roof conditions and electrical equipment that have historically caused numerous fatalities if not properly maintained and operated. This information collection has been classified as a revision, because of additional provisions to this collection from regulations 30 CFR 75.362, 75.370, and 75.371 resulting from a final rule published May 1, 2014 (79 FR 24814). Federal Mine Safety and Health Act of 1977 section 101(a) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of Newport News Shipbuilding for a permanent variance from the OSHA shipyard-employment standards that prohibit shipyard employers from permitting workers to ride the hook or the load, from swinging or suspending loads over the heads of workers, and placing employees in a hazardous position between a swinging load and a fixed object while engaged in the construction and assembly of modular ship sections.
Submit comments, information, documents in response to this notice, and request for a hearing on or before August 28, 2015.
Submit comments by any of the following methods:
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Information regarding this notice is available from the following sources:
Northrop Grumman Shipbuilding Inc., 4101 Washington Ave., Newport News, Virginia 23607, submitted on October 6, 2009, an application for a permanent multi-state variance under Section 6(d) of the Occupational Safety and Health Act of 1970 (“OSH Act”; 29 U.S.C. 655) and 29 CFR 1905.11 (“Variances and other relief under section 6(d)”) (Exhibit 1: Northrop Grumman Shipbuilding's original
NNS seeks a permanent variance from the provisions in OSHA shipyard-employment standards that regulate gear and equipment used for rigging and materials handling, specifically paragraphs (i), (j), and (q) of 29 CFR 1915.116. These provisions prohibit shipyard employers from permitting workers to ride the hook or the load, swinging or suspending loads over the heads of workers, or placing workers in a hazardous position between a swinging load and a fixed object. These paragraphs specify the following requirements:
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In its application, NNS contends that the permanent variance would provide its workers with a place of employment that is at least as safe and healthful as they would obtain under these standards. NNS certifies that it (1) provided the union representative
NNS operates a shipyard in Newport News, Virginia, where it designs, builds, overhauls, and repairs a wide variety of ships for the U.S. government and navies of other countries. In the course of shipbuilding operations, NNS performs many operations that require the use of cranes or hoists during the course of vessel construction. Work processes include the erection of large modular units that, when assembled, comprise a vessel. In exceptional cases, workers may be beneath a portion of the unit for brief periods of time. Workers who work beneath units primarily remove interferences and ensure proper alignment of the units, as discussed below.
As noted above, § 1915.116(i), (j), and (q) prohibit workers from riding the hook or load, working on or under a suspended load, or working between a swinging load and a fixed object. However, the procedures and equipment used in shipbuilding today differ substantially from the procedures and equipment used when OSHA adopted these standards in 1982. Shipbuilding is no longer the “stick construction” industry it was when the standards were promulgated. With technological advancements, shipyards today build vessels using modular-production methods. Using these methods, shipyards completely construct major units of a vessel in modules. These modules include all components such as piping, electrical equipment, wiring, machinery, and ventilation. Modular-ship sections typically weigh 25 to 400 tons, but can weigh more. Generally, NNS uses cranes/hoists to lift and move ship sections during the following phases of modular production:
• End-to-end installation. This installation involves using cranes/hoists to move ship sections for end-to-end mating (horizontal assembly) of the sections, with brief worker exposure on or under a suspended load, or between a swinging load and a fixed object.
• Stacking installation. In this phase, which involves using a crane/hoist to place a ship module on top of another module (vertical assembly), it is necessary to have workers work briefly on or under a suspended load, or between a swinging load and a fixed object, to identify and remove interferences (or obstructions) that preclude proper alignment and mating of the sections.
• Inserting installation. These installations involve a combination of end-to-end and stacking installations in which NNS uses cranes/hoists to both lower and move horizontally ship sections into their mating position. For inserting installations, it is necessary to have workers work briefly on or under a suspended load, or between a swinging load and a fixed object, to identify and remove interferences for properly aligning and mating the sections.
NNS argues that OSHA should grant it a variance from 29 CFR 1915.116(i), (j), and (q) because modular shipbuilding occasionally requires workers to work briefly on or under a suspended load, or between a swinging load and a fixed object.
NNS points to OSHA's past approval of an alternative standard for the National Aeronautics and Space Administration (NASA) for work performed under a suspended load (see Ex. 1, Appendix A). This alternative standard, NASA-STD-8719.9, establishes a specific set of controls when no alternative to working under a section or module is available. The NASA document provides 15 safety and engineering requirements that NASA uses in lieu of compliance with 29 CFR 1910.179(n)(3)(vi), 29 CFR 1910.180(h)(3)(vi), and 29 CFR 1910.180(h)(4)(ii).
As part of its variance application, NNS is proposing an alternative means of compliance with the provisions prohibiting work on or under a suspended modular-ship section, or between a swinging modular-ship
NNS's application includes a description of the alternate means of compliance that it would implement during modular-ship construction and structural-repair operations. The protection of workers from exposure to the crushing hazards associated with work on or under a suspended load, or between a swinging load and a fixed object during the lifting phase of modular-ship sections includes the application of significant engineering, administrative, coordination, and supervisory controls. The variance application further describes ship construction and ship-repair operations as: Highly engineered; involving tested and certified equipment; and including continuous communication and monitoring between the workers involved. Hazard analysis, rigging procedures, rigging-lifting-plan with associated drawings, and crew briefings are among existing modular-ship-section lifting requirements adopted by the industry. All workers performing various jobs (
NNS defines a “suspended-load operation” as an operation that meets the following three criteria:
(a) Involves the use of a crane or hoist that supports the weight of a suspended load, whether the load is static or dynamic, including the rigging (
(b) When workers involved in the operation have any part of their body directly under the suspended load (Note: This condition does not apply when workers have their hands on the sides of a load,
(c) In the event of a crane or hoist failure, the falling load could contact workers working directly under it, with injury or death a possible result (Note: This condition does not apply when the falling load would push a worker's hand away such that no injury could result, or the load would come to rest on a holding fixture or block before injuring a worker).
NNS proposed to meet the following conditions prior to performing suspended-load operations:
(a) A Registered Professional Engineer familiar with the type of equipment used for the suspended-load operations will prepare and sign a written hazard analysis for each operation. The hazard analysis will provide the following information:
(i) Justification of why NNS cannot perform the operation without workers on or under a suspended load, or between a swinging load and a fixed object, including procedural and design options investigated to determine if NNS could perform the operation without workers working on or under a suspended load, or between a swinging load and a fixed object.
(ii) Detailed description of the precautions taken to protect workers should the load shift, move inadvertently or drop. This description will include an evaluation of the secondary support system,
(iii) The maximum number of exposed workers allowed under a load suspended from a crane/hoist. In this regard, NNS will limit the number of workers working under a load suspended from a crane/hoist. NNS will allow only those workers absolutely necessary to perform the operation to work in the safety-controlled access area. The rigging-lifting-plan drawing(s) will identify the name and exact location of each individual worker involved in the suspended-load operation and the drawing will ensure that each worker is in the safest location.
(iv) The time of exposure. NNS will ensure that workers' exposures under suspended loads are brief and that they do not remain under the load any longer than necessary to complete the work.
(b) The most senior manager at the site for crane operations and a qualified representative of NNS's health and safety department must review and approve in writing the suspended-load operation based on a detailed hazard analysis and rigging-lifting-plan drawing(s).
(c) NNS will maintain written, up-to-date procedures that specify the minimum requirements for suspended loads. Accordingly, NNS will revise the written hazard analysis and the Operational Procedures Document (or Lift Plan) (
(d) Each suspended-load operation will have a separate hazard analysis and rigging-lifting-plan drawing performed and approved. A separate hazard analysis is not needed for a limited number of routine and repetitive operations for which a rigging-lifting-plan drawing(s) and procedures already exist and for which no new hazards are present.
(e) NNS will design, test, inspect, maintain, and operate each crane/hoist used in a suspended-load operation in accordance with OSHA standards and internal written procedures.
(f) Each crane/hoist involved in suspended-load operations will undergo a system safety review that uses all documentation available on the suspended-load operation, including the hazards analysis and the rigging-lifting-plan drawing, and with approval based on a detailed analysis of the potential hazards and rationale for acceptance. The review will determine single failure points (SFPs) in all critical mechanical functional components and support systems in the drive trains and critical electrical components.
(i) For cranes/hoists identified as having no SFPs, but for which failure would result in inadvertent movement of the load, the total weight of the
(ii) For cranes/hoists identified as having SFPs the failure of which would result in inadvertent movement of the load, the most senior manager at the site for crane operations and a qualified representative of NNS's health and safety department will approve the use of that device for suspended-load operations.
(g) Before lifting a load during a suspended-load operation, the crane/hoist will undergo a visual inspection (without major disassembly) of components instrumental in controlling the lift (
(h) A trained and qualified operator (
(i) Safety-controlled access areas will be established with appropriate barriers (rope, cones, safety watches etc.). All non-essential employees will be required to remain outside the barriers.
(j) Prior to initiating any suspended-load operation, the most senior manager at the site for crane operations or designee (
(k) The most senior manager at the site for crane operations or designee (
(l) Workers on or under a suspended modular-ship section, or between a swinging modular-ship section and a fixed object, will remain in continuous sight of the operator(s) and/or the signal person(s) when feasible. When NNS demonstrates that maintaining continuous sight is not feasible, these workers must remain in continuous communications with the operator and/or signal person.
(m) Workers will not alter their planned access/egress travel path without approval from the most senior manager at the site for crane operations or designee (
(n) NNS will provide a list of approved suspended-load operations, a list of cranes/hoists used for suspended-load operations, and copies of the associated hazards analysis to OSHA's Office of Technical Programs and Coordination Activities (OTPCA) and the Norfolk Area Office within 15 working days after developing these documents.
After reviewing NNS's amended application, OSHA preliminarily finds that NNS developed and proposes to implement engineering and administrative controls that appear to effectively control the hazards associated with work performed on or under a suspended modular-ship section, or between a swinging modular-ship section and a fixed object for brief periods.
NNS also developed and proposes to implement an alternative means of compliance that appears to provide workers with protection that is equivalent to the protection afforded to them by the OSHA standards that regulate work on or under a suspended load, or between a swinging load and a fixed object (see, respectively, 29 CFR 1915.116(i), (j), and (q)). This alternative incorporates key elements of a job hazard analysis and lift planning, review, and approval to proceed (
In addition, NNS developed and proposes to implement a worker-training program to instruct affected and essential employees in the hazards associated with performing lifting and rigging operations.
OSHA recognized and addressed the need to work on or under a suspended load, or between a swinging load and a fixed object, when it granted NASA an alternative standard (Ex. 1). The alternative standard permitted NASA to expose its workers to these conditions when it complied with specific OSHA standards such as the construction hoisting and rigging standard (29 CFR 1926.753) and the conditions of the alternate standard (see Appendix A of NASA-STD-8719.9, NASA Standard for Lifting Devices and Equipment (in Ex. 1). NNS is proposing to adopt and implement the conditions of NASA's alternate standard for its suspended-load operations.
Based on a review of available information and NNS's variance application, OSHA made a number of additions and revisions to the application that it believes are necessary to protect NNS's workers involved in suspended-load operations. The following items describe these additions and revisions:
1. OSHA bases the scope of the revised variance application primarily on the scope specified in NNS's application. OSHA expanded the scope to include the types of modular-section lifts made from the Lift Staging Area (described earlier in this notice as Phase 3 of modular ship section lifts) to a ship and to describe the types of lifting operations excluded from the scope of the application. The expanded scope serves to increase worker protection from exposure to crushing hazards associated with work on or under a suspended modular-ship section, or between a swinging modular-ship section and a fixed object, by providing precise identification and description of the limited circumstances under which the variance conditions would apply.
2. OSHA added a section to the application that defined the terms “essential employee,” “modular-ship section,” “safety-controlled access area,” and “suspended-load operation” based on NNS's use of these terms in its variance application (Exhibit 2: NNS's amended variance application). OSHA defined the terms “competent person” and “qualified person, employee, or worker” based on existing OSHA standards. OSHA added a definition for “lift incident” based on conditions the Agency added to the variance. OSHA added a definitions section because it believes the definition will enhance the NNS's and its workers' understanding of the conditions specified by the variance, thereby enhancing worker safety and health.
3. OSHA defines a number of abbreviations to the variance application. OSHA added these definitions to clarify the abbreviations and standardize their usage, thereby enhancing NNS's and its workers' understanding of the conditions specified by the variance application, thereby enhancing their safety and health.
4. OSHA added a condition requiring the use of properly engineered lashing material to ensure that suspended loads do not inadvertently move or fall from cranes/hoists. This addition will enhance worker safety and health by ensuring that lashing material is strong enough to prevent the load from dropping and injuring workers.
5. As part of the safety and engineering criteria, NNS proposed the development of a written hazard analysis in its application, and OSHA added a condition to this proposal that NNS perform a Failure Modes and Effects Analysis (FMEA) and approval to identify potential single point failures. Such analysis serves to further minimize the potential for inadvertent movement of the suspended load during modular-ship section lifts. This addition will minimize worker exposure to crushing hazards during modular-ship section lifts.
6. OSHA added a condition that the most senior manager at the site for crane operations approve in writing the written hazard analysis and rigging-lifting-plan drawings to ensure that these documents are technically accurate and reflect the knowledge and best practices of those responsible for supervising suspended-load operations.
7. NNS proposed to implement a system-safety review to determine SFPs. OSHA added the clarification to the variance application that a registered professional engineer (PE) must perform this review using a FMEA. This addition will ensure that NNS conducts the system-safety review according to professional standards. OSHA also clarified that the FMEA should include any weight calculations or structural analysis performed during the review. The FMEA will protect worker safety and health by accurately and reliably identifying potential crane/hoist failures that might result in inadvertent movement of the suspended load, thereby endangering workers near this equipment.
8. NNS proposed in its application to develop an Operational Procedural Document. OSHA added a condition to the application requiring that the most senior manager at the site for crane operations (for example, the supervisor controlling the lift) review the Lift Plan with essential employees to ensure that these workers are familiar with and thoroughly understand the procedures governing the suspended-load operations. The Lift Plan will enhance worker safety and health by ensuring that suspended-load operations occur according to procedures planned in advance to minimize hazards.
9. OSHA added a condition requiring that NNS implement procedures to control hazards from unplanned or unforeseen activities that were not included in the initial planning of the modular-ship section lift operations and not covered by the initial procedural documents (such as lift plan, hazard analysis, and rigging/lifting drawing(s)). This condition will require NNS to develop the Operational Procedural Document to cover the unplanned activities in order to protect worker safety and health by reducing the probability of worker exposure to unanticipated hazards.
10. NNS proposed a case-by-case review of planned suspended-load operations that follow the set of safety and engineering criteria (described by this condition). OSHA added to this condition that a senior crane operations manager and a health and safety representative must perform this review following development of the Operational Procedural Document. This addition will enhance worker safety and health by ensuring that knowledgeable company officials responsible for suspended-load operations conduct the review.
11. NNS proposed a condition addressing use of the Operational Procedural Document, and OSHA added to this condition requirements that NNS: comply with a program operated by an accredited agency under OSHA's Gear Certification program (29 CFR part 1919); use registered PE-designed pad-eye connection points; comply with nationally recognized non-destructive testing methods;
12. NNS proposed a pre-lift inspection in its application. OSHA added a condition to this proposal requiring that safety devices be operational during any lifts conducted during the pre-lift inspections. This addition will increase worker protection during pre-lift inspections.
13. OSHA added a condition specifying that NNS develop a written checklist to document the identification and removal of interferences to proper mating and unnecessary or unsecured items. The inspection using this checklist must be conducted by a qualified employee(s) before the suspended-load operation begins. This condition will protect worker safety and health by reducing the time workers spend under the suspended load removing interferences to proper mating, and eliminating the need for workers to remove unsecured items while exposed to a suspended load.
14. Another condition added by OSHA requires that that NNS conduct a test lift before beginning each suspended-load operation. The test lift will protect worker safety and health by ensuring that equipment, including the rigging and crane/hoist systems, is in working order for the lift, thus minimizing the possibility of worker harm resulting from equipment failure.
15. NNS proposed a condition specifying that a trained and qualified operator remain at the crane/hoist controls while workers are on or under a suspended load, or between a swinging load and a fixed object. OSHA added a condition requiring that the operator not initiate movement while workers are on or under a suspended load, or between a swinging load and a fixed object, and that NNS use safety devices such as brakes, dogs or stops to further ensure that no such movement takes place. This added condition will protect workers from the hazards associated with inadvertent movement of suspended loads.
16. In its application, NNS proposed the use of safety-controlled access areas where all non-essential employees must remain outside the controlled access areas during modular-ship section load operations. This requirement will protect workers by minimizing the number of workers exposed to this hazard.
17. OSHA added the prohibition of working under, in or on suspended loads requirement to limit the presence of essential employees to adjusting chain falls, making initial connections or confirming clearances between hull structures and outfitting systems. This requirement protects workers by minimizing worker exposure to the hazards of working under, in, or on suspended loads.
18. OSHA added a condition that NNS train workers (including, but not limited to, current and newly assigned to be involved in modular-ship section load operations, qualified, and essential employees) to recognize hazards associated with work under, in or on suspended modular-ship section loads and associated hazard-control methods which minimize their risk of harm during these operations. This added
19. NNS proposed a pre-job briefing requirement in its variance application, and OSHA clarified this condition by specifying that: The pre-job briefing include all workers involved in the suspended-load operation, both essential and non-essential employees; NNS document worker attendance at the briefing using a signed roster; and the briefing address the rigging-lifting drawing(s). This clarification will protect workers by refreshing their knowledge of procedures just before the suspended-load operation begins.
20. NNS proposed having continuous communication during suspended-load operations, and OSHA revised the condition by specifying that suspended-load operations must cease upon loss of communications. This requirement will protect workers by minimizing their exposure to hazards during communications failure.
21. In its application, NNS proposed that workers remain in continuous sight of the operator(s) and/or signal person(s) when feasible during suspended-load operations. OSHA clarified this condition by specifying that all essential employees must remain in continuous sight and/or be in communication with the most senior manager at the site for crane operations or designee (
22. OSHA added a condition that the crane/hoist operator would have to lower the suspended load to the ground or other supporting structure, or the most senior manager at the site for crane operations or designee (
23. Another condition added by OSHA requires a post-lift review of the suspended-load operation. This condition would protect workers by assisting NNS in identifying shortcomings in the suspended-load program.
24. NNS proposed to develop a listing of the modular-ship section lift operations (suspended-load operations) scheduled to be performed during each quarter. OSHA is clarifying this condition by specifying that by the 15th calendar day of each new quarter NNS would have to prepare a list of planned modular-ship section lifts to be performed during the upcoming quarter (including the cranes/hoists used for suspended-load operations, the date and time of the operation, associated hazard analysis completed, and the calculated weight of each lift), and update the list when significant changes occur. OSHA also specified that workers and their representatives would have access to the list, and by January 15th of each year, NNS would have to provide to the Norfolk Area Office and OSHA's Office of Technical Programs and Coordination Activities a copy of the list. The list requirement enhances worker safety by ensuring that NNS and workers have the most recent information on each modular-ship section lift in advance of its being performed so they have an opportunity to review and become familiar with the operation's potential hazards and planned hazard mitigation strategies.
25. OSHA added a condition requiring that NNS conduct an investigation of all lift incidents related to suspended-load operations. This condition would protect workers by ensuring that NNS investigates such incidents and take actions necessary to prevent a recurrence.
26. OSHA included a records-management condition that would assist the Agency in monitoring and enforcing the variance conditions. This requirement will protect workers by ensuring that NNS implements and maintains these conditions.
27. OSHA also added a condition that requires NNS to provide the Agency with up-to-date information regarding its corporate status. This information would permit OSHA to monitor and enforce the conditions to the benefit of NNS's workers.
After reviewing the evidence described above, OSHA preliminarily determined that the proposed conditions would provide a place of employment as safe and healthful as that provided by the standards from which NNS is requesting a variance, notably 29 CFR 1915.116(i), (j), and (q). Therefore, pursuant to the provisions of 29 CFR 1905.11(c), OSHA is announcing NNS's application for a permanent variance and is seeking public comment on this application. The application includes the following conditions:
Except for the requirements specified by § 1915.116(i), (j), and (q), Newport News Shipbuilding would have to comply fully with all other safety and health provisions that are applicable to shipyard employment when implementing the permanent variance.
1. The variance would only apply to operations that satisfy all of the following:
(a) the operations are performed by Newport News Shipbuilding employees during modular-ship section construction and structural-repair operations at the company's Newport News, Virginia, facility;
(b) the operations involve lifting modular-ship sections from the lift-staging area to a ship during one of the following assembly phases:
(i) “End-to-End” (horizontal) assembly of modular-ship sections;
(ii) “Stacking” (vertical) assembly of modular-ship sections; or
(iii) “Inserting” (combined vertical/horizontal) assembly of modular-ship sections.
(c) the workers exposed to the hazards of the lift are those supporting modular-ship section lifts and essential employees working on or under a suspended modular-ship section, or between a swinging modular-ship section and a fixed object, during vessel assembly, repair, overhaul, and removal of interferences (or obstructions) that preclude proper alignment and mating of sections (fit-up); and
(d) Workers are exposed to the hazards of the lift only for a brief period of time.
2. The variance would
(a) Lifting modular-ship sections in the fabrication (assembly) shop or area;
(b) Transporting modular-ship sections from the fabrication (assembly) shop or area to the lift-staging area;
(c) Lifting structures or equipment onto a ship's deck; and
(d) Loads consisting of tools, equipment, or other materials.
Under Condition B.1.c, if engineering calculations show that failure of the crane/hoist or rigging during the lifting process could dislodge the ship from its supporting blocks (
The following definitions would apply to the permanent variance, and do not necessarily apply in other contexts:
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(a) Be well defined and easily recognizable;
(b) Have means to keep unauthorized personnel out of the zone such as appropriate barriers (
(c) Extend a safe distance beyond the radius of the crane when at its maximum extended lifting position as determined by a hazard analysis; and
(d) Monitored and controlled by a competent person.
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(a) The operation involves the use of a crane/hoist or cranes/hoists that support the weight of a suspended modular-ship section, with no distinction made between static and dynamic loads. The load consists of all associated rigging equipment, including slings, Hydra Sets, lifting lugs, shackles, and straps, when attached to the crane hook;
(b) When workers involved in the operation have any part of their body directly under the suspended load;
(c) In the event of a crane or hoist failure (including a rigging failure), the falling load could contact workers working directly beneath it, with injury or death as a possible result.
Abbreviations used throughout the permanent variance would include:
1. Hazard-avoidance protocol. Using a hazard-avoidance protocol, NNS would have to design hazards out of the suspended-load operations covered by the permanent variance to the greatest extent possible. Accordingly, NNS would:
(a) Have to engineer, design, install, and operate all future systems, hardware, and equipment associated with these operations to prevent exposing workers to the hazards associated with working under, in or on a suspended modular-ship section, or between a swinging modular-ship section and a fixed object, unless NNS demonstrates that doing so is technically infeasible;
(b) Perform an operation in which employees work under, in or on a suspended modular-ship section, or work between a swinging modular-ship section and a fixed object, only under specifically approved and controlled conditions; and
(c) Perform the operation specified under Condition E.1.b above only after meeting all the review, approval, documentation, and special requirements.
2. Use of properly engineered lashing materials.
(a) When the operation specified under Condition E.1.b above involves the use of a crane/hoist that supports the weight of a modular-ship section, NNS would have to use properly engineered lashing materials
(b) NNS would have to conduct a detailed weight calculation in determining whether the lashing material can support the requisite weight of the load, considering the duration of maintaining the load in a safe condition in the event of loss of continuous communication, and paying special consideration to environmental factors that may affect the load (
3. Engineering-hazard analysis.
(a) The most senior manager at the site for crane operations specified in paragraph E.1.b above must approve suspended modular-ship section load operations in writing based on: a detailed written hazard analysis, a rigging-lifting-plan, and a supporting drawing of the operation;
(b) NNS would have to ensure that the:
(i) Responsible crane-operations organization prepares the written engineering-hazards analysis under the direction of the most senior manager at the site for crane operations; and
(ii) Qualified representatives of NNS' engineering offices and the health and safety department review this analysis and indicate approval by signing the analysis;
(c) The engineering-hazard analysis would have to be in writing and include:
(i) A justification specifying why NNS cannot conduct the operation without its employees working under, in, or on suspended modular-ship sections, or between a swinging modular-ship section and a fixed object, with this justification describing the procedures and design options NNS considered in determining that it could not conduct the operation without its employees working under, in, or on a suspended modular-ship section, or working between a swinging modular-ship section and a fixed object;
(ii) Details of the engineering controls taken to prevent the modular-ship sections from moving or shifting when employees are under, in, or on a suspended modular-ship section or between a swinging modular-ship section and a fixed object, including the evaluation of testing and safety devices used for this purpose;
4. Secondary support systems. NNS would have to design any secondary support systems used during the operation specified in Condition E.1.b above in accordance with recognized engineering practices and designed with a minimum safety factor of 2 to yield.
NNS would have to limit employee exposure to the hazards of working under, in, or on a suspended modular-ship section, or between a swinging modular-ship section and a fixed object by:
1. Establishing a safety-controlled access area, taking into account the swing radius of the crane;
2. Allowing only essential personnel in the safety-controlled access area;
3. Ensuring that the rigging-lifting-plan drawings identify by name the exact location of each essential employee allowed in the safety-controlled access area and the location of that employee in the area;
4. Ensuring that each essential employee allowed in the safety-controlled access area is in the safest location possible for performing the work;
5. Ensuring that each essential employee moves to and from the work location using the safest route possible, and remains at that location only long enough to complete the work;
6. Verifying in writing that procedures are in place to prevent movement or shifting of the suspended modular-ship section when essential employees are under, in, or on a suspended modular-ship section, or between a swinging modular-ship section and a fixed object; and
7. Ensuring that a crane operator who meets the requirements of 29 CFR 1926.1427 and 1926.1430 is operating the crane used to suspend the modular-ship section while essential employees are working under, in, or on a suspended modular-ship section, or between a swinging modular-ship section and a fixed object.
Each operation specified under Condition E.1.b above would have a separate written job-hazard analysis that includes a detailed rigging specification drawing(s) and a detailed lifting plan drawing(s) approved and signed by the most senior manager at the site for crane operations. A separate hazard analysis is not needed for routine and repetitive operations where a rigging-lifting-plan drawing(s) and procedures already exist and where no new hazards are present.
1. Each crane involved in an operation specified under Condition E.1.b above would undergo a FMEA approved in writing by a Registered Professional Engineer.
2. The FMEA would:
(a) Determine SFPs by assessing the rigging equipment and all critical mechanical functional components and support systems in the drive trains and critical electrical components of the crane; and
(b) Include weight calculations and any structural analysis deemed necessary by the Registered Professional Engineer responsible for approving the FMEA.
3. For cranes and rigging equipment identified as not having any SFPs, the failure of which would result in movement of the modular-ship section, the total weight of the suspended modular-ship section load would not exceed the crane's rated load.
4. For those cranes and rigging equipment identified as having an SFP, the failure of which would result in movement of the modular-ship section, the most senior manager at the site for crane operations and a qualified representative of the health and safety department would have to approve in writing use of the crane and rigging equipment for an operation specified under Condition E.1.b above after reviewing all the documentation required by this order that addresses the operation, including the FMEA.
NNS would have to:
1. Develop and maintain written procedures that specify the requirements for an operation specified under Condition E.1.b above.
2. Revise the written detailed job-hazard analysis, rigging-lifting-plan drawing(s), and the operational-procedures documents (
3. Review any revisions made under Condition I.2 above with essential employees and make these revisions available on-site during an operation specified by Condition E.1.b above for inspection by affected employees, employee representatives, or OSHA personnel.
During an operation under Condition E.1.b above, if a new or unforeseen work activity or circumstance not covered by the original operational-procedural documents (
1. Immediately stop the lift and lower the modular-ship section to the ground or other supporting structure;
2. Before continuing the operation, obtain approval in writing from the most senior manager at the site for crane operation and the health and safety department to revise the operations; and
3. Before repeating the operation on a subsequent occasion, prepare revised operational-procedures documents (
1. A Registered Professional Engineer would have to develop and approve inspection, testing, and maintenance procedures, and competent persons would have to perform the procedures and resolve noted discrepancies.
2. An independent third-party such as an accredited agency under OSHA's Gear Certification program (29 CFR 1919) would have to inspect all cranes and rigging equipment not more than one year before the modular-ship section lift being performed, and NNS would have to maintain the inspection results, and make them available to OSHA upon request.
3. The engineers who design the modular-ship section subject to the operation specified under Condition E.1.b above would have to design or approve the pad-eye (lifting-lugs) connection points on the section, and specify the size (length and diameter) of wire-rope slings that would lift, move, and handle the section.
4. Before using lifting pad-eyes and other welded lifting connection points in the operation, NNS would have to perform non-destructive tests on these pad-eyes and connections according to nationally recognized non-destructive testing methods.
5. NNS would have to:
(a) Document the design specifications pertinent to the operation on engineering drawings;
(b) Ensure that these drawing accompany the modular-ship section during an operation specified under Condition E.1.b above; and
(c) Make the drawings available to the crane foreman/supervisor.
1. Before lifting the modular-ship section involved in an operation specified under Condition E.1.b above, the components of the crane and rigging equipment involved in lifting the load would have to undergo a visual inspection (without major disassembly, and documented with a written checklist).
2. NNS would have to resolve any discrepancies identified in this visual inspection before initiating an operation.
3. Before lifting modular-ship sections for assembly with the ship, a qualified person(s) would have to:
(a) Perform an inspection to identify and remove interferences to proper mating; and
(b) Use a written checklist to document the inspection, including the removal of litter, tools, and any other unnecessary or unsecured equipment or items.
4. Before initiating an operation specified under Condition E.1.b above, NNS would have to:
(a) Conduct a test lift that consists of lifting the modular-ship section one to three feet above the lift staging area for five minutes; and
(b) Ensure that all safety devices identified in the modular-ship section lift plan are operational during the test lift.
1. NNS would ensure that the crane operator who meets the requirements of 29 CFR 1926.1427 and 1926.1430 remains at the crane controls at all times during an operation specified under Condition E.1.b above.
2. Unless specifically authorized and required by the lift plan, the operator would:
(a) Not initiate movement of the suspended modular-ship section while an employee(s) is under, in, or on a modular-ship section, or between a swinging load and a fixed object,
(b) Engage all safety devices such as brakes, dogs, or stops in accordance with the lifting plan when an employee(s) is under, in, or on a modular-ship section, or between a swinging load and a fixed object.
NNS would have to:
1. Establish safety-controlled access areas for all operations specified by Condition E.1.b above.
2. Ensure that all non-essential personnel remain outside the safety-controlled access areas.
When engaged in an operation specified under Condition E.1.b above, if engineering calculations show that a failure of the crane or rigging during the lifting process could result in dislodging the ship from its supporting blocks (
1. NNS's essential employees may be under, in, or on a suspended modular-ship section, or between a swinging modular-ship section and a fixed object, only while ensuring the proper alignment and mating of modular-ship sections. Examples of work activities
2. Only essential employees authorized by the most senior manager at the site for crane operations (
1. NNS would have to develop and implement a worker training program to instruct affected employees in the:
(a) Hazards associated with performing work under, in, or on suspended modular-ship section, or between a swinging modular-ship section and a fixed object; and
(b) The controls mandated to protect affected employees from these hazards.
2. NNS would have to train and instruct the crane foreman/supervisor to strictly adhere to the lift plan and the rigging specifications on the approved drawings.
3. NNS would have to develop and implement a refresher training program, conducted periodically and as necessary, for all employees working under, in, or on suspended modular-ship section, or between a swinging modular-ship section and a fixed object. At a minimum, the refresher training would:
(a) Consist of a lift briefing;
(b) Review each employee's responsibilities; and
(c) Take place before initiating the operation.
4. NNS would have to document all training provided under the permanent variance, and maintain training records as specified below under Condition U.2.a.
Prior to conducting an operation in which its employees work under, in, or on suspended modular-ship section, or between a swinging modular-ship section and a fixed object, NNS would have to:
1. Hold the briefing with all affected employees having a direct or supporting role in the operation (including workers and/or contractors performing tasks such as crane operator, signal person, essential employees, supervisors), to review the operational procedures involved in the operation, including procedures for entering and leaving the safety-controlled access area;
2. Use the written job-hazard analysis and rigging-lifting-plan drawing(s) during the briefing to supplement the information;
3. Cover all safety considerations;
4. Ensure that the employees understand the information provided at the briefing; and
5. Document the briefing using a signed roster of attendees, and maintain the roster as specified at Condition U.2.a.
NNS would have to:
1. Maintain communications (voice, radio, hard wired, or visual) between the crane/hoist operator(s), signal person(s), and employees working under, in, or on the suspended modular-ship section, or between a swinging modular-ship section and a fixed object, at all times;
2. Upon losing communications, stop the operation immediately, inform employees of the problem, ensure that the employees exit the safety-controlled access area, and that the modular-ship section is in a safe condition (
3. Commence the operation only after restoring communications and informing the affected employees about what action NNS is taking to avoid a reoccurrence.
The most senior manager at the site for crane operations or designee (
1. Post-lift review. NNS would have to conduct and document a post-lift review for each operation involving a suspended modular-ship section, including the identification of any incident that occurred during the operation.
2. Lift-incident investigation. NNS would have to investigate each lift incident. In doing so, NNS would have to:
(a) Initiate the investigation within 8 hours of the lift incident or 8 hours after becoming aware of the incident;
(b) Have a competent person(s) with expertise in the hazards associated with the operations involved in the incident conduct the investigation;
(c) Have the investigator(s) prepare a written report at the conclusion of the investigation which includes, at a minimum, the date of the incident, the date the investigation began, the date of the report, the location of the incident, the equipment or processes involved, a description of the incident, the root cause, the contributing factors, and any corrective actions resulting from the investigation (the completed OSHA 301 Incident Report form may be used for this purpose);
(d) Provide a copy of the report to OSHA's Norfolk Area Office and OTPCA at OSHA's National Office within 15 calendar days of the incident or 15 calendar days after becoming aware of the incident;
(e) Within 15 calendar days of completing the incident report, address the findings of the report and implement corrective actions;
(f) Document in writing the corrective actions taken;
(g) Review the findings of the report and corrective actions taken with all affected workers; and
(h) Provide certification to OSHA's Norfolk Area Office and OTPCA at OSHA's National Office within 15 calendar days of completing the incident report, that the employer informed affected workers of the incident and the results of the incident investigation (including the root cause determination and preventive and corrective actions identified and implemented).
1. By the 15th calendar day of each new quarter, NNS would have to prepare a list of planned modular-ship section lifts to be performed during the upcoming quarter (including the cranes/hoists used, the date and time of the operation, associated hazard analysis completed, and the calculated weight of the lift), and update the list when significant changes occur. NNS would have to:
(a) Make this document available for inspection by affected employees, employee representatives, and OSHA upon request; and
(b) By January 15 of each year, NNS would have to provide to the Norfolk Area Office and OTPCA, a copy of the list of approved suspended-load operations completed the previous year.
2. NNS would have to:
(a) Retain all records required by the permanent variance for five years from the time it generates each such record
(b) Make all records and related documents available for inspection by affected employees, employee representatives, and OSHA upon request.
NNS would have to:
1. Inform OTPCA as soon as it has knowledge that it will:
(a) Cease to do business; or
(b) Transfer the activities covered by this permanent variance to a successor company.
2. Submit to the Norfolk Area Office and OTPCA, a copy of any incident-investigation report and associated corrective-action plan within 15 working days of the incident.
3. Submit to OTPCA annually, a written certification indicating whether the conditions of the permanent variance are effective and remain relevant and necessary, and any recommendations for modifying these conditions.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to Section 29 U.S.C. 655(6)(d), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1905.11.
U.S. Copyright Office, Library of Congress.
Extension of comment period.
The U.S. Copyright Office is extending the deadline for public comments that address topics listed in the Office's June 9, 2015 Notice of Inquiry regarding a mass digitization “pilot program” for certain copyrighted works.
Comments are now due no later than 5:00 p.m. EDT on October 9, 2015.
All comments should be submitted electronically. To submit comments, please visit
Kevin Amer, Senior Counsel for Policy and International Affairs, by telephone at 202-707-1027 or by email at
On June 4, 2015, the Copyright Office issued a report entitled
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of meetings.
Pursuant to the Federal Advisory Committee Act, as amended, notice is hereby given that one meeting of the Arts Advisory Panel to the National Council on the Arts will be held by teleconference.
All meetings are Eastern time and ending times are approximate:
National Endowment for the Arts, Constitution Center, 400 7th St. SW., Washington, DC 20506.
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506;
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 15, 2012, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of title 5, United States Code.
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. This is the second notice for public comment; the first was published in the
Suzanne H. Plimpton at (703) 292-7556 or send email to
NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
NSF developed the RPPR as a new service within Research.gov. This service replaced NSF's annual and interim project reporting capabilities which resided in the NSF FastLane System.
Information regarding NSF's implementation of the Research Performance Progress Report (RPPR) may be found at the following Web site:
United States (U.S.) Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled
Submit comments by August 28, 2015.
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0027), NEOB-10202, Office of Management and Budget, Washington, DC, 20503; telephone: 202-395-7315, email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID: NRC-2015-0027 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
• The supporting statement is available in ADAMS under Accession No. ML15153A003.
•
•
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, 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 comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “NRC Form 7, Application for NRC Export/Import License, Amendment, Renewal or Consent Request(s).” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
In notice document 2015-17660 beginning on page 42860 in the issue of Monday, July 20, 2015, make the following correction:
On page 42862, in the first column, in the 30th line, “August 7, 2015” should read “August 10, 2015”.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend NASDAQ Rule 7014(g) concerning rebates available under the NBBO Program. The Exchange will implement the new rebate on July 17, 2015.
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.
NASDAQ is proposing to add a new $0.0004 per share executed credit in securities listed on NYSE, which would be available to any member that provides shares of liquidity in all securities through one or more of its Nasdaq Market Center MPIDs (“MPIDs”) that represent 0.50% or more of Consolidated Volume
The proposed new rebate, which is provided in lieu of the current rebate, is designed to further improve the market by providing members with a higher credit as incentive to provide a greater level of Consolidated Volume to NASDAQ and to quote aggressively in Tape A securities. In this regard, the proposed new credit will apply to all other displayed orders (other than Designated Retail Orders, as defined in NASDAQ Rule 7018) in securities listed on NYSE (“Tape A”) priced at $1 or more per share that provide liquidity and establish the NBBO.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that the proposed change to amend Rule 7014(g) is reasonable because it provides an opportunity for members that qualify to receive a rebate of $0.0004 per share executed for all other displayed orders (other than Designated Retail Orders, as defined in Rule 7018) in Tape A securities priced at $1 or more per share that provide liquidity and establish the NBBO.
NASDAQ believes the proposed change is equitable and not unfairly discriminatory because the $0.0004 per share executed rebate under the NBBO Program is available to all members on an equal basis and provides a rebate for activity that improves the Exchange's market quality through increased activity and by encouraging the setting of the NBBO. In this regard, the NBBO Program encourages higher levels of liquidity provision into the price discovery process and is consistent with the overall goals of enhancing market quality. Also, the Exchange believes that the qualification requirement for the new tier is equitable and not unfairly discriminatory because it represents an increased yet attainable level for members to achieve and to qualify for this higher rebate. In addition, the Exchange notes that the new eligibility standard for the tier, which requires a member to execute shares of liquidity provided in all securities through one or more of its MPIDs that represents 0.50% or more of Consolidated Volume during the month, represents a lower Consolidated Volume requirement than the QMM Program, which requires at least 0.70% of Consolidated Volume to qualify under the lowest credit tier.
NASDAQ does not believe that the proposed rule changes [sic] will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
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.
On April 27, 2015, the Consolidated Tape Association (“CTA”) Plan and Consolidated Quotation (“CQ”) Plan participants (collectively the “Participants”)
Currently, Section VI(c) of the CTA Plan requires transaction reports that the Participants submit to the Processor to include the stock symbol, the number of shares, and the price of the transaction. Section VI(a) of the CQ Plan provides that each bid and offer that a Participant reports to the Processor under the CQ Plan must include the bid or offer's quotation size or aggregate quotation size.
The Amendments propose to require Participants to include in reports to the Processor the time of the trade or the quotation. In the case of a Participant that is a national securities exchange, the time of the transaction or quotation is to be reported in microseconds as identified in the Participant's matching engine publication timestamp. In the case of FINRA, the time of a transaction will be the time of execution that a FINRA member reports to a FINRA trade reporting facility and the time of a bid or offer will be the quotation publication timestamp that the bidding or offering member reports to the FINRA quotation facility, all in accordance with FINRA rules.
The Commission received one comment letter on the proposed Amendments and a response to that comment letter from the Participants. The commenter supports the proposed Amendments, but suggested clarifications to certain aspects of the Amendments.
First, in order to ensure that sourcing and reporting of timestamp data would be consistent across exchanges, the commenter recommended that the Amendments provide a clearer definition of “matching engine publication timestamp.”
Next, the commenter stated that the proposed Amendments should provide clarity on the timestamp information that FINRA would be required to provide to the SIPs.
Additionally, the commenter believes that the SIPs should be responsible for market-wide determinations of whether a trade is reported out of sequence and not last sale eligible.
After careful review and consideration of the proposed Amendments, the comment letter, and the Response Letter, the Commission finds that the proposed Amendments to the Plans are consistent with the requirements of the Act and the rules and regulations thereunder,
The proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 27, 2015, the operating committee (“Operating Committee” or “Committee”)
Currently, Section VIII of the UTP Plan (Transmission of Information to Processor by Participants) requires transaction reports that the Participants to submit to the Processor to include (1) the identification of the security, (2) the price bid and offered, together with size, (3) the FINRA Participant along with the FINRA Participant's market participant identification or Participant from which the quotation emanates, (4) identification of quotations that are not firm, and (5) through appropriate codes and messages, withdrawals and similar matters.
Section VIII also requires each Participant to promptly collect and transmit to the Processor trade reports executed in its market that include (1) identification of the security, (2) the number of shares in the transaction, (3) the price at which the shares were purchased or sold, (4) the buy/sell/cross indicator, (5) the market of execution, and (6) through appropriate codes and messages, late or out-of-sequence trades, corrections and similar matters.
The Amendment proposes to require Participants to include in quotation information and trade reports to the Processor the time of the trade or the quotation. In the case of a Participant that is a national securities exchange, the time of the transaction or quotation is to be reported in microseconds as identified in the Participant's matching engine publication timestamp. In the case of FINRA, the time of a transaction will be the time of execution that a FINRA member reports to a FINRA trade reporting facility and the time of a bid or offer will be the quotation publication timestamp that the bidding or offering member reports to the FINRA quotation facility, all in accordance with FINRA rules.
The Commission received one comment letter on the proposed Amendment and a response to that comment letter from the Participants. The commenter supports the proposed Amendment, but suggested clarifications to certain aspects of the Amendment.
First, in order to ensure that sourcing and reporting of timestamp data would be consistent across exchanges, the commenter recommended that the Amendment provide a clearer definition of “matching engine publication timestamp.”
Next, the commenter stated that the proposed Amendment should provide clarity on the timestamp information that FINRA would be required to provide to the SIPs.
Additionally, the commenter believes that the SIPs should be responsible for market-wide determinations of whether a trade is reported out of sequence and not last sale eligible.
After careful review and consideration of the proposed Amendment, the comment letter, and the Response Letter, the Commission finds that the proposed Amendment to the Plan is consistent with the requirements of the Act and the rules and regulations thereunder,
The proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend Exchange Rule 612 concerning the Reset on Quote functionality included in the MIAX Aggregate Risk Manager.
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 proposes to amend Exchange Rule 612, Aggregate Risk Manager (“ARM”) to make optional and more specifically define the current ARM “Reset on Quote” functionality, as described below.
The MIAX System
Currently, Exchange Rule 612(b)(1) states that, when a Market Maker revises his/her quotation on the buy side or sell side of an individual option, that side of the individual option will not be included in the Allowable Engagement Percentage and Net Offset calculations until it trades again.
Proposed Rule 612(b)(1)(i) would clarify the existing rule to more precisely define this functionality. Proposed sub-paragraph (b)(1)(i) would clarify that when a Market Maker revises his/her quotation on the buy side or sell side of an individual option, contracts executed on that side will not be included in the Allowable Engagement Percentage and Net Offset calculations. For ease of reference, the Exchange proposes to establish the name “Reset on Quote” to describe this functionality in the new sub-paragraph. The Exchange believes that this change more precisely and accurately describes the Reset on Quote functionality and should better serve to inform Members and investors of what happens to the counting program when a Standard quote replaces another Standard quote.
Additionally, the proposed rule would give Market Makers the ability to opt out of the Reset on Quote functionality, and to opt back in at any time following the Market Maker's determination to opt out. Under the proposed rule, a Market Maker may determine to disengage or re-engage the Reset on Quote functionality for an option class.
Once a Market Maker has determined to disengage Reset on Quote, it will not be re-engaged until the Market Maker determines to do so by notifying the Exchange of such a determination in a manner required by the Exchange and communicated to Members by Regulatory Circular. This non-automated notification requires the Exchange to re-engage the Reset on Quote functionality, as opposed to the method of re-engaging the standard ARM protections, where the Market Maker re-engages the ARM by sending a notification to the System of the intent to re-engage quoting and submits a new revised quotation in the affected class. The purpose of the non-automated method of re-engaging Reset on Quote is to give Market Makers the ability to reconsider and re-engage Reset on Quote during times of peak or unusual market activity, rather than an automated re-engagement. The Exchange believes that this non-automated contact will strengthen the efficiency of Reset on Quote by providing Market Makers with the ability to thoroughly assess current market conditions in setting risk management levels and controls.
The System will consider disengagement of Reset on Quote to be a persistent state; disengagement of the Reset on Quote functionality will remain in place indefinitely (
The purpose of the proposed rule change is to enable individual Market Makers to tailor their risk management by disengaging or re-engaging the ARM Reset on Quote functionality for an individual option class or for multiple classes as market conditions warrant, based on their own risk tolerance and quoting behavior. The proposed rule change would provide Market Makers with flexibility to choose to have ARM count contracts executed during the specified time period that result from all executions on that side of the market, regardless of the number, price and/or size of the quotes against which executions occur during the counting period. This flexibility means that Market Makers may still elect to have the Reset on Quote functionality engaged, and thus only count contracts executed against their most recently submitted quote for purposes of calculating the Allowable Engagement Percentage. This will provide greater customization of risk controls based on each individual Market Maker's risk thresholds.
The Exchange will announce the implementation date of the proposed rule change by Regulatory Circular to be published no later than 60 days following the operative date of the proposed rule. The implementation date will be no later than 60 days following the issuance of the Regulatory Circular.
MIAX believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes that Members will benefit from the proposed rule change. Market Makers, who are obligated to submit continuous two-sided quotations in a certain number of series in their appointed option classes for a certain percentage of each trading session,
Without adequate risk management tools in place on the Exchange, the incentive for Exchange Market Makers to quote aggressively respecting both price and size could be diminished, and could result in a concomitant reduction in the depth and liquidity they provide to the market. Such a result may undermine the quality of the markets that would otherwise be available to customers and other market participants. Accordingly, the Exchange proposes to help Market Makers better manage their risk exposure by giving them the ability to opt out of the Reset on Quote functionality. This should encourage Market Makers to provide additional depth and liquidity to the Exchange's markets, thereby removing impediments to and perfecting the mechanisms of a free and open market and a national market system and, in general, protecting investors and the public interest.
In addition, the proposed rule change promotes just and equitable principles of trade by providing Exchange Market Makers with the ability to refine and tailor their participation in risk management mechanisms on the Exchange to give them confidence that protections are in place to reduce the risks associated with their Market Making obligations. Finally, the proposed rule change is designed to protect investors and the public interest by helping Market Makers prevent executions resulting from activity that exceeds their risk tolerance level under these rules as established by the Exchange.
The amendments to the existing Reset on Quote functionality in the proposed rule are intended to remove impediments to and perfect the mechanisms of a free and open market by adding precision and ease of reference to the Exchange's rules, thus promoting transparency and clarity for Market Makers seeking to determine their risk management settings.
The Exchange notes that the proposed rule change will not relieve Exchange Market Makers of their continuous quoting obligations under Exchange Rule 604 and under Reg NMS Rule 602.
With regard to the impact of this proposal on system capacity, the Exchange notes that it has analyzed its capacity and represents that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle any potential additional traffic associated with the proposed rule change. The Exchange believes that its members will not have a capacity issue as a result of this proposal.
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.
On the contrary, the Exchange believes that the proposed rule change will foster competition by providing Exchange Market Makers with the ability to enhance and specifically customize their use of the Exchange's risk management tools to use in submitting quotations with the best possible price and size in order to compete for executions and order flow. The Exchange further believes the proposed rule change will not impose any burden on intra-market competition because its use is voluntary and is available to all Exchange Market Makers and Market Maker organizations.
As to inter-market competition, the Exchange believes that the proposed rule change should promote competition because it is designed to protect Exchange Market Makers from unusual market conditions or events that may cause them to receive multiple, automatic executions before they can adjust their quotation exposure in the market.
For all the reasons stated, the Exchange does not believe that the proposed rule change will impose any
Written comments were neither solicited nor received.
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 after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 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 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 (the “Act”),
The Exchange proposes to amend Rules 6.13 and 6.17 relating to price check parameters on the Exchange. The text of the proposed rule change is provided in Exhibit 5 and is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Under Rule 6.17, C2 does not automatically execute eligible orders that are marketable if (i) the width between the national best bid and offer (the “NBBO”) is not within an acceptable price range (as established by the Exchange on a series by series basis for market orders and/or marketable limit orders within certain parameters and announced to Trading Permit Holders (“TPHs”) via Regulatory Circular) (the “market width parameter”), or (ii) the execution would follow an initial partial execution on the Exchange and would be at a subsequent price that is not within an acceptable tick distance (“ATD”) from the initial execution (as determined by the Exchange on a series by series and premium basis for market order and/or marketable limit orders and announced to TPHs by Regulatory Circular) (the “drill through parameter”).
The purpose of this proposed rule change is, first, to codify another price reasonability check within Rule 6.17. The reasonability check is currently in use but not expressly covered in the rules. Specifically, under this reasonability check, referred to as the “limit order price parameter,” the Exchange will not accept for execution eligible limit orders if (i) prior to the opening (including before a series is opened following a halt),
For purposes of this limit order price parameter: An “acceptable tick distance” or “ATD”
The Exchange notes that these examples are non-exhaustive and for illustrative purposes only. The Exchange also notes that it may determine for the parameters to differ among series and between pre-open and intra-day.
The Exchange is also proposing to codify a limit order price parameter for complex orders within Rule 6.13 under proposed Interpretation and Policy .04(g). This limit order price parameter, which is comparable to the limit order price parameters applicable to simple orders described above, is not currently in use. Under this complex order limit order price parameter the Exchange will return a limit priced complex order to the order entry firm where the order is (i) prior to the opening (including before a series is opened following a halt), priced at a net debit that is more than an acceptable tick distance above the derived net market using the Exchange's previous day's close in the individual series legs comprising the complex order or priced at a net credit that is more than an acceptable tick distance below the derived net market using the Exchange's previous day's close in the individual series legs comprising the complex order (such ATD will be as determined by the Exchange on a class by class and net premium basis and announced via Regulatory Circular); or (ii) once a series has opened, priced at a net debit that is more than an acceptable tick distance above the opposite side derived net market using the Exchange's best bid or offer in the individual series legs comprising the complex order or priced at a net credit that is more than an acceptable tick distance below the opposite side derived net market using the Exchange's best bid or offer in the individual series legs comprising the complex order (such ATD will be as determined by the Exchange on a class by class and net premium basis and announced via Regulatory Circular).
Similar to simple orders, the ATD for the limit order price parameter for complex orders will be no less than 5
The Exchange is also proposing a miscellaneous change to Rule 6.13.04 to specifically identify the price check parameters that are not applicable to stock-option orders in the introductory text to this provision. The particular parameters to which stock-option orders may be subjected are already identified within the rule text. This proposed change is simply to include a list of those parameters which are not applicable to stock-option orders in the introductory paragraph for ease of reference.
The Exchange notes that the limit order price parameter for simple and complex is intended to protect market participants from executions of limit orders at prices that are significantly through the Exchange's market (
Second, the Exchange is proposing various miscellaneous changes to the existing text in Rule 6.17. In particular, the Exchange is proposing to include a title for each type of price check parameter within the rule text (
The existing text of Rule 6.17 also provides that the senior official in the Help Desk may grant intra-day relief by widening the APR or ATD settings for one or more option series and that notification of intraday relief will be announced via message to Trading Permit Holders that request to receive such messages. The Exchange is proposing to amend this provision to add that such intra-day relief may be granted in the interest of a fair and orderly market. The Exchange is also proposing to amend this provision to make clear that the senior official in the Help Desk can grant relief by widening or inactivating the applicable APR and/or ATD setting. The Exchange believes including the reference to inactivating the applicable settings is not substantive because an applicable APR or ATD parameter could be widened to such a level that it would be in effect inactive. The Exchange is also proposing to provide within the rule text that the intra-day relief granted by the senior official in the Help Desk will not extend beyond the trade day on which it is granted, unless a determination to extend such relief if announced to TPHs via Regulatory Circular.
The proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes the proposed rule change furthers the objective of Section 6(b)(5) of the Act in that it permits the Exchange to address the entry of simple and complex limit orders that are priced significantly away from the market that are likely to have resulted from human or operational error.
The Exchange also believes that the other proposed changes to Rule 6.17 (
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 Exchange believes that the proposed rule change will promote competition in that the limit order price parameters provide market participants with additional protection from anomalous trading. Thus, the Exchange does not believe the proposal creates any significant impact on competition.
The price check parameter features are intended to prevent executions at potentially erroneously prices, which should serve to promote a fair and orderly market and promote trading activity on the Exchange to the benefit of the Exchange, its TPHs, and market participants. The Exchange notes that the limit order price parameters are applied equally to all eligible limit orders, with the limited exception that the parameters do not apply to limit orders for Exchange Market-Makers and away Market-Makers entered prior to the opening. The Exchange believes this does not place an undue burden on competition as the Exchange believes that Market-Makers actively evaluate the pre-opening market and utilize their own risk management parameters when entering, maintaining (and cancelling) orders prior to the opening, minimizing the likelihood of a Market-Maker order resulting an error from being entered and continuing to rest prior to the opening of trading.
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 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.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of New Jersey (FEMA-4231-DR), dated 07/22/2015.
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
Notice is hereby given that as a result of the President's major disaster declaration on 07/22/2015, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14385B and for economic injury is 14386B.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Louisiana (FEMA-4228-DR), dated 07/13/2015.
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 LOUISIANA, dated 07/13/2015, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions, extensions, and one reinstatement without change of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than September 28, 2015. Individuals can obtain copies of the collection instruments by writing to the above email address.
1. Certificate of Support—20 CFR 404.370, 404.750, 404.408a—0960-0001. A parent of a deceased, fully insured worker may be entitled to Social Security Old-Age, Survivors, and Disability Insurance (OASDI) benefits based on the earnings record of the deceased worker under certain conditions. One of the conditions is the parent must have received at least one-half support from the deceased worker. The one-half support requirement also applies to a spousal applicant in determining whether OASDI benefits are subject to Government Pension Offset (GPO). SSA uses the information from Form SSA-760-F4 to determine if the parent of a deceased worker or a spouse applicant meets the one-half support requirement. Respondents are (1) parents of deceased workers and (2) spouses who may meet the GPO exception.
2. Statement of Household Expenses and Contributions—20 CFR 416.1130-416.1148—0960-0456. SSA bases eligibility for Supplemental Security Income (SSI) on the needs of the recipient. In part, we assess need by determining the amount of income a recipient receives. This income includes in-kind support and maintenance in the form of food and shelter provided by others. SSA uses Form SSA-8011-F3, to determine whether the claimant or recipient receives in-kind support and maintenance. This is necessary to determine (1) the claimant or recipient's eligibility for SSI and (2) the SSI payment amount. SSA only uses this form in cases where SSA needs the householder's (head of household) corroboration of in-kind support and maintenance. Respondents are householders of homes in which an SSI applicant or recipient resides.
3. Integrated Registration Services (IRES) System—20 CFR 401.45—0960-0626. The IRES System verifies the identity of individuals, businesses, organizations, entities, and government agencies seeking to use SSA's eService Internet and telephone applications. Individuals need this verification to electronically request and exchange business data with SSA. Requestors provide SSA with the information needed to establish their identities. Once SSA verifies identity, the IRES system issues the requestor a user identification number (User ID) and a password to conduct business with SSA. Respondents are employers and third party submitters of wage data,
4. Request for Reinstatement (Title II)—20 CFR 404.1592b-404.1592f—0960-0742. SSA allows certain previously entitled disability beneficiaries to request expedited reinstatement (EXR) of benefits under Title II of the Social Security Act when their medical condition no longer permits them to perform substantial gainful activity. SSA uses Form SSA-371 to obtain: (1) A signed statement from individuals requesting an EXR of their Title II disability benefits, and (2) proof the requestors meet the EXR requirements. SSA maintains the form in the disability folder of the applicant to demonstrate the requestors' awareness of the EXR requirements, and their choice to request EXR. Respondents are applicants for EXR of Title II disability benefits.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding the information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than August 28, 2015. Individuals can obtain copies of the OMB clearance packages by writing to
1. Coverage of Employees of State and Local Governments—20 CFR 404, Subpart M—0960-0425. The Code of Federal Regulations at 20 CFR 404, Subpart M, prescribes the rules for states submitting reports of deposits and recordkeeping to SSA. SSA requires states (and interstate instrumentalities) to provide wage and deposit contribution information for pre-1987 periods. Not all states have completely satisfied their pending wage report and contribution liability with SSA for pre-1987 tax years. SSA needs these regulations until we close out all pending items with all states, and provide for collection of this information in the future, if necessary. The respondents are State and local governments or interstate instrumentalities.
2. Function Report Adult-Third Party—20 CFR 404.1512 & 416.912—0960-0635. Individuals receiving or applying for Social Security Disability Insurance (SSDI) or SSI provide SSA with medical evidence and other proof SSA requires to prove their disability. SSA, and Disability Determination Services on our behalf, collect this information using Form SSA-3380-BK. We use the information to document how claimant's disabilities affect their ability to function, and to determine eligibility for SSI and SSDI claims. The respondents are third parties familiar with the functional limitations (or lack thereof) of claimants who apply for SSI and SSDI benefits.
Notice of the upcoming United States-Chile Environment Affairs Council and Joint Commission on Environmental Cooperation meetings and request for comments; invitation to public session.
The Department of State and the Office of the United States Trade Representative are providing notice that the parties to the United States-Chile Free Trade Agreement (FTA) intend to hold the seventh meeting of the Environment Affairs Council (Council) established under Chapter 19 of the FTA, as well as the fifth meeting of the United States-Chile Joint Commission on Environmental Cooperation (Commission) established under the United States-Chile Environmental Cooperation Agreement (ECA), on Thursday, August 13, 2015. The Council will review implementation of Chapter 19 (Environment) of the FTA and the Commission will review implementation of the ECA. All interested persons are invited to attend the Council and Commission joint public session beginning at 3:00 p.m. on August 13 at the U.S. Department of State George C. Marshall Conference Center, 2201 C St. NW., Washington, DC.
During the Council and Commission meetings, Members will discuss the progress made in implementing Chapter 19 obligations and the impacts of environmental cooperation. The Commission will also finalize an updated Environmental Cooperation Work Program for 2015-2017. More information on the Council and Commission is included below under
All interested persons are invited to attend a public session where they will have an opportunity to ask questions and discuss implementation of Chapter 19 and the Environmental Cooperation Agreement with Council and Commission Members and environmental cooperation implementers. At the public session, the Council hopes to receive input from the public on current environmental issues and ideas for future cooperation. The Department of State and Office of the United States Trade Representative invite written comments or suggestions regarding topics to be discussed at the meeting. In preparing comments, we encourage submitters to refer to Chapter 19 of the FTA and the ECA (
The public session of the Council and Commission will be held August 13, 2015 from 3:00-5:00 p.m. at the U.S. Department of State George C. Marshall Conference Center. We request RSVPs and any written comments no later than August 7, 2015 in order to facilitate consideration.
RSVPs and any written comments should be submitted to both:
(1) Katherine Weber, U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Office of Environmental Quality and Transboundary Issues by email at
(2) David Oliver, Deputy Assistant U.S. Trade Representative for Environment and Natural Resources, Office of the United States Trade Representative, by email to
In your RSVP, please include your full name and affiliation.
Katherine Weber, telephone (202) 647-2252.
The United States and Chile negotiated the United States-Chile Free Trade Agreement (FTA) and United States-Chile Environmental Cooperation Agreement (ECA) in concert, signing the FTA on June 6, 2003 in Miami, U.S.A. and the ECA on June 17, 2003 in Santiago, Chile. Article 19.3 of the FTA establishes an Environment Affairs Council (Council).The Council ordinarily meets annually to discuss implementation of Chapter 19 of the FTA and its meetings include a public session. The Joint Commission on Environmental Cooperation (Commission) was established in Article II of the ECA. The Commission meets at least every two years to evaluate cooperative activities under the agreement, to recommend options for improving cooperation, and to establish programs of work that reflect national priorities and identify the scope and focus of environmental cooperation work over the coming years.
The Council and Commission last met in January 2013 in Santiago, Chile. The Council reviewed the implementation of the Environment Chapter of the FTA. The Commission signed the 2012-2014 Work Program, which built on previous successes and identified activities to achieve the long-term goals of: (1) Strengthening effective implementation and enforcement of environmental laws and regulations; (2) encouraging development and adoption of sound environmental practices and technologies, particularly in business enterprises; (3) promoting sustainable development and management of environmental resources, including wild fauna and flora, protected wild areas, and other ecologically important ecosystems; and (4) encouraging civil society participation in the environmental decision-making process and environmental education.
If you would like to attend the public session, please notify Katherine Weber and David Oliver at the email addresses listed above under the heading
• Chapter 19 of the FTA,
• The Final Environmental Review of the FTA, and
• The ECA.
These documents are available at:
Susquehanna River Basin Commission.
Notice.
This notice lists the projects approved by rule by the Susquehanna River Basin Commission during the period set forth in
June 1-30, 2015.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, receiving approval for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22(f) for the time period specified above:
Pub. L. 91-575, 84 Stat. 1509
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before August 28, 2015.
Comments should refer to docket number MARAD-2015-0091. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel BLUEWATER is:
The complete application is given in DOT docket MARAD-2015-0091 at
Anyone is able to search the electronic form of all 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 DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice of intent; notice of public meeting; request for comments.
The Maritime Administration (MARAD), in coordination with the U.S. Coast Guard (USCG), will prepare an environmental impact statement (EIS) as part of the environmental review of the Delfin LNG LLC (Delfin LNG) deepwater port license application. The application proposes the ownership, construction, operation and eventual decommissioning of an offshore liquefied natural gas (LNG) deepwater port export facility that would be located in Federal waters within the Outer Continental Shelf (OCS) West Cameron Area, West Addition Protraction Area (Gulf of Mexico), approximately 37.4 to 40.8 nautical miles off the coast of Cameron Parish, Louisiana, in water depths ranging from approximately 64 to 72 feet (19.5 to 21.9 meters). The deepwater port would consist of four semi-permanently moored floating liquefaction natural gas vessels (FLNGVs), and would reuse and repurpose two existing offshore natural gas pipelines: The former U-T Operating System (UTOS) pipeline and the High Island Operating System (HIOS) pipeline (see Summary of the Application for additional project specifics).
The onshore components of the proposed deepwater port would be located in Cameron Parish, Louisiana and would be reviewed by the Federal Energy Regulatory Commission (FERC) under a separate authorization process (see FERC Docket No. CP15-490-000; 80 FR 30226 (May 27, 2015)). The onshore facility would consist of reactivating approximately 1.1 miles of the existing UTOS pipeline; the addition of 74,000 horsepower of new compression and associated metering and regulation facilities; the installation of new supply header pipelines (which would consist of 0.25 miles of new 42-inch pipeline to connect the former UTOS line to the new meter station); and 0.6 miles of new twin 30-inch pipelines between Transco Station 44 and the new compressor station site. Publication of this Notice of Intent (NOI) begins a 30 day scoping process that will help identify and determine
There will be two public scoping meetings held in connection with the application. The first public meeting will be held in Lake Charles, Louisiana on August 18, 2015, from 6 p.m. to 8 p.m. The second public meeting will be held in Beaumont, Texas on August 19, 2015, from 6 p.m. to 8 p.m. Both public meetings will be preceded by an informational open house from 4 p.m. to 5:30 p.m.
Each of the public meetings may end later than the stated time, depending on the number of persons wishing to speak. Additionally, materials submitted in response to this request for comments on the Delfin LNG deepwater port license application must reach the Federal Docket Management Facility as detailed below by August 28, 2015.
The open house and public meeting in Lake Charles, Louisiana will be held at the Lake Charles Civic Center, 900 Lakeshore Drive, Lake Charles, Louisiana 70601, telephone: 337-491-1256. The open house and public meeting in Beaumont, Texas will be held at the Holiday Inn Beaumont Plaza, 3950 Walden Road, Beaumont, Texas 77705, telephone: 409-842-5995. Free parking is available at both the Lake Charles Civic Center and the Holiday Inn Beaumont Plaza locations.
The public docket for USCG-2015-0472 is maintained by the U.S. Department of Transportation, Docket Management Facility, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
The Federal Docket Management Facility accepts hand-delivered submissions, and makes docket contents available for public inspection and copying at this address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Federal Docket Management Facility's telephone number is 202-366-9329, the fax number is 202-493-2251 and the Web site for electronic submissions or for electronic access to docket contents is
Mr. Roddy Bachman, USCG, telephone: 202-372-1451, email:
We invite you to learn about the proposed deepwater port at any of the above informational open houses and to comment at any of the above public meetings on environmental issues related to the proposed deepwater port. Your comments will help us identify and refine the scope of the environmental issues to be addressed in the EIS.
Speaker registrations will be available at the door. Speakers at the public scoping meetings will be recognized in the following order: Elected officials, public agencies, individuals or groups in the sign-up order and then anyone else who wishes to speak.
In order to allow everyone a chance to speak at a public meeting, we may limit speaker time, extend the meeting hours or both. You must identify yourself, and any organization you represent, by name. Your remarks will be recorded or transcribed for inclusion in the public docket.
You may submit written material at a public meeting, either in place of or in addition to speaking. Written material must include your name and address and will be included in the public docket.
Public docket materials will be made available to the public on the Federal Docket Management Facility Web site (see Request for Comments).
Our public meeting locations are wheelchair-accessible. If you plan to attend an open house or public meeting and need special assistance such as sign language interpretation, non-English language translator services or other reasonable accommodation, please notify the USCG (see
We request public comments or other relevant information on environmental issues related to the proposed deepwater port. The public meeting is not the only opportunity you have to comment on the Delfin LNG deepwater port license application. In addition to or in place of attending a meeting, you can submit comments directly to the Federal Docket Management Facility during the public comment period (see
Public comment submissions should include:
• Docket number USCG-2015-0472.
• Your name and address.
Submit comments or material using only one of the following methods:
• Electronically (preferred for processing) to the Federal Docket Management System (FDMS) Web site:
• By mail to the Federal Docket Management Facility (USCG-2015-0472), U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001
• By personal delivery to the room and address listed above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• By fax to the Federal Docket Management Facility at 202-493-2251.
Faxed, mailed or hand delivered submissions must be unbound, no larger than 8
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the FDMS Web site (
Information about deepwater ports, the statutes, and regulations governing their licensing, including the application review process, and the receipt of the current application for the proposed Delfin LNG deepwater port appears in the July 16, 2015 edition of the
Consideration of a deepwater port license application includes review of the proposed deepwater port's impact on the natural and human environment. For the proposed deepwater port, USCG and MARAD are the co-lead Federal agencies for determining the scope of this review, and in this case, it has been determined that review must include preparation of an EIS. This NOI is required by 40 CFR 1501.7. It briefly describes the proposed action, possible alternatives and our proposed scoping process. You can address any questions about the proposed action, the scoping process or the EIS to the USCG project manager identified in this notice (see
The proposed action requiring environmental review is the Federal licensing of the proposed deepwater port described in “Summary of the Application” below. The alternatives to licensing the proposed port are: (1) Licensing with conditions (including conditions designed to mitigate environmental impact), (2) proposed deepwater port site alternatives or (3) denying the application, which for purposes of environmental review is the “no-action” alternative.
Public scoping is an early and open process for identifying and determining the scope of issues to be addressed in the EIS. Scoping begins with this notice, continues through the public comment period (see
• Invites the participation of Federal, state, and local agencies, any affected Indian tribe, the applicant, in this case Delfin LNG, and other interested persons;
• Determines the actions, alternatives and impacts described in 40 CFR 1508.25;
• Identifies and eliminates from detailed study, those issues that are not significant or that have been covered elsewhere;
• Identifies other relevant permitting, environmental review and consultation requirements;
• Indicates the relationship between timing of the environmental review and other aspects of the application process; and
• At its discretion, exercises the options provided in 40 CFR 1501.7(b).
Once the scoping process is complete, USCG will prepare a draft EIS in conjunction with MARAD. Also, MARAD will publish a
Delfin LNG is proposing to construct, own, operate, and eventually decommission a deepwater port (referred to hereafter as the Delfin deepwater port) in the Gulf of Mexico to liquefy domestically-sourced natural gas for export to nations with which the United States has a Free Trade Agreement (FTA) and with non-FTA nations.
The proposed Delfin deepwater port has both onshore and offshore components. As previously described, the proposed Delfin deepwater port would be located in Federal waters within the OCS West Cameron Area, West Addition Protraction Area (Gulf of Mexico) approximately 37.4 to 40.8 nautical miles off the coast of Cameron Parish, Louisiana, in water depths ranging from approximately 64 to 72 feet (19.5 to 21.9 meters). The Delfin deepwater port would consist of four semi-permanently moored FLNGVs located as follows: #1 (29°8′13.1″ N./93°32′2.2″ W.), #2 (29°6′13.6″N./93°32′42.4″ W.), #3 (29°6′40.7″ N./93°30′10.1″ W.), and #4 (29°4′40.9″ N./93°30′51.8″ W.) located in West Cameron (WC) lease blocks 319, 327, 328, and 334, respectively. Delfin LNG would reuse and repurpose two existing offshore natural gas pipelines, the former UTOS pipeline and the HIOS pipeline. Four new 30-inch diameter pipeline laterals, each approximately 6,400 feet in length, connecting the HIOS pipeline to each of the FLNGVs, would be constructed. In addition, a 700-foot 42-inch diameter new pipeline would be constructed to bypass a platform at WC lease block 167 (WC 167) and connect the UTOS and HIOS pipelines. Feed gas would be supplied through the new pipeline laterals to each of the FLNGVs where it would be super cooled to produce LNG. The LNG would be stored onboard the FLNGVs and transferred via ship-to-ship transfer to properly certified LNG trading carriers. Each of the FLNGVs would be semi-permanently moored to four new weathervaning tower yoke mooring systems (TYMS).
The onshore components in Cameron Parish, Louisiana are described specifically in an application submitted to FERC. The onshore components of the Delfin deepwater port will consist of constructing and operating a new natural gas compressor station, gas supply header and a metering station at an existing gas facility (see the FERC Application referenced below). The proposal would require: (1) Reactivation of approximately 1.1 miles of existing 42-inch pipeline, formerly owned by UTOS, which runs from Transcontinental Gas Pipeline Company Station No. 44 (Transco Station 44) to the mean highwater mark along the Cameron Parish Coast; (2) installation of 74,000 horsepower of new compression; (3) construction of 0.25 miles of 42-inch pipeline to connect the former UTOS line to the new meter station; and (4) construction of 0.6 miles of twin 30-inch pipelines between Transco Station 44 and the new compressor station.
Onshore pipeline quality natural gas from the interstate grid would be sent to the existing, but currently idle, 42-inch UTOS pipeline. The gas transported through the UTOS pipeline would then bypass the existing manifold platform located at WC 167 via a newly installed pipeline segment, 700 feet in length, connecting to the existing 42-inch HIOS pipeline.
The bypass of the WC 167 platform would be trenched so that the top of the pipe is a minimum of 3 feet below the seafloor. From the bypass, the feed gas would then be transported further offshore using the HIOS pipeline portion leased by Delfin LNG between WC 167 and High Island A264. The existing UTOS and HIOS pipelines transect OCS Lease Blocks WC 314, 318, 319, 327, and 335, and would transport feed gas from onshore to offshore (one-directional flow). Delfin LNG proposes to install four new lateral pipelines along the HIOS pipeline, starting approximately 16.0 nautical miles south of the WC 167 platform. Each subsea lateral pipeline would be 30 inches in
The FLNGVs would receive pipeline quality natural gas via the laterals and TYMS where it would be cooled sufficiently to completely condense the gas and produce LNG. The produced LNG would be stored in International Maritime Organization (IMO) type B, prismatic, independent LNG storage tanks aboard each of the FLNGVs. Each vessel would have a total LNG storage capacity of 165,000 cubic meters (m
An offloading mooring system would be provided on each FLNGV to moor an LNG trading carrier side-by-side for cargo transfer of LNG through loading arms or cryogenic hoses using ship-to-ship transfer procedures. LNG carriers would be moored with pilot and tug assist. The FLNGVs would be equipped with fenders and quick-release hooks to facilitate mooring operations. The offloading system would be capable of accommodating standard LNG trading carriers with nominal cargo capacities up to 170,000 m
The FLNGVs would be self-propelled vessels and have the ability to disconnect from the TYMS and set sail to avoid hurricanes or to facilitate required inspections, maintenance and repairs.
In the nominal design case, each of the four FLNGVs would process approximately 330 million standard cubic feet per day (MMscfd), which would total 1.32 billion standard cubic feet per day (Bscf/d) of input feed gas for all four of the FLNGVs. Based on an estimated availability of 92 percent and allowance for consumption of feed gas during the liquefaction process, each FLNGV would produce approximately 97.5 billion standard cubic feet per year (Bscf/y) of gas (or approximately 2.0 million metric tonnes per annum [MMtpa]) for export in the form of LNG. Together, the four FLNGVs are designed to have the capability to export 390.1 Bscf/y of gas (or approximately 8.0 MMtpa) in the form of LNG.
As detailed engineering and equipment specification advances during the design process and operating efficiencies are gained post-commissioning, the liquefaction process could perform better than this nominal design case. It is therefore anticipated that LNG output, based on the high-side design case of 375 MMscfd of input feed gas, would be as much as approximately 110.8 Bscf/y of gas (or approximately 2.3 MMtpa) for each FLNGV. Taken together, the four FLNGVs would be capable of exporting the equivalent of 443.3 Bscf/y of natural gas in the form of LNG. Therefore, Delfin LNG is requesting authorization to construct and operate facilities capable of exporting up to 443.3 Bscf/y of natural gas in the form of LNG (which equates to approximately 9.2 MMtpa).
The proposed Delfin deepwater port would take a modular implementation approach to allow for early market entry and accommodate market shifts. Offshore construction activities are proposed to begin at the end of first quarter of 2018 and would be completed in four stages, with each stage corresponding to the commissioning and operation of an FLNGV. The anticipated commissioning of FLNGV 1 is the third quarter of 2019 with start-up of commercial operation of FLNGV 1 by the end of 2019. It is anticipated that FLNGVs 2 through 4 would be commissioned 12 months apart. Following this schedule and barring unforeseen events, the Delfin deepwater port would be completed and all four FLNGVs would be fully operational by the summer of 2022.
The onshore component and nearshore pipeline component of the proposed Delfin deepwater port falls under the jurisdiction of and is processed under a separate authorization by FERC. On May 8, 2015, Delfin LNG filed an application with FERC to construct and operate the onshore/nearshore components of the proposed deepwater port. This application was noticed on FERC's Docket: No. CP15-490-000 on May 20, 2015, and in the
Take notice that on May 8, 2015 Delfin LNG LLC (Delfin LNG), 1100 Louisiana Street, Houston, Texas 77002, filed in Docket No. CP15-490-000, an Application pursuant to section 7(c) of the Commission's Regulations under the Natural Gas Act and Parts 157 of the Federal Energy Regulatory Commission's (Commission) regulations requesting authorization to (1) reactivate approximately 1.1 miles of existing 42-inch pipeline formerly owned by U-T Offshore System (UTOS), which runs from Transcontinental Gas Pipeline Company Station No. 44 (Transco Station 44) to the mean highwater mark along the Cameron Parish Coast; (2) install 74,000 horsepower of new compression; (3) construct 0.25 miles of 42-inch pipeline to connect the former UTOS line to the new meter station; and (4) construct 0.6 miles of twin 30-inch pipelines between Transco Station 44 and the new compressor station in Cameron Parrish, Louisiana that comprise the onshore portion of Delfin LNG's proposed deepwater port (DWP), an offshore liquefied natural gas facility located off the coast of Louisiana in the Gulf of Mexico, all as more fully set forth in the application, which is on file with the Commission and open to public inspection. Additionally, Delfin LNG requests a blanket construction certificate under Part 17, Subpart F of the Commission's regulations. This filing may be viewed on the Web at
It is important to note that the onshore facilities will connect with the offshore deepwater port facilities which are subject to the jurisdiction of MARAD and USCG. As previously discussed, Delfin LNG proposes to lease a segment of pipeline from HIOS that extends from the terminus of the UTOS pipeline offshore. Delfin LNG states in its application that HIOS will submit a separate application with FERC seeking authorization to abandon by lease its facilities to Delfin LNG. Because the review of the deepwater port proposal is the jurisdiction of MARAD and USCG, FERC has acknowledged receipt of the Delfin LNG application, provided under Docket No. CP15-490-000 on May 8, 2015; however, FERC will not begin processing the Delfin LNG application until such time that HIOS submits an abandonment application to FERC for review and processing. Accordingly, although the USCG and MARAD will commence review and processing of the Delfin deepwater port license application, upon the publication of this Notice of Intent, MARAD and USCG will not publish the draft EIS until FERC has received an application for abandonment of the HIOS pipeline and has begun to process Delfin's application for the construction and operation of the onshore components of the proposed deepwater port.
The electronic form of all comments received into the FDMS can be searched
By Order of the Maritime Administrator.
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Joint notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. chapter 35), the OCC, the Board, and the FDIC (collectively, the agencies) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Federal Financial Institutions Examination Council (FFIEC), of which the agencies are members, has approved the agencies' publication for public comment of a proposal to extend, with revision, the Foreign Branch Report of Condition (FFIEC 030 and FFIEC 030S), which is a currently approved information collection for each agency. The proposed changes would be effective for the FFIEC 030 and FFIEC 030S reports as of the December 31, 2015, report date. At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the FFIEC and the agencies should modify the proposed revisions prior to giving final approval. The agencies will then submit the revisions to OMB for review and approval.
Comments must be submitted on or before September 28, 2015.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the OMB control number, will be shared among the agencies.
OCC: Because paper mail in the Washington, DC, area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0099, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Board: You may submit comments, identified by FFIEC 030 or FFIEC 030S, by any of the following methods:
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All public comments are available from the Board's Web site at
FDIC: You may submit comments, which should refer to “Foreign Branch Report of Condition, 3064-0011,” by any of the following methods:
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503; by fax to (202) 395-6974; or by email to
For further information about the revisions discussed in this notice, please contact any of the agency clearance officers whose names appear below. In addition, copies of the report forms can be obtained at the FFIEC's Web site(
OCC: Shaquita Merritt, OCC Clearance Officer, (202) 649-5490, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
Board: Mark Tokarski, Federal Reserve Board Acting Clearance Officer, (202) 452-3829, Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may call (202) 263-4869.
FDIC: Gary A. Kuiper, Counsel, (202) 898-3877, Legal Division, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429.
Proposal to extend for three years, with revision, the following currently approved collections of information:
This information collection is mandatory: 12 U.S.C. 602 (Board); 12 U.S.C. 161 and 602 (OCC); and 12 U.S.C. 1828 (FDIC). This information collection is given confidential treatment under 5 U.S.C. 552(b)(4) and (8).
The FFIEC 030 contains asset and liability information for foreign branches of insured U.S. banks and insured U.S. savings associations (U.S. institutions) and is required for regulatory and supervisory purposes. The information is used to analyze the foreign operations of U.S. institutions. All foreign branches of U.S. institutions regardless of charter type file this report as provided in the instructions to the FFIEC 030 and FFIEC 030S.
An institution must file a separate report for each foreign branch, but in some cases may consolidate filing for multiple foreign branches in the same country, as discussed below. A branch with either total assets of at least $2 billion or commitments to purchase foreign currencies and U.S. dollar exchange of at least $5 billion as of the end of a calendar quarter is considered a “significant branch” and is required to report quarterly on the FFIEC 030. A foreign branch that does not meet either of the criteria to file quarterly, but has total assets in excess of $250 million, must file the entire FFIEC 030 report on an annual basis as of each December 31.
A foreign branch that does not meet the criteria to file the FFIEC 030 report, but has total assets of $50 million or more (but less than or equal to $250 million), must file the Abbreviated Foreign Branch Report of Condition (FFIEC 030S) on an annual basis as of each December 31.
The agencies propose to revise the officer declaration requirement that applies to the FFIEC 030 and FFIEC 030S, reduce the information provided if the consolidation option is elected, and add a field on the cover page for an institution to indicate whether the branch meets the criteria for annual or quarterly filing.
At present, the FFIEC 030 and FFIEC 030S reports must be signed by an authorized officer who addresses the correctness of the information reported by stating only that the report is true and correct to the best of his or her knowledge and belief. The agencies propose to revise the language of this declaration requirement to make explicit that the authorized officer must be an officer of the parent U.S. institution who attests that the report, including any consolidated branches, has been prepared in conformance with the instructions issued by the Federal Financial Institutions Examination Council and is true and correct to the best of his or her knowledge and belief. In addition, this attestation language would be moved from page 3 to page 1 of the FFIEC 030.
At a U.S. institution's option, branches in a single country currently may report their year-end information on a consolidated basis.
The FFIEC 030 report for December 31 must be filed by both annual and quarterly respondents. To aid in identifying annual versus quarterly respondents, the agencies propose to add a field to the cover page of the FFIEC 030 report in which respondents would indicate whether the report is filed annually or quarterly. This field would only need to be completed annually on the December 31 report.
Public comment is requested on all aspects of this joint notice. Comments are invited on:
a. Whether the information collection is necessary for the proper performance
b. The accuracy of the agencies' estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide the requested information.
Comments submitted in response to this notice will be shared among the agencies. All comments will become a matter of public record.
Office of Foreign Assets Control, Treasury.
Notice, publication of general licenses.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing General License No. 5, General License No. 6, General License No. 7, General License No. 8, and General License No. 9 issued under the Ukraine-related sanctions program. On December 30, 2014, OFAC issued General License No. 5, which authorizes transactions and activities necessary to wind down operations involving the Crimea region of Ukraine, subject to certain limitations. On January 30, 2015, OFAC issued three Ukraine-related general licenses. General License No. 6 authorizes noncommercial, personal remittances to or from the Crimea region of Ukraine or for or on behalf of an individual ordinarily resident in the Crimea region of Ukraine, subject to certain limitations. General License No. 7 authorizes the operation of accounts in U.S. financial institutions for individuals ordinarily resident in the Crimea region of Ukraine, subject to certain limitations. General License No. 8 authorizes transactions related to the receipt and transmission of telecommunications and mail, subject to certain limitations. On May 22, 2015, OFAC issued General License No. 9, which authorizes the exportation of certain services and software incident to the exchange of Internet-based communications, subject to certain limitations.
Assistant Director for Licensing, tel.: 202-622-2480, Assistant Director for Policy, tel.: 202-622-2746, Assistant Director for Regulatory Affairs, tel.: 202-622-4855, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202-622-2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
This document and additional information concerning OFAC are available from OFAC's Web site (
Since December 30, 2014, OFAC has issued five general licenses authorizing certain transactions for the Crimea region of Ukraine involving certain activities prohibited by Executive Order 13685 of December 19, 2014. On December 30, 2014, OFAC issued General License No. 5 authorizing transactions and activities prohibited by Executive Order 13685 of December 19, 2014 necessary to wind down operations involving the Crimea region of Ukraine, subject to certain limitations. At the time of its issuance on December 30, 2014, OFAC made General License No. 5 available on the OFAC Web site (
On January 30, 2015, OFAC issued three general licenses. General License No. 6 authorizes noncommercial, personal remittances to or from the Crimea region of Ukraine or for or on behalf of an individual ordinarily resident in the Crimea region of Ukraine, subject to certain limitations. General License No. 7 authorizes the operation of accounts in U.S. financial institutions for individuals ordinarily resident in the Crimea region of Ukraine, subject to certain limitations. General License No. 8 authorizes transactions related to the receipt and transmission of telecommunications and mail involving the Crimea region of Ukraine, subject to certain limitations. At the time of their issuance on January 30, 2015, OFAC made General License Nos. 6, 7, and 8 available on the OFAC Web site (
On May 22, 2015, OFAC issued General License No. 9 authorizing the exportation from the United States or by U.S. persons of certain services and software incident to the exchange of Internet-based communications, subject to certain limitations. At the time of its issuance on May 22, 2015, OFAC made General License No. 9 available on the OFAC Web site (
(a) Except as provided in paragraph (b) of this general license, all transactions and activities prohibited by Section 1 of Executive Order 13685 of December 19, 2014, “Blocking Property of Certain Persons and Prohibiting Certain Transactions With Respect to the Crimea Region of Ukraine” (the “Crimea E.O.”), that are ordinarily incident and necessary (1) to the winding down or divestiture or transfer to a foreign person of a U.S. person's share of ownership, including an equity interest, in pre-December 20, 2014 investments located in the Crimea region of Ukraine; (2) to the winding down of operations, contracts, or other agreements that were in effect prior to December 20, 2014, involving the exportation, reexportation, sale, or supply of goods, services, or technology
(b) This general license does not authorize (1) any new exportation, reexportation, sale, or supply of goods, services, or technology from the United States, or by a U.S. person, wherever located, to the Crimea region of Ukraine, or (2) any new importation into the United States of goods, services, or technology from the Crimea region of Ukraine, except as needed to wind down operations, contracts, or other agreements otherwise prohibited by the Crimea E.O. This general license does not authorize any transactions or dealings otherwise prohibited by any other Executive order or any other part of 31 CFR Chapter V, or any transactions or dealings with any specially designated national (SDN) listed pursuant to any Ukraine-related Executive order.
(c) U.S. persons participating in transactions authorized by this general license are required, within 10 business days after the wind-down activities conclude, to file a detailed report, including the parties involved, the type and scope of activities conducted, and the dates of the activities, with the Office of Foreign Assets Control, Licensing Division, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Annex, Washington, DC 20220.
Issued: December 30, 2014.
(a)(1) U.S. persons are authorized to send and receive, and U.S. depository institutions, U.S. registered brokers or dealers in securities, and U.S. registered money transmitters are authorized to process transfers of, funds to or from the Crimea region of Ukraine or for or on behalf of an individual ordinarily resident in the Crimea region of Ukraine in cases in which the transfer involves a noncommercial, personal remittance, provided the transfer is not by, to, or through any person whose property and interests in property are blocked pursuant to Executive Order 13660 of March 6, 2014, Executive Order 13661 of March 17, 2014, Executive Order 13662 of March 20, 2014, or Executive Order 13685 of December 19, 2014 (collectively, the “Orders”).
(2) Noncommercial, personal remittances do not include charitable donations of funds to or for the benefit of an entity or funds transfers for use in supporting or operating a business, including a family-owned business.
(b) The transferring institutions identified in paragraph (a) of this general license may rely on the originator of a funds transfer with regard to compliance with paragraph (a), provided that the transferring institution does not know or have reason to know that the funds transfer is not in compliance with paragraph (a).
(c) An individual who is a U.S. person is authorized to carry funds as a noncommercial, personal remittance, as described in paragraph (a) of this general license, to an individual in the Crimea region of Ukraine or to an individual ordinarily resident in the Crimea region of Ukraine, other than an individual whose property and interests in property are blocked pursuant to the Orders, provided that the individual who is a U.S. person is carrying the funds on his or her behalf, but not on behalf of another person.
Issued: January 30, 2015.
The operation of an account in a U.S. financial institution for an individual ordinarily resident in the Crimea region of Ukraine other than an individual whose property and interests in property are blocked pursuant to Executive Order 13660 of March 6, 2014, Executive Order 13661 of March 17, 2014, Executive Order 13662 of March 20, 2014, or Executive Order 13685 of December 19, 2014 (collectively, the “Orders”), is authorized, provided that transactions processed through the account:
(a) Are of a personal nature and not for use in supporting or operating a business;
(b) Do not involve transfers directly or indirectly to the Crimea region of Ukraine or for the benefit of individuals ordinarily resident in the Crimea region of Ukraine unless authorized by General License No. 6 (“Noncommercial, Personal Remittances Authorized”); and
(c) Are not otherwise prohibited by the Orders.
Issued: January 30, 2015.
(a)(1) Except as provided in paragraph (a)(2) of this general license, all transactions with respect to the receipt and transmission of telecommunications involving the Crimea region of Ukraine are authorized, provided that no payment pursuant to this general license may involve any transaction with a person whose property and interests in property are blocked pursuant to Executive Order 13660 of March 6, 2014, Executive Order 13661 of March 17, 2014, Executive Order 13662 of March 20, 2014, or Executive Order 13685 of December 19, 2014 (collectively, the “Orders”).
(2) This general license does not authorize:
(i) The provision, sale, or lease of telecommunications equipment or technology; or
(ii) The provision, sale, or lease of capacity on telecommunications transmission facilities (such as satellite or terrestrial network activity).
(b) All transactions of common carriers incident to the receipt or transmission of mail and packages between the United States and the Crimea region of Ukraine are authorized, provided that the importation or exportation of such mail and packages is exempt from the prohibitions of Executive Order 13685 of December 19, 2014, or is otherwise authorized pursuant to 31 CFR part 589.
Issued: January 30, 2015.
(a) Except as provided in paragraph (d) of this general license, the exportation or reexportation, directly or indirectly, from the United States or by U.S. persons, wherever located, to persons in the Crimea region of Ukraine of services incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging, is authorized, provided that such services are widely available to the public at no cost to the user.
(b) Except as provided in paragraph (d) of this general license, the exportation or reexportation, directly or indirectly, from the United States or by U.S. persons, wherever located, to persons in the Crimea region of Ukraine of software necessary to enable the services described in paragraph (a) of this general license is authorized, provided that such software is designated EAR99 under the Export Administration Regulations, 15 CFR parts 730 through 774 (the “EAR”), or is classified by the U.S. Department of Commerce (Commerce) as mass market
(c) Except as provided in paragraph (d) of this general license, the exportation or reexportation, directly or indirectly, from the United States or by U.S. persons, wherever located, to persons in the Crimea region of Ukraine of software that is not subject to the EAR because it is of foreign origin and is located outside the United States that is necessary to enable the services described in paragraph (a) of this general license is authorized, provided that such software would be designated EAR99 if it were located in the United States or would meet the criteria for classification under ECCN 5D992 of the EAR if it were subject to the EAR, and provided further that such software is widely available to the public at no cost to the user.
(d) This general license does not authorize:
(1) The exportation or reexportation, directly or indirectly, of services or software with knowledge or reason to know that such services or software are intended for any person whose property and interests in property are blocked pursuant to Executive Order 13660 of March 6, 2014, Executive Order 13661 of March 17, 2014, Executive Order 13662 of March 20, 2014, or Executive Order 13685 of December 19, 2014;
(2) The exportation or reexportation, directly or indirectly, of any goods or technology listed on the Commerce Control List in the EAR, 15 CFR part 774, supplement No. 1 (CCL), except for software necessary to enable the services described in paragraph (a) of this general license that is classified by Commerce as mass market software under ECCN 5D992 of the EAR;
(3) The exportation or reexportation, directly or indirectly, of commercial-grade Internet connectivity services or telecommunications transmission facilities (such as dedicated satellite links or dedicated lines that include quality of service guarantees); or
(4) The exportation or reexportation, directly or indirectly, of web-hosting services that are for commercial endeavors or of domain name registration services.
(e) Specific licenses may be issued on a case-by-case basis for the exportation or reexportation of services or software incident to the exchange of personal communications over the Internet not specified in paragraphs (a), (b), or (c) of this general license, and for the exportation or reexportation of hardware incident to the exchange of personal communications over the Internet.
Nothing in this general license or in any license issued pursuant to paragraph (e) of this general license relieves the exporter from compliance with the export license application requirements of another Federal agency.
Issued: May 22, 2015.
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before August 28, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by emailing
Environmental Protection Agency (EPA).
Final rule.
This action finalizes the residual risk and technology reviews (RTR) conducted for the Mineral Wool Production and Wool Fiberglass Manufacturing source categories regulated under national emission standards for hazardous air pollutants (NESHAP). Under this action, we are establishing pollutant-specific emissions limits for hazardous air pollutants (HAP) that were previously regulated (under a surrogate) and for HAP that were previously unregulated. This action finalizes first-time generally available control technologies (GACT) standards for gas-fired glass-melting furnaces at wool fiberglass manufacturing facilities that are area sources. We are also amending regulatory provisions related to emissions during periods of startup, shutdown, and malfunction (SSM); adding requirements for reporting of performance testing through the Electronic Reporting Tool (ERT); and making several minor clarifications and corrections. The revisions in these final rules increase the level of emissions control and environmental protection provided by the Mineral Wool Production and Wool Fiberglass Manufacturing NESHAP.
This final action is effective on July 29, 2015.
The Environmental Protection Agency (EPA) has established two dockets for this action under Docket ID Nos. EPA-HQ-OAR-2010-1041 (for 40 CFR part 63, subpart DDD) and EPA-HQ-OAR-2010-1042 (for 40 CFR part 63, subparts NNN and NN). All documents in these dockets are listed on the
For questions about this final action, contact Ms. Susan Fairchild, Sector Policies and Programs Division (D 234-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 27711; telephone number: (919) 541-5167; fax number: (919) 541-5600; and email address:
In the November 2011 proposal we also proposed to discontinue using formaldehyde as a surrogate for phenol and methanol in both the Mineral Wool Production and Wool Fiberglass Manufacturing source categories and to discontinue using carbon monoxide (CO) as a surrogate for carbonyl sulfide (COS) in the Mineral Wool Production source category. This revision was proposed because we found that the surrogate for each pollutant is not necessarily a reasonable representation of the pollutant-specific emissions for these source categories (
On April 15, 2013 (78 FR 22370), the EPA issued a supplemental proposal that was based on comments to the November 2011 proposal and new information on processes in both source categories. New emissions test data for all wool fiberglass furnaces across the industry showed that the same types of furnaces were in operation at both major and area sources, but that the emissions profile of electric furnaces differed from that of gas-fired furnaces (
On November 13, 2014 (79 FR 68012), the EPA issued a second supplemental proposal to explain changes to previously proposed emissions limits for sources in these source categories. We proposed work practice standards under CAA section 112(h) in lieu of certain emissions limits, and clarified our use of the upper predictive limit (UPL) in setting MACT floors. In this action, we are finalizing decisions and revisions for these rules. We summarize some of the more significant comments we received regarding the proposed rules 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 is available in the memorandum, “National Emissions Standards for Hazardous Air Pollutants: Mineral Wool Production and Wool Fiberglass Manufacturing (Risk and Technology Review)—Summary of Public Comments and Responses” (Docket ID Nos. EPA-HQ-OAR-2010-1041 and EPA-HQ-OAR-2010-1042). “Track-changes” versions of the regulatory language that incorporates the changes in this action are available in the respective dockets.
The information in this preamble is organized as follows:
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 categories listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. 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 September 28, 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 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 West 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 or more, or 25 tons per year or more of any combination of HAP. For major sources, these standards are commonly referred to as maximum achievable control technology or 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. The MACT standards for existing sources can be less stringent than 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).
CAA sections 112(c)(3), (d)(5), and (k)(3) address regulation of area sources. Collectively, these sections are the basis of the Area Source Program under the Urban Air Toxics Strategy (Strategy).
With this regulation, pursuant to CAA sections 112(c)(3) and (k)(3)(B), the agency will have subjected additional sources to regulation for the urban metal HAP chromium compounds, which is wholly consistent with the goals of the Strategy. For more information on the statutory authority for this rule, see the November 25, 2011, supplemental proposal (76 FR 72770), the April 15, 2013, supplemental proposal (78 FR 22375-22376), and the November 13, 2014, supplemental proposal (79 FR 68012).
The EPA promulgated the Mineral Wool Production NESHAP on June 1, 1999 (64 FR 29490). The standards are codified at 40 CFR part 63, subpart DDD. The Mineral Wool Production industry consists of facilities that produce mineral wool fiber from slag, rock, or other materials, excluding sand or glass. The source category covered by this MACT standard currently consists of eight facilities.
Mineral wool is a material used mainly for thermal and acoustical insulation. This category includes, but is not limited to, the following process units: A cupola furnace for melting the mineral charge; a blow chamber in which air and, in some cases, a binder are drawn over the fibers, forming them to a screen; a curing oven to bond the fibers; and a cooling compartment. The 1999 NESHAP rule set emissions limits
On November 25, 2011, the EPA published a proposed rule for the Mineral Wool Production NESHAP, 40 CFR part 63, subpart DDD, that proposed RTR amendments to this standard under CAA sections 112(d)(6) and (f)(2). In that proposal, we stated that maximum individual risk (MIR) for cancer was 4-in-1 million based on available test data for actual emissions and 10-in-1 million based on the MACT-allowable emission limits of the rule. We proposed, considering all available information, that risks were acceptable.
For PM, we reviewed the control technologies in use by the industry and did not find any improvements or developments in practices, processes, and control technologies since the 1999 MACT standard was promulgated. Therefore, we did not propose amendments to the PM standards under either CAA sections 112(f)(2) or (d)(6).
We also proposed to discontinue use of surrogates where we determined that the surrogacy was not reasonable. We proposed to discontinue using CO as a surrogate for COS, and to discontinue use of formaldehyde as a surrogate for phenol and methanol. Based on new source test data and CAA sections 112(d)(2) and (3), we proposed MACT floor emission limits for existing and new sources of COS, phenol, and methanol, pollutants that were previously regulated under a surrogate; and MACT floor emission limits for formaldehyde, the former surrogate. We retained PM as a surrogate for non-mercury HAP metals because there is a reasonable surrogate relationship. We also proposed emissions limits for HF and HCl, two pollutants that were previously unregulated, and proposed alternative emission limits for periods of startup and shutdown.
On April 15, 2013, we published a supplemental proposal for the Mineral Wool Production NESHAP that took into consideration the comments received on the November 2011 proposal, new emissions testing for horizontal lines, and subcategorization of cupolas based on design and raw material use. We withdrew our previously-proposed alternative emission limits for startup and shutdown, and instead proposed that sources may demonstrate compliance with the MACT floor emission limits during periods of startup and shutdown by keeping records showing that the emissions from cupolas were routed to air pollution control devices operated at the parameters established by the most recent performance test that showed compliance with the standard.
On November 13, 2014, the EPA published a second supplemental proposal for the Mineral Wool Production NESHAP that took into consideration comments received on the 2013 supplemental proposal, explained changes to previously proposed MACT limits for sources in this source category and clarified our use of the UPL in setting the MACT floors. In that proposal, we also proposed work practice standards under CAA section 112(h) for periods of startup and shutdown based on the practices used by the best performers among mineral wool producers to minimize emissions during these activities.
The EPA promulgated the Wool Fiberglass Manufacturing NESHAP on June 14, 1999 (62 FR 31695). The standards are codified at 40 CFR part 63, subpart NNN. The Wool Fiberglass Manufacturing source category is defined as any facility engaged in producing wool fiberglass from sand, feldspar, sodium sulfate, anhydrous borax, boric acid or any other materials. The Wool Fiberglass Manufacturing industry consists of facilities that produce bonded building insulation using a rotary spin (RS) manufacturing line, and facilities that produce bonded pipe insulation and bonded heavy-density products using a flame attenuation (FA) manufacturing line. The 1999 MACT standards currently apply to 10 major sources in the wool fiberglass industry. Another 20 facilities are area sources.
Wool fiberglass is used primarily as a thermal and acoustical insulation for buildings, automobiles, aircraft, appliances, ductwork and pipes. This category includes, but is not limited to, the following process units: A furnace for melting the mineral charge; a bonded line operation in which air and a binder are drawn over the fibers and cured in an oven to bond the fibers; and a cooling compartment. The 1999 NESHAP rule set emissions limits for PM from new and existing glass-melting furnaces and formaldehyde emissions from new FA and new and existing RS bonded lines.
On November 25, 2011, the EPA published a proposed rule for the Wool Fiberglass Manufacturing NESHAP to amend the standard based on our RTR analyses. In that proposal, we found under CAA section 112(f)(2) that the MIR for cancer, primarily due to emissions of hexavalent chromium and formaldehyde, was 40-in-1 million based on actual emissions and 60-in-1 million based on MACT-allowable emissions. The maximum chronic non-cancer target organ specific hazard index (TOSHI) value based on actual emissions was 0.2 with emissions of formaldehyde dominating those impacts. The acute noncancer hazard quotient (HQ), based on the recommended exposure limit (REL) for formaldehyde, was 30. The acute noncancer HQ, based on the Acute Exposure Guideline Levels (AEGL-1) for formaldehyde, was 2. We determined that nothing prevents construction of a high chromium emitting furnace at any wool fiberglass facility. Therefore, we evaluated risk under an auxiliary risk assessment which asked, “if all wool fiberglass facilities emitted hexavalent chromium at the level of the highest emitter (that is, 450 pounds of hexavalent chromium annually), what would be the risk to human health?” The MIR under the auxiliary risk analysis exceeded 100-in-one million at four facilities, a level we consider unacceptable.
Although the risk from actual emissions were considered to be well within a level we consider acceptable, we proposed that risk due to hexavalent chromium could be further reduced to achieve an ample margin of safety. The chromium compounds limit would also prevent operation of another high-chromium emitting furnace in this source category. We therefore proposed chromium compounds emission limits of 0.00006 pounds of chromium compounds per ton of glass pulled, under CAA section 112(f)(2).
We proposed under CAA section 112(d)(6) that the control technologies in place on wool fiberglass manufacturing furnaces were essentially the same as existed at the time the MACT standards were promulgated, but that there have been improvements in both the operation and the design of furnaces and their control technologies since that time. As a result, we proposed
In the November 2011 proposal, similar to how we addressed the mineral wool source category, we also proposed in wool fiberglass to discontinue use of formaldehyde as a surrogate for phenol and methanol because the surrogacy was not reasonable. We proposed phenol, formaldehyde, and methanol MACT floor emission limits based on information collected in 2010 for two subcategories of bonded lines under CAA sections 112(d)(2) and (3). We proposed limits for FA lines that apply to all lines without further subcategorization, and proposed alternative emission limits for periods of startup and shutdown. In that notice, we also announced that we had issued an ICR under our section 114 authority to gather additional emission information on furnace chromium emissions.
In our April 2013 supplemental proposal, we took into consideration comments received on the November 2011 proposal, new process and chromium emissions test data, and related furnace data collected under a CAA section 114 ICR.
We further proposed revised PM emission limits for glass-melting furnaces at wool fiberglass manufacturing facilities that are major sources under CAA section 112(d)(6), presented the results of the new chromium emission testing collected from glass-melting furnaces, and required that the chromium emission limits proposed under CAA sections 112(d)(6) and (f)(2) would apply only to gas-fired glass-melting furnaces at major sources. We proposed an alternative compliance provision for startup and shutdown that would require sources to keep records showing that emissions were routed to the air pollution control devices and that these control devices were operated at the parameters established during the most recent performance test that showed compliance with the applicable emission limits. For electric cold-top furnaces, we proposed limiting raw material content to only cullet during startup and shutdown in recognition of the fact that these furnaces do not allow control devices to be operated during startup. For all other glass-melting furnaces, we also required preheating the empty furnace using only natural gas.
On November 13, 2014, the EPA published a second supplemental proposal. For major sources, the 2014 supplemental proposal took into consideration comments received on the 2013 supplemental proposal, withdrew the previously proposed amendments for affirmative defense, explained changes to previously proposed limits for major sources in this source category, proposed work practice standards under CAA section 112(h) for periods of startup and shutdown, and clarified our use of the UPL in setting MACT floors.
In the November 2011 proposal, we noted our intent to potentially list wool fiberglass manufacturing area sources and to use data from the CAA section 114 letter noted above to regulate wool fiberglass area sources in a future action.
On April 15, 2013, the EPA published a supplemental proposal that listed gas-fired glass-melting furnaces at wool fiberglass manufacturing facilities that are area sources as a source category under CAA sections 112(c)(3)and (k)(3). We also proposed first-time PM and total chromium compounds standards for gas-fired glass-melting furnaces at wool fiberglass manufacturing facilities that are area sources under CAA section 112(d)(5).
We proposed GACT standards of 0.00006 pounds of chromium compounds per ton of glass pulled and 0.33 pounds of PM per ton of glass pulled. These were the same limits that we proposed for gas-fired glass-melting furnaces located at major sources in the Wool Fiberglass Manufacturing source category. To maintain consistency with the major source rule, we proposed the same provisions for startup, shutdown, malfunction, testing, monitoring, and recordkeeping that we proposed for major sources.
On November 13, 2014, the EPA published a second supplemental proposal. For area sources, the 2014 supplemental proposal took into consideration comments received on the 2013 supplemental proposal, withdrew the previously proposed provisions for affirmative defense, explained changes to previously proposed limits for sources in this source category, and proposed work practice standards under CAA section 112(h) for periods of startup and shutdown.
This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the Mineral Wool Production source category and amends the Mineral Wool Production NESHAP based on those determinations. This action also finalizes MACT emission limits under CAA sections 112(d)(2) and (3), work practice standards for periods of startup and shutdown under CAA section 112(h), and other changes to the NESHAP discussed in section III.E of this preamble.
In this action, we are finalizing, as previously proposed, the emission limits for HAP-emitting processes in the Mineral Wool Production source category, as shown in Table 2 of this preamble.
As presented in the November 2014 supplemental proposal, we are finalizing our determination that risks from the Mineral Wool Production source category are acceptable, the current standards provide an ample margin of safety to protect public health and prevent an adverse environmental effect. We are, therefore, not requiring additional controls and are thus readopting the existing standards under section 112(f)(2).
As discussed in the November 2011 proposal (76 FR 72786-72787, 72798), we identified and evaluated the developments in practices, processes, and control technologies that have occurred since the 1999 MACT rules were promulgated. In cases where we identified such developments, we analyzed the technical feasibility and the estimated impacts (
Based on our analyses of the data, information collected under the voluntary ICR, our general understanding of both of the industries and other available information on potential controls for these industries, we identified potential developments
In addition to reviewing the practices, processes, and technologies that were not considered at the time we developed the 1999 MACT rules, we reviewed a variety of data sources for the mineral wool industry. This review included the NESHAP for various industries promulgated after the 1999 MACT rules, regulatory requirements and technical analyses associated with these regulatory actions to identify any practices, processes, and control technologies considered in these efforts that could possibly be applied to emissions sources in the Mineral Wool Production source category, as well as the costs, non-air impacts, and energy implications associated with the use of these technologies.
We additionally consulted the EPA's Reasonably Available Control Technology/Best Available Control Technology/Lowest Achievable Emission Rate (RACT/BACT/LAER) Clearinghouse to identify potential technology advances, and searched this database to determine whether it contained any practices, processes, or control technologies for the types of processes covered by the mineral wool production rule.
We also requested information from facilities regarding developments in practices, processes or control technologies and we reviewed other information sources, such as state and local permitting agency databases and industry-supported databases. For more information, see the “Technology Review for the Mineral Wool Production Source Category Memorandum” in the docket to this rule.
As a result of our technology review under CAA section 112(d)(6) for the Mineral Wool Production source category, we determined that there are no developments in practices, processes, and control technologies that warrant revisions to this MACT standard. We are therefore not amending the standards under CAA section 112(d)(6).
This action finalizes the removal of formaldehyde as a surrogate for phenol and methanol, and the removal of CO as a surrogate for COS, as earlier explained in this preamble and as proposed on November 25, 2011 (76 FR 72770). We also are finalizing the proposed COS, HCl, and HF emission limits for cupolas and the proposed emission limits for formaldehyde, methanol, and phenol for bonded lines developed as a result of new representative detection limit (RDL) values, new source test data and our approach for calculating MACT floors based on limited data sets, as discussed in section III.B of the November 2014 supplemental proposal preamble. These final rule requirements for the Mineral Wool Production NESHAP are consistent with the provisions discussed in our various proposals.
We are finalizing, as proposed, amendments to the Mineral Wool Production NESHAP to eliminate the SSM exemption. Consistent with
In the final rule, we are specifying work practice standards that require items of equipment that are required or utilized for compliance with subpart DDD to be operating during startup and shutdown, designating when startups and shutdowns begin, and specifying recordkeeping requirements for startup and shutdown periods. We are also revising Table 1 to subpart DDD of part 63 (General Provisions applicability table) to change several references related to requirements that apply during periods of SSM. We are eliminating or revising certain recordkeeping and reporting requirements related to the eliminated SSM exemption.
We are finalizing, as proposed, addition of EPA Methods 26A and 320 in appendix A part 63 for measuring the concentrations of HCl and HF. We are finalizing, as proposed, the requirement for existing sources to conduct performance tests to demonstrate compliance with the emission limits for cupolas and combined collection/curing operations no later than July 30, 2018 and every 5 years thereafter. We are finalizing, as proposed, the requirement for new sources to comply with the emission limits of the final rule on July 29, 2015, or upon the first cupola campaign, whichever is later, and to conduct performance tests to demonstrate compliance with the emission limits for cupolas and combined collection/curing operations within 180 days of the applicable compliance date.
We are also adding an alternative operating limit for cupolas that provides owners or operators the option of maintaining the percent excess oxygen in the cupola at or above the level established during the performance test. In addition, we are finalizing editorial changes to the performance testing and compliance procedures to specify formaldehyde, methanol, phenol, and COS rather than only the surrogates formaldehyde and CO. In this action, we are finalizing, as proposed, definitions for “closed-top cupola,” “open-top cupola,” “combined collection/curing operations” and “incinerator.” We are also adding a definition for “slag.” The 2013 supplemental proposal indicated that we would add such a definition (78 FR 22386). Slag is the primary contributing factor to the formation of HF and HCl in the cupola emissions, and is, for some mineral wool formulas, a necessary ingredient for the production of mineral wool. We subcategorized cupolas according to their use of slag as a raw material in the cupola, and are in this final rule defining slag in 40 CFR 63.1196 to mean the by-product materials separated from metals during smelting and refining of raw ore.
We are also making minor corrections to the citations in Table 1 (part 63 General Provision applicability table) to reflect both the final amendments in this action, and the revisions that have been made to the General Provisions since 1999.
The new MACT standards for the Mineral Wool Production source category being promulgated in this action are effective on July 29, 2015. The compliance date for existing cupolas and combined collection/curing operations is July 30, 2018. New sources must comply with the all of the standards immediately upon the effective date of the standard, July 29, 2015, or upon initial startup, whichever is later.
Mineral wool producers are predominantly small businesses. Prior to the November 25, 2011, proposal, we found there was potentially a significant impact to a substantial number of small entities (SISNOSE), and convened a small business advocacy review (SBAR) panel. In that process, the EPA conducted meetings with mineral wool companies and the Small Business Office of Advocacy in order to determine ways in which the impact and burden to small entities could be reduced while continuing to meet the requirements of the CAA. Stakeholders requested up to 3 years to comply with the standards once they were promulgated, in order to be able to install controls, find sources of low-sulfur coke and low-chloride slag, and to conduct performance testing. In subsequent proposals, we subcategorized cupolas according to design and according to raw material use, and can certify that the final rule will not have a SISNOSE. However, we believe that it is still appropriate to retain the proposed compliance date of 3 years after promulgation because the added compliance emissions testing and any process changes sources needed to comply could become significant if the compliance time were shortened to less than the 3 years allowed for standards developed under CAA sections 112(d)(2) and (3).
As stated in the proposed preamble to the November 2011 proposal, the EPA is taking a step to increase the ease and efficiency of data submittal and data accessibility. Specifically, the EPA is requiring owners and operators of affected facilities to submit electronic copies of certain required performance test reports.
As mentioned in the preamble of the November 2011 proposal, data will be collected by direct computer-to-computer electronic transfer using EPA-provided software. As discussed in the November 2011 proposal, the 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
As mentioned in the preamble of the November 2011 proposal, state, local, and tribal agencies will benefit from more streamlined and accurate review of performance test data that will be available on the EPA WebFIRE database. 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 November 2011 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, and tribal agencies; and the EPA significant time, money, and effort, while improving the quality of emission inventories, air quality regulations and enhancing the public's access to this important information.
For each topic, this section provides a description of what we proposed and what we are finalizing for the subject, 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 available in the dockets for each source category.
Pursuant to CAA section 112(f), we conducted a residual risk assessment on the Mineral Wool Production source category and presented the results of this assessment, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the November 2011 proposed rule (76 FR 72798). Based on the inhalation risk assessment, we estimated that the MIR could be up to 4-in-1 million due to actual emissions and up to 10-in-1 million due to MACT-allowable emissions, mainly due to formaldehyde stack emissions. We estimated that the incidence of cancer based on actual emissions is 0.0004 excess cancer cases per year or one case every 2,500 years, and that about 1,700 people face a cancer risk greater than 1-in-1 million due to HAP emissions from the mineral wool production source category.
That risk assessment indicated that the maximum modeled chronic non-cancer TOSHI value for the Mineral Wool Production source category could be up to 0.04 with emissions of formaldehyde dominating those impacts, indicating no significant potential for chronic non-cancer impacts.
Our screening analysis for worst-case acute impacts indicated the potential for only one pollutant, formaldehyde, to exceed an HQ value of 1 at only one facility in the Mineral Wool Production source category, with a potential maximum HQ up to 8. A refined emissions multiplier of 3 was used to estimate the peak hourly emission rates from the average rates.
Consequently, in November 2011 we proposed that risks from this source category were acceptable. In addition, we did not identify cost-effective options that would further reduce risk under our ample margin of safety analysis. Therefore, we proposed that the current standards for the Mineral Wool Production source category provide an ample margin of safety to protect public health. We also determined that HAP emissions from this source category were not expected to result in adverse environmental effects.
In the April 2013 supplemental proposal, we revised the risk assessment to reflect new emissions data submitted by the industry following the 2011 proposal, the development of subcategories for HCl and HF emissions from slag- and nonslag-processing cupolas, and subcategories for COS emissions from closed- and open-top cupolas. As noted in the 2013 supplemental proposal, the risks estimated in our revised assessment under CAA section 112(f)(2) from actual emissions increased slightly (based on the new data) compared to the risk assessment conducted for the 2011 proposal. The actual MIR for cancer increased from 4-in-1 million to 10-in-1 million. The maximum chronic non-cancer TOSHI value for the source category increased from 0.04 to 0.12 with emissions of formaldehyde dominating those impacts, indicating no significant potential for chronic noncancer impacts. The acute noncancer HQ, based on the REL for formaldehyde, increased from 8 to 20. The acute noncancer HQ, based on the AEGL-1 for formaldehyde, increased from 0.4 to 1.1. While the risk increased slightly based on the new source test data, we noted that that our findings regarding risk acceptability and ample margin of safety remained unchanged.
In our November 2014 supplemental proposal, we also revised the draft risk assessment under CAA section 112(f)(2) based on new emissions data collected by the industry and updates to the model and model libraries. The new test data that were received did not change our estimate of risk from actual emissions when compared to the risk assessment conducted for the 2013 supplemental proposal. The risk from mineral wool production continued to be driven by formaldehyde and to be well within a level we consider to be acceptable. The MIR for cancer for actual baseline emissions remained 10-in-1 million, with the acute noncancer HQ remaining at 20 for the REL and at 1 for the AEGL-1. The maximum chronic non-cancer TOSHI value based on actual emissions remained at 0.1 with emissions of formaldehyde dominating those impacts, indicating no significant potential for chronic noncancer impacts.
The MIR for cancer from mineral wool production due to allowable emissions (under the original MACT standard) was estimated to be 30-in-1 million (formaldehyde). Facilities actually emit formaldehyde at levels lower than allowed under the 1999 MACT standard, and the limits in the final rule codify formaldehyde (and the other HAP) limits at the actual emissions levels. As a result, the potential MIR for cancer due to allowable emissions after implementation of the standard is estimated to be 10-in-1 million. Therefore, the MIR based on emissions at the level of this standard (
We have not changed any aspect of the risk assessment since the November 2014 supplemental proposal.
The comments received on the proposed risk review were generally supportive of our determination of risk acceptability and ample margin of safety analysis and requirement for additional control. A summary of the comments received regarding the risk acceptability and ample margin of safety analysis and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1041). None of the public comments resulted in changes to the conclusions of our risk analysis.
As explained in the various proposals and in section IV.A.1 of this preamble, our assessment of residual risk from the Mineral Wool Production source category shows that risks from the source category are acceptable, the current standards provide an ample margin of safety to protect public health, and prevent an adverse environmental effect. We are, therefore, not requiring additional controls and are thus readopting the existing standards under section 112(f)(2).
Pursuant to CAA section 112(d)(6), we conducted a technology review that focused on identifying and evaluating developments in practices, processes, and control technologies for sources of HAP in the Mineral Wool Production source category. As discussed in the 2011 proposal (76 FR 72798), existing cupolas are controlled using baghouses, and bonded lines are controlled using thermal oxidizers. We did not identify any relevant cost-effective developments in technologies, practices, or processes since promulgation of the 1999 NESHAP that would further reduce HAP emissions. Therefore, we did not propose any changes to the 1999 NESHAP as a result of our technology review under CAA section 112(d)(6) for the Mineral Wool Production source category. Additional information regarding the technology review for the Mineral Wool Production source category can be found in the document titled, “Section 112(d)(6) Technology Review for the Final Mineral Wool NESHAP” available in the docket for this action (EPA-HQ-OAR-2010-1041).
We have not changed any aspect of the technology review for this source category since the November 2014 supplemental proposal.
The comments received on our technology review and findings were generally supportive. A summary of the comments received regarding the technology review and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1041). We note that none of the public comments and information received in response to the November 2014 supplemental proposal provided data relevant to the technology review, and we made no changes to the technology review based on the comments.
As explained in the various proposals and in section IV.B.1 of this preamble, we did not identify any cost-effective developments in practices, processes and controls used to reduce emissions from the mineral wool production industry. Therefore, consistent with our proposals, we are not making any changes to the standards as a result of the CAA section 112(d)(6) review.
In our November 2011 proposal, we proposed revisions to the 1999 NESHAP under CAA sections 112(d)(2) and (3). We proposed to remove unreasonable surrogates, to set limits for each HAP emitted that was previously regulated under a surrogate, and to set limits for previously unregulated HAP. These revisions included removing CO as a surrogate for COS and removing formaldehyde as a surrogate for methanol and phenol; proposing emission limits for COS from cupolas, formaldehyde, methanol, and phenol from combined collection and curing operations; and proposing emissions limits for previously unregulated pollutants (
In our April 2013 supplemental proposal, we made changes to the previously proposed emission limits for phenol, formaldehyde, and methanol based on new emissions test data. We further proposed subcategories for COS emissions from cupolas based on cupola design. Finally, we proposed subcategories for HF and HCl from cupolas based on whether they processed slag.
In the November 2014 supplemental proposal, we revised emission limits under CAA sections 112(d)(2) and (3) for cupolas and bonded lines as a result of new information regarding detection limits (and consistent with our procedures for ensuring that emission limits are not set below the minimum level that can be accurately measured), new source test data and our approach for calculating MACT floors based on limited data sets.
Our final emission limits for pollutants previously regulated under a surrogate, and previously unregulated pollutants did not change since our most recent proposal in November 2014.
We received comments both supporting and objecting to our use of the UPL in calculating MACT floors and the way we treat limited datasets for these pollutants. The commenters did not provide new information or a basis for the EPA to change the proposed emission limits, and did not show that facilities cannot comply with the MACT standards. The comments related to the proposed emission limits for pollutants that were previously regulated under a surrogate and that were previously unregulated are in the comment summary and the response document available in the docket for this action (EPA-HQ-OAR-2010-1041).
As we discussed in the preamble for the November 2014 supplemental proposal and provided in the comment summary and response document available in the docket, we are finalizing, as proposed, the emission limits for pollutants previously regulated under a surrogate and for previously unregulated pollutants. Three surrogate relationships were in place in the Mineral Wool MACT standard, and we reviewed each of these to determine whether they were reasonable surrogates. We found that the relationship of formaldehyde, methanol and phenol emissions tend to be specific to the binder formulation of an individual product. We found that the surrogacy of CO for COS was not reasonable because the two pollutants are not invariably present and the relationships tend to be specific to the site. We retained the surrogacy of PM for non-mercury HAP metals because control of PM achieves the same level of control for non-mercury HAP metals, regardless of the concentration of those metals in the PM or whether the concentration of those metals varies in the PM.
We requested and obtained HAP-specific emissions testing for all HAP emitted by all processes in the mineral wool industry. Emissions of PM, HF, HCl, and COS were measured from at least one cupola in operation at each facility, and emissions of formaldehyde, methanol, and phenol were measured at the three bonded lines that were in operation in 2010. As a result of the information we gathered, we are finalizing limits for all measured HAP and for the collection process, which emits HAP but was not regulated under the 1999 MACT standard. We are not changing the PM emission limit as a result of the information we gathered.
HF and HCl were not previously regulated, and the emissions of these pollutants depend upon whether slag is used in the cupola. Slag is a raw material in the mineral wool industry that is a waste product of electric arc furnaces at steel plants. Depending on the end-use of the mineral wool product, slag is a needed ingredient in some mineral wool formulations and an undesirable ingredient in others. The use of slag as a raw material in the mineral wool cupola causes “shot” (small pellets of iron) to form in the mineral wool product. The quality of some mineral wool products (such as that used for hydroponic gardening) is affected by the presence of shot, and, as a result, facilities making such products do not use slag in their raw materials. Consequently, their emissions of HF and HCl are lower. Two subcategories of cupolas reflect whether slag is processed in the cupola.
Emissions of COS are affected by whether a cupola is designed as a closed cupola (which results in lower COS emissions) or an open cupola (which results in higher COS emissions). Two subcategories of cupolas reflect this design criteria.
Data collected from the mineral wool industry showed three bonded lines were in operation at the time of data collection in 2010. The bonded lines include both collection (the process in which the fibers are formed and sprayed with a phenol/formaldehyde binding agent); and curing, the thermosetting process that cures the binder. Collection was not regulated under the 1999 MACT standard, the emissions from both the curing and collection processes are vented to the same line, and the emissions from these processes can be measured together. These combined collection and curing operations emit phenol, formaldehyde, and methanol as a result of the phenolic resin used to produce the bonded product. We are finalizing limits for combined collection and curing operations according to three different designs: Vertical, horizontal, and drum. The final emission limits for the mineral wool industry are shown above in Table 2 of section III of this preamble.
In its 2008 decision in
We have therefore eliminated the SSM exemption in this rule. Consistent with
We have not changed any aspect of the proposed SSM provisions since the November 2014 supplemental proposal.
We received comments regarding the proposed revisions to remove the SSM exemptions for the Mineral Wool Production source category. Comments from industry representatives expressed support for the proposed work practice standards. Another commenter contended that we should have established numerical emission limits. As we noted in the November 2014 supplemental proposal (79 FR 68016), the EPA may promulgate a work practice rather than an emissions standard when measurement of the emissions is technically and economically practicable. In the case of this source category, emissions are not at steady state during startup and shutdown (a necessary factor for accurate emissions testing), and the varying stack conditions, gas compositions, and flow rates make accurate emission measurements impracticable. In addition, startup period for mineral wool cupolas, typically 2 hours, is too short a time to conduct source testing.
The commenters did not provide new information or a basis for the EPA to change the proposed provisions and did not show that facilities cannot comply with the work practice standards during periods of startup and shutdown. The comments related to the proposed revisions to remove the SSM exemptions and our specific responses to those comments can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1041).
For the reasons provided above, in the preamble for the proposed rule and provided in the comment summary and response document available in the docket, we have removed the SSM exemption from the Mineral Wool Production NESHAP; eliminated or revised certain recordkeeping and reporting requirements related to the eliminated SSM exemption; and removed or modified inappropriate, unnecessary, or redundant language in the absence of the SSM exemption. For periods of startup and shutdown, we are finalizing the work practices of the best performers, as proposed in the November 2014 supplemental proposal. Owners/operators may choose to comply using two potential options during startup and shutdown. One, cupola emissions may be controlled using the control devices that meet the limits of the standard during normal operation, or two, the cupola may be operated during startup and shutdown with 3 percent or more excess oxygen. Additionally, sources must maintain records of the startup and shutdown option they practice, and must monitor and keep records of the parameters of the operating control device(s) or the oxygen level of the cupola during these periods. The controls of startup and shutdown emissions practiced by the best performers in the source category are sufficient so that no additional standards are needed to address emissions during startup or shutdown periods.
As stated in the preamble to the November 2011 proposed rule, the EPA proposed electronic reporting requirements. See section III.G of this preamble for more information on what we proposed (and what we are finalizing) for electronic reporting.
We are finalizing, as proposed, the requirement for new sources to conduct performance tests to demonstrate compliance with the emission limits for cupolas and combined collection/curing operations within 180 days of the applicable compliance date and every 5 years thereafter. We are finalizing, as proposed, the requirement for existing sources to conduct performance tests to demonstrate compliance with the emission limits for cupolas and combined collection/curing operations by July 30, 2018 and every 5 years thereafter. We are finalizing, as proposed, the addition of EPA Methods 26A and 320 in appendix A of part 63 for measuring the concentrations of HCl and HF; and EPA Method 318 for measuring the concentrations of COS, formaldehyde, methanol, and phenol. In addition, we are finalizing editorial changes to the performance testing and compliance procedures to replace references in the 1999 NESHAP to the surrogates CO and formaldehyde with references to specific HAP (formaldehyde, methanol, and phenol for the surrogate formaldehyde, and COS for the surrogate CO).
We have not made any changes to the proposed provisions for electronic reporting; testing methods and frequency; definitions or revisions to the General Provision applicability table.
We received no key comments regarding electronic reporting, testing methods and frequency, definitions, and revisions to the General Provisions applicability table. A summary of the comments we did receive and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1041).
There was no information in the public comments that affected the rationale for these provisions that was presented in the various proposals. Therefore, we are finalizing the proposed provisions regarding electronic reporting; testing methods and frequency; definitions and revisions to the General Provision applicability table.
This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the Wool Fiberglass Manufacturing source category and amends the Wool Fiberglass Manufacturing NESHAP based on those determinations. This action also finalizes other changes to the NESHAP (
Pursuant to CAA section 112(f)(2), we are finalizing emission limits for chromium emissions from gas-fired glass-melting furnaces of 0.00025 pounds of total chromium per ton of glass pulled to provide an ample margin of safety to protect public health. We are also requiring that facilities establish the materials mix, including the percentages of raw materials and cullet, used in gas-fired glass-melting furnaces during the performance test conducted to demonstrate compliance with the chromium emission limit. We are requiring that the percentage of cullet in the material mix be continually maintained at or below the level established during the most recent performance test showing compliance with the standard.
We note that although we have adopted these same standards, under both CAA sections 112(f)(2) and 112(d)(6), these standards rest on independent statutory authorities and independent rationales. Consequently, these standards remain independent and legally severable.
We determined that there are developments in practices, processes, and control technologies that warrant revisions to the MACT standards for this source category. Therefore, to satisfy the requirements of CAA section 112(d)(6), we are revising the existing MACT standards to include an emission limit for glass-melting furnaces of 0.33 pounds of PM per ton of glass pulled as we proposed in April 2013. In this action, we are also revising the proposed chromium emission limit for gas-fired glass-melting furnaces from 0.00006 to 0.00025 pounds of total chromium per ton of glass pulled, based on our re-assessment of emissions data for newly-rebuilt gas-fired glass-melting furnaces.
We note that although we have adopted the total chromium compounds standards under both CAA sections 112(f)(2) and 112(d)(6), these standards rest on independent statutory authorities and independent rationales. Consequently, these standards remain independent and legally severable.
This action finalizes the HAP-specific limits proposed in November 2014 that we developed under CAA sections 112(d)(2) and (3) as a result of removing the use of formaldehyde as a surrogate for methanol and phenol on FA lines. We are also eliminating the subcategories for FA lines because the technical bases for distinguishing the subcategories when the original rule was developed no longer exist and we are promulgating emission limits at the MACT floor level for formaldehyde, methanol, and phenol.
As explained in section V.H of this preamble, we are not, at this time, finalizing limits under CAA sections 112(d)(2) and (3) for RS lines.
This action finalizes the work practice standards for HCl and HF emissions from glass-melting furnaces at wool fiberglass manufacturing facilities developed under CAA section 112(h) as proposed in November 2014 (79 FR 68023). These amendments to the Wool Fiberglass Manufacturing NESHAP are consistent with the amendments discussed in the November 2014 supplemental proposal.
We are finalizing, as proposed, changes to the Wool Fiberglass Manufacturing NESHAP to eliminate the SSM exemption. Consistent with
We determined that facilities in this source category can meet the applicable work practice standards by following the startup and shutdown procedures that we identified as representative of the procedures employed by the best performing units during periods of startup and shutdown.
Gas-fired furnaces use an electrostatic precipitator (ESP) to control emissions during normal operations. The best performing gas-fired furnaces route emissions during startup and shutdown to the control device. We note that operators of gas-fired furnaces that formerly turned off the controls during startup or shutdown would no longer be allowed to do so.
Electric furnaces use baghouses to control emissions during normal operations. Until the crust is formed on top of the molten glass (and startup ends) the temperature of the gases that would be routed to the baghouse would cause the bags to catch fire. The best performing electric furnaces use only cullet (which emits PM at extremely low levels when melted) and clean fuels (natural gas, which does not emit PM when combusted) during startup and shutdown in order to minimize PM emissions during these periods.
We are finalizing, as proposed, the addition of EPA Method 29 for measuring the concentrations of chromium. We are finalizing the requirement, as proposed, to maintain the filter temperature at 248 ± 25 °F when using Method 5 to measure PM emissions from furnaces. We are also amending the NESHAP to allow owners or operators to measure PM emissions from furnaces using either EPA Method 5 or Method 29.
We are finalizing, as proposed, the addition of EPA Method 318 as an alternative test method for measuring the concentration of phenol and methanol and EPA Method 308 as an alternative test method for measuring the concentration of methanol. We are finalizing, as proposed in the 2013 supplemental proposal (78 FR 22402), the replacement of a minimum sampling time of 1 hour with the specification to collect 10 spectra when using EPA Method 318. When using Method 316 to measure formaldehyde, we are finalizing, as proposed, the requirement to collect a minimum sampling volume of 2 dry standard cubic meters (dscm); however, we are not finalizing the
We are finalizing the requirement for new sources to comply with the emission limits on July 29, 2015, or upon the initial startup, whichever is later, and to conduct performance tests to demonstrate compliance with the emission limits for furnaces and FA lines no later than 180 days after the applicable compliance date. Following the initial test to demonstrate compliance with the chromium emission limit, owners or operators must test for chromium emissions annually. For all other pollutants, owners or operators must conduct performance tests every 5 years after the initial test to demonstrate compliance with the emissions limits. Table 4 of this preamble summarizes the compliance test schedule for major and area sources.
We are finalizing, as proposed, the clarification that 40 CFR part 63, subpart NNN applies to FA lines, regardless of what products are manufactured on the FA line.
In this action, we are finalizing, as proposed, definitions for “gas-fired glass-melting furnace” and “incinerator.” We are also revising the definition of “new source” and the trigger date for the requirement to submit notifications of intent to construct/reconstruct an affected source to reflect the date of the initial RTR proposal (November 25, 2011).
We are finalizing, as proposed, the monitoring requirement for furnaces and FA lines to provide flexibility in establishing an appropriate monitoring parameter.
We are also making minor corrections to the citations in Table 1 (part 63 General Provision applicability table) to reflect the final amendments in this action, and the revisions that have been made to the General Provisions since 1999.
The revisions to the MACT standards for the Wool Fiberglass Manufacturing source category being promulgated in this action are effective on July 29, 2015. The compliance date for existing sources is July 31, 2017. New sources must comply with the all of the standards immediately upon the effective date of the standard, July 29, 2015, or upon initial startup, whichever is later.
The effective and compliance dates finalized in this action are consistent with the dates we presented in the 2014 supplemental proposal.
We are not finalizing the formaldehyde, methanol, and phenol standards under CAA sections 112(d)(2) and (3) for RS manufacturing lines in this final action. On November 25, 2011 (76 FR 72791), we proposed to discontinue use of formaldehyde as a surrogate for phenol and methanol and we proposed formaldehyde, methanol and phenol emission limits for RS and FA lines. On April 15, 2013 (72 FR 22387), we proposed revised emission limits for RS lines based on clarification of test data received from the industry during the comment period. We explained that since the 1999 promulgation of the MACT standards, many companies had discontinued the use of formaldehyde. However, they did not distinguish between the bonded lines that still used formaldehyde and those that did not. We had, therefore, included some data for HAP-free lines along with the data for lines still using formaldehyde when we developed the emission limits proposed in the November 2011 proposal (78 FR 22387). In the November 2014 supplemental proposal (79 FR 68203), we also proposed revised formaldehyde, methanol, and phenol emission limits for new RS lines as a result of our updated approach for evaluating limited datasets (79 FR 68023-24).
The EPA is not finalizing these proposed CAA sections 112(d)(2) and (3) standards in this action because we believe the data that we relied on in proposing these standards are not sufficiently related to current operations or emissions from RS bonded lines. The emissions and process data available to EPA were collected beginning in 2003. As previously explained, since that time, sources have phased out the use of a phenol/formaldehyde binder from approximately 95 percent of the lines on which it was previously used. We have also found out that sources often can no longer either identify the products that were tested or on the lines on which those products had been manufactured. Moreover, when sources can identify the products that were tested, those products are now produced using a HAP-free binder, and the product lines that now operate using a phenol/formaldehyde binder do not bear similarity in size, end use, production rate or loss on ignition (LOI) percent to the tested product line. As a result, the data no longer represent current industry conditions, most notably the significant reduction in the use of phenol/formaldehyde binders in wool fiberglass manufacturing. Consequently, we have issued a CAA section 114 ICR to wool fiberglass facilities to obtain updated formaldehyde, methanol, and
The requirements for electronic reporting of performance test data for wool fiberglass manufacturing major sources are the same as the requirements for the mineral wool production source category. See section III.G of this preamble for a description of the requirements.
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 available in Docket ID No. EPA-HQ-OAR-2010-1042.
Pursuant to CAA section 112(f)(2), we conducted a residual risk assessment and presented the results of this assessment, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the November 2011 proposed rule (76 FR 72801). Based on the inhalation risk assessment, we estimated that the MIR could be as high as 40-in-1 million due to actual emissions and up to 60-in-1 million due to MACT-allowable emissions, mainly due to formaldehyde and hexavalent chromium emissions. We stated that the risk levels due to actual and MACT-allowable emissions were acceptable; however, we proposed an emission limit for total chromium (0.00006 pounds per ton of glass pulled) in order to provide an ample margin of safety to protect public health.
In the April 2013 supplemental proposal, we revised the draft risk assessment to reflect new emissions data for hexavalent chromium that we collected from all glass-melting furnaces available for testing in response to our October 28, 2011, CAA section 114 ICR. These revisions reduced our estimate of risk from actual emissions when compared to the risk assessment conducted for the November 2011 proposal. The risk from wool fiberglass manufacturing was driven by formaldehyde and hexavalent chromium. The MIR for actual baseline emissions decreased from 40-in-1-million to 20-in-1 million (formaldehyde), with the acute noncancer HQ remaining at 30 for the REL and at 2 for the AEGL-1 (formaldehyde). The maximum chronic non-cancer TOSHI value based on actual emissions remained at 0.2 with emissions of formaldehyde dominating those impacts, indicating no significant potential for chronic noncancer impacts.
In the November 2014 supplemental proposal, we presented the revised draft risk assessment to reflect updates to the model and model libraries and also retained the proposed emission limits for chromium compounds for existing and new gas-fired glass-melting furnaces. These revisions did not significantly change our estimate of risk from actual emissions when compared to the risk assessment conducted for the April 2013 supplemental proposal (79 FR 68020). The risk from wool fiberglass manufacturing was driven by formaldehyde and hexavalent chromium and continued to be well within a level we consider to be acceptable. The MIR for actual baseline emissions remained 20-in-1 million (formaldehyde), with the acute noncancer HQ remaining at 30 for the REL and decreased from 2 to 1 for the AEGL-1 (formaldehyde). The maximum chronic non-cancer TOSHI value based on actual emissions decreased from 0.2 to 0.1 with emissions of formaldehyde dominating those impacts, indicating no significant potential for chronic noncancer impacts. Overall, we considered the risk to be acceptable.
Based on information provided by the industry, 95 percent of the RS lines no longer use phenol-formaldehyde binders and are no longer major sources. However, this phase out is not reflected in the facility file data on which the risk assessment was based. Throughout the wool fiberglass manufacturing industry, these binders continued to be phased out as this rule was developed. The risk analysis we conducted for the Wool Fiberglass Manufacturing source category overstates the risk because of the continuing phase out. Therefore, we believe the risks from wool fiberglass manufacturing from actual emissions are lower than the risks we estimated.
The baseline risk assessment has not changed since the November 2014 supplemental proposal. The MIR based on actual emissions remains at 20-in-1 million with the acute noncancer HQ remaining at 30 for the REL and 1 for the AEGL-1 (formaldehyde). The maximum chronic non-cancer TOSHI value based on actual emissions is 0.1 with emissions of formaldehyde dominating those impacts, indicating no significant potential for chronic noncancer impacts.
The MIR based on MACT-allowable emissions could be as high as 60-in-1 million, which we believe to be a conservative estimate based on four factors: (1) At one time, there were at least 60 RS lines in the industry, (2) industry has stated that 95 percent of RS lines no longer use formaldehyde as a binder, (3) Industry has stated that there are only 5 RS lines left that use a phenol/formaldehyde binder, and (4) Title V permit records indicate that 20 out of a total of 30 facilities have completely phased out their use of formaldehyde as a raw material throughout the facility.
We conducted a new assessment of the risks remaining after implementation of these final rule revisions. The revised assessment of post-control risks reflects the adjustment of the chromium compounds emission limit and the EPA's deferral of setting standards for formaldehyde, methanol and phenol from RS lines. Specifically, the risk assessment takes into account the change in the chromium compounds emission limit for gas-fired glass-melting furnaces from 0.00006 pounds of chromium per ton of glass pulled to 0.00025 pounds of chromium per ton of glass pulled, the emission limits for formaldehyde at new and existing FA lines (2.6 pounds per ton and 5.6 pounds per ton, respectively) and the current emission estimates for formaldehyde, methanol and phenol from RS lines. The MIR for cancer after implementation of the RTR could be up to 60-in-1 million (equal to the current risk estimates for allowables) but, as discussed above, this is a conservative, upper-end estimate. Consequently, we believe risks are significantly lower than estimated and the standards provide an ample margin of safety.
Emissions of chromium compounds are a secondary risk driver to formaldehyde, and the risk is 7-in-1 million based on current actual emissions. It is important to note that,
Regarding chromium compounds, as discussed above, we received comments on the proposed chromium compounds limit that indicated that a newly-rebuilt furnace, which we believe is the likely compliance technology, may not be able to demonstrate compliance with the proposed emission limit. The comment was based on one specific example from the 2012 test data that showed a 1-year old gas-fired glass-melting furnace emitting approximately 0.0002 pounds chromium per ton of glass. We re-evaluated the proposed chromium compounds limit in light of information on this technology, and based on the data available, we have revised the chromium compounds limit and are now finalizing an emissions limit of 0.00025 pounds per ton of glass pulled for gas-fired glass-melting furnaces. We conducted an assessment of the risk attributable to all HAP for each facility and determined that increasing the chromium compound emission limit from 0.00006 to 0.00025 pounds total chromium per ton of glass pulled has a minimal effect on the post-RTR risks because these risks are largely driven by formaldehyde emissions. Specifically, at the chromium compounds emission limit of 0.00025 pounds total chromium per ton of glass pulled, the MIR due to only chromium emissions for the source category is 3-in-1 million.
The results of the risk assessment are presented in more detail in the final residual risk memorandum titled “Residual Risk Assessment for the Mineral Wool Production and Wool Fiberglass Manufacturing Source Categories in Support of the June 2015 Final Rule,” which can be found in Docket ID No. EPA-HQ-OAR-2010-1042.
We received comments in support of and against our proposed determination of risk acceptability, ample margin of safety analysis, and requirement for additional control. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1042). The following is a summary of the key comments received regarding the risk assessment for the Wool Fiberglass Manufacturing source category and our responses to these comments. Additional comments on the risk assessment and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1042).
The commenter stated that the EPA has a presumption that an HQ below 1 is safe, that the EPA has stated that a HQ less than or equal to 1 indicates that adverse noncancer effects are not likely to occur, and that exposure below that threshold level is safe. The commenter added that the EPA did not adequately explain why the formaldehyde risks were found to be acceptable although they are 30 times higher than the threshold.
The commenter asserted that, by applying the outdated integrated risk information system (IRIS) dose-response values in determining formaldehyde inhalation exposure risk, the EPA is not basing the proposed rule on the best available science. The commenter urged the EPA to revise the proposed rule to accurately convey the best available science and a weight-of-evidence approach in compliance with the Information Quality Act (IQA) Guidelines and Executive Order 13563. In particular, the commenter argued that the EPA should reject the 1991 IRIS dose-response value and incorporate the Chemical Industry Institute of Toxicology (CIIT, 1999) cancer dose-response value for formaldehyde.
Response: As discussed in sections V.A and VI.A of this preamble, we revised the risk assessment for wool fiberglass facilities for the November 2014 supplemental proposal. For wool fiberglass facilities, the MIR for actual baseline emissions remained 20-in-1 million (formaldehyde), with the acute noncancer HQ remaining at 30 for the REL and decreased from 2 to 1 for the AEGL-1 (formaldehyde). The maximum chronic non-cancer TOSHI value based on actual emissions decreased from 0.2 to 0.1 with emissions of formaldehyde dominating those impacts, indicating no significant potential for chronic noncancer impacts. We found that the risks were acceptable.
We note that the acute risks are based on an REL value, which is defined as “the concentration level at or below which no adverse health effects are anticipated for specified exposure duration.” Moreover, we note that the acute risk assessment is a worst-case assessment. For example, the acute assessment assumes worst-case meteorology, peak emissions and an individual being located at the site of maximum concentration for an hour. Taken together, the EPA does not believe that in all RTR reviews, HQ values must be less than or equal to 1. Rather, the EPA finds that acute risks must be judged on a case-by-case basis in the context of all the available health evidence and risk analyses.
To better characterize the potential health risks associated with estimated acute exposures to HAP, and in response to a key recommendation from the Science Advisory Board's (SAB) peer review of the EPA's RTR risk assessment methodologies,
Thus, while this means we cannot rule out the potential for acute concerns due to formaldehyde emissions from these facilities, we note that the worst-case acute HQs are based on conservative assumptions (
The commenter also urged the agency to rely on allowable emissions for the purpose of our acute assessment. The
Section 112(f)(2) of the CAA expressly preserves our use of the two-step process for developing standards to address residual risk and interpret “acceptable risk” and “ample margin of safety” as developed in the Benzene NESHAP (54 FR 38044, September 14, 1989). In the Benzene NESHAP, the EPA rejected approaches that would have mandated consideration of background levels of pollution in assessing the acceptability of risk, concluding that “. . . comparison of acceptable risk should not be associated with levels in polluted urban air. With respect to considering other sources of risk from benzene exposure and determining the acceptable risk level for all exposures to benzene, the EPA considers this inappropriate because only the risk associated with the emissions under consideration are relevant to the regulation being established and, consequently, the decision being made.” (54 FR 38044, 38061, September 14, 1989).
Although not appropriate for consideration in the determination of acceptable risk, we note that background risks or contributions to risk from sources outside the source category under review could be one of the relevant factors considered in the ample margin of safety determination, along with cost and economic factors, technological feasibility, and other factors. Background risks and contributions to risk from sources outside the facilities under review were not considered in the ample margin of safety determination for this source category, mainly because of the significant uncertainties associated with emissions estimates for such sources. Our approach here is consistent with the approach we took regarding this issue in the Hazardous Organic NESHAP (HON) RTR (71 FR 76603, December 21, 2006), which the court upheld in the face of claims that the EPA had not adequately considered background.
In our November 2011 proposal, we explained that for these source categories, there are no other significant HAP emissions sources present at wool fiberglass manufacturing and mineral wool production facilities beyond those included in the source category. We also explained that all significant HAP sources have been included in the source category risk analysis. We therefore concluded that the facility-wide risk is essentially the same as the source category risk and that no separate facility-wide analysis was necessary (76 FR 72783, November 25, 2011). Our evaluation of facility-wide risks did not change our decisions under CAA section 112(f)(2) about acceptability and ample margin of safety of the risks associated with the wool fiberglass source categories.
For the Wool Fiberglass Manufacturing source category, we have determined that the current MACT standards reduce risk to an acceptable level. We have further evaluated the cost, emissions reductions, energy implications and cost effectiveness of the total chromium compounds emission limits being promulgated in this final rule and have determined that they are cost effective, technically feasible and will provide an ample margin of safety to protect public health and prevent adverse environmental effects.
For chromium emissions, we are finalizing the emission limit of 0.00025 pounds total chromium per ton of glass pulled for gas-fired glass-melting furnaces, under CAA section 112(f)(2). This is based on our assessment of emissions from newly-rebuilt gas-fired glass-melting furnaces. Because commenters provided new information indicating that cullet use is tied to increasing chromium emissions from gas-fired glass-melting furnaces, we are also requiring that facilities establish the materials mix, including the percentages of raw materials and cullet, used in gas-fired glass-melting furnaces during the performance test conducted to demonstrate compliance with the chromium emission limit. Affected sources must maintain the percentage of cullet in the material mix at or below the level established during the most recent performance test showing compliance with the standard. If a gas-fired glass-melting furnace uses 100 percent cullet during the most recent performance test showing compliance with the standard, then monitoring of the cullet use on that furnace is not required until the next annual performance test.
As discussed in the 2011 proposal (76 FR 72803-72804, 72798), we conducted a technology review for FA and RS bonded lines and for furnaces that focused on identifying and evaluating developments in practices, processes, and control technologies for the emission sources in the Wool Fiberglass Manufacturing source category that have occurred since the 1999 MACT rules were promulgated. We consulted the EPA's RACT/BACT/LAER Clearinghouse to identify potential technology advances for processes similar to those covered by the Wool Fiberglass Manufacturing NESHAP, as well as the costs, non-air impacts, and energy implications associated with the use of these technologies.
We also requested information from facilities regarding developments in practices, processes, or control technologies, and conducted site visits, held meetings with industry representatives, and reviewed other information sources, such as technical literature, state and local permitting agency databases and industry-supported databases. For more information, see the “Technology Review for the Wool Fiberglass Manufacturing Source Category Memorandum” in the docket to this rule.
Subsequent to the November 2011 proposal, we announced that we had issued a CAA section 114 ICR to collect emissions data and other information on glass-melting furnaces in order to regulate area sources in a future action. This resulted in a near complete dataset for emissions test data on all wool fiberglass furnaces, with the only exceptions being furnaces at facilities that were closed or that were shut down at the time of the 2012 testing. The data also indicated that three gas-fired glass-melting furnaces had been rebuilt and retested, and we also had emissions test data for these three furnaces for the years before and after the rebuild.
For our technology review under CAA section 112(d)(6), for PM emissions from glass-melting furnaces, we identified advances in control measures for PM emissions. These included improvements and advances in control technology, such as application of ESPs, as well as developments in furnace design and the use of high-chromium furnace refractories that had been made since promulgation of the 1999 NESHAP.
Our technology review included glass-melting furnaces at both area and major sources. As explained in our April 2013 supplemental proposal, the number of area sources is constantly increasing as a result of the definition of “wool fiberglass facility” in Subpart NNN. For example, in 2002, two out of 33 facilities were area sources, but by December 2012, 20 facilities were area sources (78 FR 22377). As also previously explained, there are no differences between the furnaces used at major and area sources (78 FR 22377). Therefore, we believed it was appropriate to consider all furnaces in the technology review, under CAA section 112(d)(6).
In our November 2011 proposal, based on the responses to survey data regarding the performance of existing control measures, we proposed an emission limit of 0.014 pounds of PM per ton of glass pulled for glass-melting furnaces, under CAA section 112(d)(6).
In the April 2013 supplemental proposal, in response to comments we received on our November 2011 proposal, we revised the PM limit for furnaces to 0.33 pounds per ton of glass pulled in order to be consistent with our intentions to set the new limit based on technology review.
We did not propose any further revisions to the proposed PM limit in the November 2014 supplemental proposal.
In our November 2011 proposal, we identified refractories having a high content of chromium, and their use in wool fiberglass furnaces, as a new development affecting the emissions of chromium compounds from sources since promulgation of the 1999 NESHAP. We reviewed the use of chromium refractories (as compared to non-chromium refractories), as well as other control technologies, such as caustic scrubbers. We analyzed the technical feasibility and the estimated impacts (
We found that, while the furnaces and control technologies are generally the same as those used at promulgation of the MACT standard in 1999, there have been some developments in furnace design and preference in control equipment. We found that developments in refractory technology and in furnace design are inextricably linked. Oxyfuel furnaces were not widely used prior to 1999 in the wool fiberglass industry, due to a number of factors, especially refractory degradation in the wool fiberglass furnace environment. At that time, new technology of the oxyfuel furnace constructed using conventional refractories of that time (
With the advent of new refractory technology, new furnace designs were constructed that could be expected to last longer. With the industry focus upon new furnace designs and technology, the research to develop refractories that could withstand high temperatures, thermal shock and corrosive materials yielded the development of new types of chromium refractory products that could be used for construction of the high-temperature oxyfuel furnace.
As a result, the wool fiberglass industry began a trend toward oxyfuel furnaces constructed using high-chromium refractory products, a trend that commenters noted is expected to continue into the future. This gives rise to increased chromium emissions as a result of both wool fiberglass raw material formulation (corrosivity) and associated refractory degradation (
We therefore found that the development of new types of chromium refractories that could and would be used to construct entire gas-fired glass-melting furnaces for wool fiberglass manufacturing is a development that largely took place after promulgation of the MACT standard in 1999. We also proposed a total chromium compounds limit of 0.00006 pounds per ton of glass pulled for all glass-melting furnaces.
In the 2013 supplemental proposal, we did not revise the chromium emission limit for furnaces; however, we explained that there were two general types of furnaces used in this industry: Gas-fired (which include both air-gas and oxyfuel furnaces) and electric furnaces (which include both steel shell and cold-top electric furnaces). We proposed in the April 2013 supplemental proposal to limit the
We did not propose to revise the chromium compounds limit in our November 2014 supplemental proposal. However, based on comments received on our April 2013 supplemental proposal, we proposed that sources would be likely to rebuild the furnace rather than install a sodium hydroxide scrubber as previously proposed, due to revisions to our cost estimate for this control option.
We did not make any changes to the technology review for PM from furnaces since the November 2014 supplemental proposal, and we are finalizing the previously proposed emission limit for PM, which is 0.33 lb per ton of glass pulled.
For chromium compounds, based on the public comments and information for glass-melting furnaces received on our November 2014 supplemental proposal, we believe it is necessary to revise our technology review under CAA section 112(d)(6) for gas-fired glass-melting furnaces in the Wool Fiberglass Manufacturing source category. Data collected on gas-fired glass-melting furnaces in 2010 and 2012 show that three furnaces tested their emissions for chromium in 2010, then shut down or repaired, and then retested in 2012 using the same test methods and protocols. In each case, chromium emissions were reduced by about 2/3 as a result of having rebuilt the furnaces. In two of the three cases, the chromium emissions before the repair or rebuild were higher than the proposed limit (0.00006 lb/ton of glass). In a third case, a furnace that measured 0.0006 lb/ton of glass in 2010 was rebuilt and retested for the 2012 ICR. The second test measured chromium at 0.0002 lb/ton of glass, a level slightly higher than our proposed chromium emission limit.
While we recognize that the rebuilt furnaces had different designs depending on the company's objectives at the particular facility, at this time we believe the highest emitting rebuilt furnace was well designed for its intended use. This furnace was rebuilt only one year before testing, at a cost to the company of between $10-12 million. As this is a technology review standard, we consider cost when evaluating the technology. We consider it reasonable to evaluate the technology based on the emission limit achieved by new furnaces, and we are increasing the chromium limit above what was previously proposed to account for this new furnace.
The final chromium limit also prevents operation of another furnace that could emit chromium at the reasonable high-end rate of the highest emitting furnace, as characterized in section VI of this preamble. Finally, we evaluated the cost, using our revised economic analysis, of compliance with the final limit and found that these costs are reasonable.
Specifically, we are revising the estimated costs of rebuilding the furnace as an option to comply with the chromium limit. We have determined, based on the revised costs and data regarding the level of chromium emissions that is achieved by rebuilt furnaces, that it is necessary, pursuant to CAA section 112(d)(6), to revise the proposed emission limit for chromium from gas-fired glass-melting furnaces. We are finalizing a limit of 0.00025 pounds chromium compounds per ton of glass pulled. This is a higher limit for chromium compounds than previously proposed, because data show that this level can be achieved by furnaces that are rebuilt, while the previously proposed level was shown to be lower than the level supported by the data provided by industry. We explain our decision further in the responses to key comments below and in the Technology Review Memo for the Wool Fiberglass Manufacturing source category, available in the docket to the rule.
We revised the cost estimate for rebuilding a gas-fired glass-melting furnace; however, we did not revise our finding from our technology review that rebuilding the furnace is an effective approach for reducing chromium emissions. We also note, from our technology review, that other options to reduce chromium from furnaces are available to wool fiberglass manufacturers. These include raw material substitution and installation of a properly-designed caustic (sodium hydroxide) scrubber to the outlet of the dry electrostatic precipitator (DESP). These other options are presented in more detail in the Economic Analysis, which accompanied the April 2013 supplemental proposal.
We received comments in support of and against our proposed technology review. The following is a summary of the key comments received regarding the technology review for the Wool Fiberglass Manufacturing source category and our responses. Additional comments on the technology review and responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1042).
Further, we noted in the November 2011 proposal that we identified “improvements” in PM emissions controls, not that we identified “new” controls. We acknowledged in both our November 2011 and April 2013 supplemental proposals that sodium hydroxide scrubbers are not currently used in the wool fiberglass industry for removal of chromium, but that these controls are used in metallurgical processes and in the chromium electroplating industry for the removal of hexavalent chromium. We stated in those proposals that we were considering applying scrubber technology to this source category; however, as discussed in the 2014 supplemental proposal (79 FR 68020-69024), the technology basis for the chromium standard is more frequent furnace rebuilds, not scrubber technology.
Moreover, as we explained in our 2013 supplemental proposal (78 FR 22380), the type of furnace used to produce wool fiberglass at the highest emitting wool fiberglass manufacturing source was the type of furnace that is expected to dominate the industry in the future as a new and very efficient energy source. The oxyfuel furnace was not identified in our 1999 MACT standard as a separate technology. While we acknowledge that wool fiberglass furnaces are not `new' technologies, the oxyfuel furnace is both new to this industry and its use is increasing. As the industry has commented, air-gas furnaces are becoming increasingly difficult to permit, while an oxyfuel furnace has no such restrictions due to its low PM and NO
We are not changing our assessment of the industry controls as having improved since 1999, and we are lowering the PM limit in the final rule from 0.5 to 0.33 pounds PM per ton of glass pulled. This limit codifies the current good practices and PM controls within the industry while not imposing additional costs to industry.
Regarding the commenter's allegation that chromium emissions were insignificant in 1999, and on that basis the EPA should not set chromium limits for this industry, we do not agree. The EPA has the responsibility to regulate air toxics under section 112 and to protect the health and environment surrounding these facilities as we are doing in this final rule. Moreover, due to source testing at the wool fiberglass industry, we have more information now than we had in 1999, and the industry's technology (that is, both the furnaces and refractories used) has changed.
Regarding the statement that, since initial MACT implementation in 1999, industry has reduced chromium emissions without using any new control technologies, the industry did not provide data showing that chromium emissions have been reduced.
The commenter stated that the EPA reports that “[o]ne industry spokesperson estimated that 20,000 pounds per year of refractory are worn away from the inside walls of one wool fiberglass furnace and ducted to the control device before venting to the atmosphere.” The commenter contended that the context of that statement is that furnace emissions are going through control devices that already meet the definition of BACT for particulate and if this were normal for the industry furnaces, they could not have the long lives that they typically exhibit.
The commenter provided a detailed statistical analysis to demonstrate that a furnace rebuild is not a viable control technology by using EPA's data to show that a relationship between furnace age and chromium emissions is not statistically significant. Using the EPA's data, the commenter also pointed out specific examples of apparent contradictions with the EPA's conclusions, such as the data from one oxyfuel furnace showing lower chromium emissions at the end of its life than at the beginning of its life, and showing no change in emissions after a furnace rebuild. The commenter also points to data from another furnace demonstrating that emissions lessen with furnace age.
The commenter contended that the proposed chromium limit is based on unproven technology, and that experimental and theoretical technologies do not constitute “available” or “generally available” technology. The commenter provided the results of various analyses to
We also learned that oxyfuel furnaces are an important new technology both in terms of energy consumption and potential to emit SO
In the letter dated March 12, 2012, the commenter stated that “Fiber glass furnaces necessarily use chrome-based refractory products (see Appendices A and B, spreadsheets showing typical chrome content),” and that “Virtually all of the above-glass refractory in gas-oxy furnaces, unlike other furnace classes, is chrome-based refractory.”
In that letter, the commenter continued, explaining that “Since the advent of chrome-based refractory, insulation manufacturers have been able to extend furnace life more than 50 percent. Without these refractories, wool fiberglass manufacturers would not likely be competitive in the global marketplace. Moreover, there currently is no available material that is as good as and has the structural integrity of chrome-based refractory to handle the higher temperature and more corrosive atmosphere inside gas-oxy furnaces.”
Regarding the use of chromium refractories in oxyfuel furnaces, and the continual increase in chromium emissions that result, the commenter added that oxyfuel furnaces have greater chromium emissions than other furnaces because, based on industry experience, the combination of furnace design, glass composition, higher flame temperatures, higher water vapor concentration, and an oxidizing atmosphere with increased concentration of oxides (filterable and condensable PM) can cause more rapid deterioration of the refractory in a gas-oxy fiberglass insulation manufacturing furnace than in other types of glass furnaces.
Regarding the comparison of operating temperatures of oxyfuel to other furnaces, the commenter added that, “One advantage of gas-oxy firing is the large reduction in NO
Regarding the relationship of furnace temperature and glass chemistry to chromium emissions, the commenter explained that “with the reduction in the flue gas volume, the concentration of glass batch ingredient volatiles and water vapor in the atmosphere (and flue gas) is also much higher. The higher temperature of the gas-oxy burners can volatize the glass batch components more readily than in other furnaces. These glass volatiles that contain alkaline earth oxides reduce the temperature that chrome can be vaporized to as low as 1,832 degrees Fahrenheit. While the chrome must still reach temperatures of 2,700 to 2,900 degrees Fahrenheit to oxidize the chromium from the trivalent to hexavalent state, the potentially increased volatiles can contribute to higher chrome emissions. The 40 percent higher peak flame temperature of oxyfuel burners also raises the probability that available chrome (sic) will encounter the conditions that will convert it to the hexavalent state. Combined, these differences generate conditions that are more corrosive to chrome refractory and can create favorable conditions for conversion to hex chrome (CR206) inside a gas-oxyfueled furnace. These severe conditions do not exist in the other fiber glass furnace classes.”
Regarding the commenters' assertion that wool fiberglass furnaces could not be eroded by the molten fiberglass at the rate stated by industry, we note that the range of furnace life and rates of erosion did not originate from the EPA, but from information obtained from the industry itself. Further, we note that at the rate stated by industry and the control efficiency achieved by fabric filters, that refractory degrading at a rate of 20,000 pounds per year and fabric filters achieving 99-percent efficiency would emit 200 pounds PM annually from the contribution of the refractory alone. Using industry refractory content of 95-percent chromium, 190 of the 200 pounds of annual PM would be chromium compounds; 93 percent (177 pounds) of that chromium would be in the hexavalent state, which is within the range measured at oxyfuel and air-gas furnaces in this industry.
Regarding the comment that there is no other technology available to meet the chromium limit, we note that all furnaces at existing area sources and all but two furnaces at existing major sources currently meet the final chromium limit. Regarding these two furnaces, the EPA has established that a furnace rebuild is an approach that existing facilities have used to reduce their chromium emissions for furnaces over 6 years old, as discussed in section III.D of the preamble to the 2014 supplemental proposal. Further, the rule requires sources to meet the emission limits, but does not require the use of any specific control device or vendor. Sources may use whatever means they choose to meet the limits, such as more frequent furnace rebuilds, using non-chromium or low chromium refractories in furnace rebuilds, enhanced baghouse operation, improved maintenance and alternative controls, and furnace design features, changes in raw material, or scrubbers.
The commenters cited the agency's estimated cost of $300 per pound of hexavalent chromium removed if a scrubber is used to comply and the agency's estimated cost of $12,000 per pound of chromium compounds removed if operations with high-chromium refractory are rebricked with low-chromium refractory. According to the commenters, the conclusion that the proposed new chromium limit is “feasible and cost effective” is unreasonable and arbitrary. One commenter observed that the EPA's cost-effectiveness values would be $600,000 per ton of chromium removed for scrubbers and $24 million per ton of chromium removed for rebricking, assuming either proposed compliance solution would actually be successful. As such, the commenters stated that the agency's cost-effectiveness analysis does not support the conclusion that the new chromium limit is authorized and justified under CAA section 112(d)(6). One commenter claimed that the EPA's conclusion is arbitrary because the cost-effectiveness values are far in excess of the cost-effectiveness values the EPA has found acceptable in prior CAA section 112 cost-effectiveness analyses and the EPA has not explained why such high cost-effectiveness values are justified, especially considering risk.
According to the commenters, fiberglass insulation producers provide economic benefits by adding manufacturing jobs to the U.S. economy, shipment of finished product to markets throughout the country, and export of product to foreign markets. According to one commenter, one reason jobs are being sent overseas is the existing regulatory requirements and concerns about the future regulatory climate growing even more stringent. If revisions are not made to the proposal as recommended by the commenter, many of the companies will cease operation and it is likely that foreign competitors will flood the market with substandard product.
The EPA is finalizing a chromium limit of 0.00025 pounds per ton of glass pulled. Based on emissions data submitted in 2010 and 2012 by all wool fiberglass manufacturers on every furnace type, the EPA determined that this is a limit reflected by well-designed furnaces in this source category.
As discussed in section VI.B of this preamble, all three of the furnaces that were tested in 2010, then rebuilt or repaired and retested in 2012, showed lower chromium emissions as a result of the furnace rebuild or repair. Of these three furnaces, two emitted chromium below the previously proposed limit of 0.00006 pounds of chromium per ton of glass pulled after the rebuild or repair. One, a new furnace, tested at about 0.0002 pounds of chromium per ton of glass, and had been rebuilt at a cost of about $10 million. Consequently, we revised our limit to reflect the level of chromium emissions that is achieved by a well-designed rebuilt furnace.
Thus, the final emission limit is a level that has been demonstrated by recently rebuilt furnaces. We note that a key aspect of our changing the final chromium limit was to account for this new furnace, which measured chromium emissions at a level slightly higher than the limit we proposed.
In our November 2014 supplemental proposal (79 FR 68012 at 68021), we presented a chart showing chromium emissions by furnace age. That chart indicates 0.00025 pounds per ton represents the level below which rebuilt furnaces operate and many gas-fired furnaces operate below this level beyond their tenth year. We are aware of new developments in the field of chromium refractories that reduce the spalling and degradation of the refractory face. We consider many of these to be design features which a wool fiberglass company would consider when planning to rebuild a furnace. These data demonstrate that well-designed furnaces (that is, furnaces designed and operated to minimize chromium emissions) can continue to meet the chromium limit as they age.
This final rule does not limit the materials with which a gas-fired furnace may be constructed. Specifically, we recognize from industry commenters that gas-fired glass-melting furnaces used by the wool fiberglass industry will continue to use chromium refractories in their glass-melting furnaces. To help ensure that these sources are well-designed to minimize chromium emissions, wool fiberglass gas-fired glass-melting furnaces will be required to conduct chromium emissions performance testing annually.
Two facilities are projected to need to improve performance. For these two facilities, the total capital costs are $21.4 million and the total annualized compliance costs are estimated to be $944,000 for furnace rebuilds and compliance testing. For all other major source facilities subject to the chromium limit, the cost of compliance will include only the cost of emissions testing ($10,000 per furnace for a total of $80,000). Based on the EPA's economic impact analysis, which shows that the impacts to wool fiberglass manufacturers should be low, we believe that the compliance costs of the final rule are reasonable and will not be economically devastating to the wool fiberglass insulation industry.
Regarding the comment requesting that the EPA compare the cost-effectiveness of the proposed chromium limit (
The commenter argued that the Net Present Value (NPV) methodology is not an appropriate method for calculating cost effectiveness of the proposed accelerated rebuild schedule if the EPA is evaluating the cost of a control as the single factor to consider, and also stated that they could not identify any EPA rules that have used this approach. The commenter suggested that a replacement cost analysis, as described in section 2.5.5.6 of the
The commenter further contended that the EPA erred in applying the NPV methodology in that the EPA excluded from its cost analysis the cost of losing the residual value (1 to 3 years) of a furnace's life, which contradicts the EPA's NPV methodology. The commenter explained that the EPA calculated what a $10 million investment losing 7 percent a year would lose in 7 years versus 10 years, and then concluded that the difference was the cost difference of the investments. The commenter contended, however, that both calculations are incorrect in how the process of NPV is used for comparison: With a furnace re-bricking, the $10 million represents the investment that is consumed over the periods of comparison; and using the 10 years as a base case, the $10 million is consumed and has no residual value remaining at the end of the 10 year period. The commenter concluded that, therefore, the $10 million consumed with no residual value must be compared to a $10 million investment that retains a residual value at the end of 7 years, but yet must be replaced (
The commenter also objected to the EPA's use of a 7-percent discount rate because small variations in the discount rate can significantly bias the cost-benefit analysis. The commenter alleged that the EPA chooses radically different discount rates for different regulations, generally providing no explanation for this variation, which appears arbitrary and capricious because it often chooses relatively high discount rates (between 7 and 10 percent) for regulations imposing future costs and low rates (around 3 percent) for regulations creating future benefits.
The commenter further argued that the EPA's cost analysis failed to look at the longer-term cost of 7-year rebuilds, beyond 10 years into the future. The commenter provided the results of an analysis that presented the impact over 30 years, which show higher costs for both area and major sources.
We received new information from the industry that they believed the replacement costing (RC) approach was a better fit for the situation and approach than the NPV approach, which is what we had used at proposal. The NPV evaluated the loss to the company from having to rebuild a furnace earlier, (
We also revised the capital cost estimate for rebuilding a furnace to include the cost ($700,000) of transferring production to another facility while the furnace is being rebuilt, based on information provided by the commenter. Based on the revised cost-estimating procedure and capital cost ($10.7 million), we estimated the total annualized cost for rebuilding a furnace to be $462,000.
Regarding the comment that the EPA used the wrong discount rate, the EPA's use of a 7-percent interest rate is in accordance with OMB guidance under Circular A-4 and Circular A-94. This interest rate has been used in the cost estimates for all rulemakings issued by the Office of Air Quality Planning and Standards (OAQPS) since Circular A-94 was issued in 1992 and affirmed by Circular A-4 in 2003. This includes the 2011 proposal for the mineral wool and wool fiberglass rules, and both supplemental proposals. In addition, the
Maintaining safe and proper operation at a wool fiberglass manufacturing facility requires that the facility maintain melted glass within the furnace at all times. In addition to the furnace operating continuously, all other equipment used in the manufacturing process, including air pollution control equipment operates continuously during normal operation. During a scheduled rebuild of the furnace refractory, a facility will use that downtime to perform routine maintenance on the entire manufacturing line. This maintenance requires longer downtimes to accomplish because it includes the support equipment for the furnaces as well as the major down line equipment such as forming sections, curing ovens, and line drives. This maintenance is done at this time to avoid the other operational expenses and product supply issues incurred when taking extended downtimes. Therefore, when a facility plans a refractory rebuild, it must consider the additional costs and logistics associated with the routine repair and general maintenance of the entire manufacturing line. NAIMA [North American Insulation Manufacturers Association] members estimate these additional costs to be in the range of $6,000,000 to $10,000,000, and include material (wear part replacements, pollution control device maintenance, electrical preventative maintenance, etc.) and labor to perform this maintenance. (Appendix 2 of Docket ID No. EPA-HQ-OAR-1042-0348).
Note that the finalized chromium limit applies to gas-fired furnaces and does not apply to electric furnaces. Electric furnaces at major sources will not be subject to the final chromium emission limits, so wool fiberglass manufacturing facilities operating electric furnaces will not incur any additional costs for compliance with the finalized chromium limits.
One commenter suggested the following list of subcategories: Oxyfuel, specialty, steel shell, air-gas, cold-top electric. The commenter characterized the EPA's authority to subcategorize as broad and discretionary, noting that the CAA authorizes the EPA to “distinguish among classes, types, and sizes of sources within a category” in establishing MACT standards, and that the EPA retains discretion in important respects in setting floors for MACT standards within the statutory framework in order to promulgate MACT standards that best serve the public interest. The commenter continued, “Congress authorized EPA to subcategorize source categories based on classes, types and sizes of sources which will result in different [f]loors for different subcategories.” The commenter observed that the EPA's criteria for subcategorization include “air pollution control differences, process operation . . ., emissions characteristics, control device applicability and costs, safety, and opportunities for pollution prevention.” The commenter also noted that the EPA had incorrectly stated “[f]urnace construction and refractory composition were not factors that were presented by industry as having an effect on HAP emissions, and those factors were not used as a basis of representativeness for the resulting data set,” which contradicted the May 5, 2010 testing proposal letter sent to the EPA that categorized furnaces by construction and identified furnaces as having an effect on emissions. The commenter stated that this identification by furnace type in the May 5, 2010 letter is precisely what the EPA should consider when subcategorizing.
The commenter asserted that no subcategories except oxyfuel furnaces should have a chromium limit, noting that non-oxyfuel furnaces (steel shell, cold-top electric, air-gas, and specialty) have extremely low to non-detectable chromium emissions and referred to three supporting references: A summary of the chromium content of refractories and chromium emissions (attachment 8 of comment letter), the test reports sent to the EPA as a basis for the comment, and a technology review of glass furnaces (attachment 10 of the comment
The commenter further asserted that the EPA should go a step further and subcategorize oxyfuel furnaces to regulate only those furnaces that pose a concern. The commenter stated that the other oxyfuel furnaces other than the CertainTeed Kansas City, Kansas facility (a total of 12 furnaces) do not pose a concern because they show low chromium emissions and do not approach a level of emissions that would trigger MACT applicability. The commenter recommended the following possible approaches for subcategorizing oxyfuel furnaces: (1) Establish a subcategory of the oxyfuel furnaces based on variation in demonstrated chromium emissions; and (2) establish a subcategory of the oxyfuel furnaces based on sources that can demonstrate a less than 1-in-1 million risk (using a risk-based source threshold limit of 25 pounds per year).
Another commenter urged the EPA not to subcategorize the glass-melting furnaces used in the Wool Fiberglass Manufacturing source category. The commenter supported the EPA's recognition at proposal that it was inappropriate to subcategorize in the wool fiberglass source category, given that there are no relevant differences that distinguish among classes, types, and sizes of sources within the category. The commenter argued that use of different types of furnace bricks does not qualify as a basis for subcategorization because sources of the same class, type, and size use different bricks. According to the commenter, the EPA may not subcategorize the source category into high chromium-emitters and low chromium-emitters because that would violate the purpose of protecting public health and the purpose of ensuring that the best-performers drive CAA section 112(d) standards to become stronger. The commenter observed that best-performers may have lower emissions, in part, because of the materials they use in their process or in their equipment. The commenter emphasized that the EPA may not lawfully subcategorize in a way that would place the best and worst performers into their own separate subcategories. The commenter asserted that the EPA should ensure that it sets standards for the entire source category that meet CAA section 112 requirements, rather than subcategorizing in a way that may allow a source to evade stronger emission requirements.
In today's rule, we are also promulgating a chromium compounds limit under CAA section 112(d)(6) that will apply to gas-fired glass-melting furnaces. As explained in the April 2013 supplemental proposal, electric furnaces emit metal HAP including chromium at generally lower emission levels than gas-fired furnaces. For example, because they operate at higher temperatures, gas-fired furnaces are constructed with chromium refractories at various parts of the furnace that are above the molten glass, including the crown. Temperatures above the melt in gas-fired furnaces range from 2500 to 4500 degrees Fahrenheit, and these temperatures are sufficient to convert chromium to its hexavalent state. When chromium is available, as it is in the refractories above the melt in gas-fired furnaces, it may be converted to the hexavalent state by the heat of the gas-fired furnace. Thus, gas-fired furnaces have the potential to emit elevated levels of chromium, even when meeting the total PM limit (78 FR 22379-82; 78 FR 22386). These higher chromium emissions do not occur with electric furnaces because they are constructed with either non-chromium refractories (cold-top electric) or steel in place of refractories (electric steel shell) above the glass/metal line. As also explained in our 2013 supplemental proposal, available test data from both electric and steel shell glass-melting furnaces consistently showed chromium emissions below the detection level of the emissions measurement method (78 FR 22379-80). Furnace construction and source test data also show that electric furnaces are not constructed using high-chromium refractories above the glass-metal line, do not reach the temperatures necessary to transform chromium to the hexavalent state, and do not emit significant amounts of chromium compounds, as do the gas-fired furnaces. In fact, all test data for electric furnaces show that chromium emissions were below the detection limit or were at least one order of magnitude below the proposed limit. Based on test data and statements from industry, we confirmed that gas-fired glass-melting furnaces are constructed using similar high-chromium refractories as one high emitting glass-melting furnace, that chromium emissions increase with furnace age as the refractories age, and that the type of furnace at the high emitter is an emerging new technology that is preferred across the industry where a source of industrial oxygen is economically available.
Additionally, as also explained in today's final rule, we are finalizing a chromium compounds limit, under the ample margin of safety step of CAA section 112(f)(2), that will also apply to gas-fired glass-melting furnaces. As explained above, gas-fired (oxyfuel and
The comment attachment further explains that chromium enters the glass in wool fiberglass furnaces below the glass line, and goes into solution without having the potential for volatilization at glass-melting temperatures.
Further, based upon comments from industry, technical literature, refractory product specifications, and other data, we conclude that the chromium is not released from the cullet when it is melted, but from the chromium refractories due to several influencing factors: The glass chemistry, furnace temperatures, refractory wear rate and glass pull rate. For more information regarding this topic, see memo titled “Mechanisms of Chromium Emissions From Wool Fiberglass Glass-Melting Furnaces, June 2015” in the docket to this rule.
However, we agree that the chemistry of the internal furnace environment may be influenced when green glass cullet comprises most or nearly all of the raw material mixture used in the furnace. This may be due to reaction of submetallic oxides (boron) with the chromium oxide of the refractory. As described in the comment attachment, “the basics of glass melting are well-known, with fluxes acting on silicon dioxide or SiO
To summarize, according to the commenter, the minerals used to color these glasses is not re-emitted from the cullet when it is melted at the temperatures of wool fiberglass furnaces. According to the commenter, studies show that in order to volatilize chromium from glass, temperatures above 7,000 degrees Celsius (12,000 degrees Fahrenheit) (such as occurs at plasma processing temperatures) are required (Brosnan, 2012).
Therefore, we disagree with the commenter's assertion of the mechanism of chromium emissions from the furnace,
To the contrary, we maintain that chromium emissions are due to chromium refractory products in wool fiberglass furnaces. According to the literature and references, many of which were provided by the commenter, chromium emissions increase from the wool fiberglass furnace as a result of degradation of chromium refractories, which is influenced by the thermochemical interactions within the furnace environment. The rate of degradation of the chromium refractory in the wool fiberglass furnace is influenced by the thermochemical interactions which are influenced by the raw material mixture processed in the furnace and the use of cullet (of any color).
We note that the test results upon which the final limits are based include tests conducted while the furnace was processing cullet in the raw material
Regarding the prediction of the commenters that negative environmental impacts will result from the chromium limits because green glass will be landfilled instead of remelted by the wool fiberglass industry, we disagree for the following reasons. First, glass recycling in the past was accomplished through the color segregation of glass materials: Brown, or amber glass for amber containers; clear, or “flint” for flint containers; and green glass for green containers. Recycling centers no longer segregate their glass by color, but instead separate recyclable materials according to type: Paper, aluminum, steel, and glass, where glass of all colors is combined together in a single stream. Therefore, we disagree with the commenter that vast amounts of green glass would be landfilled because glass recycling no longer segregates waste glass by color.
Second, we acknowledge that while mixed glass from single stream recycling may be difficult to sell as a raw material, recyclers now decolorize used glass for resale into all glass markets (container glass in particular). One recycler (GMG) in particular shared a description of their process: “GMG's basic technology provides for the de-colorization and subsequent recolorization of mixed color cullet in the production of glass containers. In so doing, it allows the glass manufacturer to use multiple colored cullet (amber, green, flint) to produce a single color glass, matching rigorous color and transmissivity standards required for many glass products. It accomplishes this in a manner that allows the glass manufacturer to replace virgin raw materials with a former waste product (mixed cullet). GMG's Batch Formulation System (BFS) is a user-friendly software program based upon a GMG proprietary series of algorithms representing the full spectrum of furnace batch materials and their chemistry. The BFS technology, combined with the optical scanning equipment, enables the manufacturer to further increase savings through the use of start-of-the-art optical scanner/feeder with advanced software that instantaneously reports color distribution weights and cullet chemistry in each batch sent to the furnace. Using these real time reports on the incoming cullet stream, the furnace operator can make formula modifications in chemicals and virgin materials to ensure uniform colored glass production.”
Third, the wool fiberglass industry is one of several glass industries, including mineral wool, container glass, pressed and blown glass, and flat glass, that purchase glass cullet as an inexpensive and energy efficient raw material. Therefore, we disagree that glass cullet would necessarily be landfilled instead of used in one of any number of glass industries.
Fourth, because chromium does not readily leach out of vitrified materials such as glasses, and would not further pollute the environment if disposed in a landfill, we believe that even if green glass cullet were landfilled in some areas, that would not result in a worse environmental impact than for chromium (particularly in its hexavalent form, as is most of the chromium from wool fiberglass) to be released into the air upon remelting.
Finally, according to the commenter, the use of cullet is required by Executive Order, and wool fiberglass companies avail themselves of cullet as a low-cost, energy efficient raw material which is also used to increase wool fiberglass production rates due to the lower melting temperature and eutectic point (as compared to all raw minerals). Wool fiberglass manufacturers have stated that they would need to greatly reduce or eliminate their use of cullet in the oxyfuel furnaces in order to meet the proposed chromium limit (0.00006 lb/ton of glass pulled), but that it is a moot point at the final chromium limit (0.00025 lb/ton of glass pulled). During meetings held in December 2014 and March 2015, industry stated that reducing or eliminating the use of cullet in the oxyfuel furnaces as a way to meet the chromium emission limit was no longer a concern to them. Furthermore, use of cullet in electric furnaces (which are not impacted by the chromium limit) does not seem to increase emissions of chromium as it does in gas-fired furnaces. Therefore, this is not an issue for electric furnaces, which will continue to use cullet. Therefore, we disagree with the commenter that cullet providers will be adversely affected by these final rules.
For the reasons stated above, we disagree with the commenter that there are environmental impacts associated with glass recycling that should be included in the impacts analysis. However, changing the content and mixture of raw materials used in a process can be a viable option for regulated sources to meet emissions limits.
In our technology review under CAA section 112(d)(6), for PM we found that while the use of ESPs is not new to this industry, the use of the DESPs in combination with gas-fired furnaces is more prevalent. We found that, in general, baghouses are no longer used for gas-fired glass-melting furnaces. We also found that all glass-melting furnaces were achieving emissions reductions that were well below the existing MACT standards regardless of the control technology in use.
Therefore, we determined that emissions controls on furnaces are capable of reducing PM to levels below those in the MACT standard, and, as previously proposed in our April 2013 supplemental proposal, we are finalizing under CAA section 112(d)(6) the PM limit for new and existing glass-melting furnaces.
Section 112(d)(6) of the CAA provides that the agency must review and revise “as necessary” existing MACT standards taking into consideration developments in practices, processes and control technologies by affected sources. The “as necessary” language must be read in the context of the provision, which focuses on the review of developments that have occurred in the industry since the time of the original promulgation of the MACT standard. Thus, our technology review was for all glass-melting furnaces located at both area and major sources, since all area sources were originally major sources. As explained in our April 2013 supplemental proposal, the number of area sources is continually increasing as a result of the definition of “wool fiberglass facility” in 40 CFR 63, subpart NNN. For example in 2002, two out of 33 facilities were area sources, but by December 2012, 20 facilities were area sources (78 FR 22377). As also previously explained, there are no differences between gas-fired glass-melting furnaces used at major and area sources (78 FR 22377). Therefore, we believe it was appropriate to consider all furnaces in our technology review under CAA section 112(d)(6).
Based on public comments and test data, we found that the DESP achieves an average of 97.5-percent efficiency in reducing PM, a fraction of which is
Based on comments we received on the November 2014 supplemental proposal, we again reviewed the cost and control options and found using new cost information that the limit as proposed was not as cost effective as we initially believed. We reviewed the data to determine whether a higher limit than previously proposed would be more cost effective while still significantly reducing chromium emissions from wool fiberglass gas-fired glass-melting furnaces. We found that most wool fiberglass gas-fired glass-melting furnaces and all recently rebuilt gas-fired furnaces currently emit chromium compounds at rates below 0.00025 pounds chromium per ton of glass pulled. Two furnaces located at major sources, which together emit 583 pounds of chromium compounds per year after DESP control, would still have to reduce chromium emissions to meet the limit.
We compared the chromium emission reductions that would have resulted under the previously proposed emission limit of 0.00006 pounds chromium per ton of glass pulled to the reductions that result from the final limit of 0.00025 pounds chromium per ton of glass pulled. We found that the proposed limit would have reduced chromium from major sources by 567 pounds per year, and that the final limit reduces chromium by 524 pounds per year. These are comparable and substantial reductions in chromium due to two high-emitting furnaces at major sources. Moreover, the final limit sets a backstop so that another high-chromium-emitting, gas-fired glass-melting furnace cannot be operated again at a major source in this industry.
We revised our technology review to reflect our conclusions on the most cost-effective ways to meet the final chromium limit. We find that two approaches are likely to be used by industry to reduce chromium emissions from gas-fired furnaces. One approach is to rebuild the furnace early (instead of a furnace life of 10 or more years, rebuild the furnace after 7 years of service) at an annualized cost of $462,000 per year, and the other approach is to replace one raw material (cullet) with another material (raw minerals), which the industry stated would result in lower chromium emissions, at an average cost of about $620,000 per year. Industry test data show that major sources will reduce chromium emission by 524 pounds per year to meet the 0.00025 pounds chromium per ton of glass pulled limit. The cost effectiveness of both approaches is reasonable, and the option to rebuild the furnace has a cost effectiveness of approximately $880 per pound of chromium, which appears for most companies to be the most cost-effective option. This cost is extremely affordably compared to costs for chromium control in other rules. For example, in the Chromium Electroplating RTR (77 FR 58226, September 19, 2012), we accepted a cost effectiveness of $11,000 per pound of hexavalent chromium reduced. We also note that section 112(d) neither specifies nor mandates a cost methodology. We note that in
Sources may choose a combination of these approaches to meet the final chromium limit: Raw material substitution may be used as the furnace begins to show refractory wear (and associated increase in chromium emissions), and then, toward the end of the useful life of the furnace, sources may choose to rebuild their process equipment. We discuss the technology review in more detail in the November 2011 (76 FR 72803-72804) and the April 2013 (78 FR 22379-382) proposals; in the “Technology Review Memorandum for the Wool Fiberglass Manufacturing NESHAP”; and in the paper titled, “Mechanisms of Chromium Emissions From Wool Fiberglass Glass-Melting Furnaces,” June 2015; which are available in the docket to this rule.
In the November 2011 proposal, we proposed to establish emissions limits for formaldehyde, methanol, and phenol from FA and RS manufacturing lines that were previously regulated under a surrogate, and previously unregulated HCl and HF from glass-melting furnaces. In the April 2013 supplemental proposal, we retained the proposed emission limits for formaldehyde, methanol, and phenol for FA and RS manufacturing lines; however, we proposed work practice standards under CAA section 112(h) for control of HF and HCl emissions from furnaces, instead of the numeric emission limits in the November 2011 proposal (see section V.D of this preamble). In the November 2014 supplemental proposal, we proposed revised emissions limits for formaldehyde, methanol, and phenol from RS and FA lines for new sources as a result of our updated approach to evaluate limited datasets. The emission limits for existing RS and FA lines in the November 2014 supplemental proposal remained the same as in the April 2013 supplemental proposal because the size of these datasets was sufficiently large that the limits were not changed by the updated approach.
For the sake of simplicity, we discuss these pollutants together in the following sections.
We have not changed any aspect of the emission limits for formaldehyde, methanol, and phenol for existing and new FA manufacturing lines since the November 2014 supplemental proposal. However, as explained in section V.H of this preamble, we are deferring evaluation of emissions limits for RS lines pending collection of new process and emissions data from the industry.
We received comments in support of and against our proposed formaldehyde, methanol, and phenol emission limits for FA lines. The following is a summary of the key comments received
Furthermore, we believe that the data for these facilities clearly support the establishment of MACT floors that assure emissions controls. The standards are based on data we received on tested FA lines. The commenter did not provide additional test data or information on “any other product made on an FA line” that would lead us to change to the emission limits previously proposed for FA lines.
Second, in our April 2013 supplemental proposal, in response to comments on our November 2011 proposal, and consistent with our intent in the 2011 proposal, we stated that we were eliminating the subcategories for FA bonded lines because we believe that the technical or design differences that distinguished these subcategories in 1999 no longer exist (78 FR 22387). We stated in the 2013 preamble that, as part of rule development, industry provided test data that they claimed were representative of products manufactured on FA lines (refer to industry's May 10, 2010, letter to the EPA, available in the docket). The 2011 and 2012 ICR response data indicate that only one company uses FA processes to manufacture wool fiberglass products. This is the company that provided the test data on which the limits for FA lines are based. In comments, companies asked that the limits for FA lines apply only to pipe and heavy density, and not to “any other product made on an FA line.” However, no other companies provided additional data that could serve as a basis for a change to the proposed limits for FA lines for any other products being produced on FA lines. The data provided by industry, therefore, indicate that this one company is the only company engaged in manufacturing wool fiberglass products on an FA line. Because test data exist for multiple products from this one company reporting these activities, we disagree with the commenter that the limits for FA lines should continue to apply only to pipe and heavy density products, and we are finalizing limits developed for FA lines that are representative of all product types made on FA lines. Consistent with our 2013 supplemental proposal, we are establishing standards at the MACT floor level of control for phenol, formaldehyde and methanol emissions from FA bonded lines.
In 2007, the D.C. Circuit Court found that the EPA had erred in establishing emissions standards for sources of HAP in the NESHAP for Brick and Structural Clay Products Manufacturing and Clay Ceramics Manufacturing, 67 FR 26690 (May 16, 2003), and consequently vacated the rules. (
Regarding the 2013 supplemental proposal, the commenter maintained that formaldehyde and methanol standards are not feasible for certain RS lines without installing both non-phenol/formaldehyde binder and additional controls such as thermal oxidizers, because of the formaldehyde created through combustion of natural gas. The commenter specifically mentioned the formaldehyde standard of 0.19 pounds per ton for RS lines as being borderline achievable for non-phenol/formaldehyde binders in RS lines for existing sources.
Regarding the 2014 supplemental proposal, the commenter indicated that the level of formaldehyde and methanol emitted by RS lines would exceed the 2014 proposed standard of 0.087 pounds per ton for formaldehyde and the 2014 proposed standard for methanol of 0.61 pounds per ton for new and reconstructed sources because of the formaldehyde created through combustion of natural gas. The commenter added that the data also suggest that the formaldehyde standard of 0.19 pounds per ton is borderline passing for non-phenol/formaldehyde binder on some existing sources. The commenter explained that formaldehyde is a by-product of natural gas combustion from burners used in the process. The commenter indicated that the proposed phenol limit of 0.26 pounds per ton is greatly improved since the 2011 proposed limit, but that it is still not consistently achievable. The commenter concluded that the proposed standards may not be able to be achieved even after switching to non-phenol/formaldehyde binders without installing controls such as a thermal oxidizer, which themselves will emit additional formaldehyde as a result of the combustion of natural gas to operate the control device.
The commenter stated that nothing in CAA section 112(d) suggests that the EPA is required to establish a floor under CAA section 112(d)(3) more than once in issuing or revising MACT standards under CAA section 112(d). The commenter pointed out that this proposal is not consistent with other RTRs, for which the EPA has taken the position that Congress did not intend EPA to establish MACT floors for a second time when it revised a standard. The commenter provided the example of the Coke Oven RTR rulemaking, in which the EPA stated its rationale for CAA section 112(d)(6) not requiring additional floor determinations because this would “effectively convert existing source standards into new source standards . . . The EPA sees no indication that section 112(d)(6) was intended to have this type of inexorable downward ratcheting effect.” The commenter further pointed out litigation challenging the Hazardous Organic NESHAP RTR rule, in which the DC Circuit Court upheld the position that there should not be an inexorable downward ratcheting effect for the MACT floors (
The commenter stated that the EPA is conducting a MACT on MACT analysis by recalculating the MACT floor, citing
The commenter urged the EPA to retain the 1999 formaldehyde limit, saying that the 1999 limit is still the MACT floor and lowering the limit would be “beyond-the-floor” and would need to be justified accordingly. The commenter noted that in the proposal for the 1999 MACT rule, the EPA found that the floor for FA lines making both heavy density and pipe products was no control. The commenter observed that the EPA had also considered controls beyond-the-floor at the time, but concluded that the cost effectiveness was unreasonable. According to the commenter, nothing has changed since this proposal for FA lines. The commenter noted that because no new HAP controls have been added, the floor is still no control for these products.
The EPA is amending the 1999 formaldehyde MACT floor for FA lines because the floor was improperly determined. First, the EPA determined under this rulemaking that the MACT floor for formaldehyde emissions for new FA lines making heavy density products and for new and existing FA lines making pipe products were set at the highest measured value for each of the subcategories. As such, the 1999 MACT floor for formaldehyde was improperly set at a level achievable by all sources within the Wool Fiberglass Manufacturing source category and not at a level defined by the CAA. Again, as explained in the November 2011 proposal, when the EPA had in the past (incorrectly) interpreted CAA section 112(d) as requiring standards that can be achieved by all sources, the D.C. Circuit Court has rejected that interpretation. “EPA may not deviate from section 7413(d)(3)'s requirement that floors reflect what the best performers actually achieve by claiming that floors must be achievable by all sources using MACT technology.”
Second, the EPA determined under this rulemaking that the EPA established the MACT floor for the formaldehyde limits for FA lines producing light density products (new and existing), automotive products (new and existing), and heavy density products (existing) as no control (
Third, the EPA is removing formaldehyde as a surrogate for phenol and methanol emissions, as supported by the commenter. The EPA may attribute characteristics of a subclass of substances to an entire class of substances if doing so is scientifically reasonable.
Regarding the comment that this proposal is not consistent with other RTRs, we note that in several recent rulemakings we have chosen to fix underlying defects in existing MACT standards under CAA sections 112(d)(2) and (3), provisions that directly govern the initial promulgation of MACT standards (see National Emission Standards for Hazardous Air Pollutants From Petroleum Refineries, October 28, 2009, 74 FR 55670; and National Emission Standards for Hazardous Air Pollutants: Group I Polymers and Resins; Marine Tank Vessel Loading Operations; Pharmaceuticals Production; and the Printing and Publishing Industry, April 21, 2011, 76 FR 22566). Regarding the comment that the EPA had not provided an explanation or asserted any rational basis for choosing to calculate a new MACT floor and standard for formaldehyde, in our 2011 proposal, we explained that the D.C. Circuit Court had found that we erred in establishing emissions standards for sources of HAP in the NESHAP for Brick and Structural Clay Products Manufacturing and Clay Ceramics Manufacturing, and, consequently, vacated the rule.
With regard to formaldehyde emissions from the Wool Fiberglass Manufacturing source category, we explained we were proposing MACT limits for existing, new, and reconstructed RS and FA manufacturing lines and presented these limits in Tables 4-6 of the 2011 proposal (76 FR 72791). We also explained that we had a “clear obligation to set emissions standards for each listed HAP.”
As explained elsewhere in this preamble, we are eliminating the subcategories for FA bonded lines because we believe that the technical or
The data available to us at proposal were emissions test data from various products within the heavy density products subcategory only, and industry indicated that the test data for this subcategory were representative of all products manufactured on FA bonded lines. Since our various proposals, no additional source test data have been provided to support continued subcategorization of FA lines. We, therefore, concluded in the various proposals that the limits developed for FA lines were representative of all products made on FA lines and that further subcategorization was no longer supportable.
As also explained in our November 25, 2011 proposal, we examined the 1999 MACT rule and found that it does not include emissions standards for certain products manufactured on FA lines which do not fall into the regulated subcategories “pipe” and “heavy density.”
For the reasons provided above, as proposed in the November 2014 supplemental proposal and in the comment summary and response document available in the docket, we are eliminating the subcategories for FA lines and finalizing emissions limits at the MACT level of control for formaldehyde, phenol, and methanol, as shown in Table 3 of this preamble.
In our November 2011 proposal, we proposed emission limits for HF and HCl from glass-melting furnaces. In our April 2013 supplemental proposal, we proposed work practice standards in lieu of numeric emission limits, under CAA section 112(h), in response to comments and our evaluation of test data from industry regarding our November 2011 proposed limits. We explained that in response to comments on the November 2011 proposed limits, we re-evaluated test data that we used to calculate the MACT floor for the proposed HCl and HF standards and found that most of the test data reflected values below the detection limit of the test method. Specifically, over 80 percent of the test results were values indicating that either HCl or HF, or both pollutants, in the exhaust gas stream were below the detection limit of the test methods. We, therefore, proposed work practice standards for the control of HCl and HF emissions from furnaces. However, in the 2013 supplemental proposal we did not specifically identify the work practice standards. In our November 2014 supplemental proposal, we noted that the source of HF and HCl in furnace emissions was cullet made from glass used in products such as cathode ray tubes (CRTs), microwave ovens, televisions, computer screens, and other electronics. Therefore, we proposed work practice standards that would require owners and operators of wool fiberglass glass-melting furnaces to ensure that the cullet did not contain glass from these types of sources either by conducting their own internal inspection and recordkeeping program, or by receiving certification from their cullet suppliers.
In the November 2014 supplemental proposal, we explained the proposed work practice standards for HF and HCl in the preamble, but received comment that because the rule language did not accurately reflect the preamble language, that it left to interpretation the other sources of fluoride in the cullet (such as municipal water supply used to wash cullet). We did not intend that interpretation, which would be beyond the purposes of the NESHAP. In this final rule, we are correcting that deficiency in the November 2014 supplemental proposal, withdrawing that previously proposed rule language and specifying in the rule text at 40 CFR 63.1382(a)(1)(iii) the correct requirements, as previously proposed and as indicated above.
We received comments in support of and against our work practice standards for HCl and HF emissions from furnaces at wool fiberglass facilities. The following is a summary of the key comments received regarding the work practice standards and our responses to these comments. Additional comments on the work practice standards and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1042).
Another commenter requested that the EPA remove all of these sources from the calculation for the MACT floor because data that are below the minimum detection limit (MDL) of the
According to the commenter, the EPA should only use values that are above the MDL (
Alternatively, the commenter stated that the EPA could propose a work practice standard in order for facilities to show compliance. Under the Boiler MACT, the commenter noted that the EPA chose to regulate dioxins/furans by using a work practice standard. In that case, the commenter stated that 55 percent of facilities tested had dioxin/furan emissions below the MDL for EPA Method 23. The commenter stated that a work practice standard would allow facilities to decrease HCl and HF emissions and be able to show compliance.
In addition, the commenter stated that the EPA has made no effort to take into account reductions achieved as a result of the original MACT implementation as part of establishing the MACT floor. If a MACT floor is calculated, the commenter contended that it must consider what the emissions would have been at the time of the initial MACT promulgation in establishing the floor.
Because of the high percentage on non-detect test runs, we proposed work practice standards for HF and HCl in our April 2013 supplemental proposal. As explained in our April 2013 supplemental proposal, the EPA regards situations where, as here, the majority of measurements are BDL as being a situation where measurement is not “technologically practicable” within the meaning of CAA section 112(h). The EPA also believes that unreliable measurements raise issues of practicability, feasibility and enforceability. The application of measurement methodology in this situation would also not be “practicable due to . . . economic limitation” within the meaning of CAA section 112(h) because it would result in cost expended to produce analytically suspect measurements (78 FR 22387).
As discussed in the preamble to the 2013 supplemental proposal (78 FR 22387, April 15, 2013), under these circumstances, the EPA does not believe that it is technologically and economically practicable to measure HCl and HF emissions from this source category. “[A]pplication of measurement methodologies” (CAA section 112(h)(2)(B)) means more than taking a measurement. It must also mean that a measurement has some reasonable relation to what the source is emitting (
However, we disagree with the comment that in revising or promulgating MACT standards, the EPA may not use current test data showing that sources may have achieved much lower emissions levels as a result of complying with earlier standards. “EPA acted lawfully, in resetting the MACT floors based on post-compliance emissions data.”
When testing for indications that a pollutant is emitted by a source, if the results are below the detection limits of the method, that means that the pollutant was not, in fact, detected. We do not set emission limits for all 188 HAP on the list in CAA section 112(b), but only for those that are emitted from the processes. We required sources to test for HF and HCl, and most (over 80 percent) of sources did not detect either of those HAP in their emissions streams. When this is the case for over half the sources in the category, we believe it is not appropriate to set numerical limits for such pollutants.
The commenter recommended revising the rule to require facilities to “maintain internal documentation that work practices are in place that
The commenter also expressed support for the proposed requirement that these records would be maintained for inspection by a permitting authority.
The EPA may adopt a work practice standard rather than a numeric standard when “the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.” CAA sections 112(h)(1) and (2)(B). As previously explained, in response to comments, we had re-evaluated test data that we used to calculate the MACT floor for the proposed HCl and HF standards in our November 2011 proposal, and found that most of the test data reflected values below the detection limit of the test method. Specifically, over 80 percent of the test results were values indicating that both HCl and HF in the exhaust gas stream were below the detection limit of the methods. We believe such values are not a measurement of pollutants but rather an indication that such pollutants are not present in measurable concentrations. The EPA regards situations where, as here, the majority of measurements are below the detection limit as being a situation where measurement is not “technologically practicable” within the meaning of CAA section 112(h). The EPA also believes that unreliable measurements raise issues of practicability, feasibility and enforceability. The application of measurement methodology in this situation would also not be “practicable due to . . . economic limitation” within the meaning of CAA section 112(h) because it would result in cost expended to produce analytically suspect measurements. Therefore, for the reasons provided above, in the preambles for the 2013 and 2014 supplemental proposals, and in the comment summary and response document available in the docket, we are finalizing the work practice standards for HCl and HF emissions from furnaces at wool fiberglass manufacturing facilities that are major sources.
As we explained in our November 2014 supplemental proposal (79 FR 68012 at 68023), in order to protect furnace components, wool fiberglass facilities identify, isolate and screen out fluoride- and chloride-bearing materials such as glass from industrial (also known as continuous strand, or textile) fiberglass, CRTs, computer monitors that include CRTs, glass from microwave ovens and glass from televisions. The furnace emissions testing shows this is an effective work practice to reduce emissions of these acid gases. HF and HCl emissions occur when recycled glass from these types of materials enters the external cullet stream from the recycling center.
Owners/operators have two options for work practice standards. The first option is to require the providers of the external cullet to verify that the cullet does not include waste glass from the chloride-, fluoride, or fluorine-bearing sources mentioned above. The second option is to sample the raw materials to show the cullet entering the furnace does not contain glass from these types of sources.
We are finalizing work practice standards for the Wool Fiberglass Manufacturing source category that require wool fiberglass facilities to maintain records from either cullet suppliers or their internal inspections showing that the external cullet is free of components that can form HF or HCl in the furnace exhaust (
In its 2008 decision in
We also provided proposed regulatory text in the General Provisions applicability tables in each subpart in several respects consistent with vacatur of the SSM exemption. For example, we proposed eliminating the incorporation of the General Provisions' requirement in 40 CFR part 63, subpart NNN that the source develop an SSM plan. We also proposed eliminating and revising certain recordkeeping and reporting requirements that are related to the SSM exemption.
In our November 2014 supplemental proposal, we proposed that affected sources comply with practices that are used by the best performers in the source category (7968016).
We have not changed any aspect of the proposed SSM provisions for 40 CFR part 63, subparts NN and NNN since the 2014 supplemental proposal.
We received comments for and against the proposed revisions to remove the SSM exemptions for the Wool Fiberglass Manufacturing source category. The commenters who were against the proposed revisions did not provide new information or a basis for the EPA to change the proposed provisions and did not provide sufficient information to show that facilities cannot comply with the work practice standards during periods of startup and shutdown. The comments and our specific responses to those comments can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1042).
For the reasons provided above, in the preamble for the proposed rules, and in the comment summary and response document available in the docket, we have removed the SSM exemption from the Wool Fiberglass Manufacturing NESHAP for major and area sources; eliminated or revised certain recordkeeping and reporting requirements related to the eliminated SSM exemption; and removed or modified inappropriate, unnecessary, or redundant language in the absence of the SSM exemption. We are, therefore, finalizing our proposed determination that facilities comply with the work practice standards for periods of startup and shutdown for gas-fired glass-melting furnaces in 40 CFR part 63, subparts NN and NNN.
As stated in the preamble to the November 2011 proposal, the EPA is taking a step to increase the ease and efficiency of data submittal and data accessibility. Specifically, the EPA is requiring owners and operators of wool manufacturing facilities to submit electronic copies of certain required performance test reports. See the discussion in section III.G of this preamble for more detail.
For both major and area sources, we are finalizing, as proposed, the addition of EPA Method 29 for measuring the concentrations of chromium.
For major sources only, we are finalizing requirements for methods to measure PM, phenol, formaldehyde, and methanol. We are finalizing the requirement, as proposed, to maintain the filter temperature at 248 ± 25 degrees Fahrenheit when using Method 5 to measure PM emissions from furnaces. We are also amending the NESHAP to allow owners or operators to measure PM emissions from furnaces using either EPA Method 5 or Method 29.
We are finalizing, as proposed, the addition of EPA Method 318 for measuring the concentration of phenol and alternative test methods for measuring the concentration of methanol (EPA Methods 318 or 308). We are finalizing, as proposed, the replacement of a minimum sampling time of 1 hour with the specification to collect 10 spectra when using EPA Method 318. For Method 316, we are finalizing, as proposed, the requirement to collect a minimum sampling volume of 2 dscm; however, we are not finalizing the proposed minimum sampling run time for EPA Method 316 of 2 hours. We are also finalizing editorial changes to the performance testing and compliance procedures to specify formaldehyde, methanol, phenol, and chromium; and compliance procedures for HF and HCl.
Additionally, we are finalizing, as proposed, the requirement for existing sources to conduct performance tests to demonstrate compliance with the chromium emission limit for gas-fired furnaces no later than July 31, 2017, and annually thereafter. We are also finalizing, as proposed, the requirement for existing sources to conduct performance tests to demonstrate compliance with the phenol, formaldehyde, and methanol emissions limits for FA lines no later than July 31, 2017, and every 5 years thereafter. We are finalizing the requirement for new sources to conduct performance tests to demonstrate compliance with the emissions limits no later than January 25, 2016 or 180 days after initial startup, whichever is later. Gas-fired glass-melting furnaces must demonstrate compliance with the chromium emission limits annually after the first compliance test, and whenever the amount of cullet increases from that used in the most recent performance test
For major sources, we are clarifying, as proposed, that 40 CFR part 63, NNN applies to FA lines regardless of the product being manufactured on the FA line and we are finalizing the compliance period of 2 years for existing sources subject to the chromium, formaldehyde, HCl, HF, phenol, PM, and methanol emission limits.
For area sources, we are finalizing, as proposed, the compliance period of 2 years for existing sources subject to the chromium emission limits.
In this action, we are finalizing, as proposed, definitions that apply to both major and area sources. These include a definition for “gas-fired glass-melting furnace”, revisions to the definition of “new source”, and the notification requirements to update the citation to the November 2011 proposal. We are finalizing, as proposed, a definition for “incinerator” in 40 CFR part 63, NNN (major sources).
For both major and area sources, we are finalizing, as proposed, the monitoring requirements for furnaces to provide flexibility in establishing appropriate monitoring parameters. We are also requiring that facilities operating gas-fired furnaces maintain a 30-day rolling average of the percentage of cullet used in the raw materials fed to the furnace. To demonstrate compliance with this operating parameter, owners or operators must record a daily average value of the percentage of cullet used for each operating day and must include all of the daily averages recorded during the previous 30 operating days in calculating the rolling 30-day average.
For major sources only, we are also finalizing, as proposed, the monitoring requirements for FA lines, to provide flexibility in establishing appropriate monitoring parameters.
For major sources, we are also making minor corrections to the citations in Table 1 (40 CFR part 63 General Provision applicability table) to reflect the final amendments in this action, and the revisions that have been made to the General Provisions since 1999.
For area sources, we are identifying the applicability of part 40 CFR part 63 General Provisions to subpart NN.
We have not made any changes to the proposed provisions for electronic reporting; testing methods and frequency; applicability; compliance period; definitions; or the General Provision applicability table. However, we are revising the parameter monitoring standards of 40 CFR part 63, subpart NNN to require daily monitoring and recording of the percentage of cullet used in the raw materials fed to gas-fired glass-melting furnaces and calculation of a rolling 30-day average. The parameter monitoring requirements for area sources regulated by subpart NN reference the same requirements for major sources in 40 CFR part 63, subpart NNN.
We received several comments received regarding electronic reporting; testing methods and frequency; applicability; compliance period; parameter monitoring; definitions or revisions to the General Provisions applicability table. The following is a summary of the key comments received regarding the technology review and our responses to these comments. Additional comments regarding these changes to the NESHAP and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1042).
The commenter noted that one air-gas furnace was measured emitting high levels of chromium compounds, pointing out that it is different from other non-oxyfuel air-gas furnaces because it is not standard construction and it was at the end of its life. The commenter also added that furnace has now been shut down.
The commenter also indicated that, despite their potential for increased chrome emissions, oxyfuel furnaces will continue to be used for a number of important reasons, including environmental benefits: (1) Oxyfuel furnaces reduce NO
We disagree with the commenter that air-gas furnaces do not warrant a chromium emission limit. Furnace emissions test data were collected from all wool fiberglass manufacturing facilities to determine the scope and extent of the area source rule limits. The data collected for gas-fired furnaces show that oxyfuel furnaces, as the commenter correctly points out, have the greatest potential to emit chromium compounds, followed by air-gas furnaces. This is because both types of gas-fired furnaces operate at elevated temperatures (exceeding 3,000 degrees Fahrenheit) at and above the level of the glass melt (well in excess of the temperature required to liberate and oxidize chromium compounds from the chromium refractory of the furnace vessel), are heated with natural gas and air (air-gas) or natural gas and oxygen (oxyfuel), and are constructed using chromium refractories that are capable of resisting the corrosive and erosive wear inherent in wool fiberglass furnace environment.
In addition, as the commenter acknowledged, one air-gas furnace constructed using what the commenter described as a “non-standard design,” measured chromium emissions at levels higher than most of the oxyfuel furnaces that were tested. Additionally, according to industry comments and the information we collected under the 2012 ICR, all the oxyfuel furnaces in the source category are constructed using materials similar in type and chromium content to those used to construct the highest emitting oxyfuel furnace. There is nothing to prevent a similar furnace from being constructed at any site. However, as required, we set emissions limits based on the information available to us, and we find that both oxyfuel furnaces and air-gas furnaces have greater propensity than electric furnaces, by virtue of their construction, design, and operating temperatures, to form and emit chromium compounds.
As explained in the preamble to the 2013 supplemental proposal, these conditions (high temperatures, available chromium and corrosive furnace gases) are factors that contribute to higher chromium emissions at wool fiberglass furnaces. As stated by the commenter and by other industry representatives, wool fiberglass companies intend to expand their use of chromium refractories in furnace designs.
We disagree with the commenter's view that we should address specific facilities only for this regulation. First, we note that NESHAP are national rules that apply to source categories rather than individual facilities, and while we do have the ability to subcategorize by process size, type, or class, we cannot simply target an individual facility or facilities. Second, nothing prevents an oxyfuel or air-gas furnace similar to the high emitting furnaces to be constructed at any existing or new wool fiberglass facility, and it is incumbent upon the EPA to prevent the danger to public health that would result from such a furnace being located at other sites. As the commenter pointed out, “Despite their potential for increased chrome emissions, oxyfuel furnaces will continue to be used for a number of important reasons . . ..”, and as discussed in our 2011 proposal, we considered the resulting impact if the same furnace were to be constructed at any other existing wool fiberglass manufacturing site. As documented in our auxiliary risk characterization “Draft Residual Risk Assessment for the Mineral Wool Production and Wool Fiberglass Manufacturing Source Categories” and “Maximum Predicted HEM-3 Chronic Risks (Wool Fiberglass Manufacturing) based on Revised—What If Analysis,” available in the docket for this rulemaking (EPA-HQ-OAR-2010-1042-0086 and EPA-HQ-OAR-2010-1042-0263, respectively), we found that the CertainTeed facility in Athens, Georgia would have a risk of 400-in-1 million if it were to install a furnace similar to the high-chromium emitting furnace at Kansas City; and that the Athens, GA facility is now an area source that will be subject to the new area source standard (having recently phased out the use of phenol/formaldehyde on the bonded lines). While most wool fiberglass furnaces at area sources currently emit chromium at levels well below the proposed level of the chromium emission limits, the limits serve as a backstop to prevent high emitters from emitting chromium compounds in an uncontrolled manner.
The 1999 NESHAP specified that owners or operators must use EPA Method 5 with the filter temperature maintained at 350 ± 25 degrees Fahrenheit during for the test. However, Method 29 refers to the filter temperature specifications in Method 5 which requires that the filter be maintained at 248 ± 25 degrees Fahrenheit during testing. To maintain consistency with Method 29, we are amending the NESHAP to specify that owners or operators must maintain the filter temperature at 248 ± 25 degrees Fahrenheit when using Method 5 to measure filterable PM concentrations. We acknowledge that maintaining the Method 5 filter at 248 ± 25 degrees Fahrenheit during testing has the potential capture to more PM than would be captured at the higher filter temperature; however, we do not believe that the change in filter temperature that we are specifying in the final rule will result in wool fiberglass manufacturing facilities being in noncompliance with the final PM standards. As noted in the 2013 supplemental proposal (78 FR 22383), the data submitted to EPA, which includes filterable PM data collected using Method 29 and a filter temperature operating at 248 ± 25 degrees Fahrenheit, show that all gas-fired glass-melting furnaces are currently meeting the PM standard, as proposed, of 0.33 pounds of PM per ton of glass pulled.
For the reasons provided above and in the preamble for the proposed rule, we are finalizing the proposed provisions regarding electronic reporting; testing methods and frequency; applicability; compliance period; parameter monitoring; definitions; and the General Provision applicability table.
We are finalizing, as described in this final action, the chromium emission limits for both new and existing gas-fired glass-melting furnaces at area sources in the Wool Fiberglass Manufacturing source category (see Table 4 in section V.E of this preamble).
We initially proposed GACT standards for area sources in the Wool Fiberglass Manufacturing source category on April 15, 2013 (78 FR 22377). In that proposal, we proposed emission limits for chromium (0.00006 pounds per ton of glass pulled) and PM (0.33 pounds per ton of glass pulled) for gas-fired glass-melting furnaces at area sources. To maintain consistency with the major source rule, we proposed that facilities use the same requirements for PM and chromium test methods and monitoring, reporting and recordkeeping specified in 40 CFR part 63, subpart NNN. We also proposed to include an affirmative defense to civil penalties for violations of emission limits that are caused by malfunctions. In the 2014 supplemental proposal (79 FR 68024), we proposed removal of the PM emission limit based on public comments the EPA received asserting that setting both PM and chromium limits was not necessary. We reviewed the technologies and emissions test data for controls that are in place at wool fiberglass furnaces. In some test reports, we had both inlet and outlet measurements of both PM and chromium. From these tests we saw that, in order for furnaces to meet the chromium limit, they would have to control PM, a fraction of which is chromium compounds. Because chromium is the specific pollutant of concern from the furnace process, and because under the Strategy we may either address pollutants of concern through an appropriate surrogate, or directly regulate the pollutant of concern, we are setting emission limits only for chromium from area sources. However, affected sources will still need to achieve PM reductions in order to meet the chromium limit. The PM controls in place at gas-fired glass-melting furnaces achieve an average efficiency of 98 percent. PM in the furnace exhaust includes chromium, and due to the high production rate of the continuous furnace process, this can be a significant amount of chromium emitted during the course of a year. Source testing conducted on two wool fiberglass furnaces at one facility
In the 2014 supplemental proposal, we also withdrew our proposal to include an affirmative defense to civil penalties for violations of emission limits that are caused by malfunctions (79 FR 68015).
In response to comments on our proposed chromium compounds limits, and as discussed in section VI.A of this preamble, we are finalizing a chromium compounds emission limit for gas-fired glass-melting furnaces for major sources at wool fiberglass manufacturing facilities of 0.00025 pounds per ton of glass pulled. Consistent with our November 2014 supplemental proposal, we are not finalizing a PM emissions limit for gas-fired glass-melting furnaces at area sources.
Based on comments we received in response to the November 2014 supplemental proposal, we again reviewed the cost and control options and found using new cost information that the limit as proposed was not as cost effective as we initially believed. We determined that it was appropriate to modify the proposed limit of 0.00006 pounds per ton of glass pulled because the cost effectiveness for the emission reduction option was $660,000 per pound of chromium reduced for the raw material substitution option, and $620,000 per pound chromium reduced for the furnace rebuild option. We believe these costs are not reasonable compared to other cases where the EPA has regulated highly toxic pollutants, such as hexavalent chromium. We, therefore, reviewed the data to determine whether a higher limit than previously proposed would be more cost effective while still significantly reducing chromium emissions from wool fiberglass gas-fired glass-melting furnaces. We found that all gas-fired glass-melting furnaces located at wool fiberglass area sources currently emit chromium compounds at rates below 0.00025 pounds per ton of glass pulled. These area sources together emit 18 pounds of chromium compounds annually.
We compared the chromium emission reductions that would have resulted under the previously proposed emission limit of 0.00006 pounds per ton of glass pulled to the reductions that result from the final limit of 0.00025 pounds per ton of glass pulled. The limit of 0.00006 pounds per ton of glass pulled would have resulted in a chromium emissions reduction of 8.5 pounds per year at area sources. The final limit of 0.00025 pounds per ton of glass pulled does not result in any chromium emissions reductions. This is due to the overall low emissions of chromium at area sources based on the most recent test data. The furnaces at area sources are mostly new furnaces of advanced design. While immediate emission reductions would not be realized, this final limit sets a backstop so that another high-chromium-emitting, gas-fired glass-melting furnace cannot be operated at an area source in this industry. This is important for this industry because certain furnaces have been shown to emit increasing amounts of chromium as their high-chromium refractory lining begins to degrade.
We revised our GACT analysis as two approaches could be used by industry to reduce chromium emissions from gas-fired furnaces. One approach is to rebuild the furnace at an annualized cost of $462,000 per year per furnace, and the other is to replace one raw material (cullet) with another material (raw minerals), which the industry stated would result in lower chromium emissions, at an average cost of about $1.3 million per year, depending on the production rate of each area source facility. Industry test data show that area sources will need to maintain their currently low levels of chromium emissions to meet the 0.00025 pounds per ton limit.
Further, in evaluating available technology at area sources, we also considered the furnace technology for gas-fired glass-melting furnaces in use at major sources. Under CAA section 112(d)(5), we may set the GACT emission limit for area sources that provides for the use of generally available control technologies to reduce HAP, and we are not precluded from setting the limits for area sources equivalent to the limits for major sources. In this instance, as previously explained, there are no differences between gas-fired glass-melting furnaces in use at area and major sources. Moreover, major sources become area sources only by virtue of eliminating formaldehyde from their processes. Therefore, we believe that the control measure for reducing chromium emissions (
We received comments in support of and against our GACT analyses. The following is a summary of the key comments received regarding the GACT analysis for area sources in the Wool Fiberglass Manufacturing source category and our responses to these comments. Additional comments on the risk assessment and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2010-1042).
As documented in the preamble to the 2013 supplemental proposal (78 FR 22375, April 15, 2013) and in the memorandum “Technical Memorandum—Emission Standards for Meeting the 90 Percent Requirement under Section 112(c)(3) and Section 112(k)(3)(B) of the Clean Air Act” (February 18, 2011; EPA-HQ-OAR-2010-1042-0262), the EPA has achieved the 90 percent reduction of national chromium emissions required by the Strategy; however, as further stated in the 2013 supplemental proposal, nothing in the CAA prevents the agency from going beyond the statutory minimum of 90 percent, especially if generally available control technology for the source category is available at a reasonable cost. Indeed, to date, we have established emission standards for sources accounting for almost 100 percent of area source emissions of certain urban HAP (
Regarding the commenter's opinion that the reason the EPA is regulating gas-fired glass-melting furnaces as area sources is that these sources were once regulated under the NESHAP and that they are similar to major sources, the EPA did discuss these facts in the preamble to the 2013 supplemental proposal (78 FR 22382, April 15, 2013). These facts serve to inform the EPA's understanding of this area source category, but they are not the reason the EPA is regulating these area sources. The EPA is regulating gas-fired furnaces located at area sources to comply with the Strategy to address the annual emissions of chromium from these sources, as the EPA explained in the preamble to the 2013 supplemental proposal (78 FR 22375, April 15, 2013). In doing so, the EPA is addressing the high levels of chromium emissions, in particular hexavalent chromium emissions. As explained in the 2013 supplemental proposal preamble, gas-fired glass-melting furnaces in this source category have the potential to emit high emissions of chromium and to experience emission increases in the future:
Based on the chromium emissions data for gas-fired glass-melting furnaces in the source category available to the EPA, we have established that emissions for a furnace can vary according to its type, design, operation, and age. The EPA provided an example in the preamble to the 2013 supplemental proposal of such variability for the CertainTeed's Kansas City facility, the highest-emitting glass-melting furnace, for which chromium emissions (93 percent of which were in the hexavalent state) increased from 5 pounds per year to 540 pounds per year over a period of 7 years (78 FR 22381). These facts demonstrate the current and potential future high levels of chromium emitted from area sources. Further, the EPA has clearly indicated the high level of health risk associated with chromium emissions. In the preamble to the 2013 supplemental proposal, the EPA stated “Hexavalent chromium inhalation is associated with lung cancer, and EPA has classified it as a Class A known human carcinogen, per EPA's classification system for the characterization of the overall weight of evidence for carcinogenicity” (78 FR 22374, April 15, 2013).
Regarding the comment that the EPA has not complied with section 307 of the CAA because it has not provided to the public a summary of the basis for its decision to list gas-fired glass-melting furnaces as area sources (
Further, regarding the comment that the EPA has not complied with APA section 553 and section 307 of the CAA, we described our methodology for collecting these emissions data, as described in section II.E of the 2013 supplemental proposal preamble (78 FR 22376, April 15, 2013), and provided an opportunity for comment following that supplemental proposal. Regarding the legal basis for our listing area sources in section II.D, we presented this information in section II.E of the preamble to the 2013 supplemental proposal (78 FR 22376, April 15, 2013) in compliance with section 307.
Another commenter objected to the proposed regulation of area sources, given the limited value such a rule would provide. The commenter stated that the majority of wool fiberglass manufacturers are no longer major sources, observing that the most significant change since 1999 is the voluntary substitution of phenol/formaldehyde binders with non-phenol/formaldehyde binders, resulting in reduction in HAP emissions from this industry of the chief HAP regulated by the Wool Fiberglass MACT Standard.
Because of the considerations discussed above in this preamble, as well as in the preamble for the November 2014 supplemental proposal and in the comment summary and response document available in the docket (EPA-HQ-OAR-2010-1042), we are finalizing revised GACT standards.
In this action, we are revising the proposed chromium emission limit for gas-fired, glass-melting furnaces from 0.00006 to 0.00025 pounds of total chromium per ton of glass pulled, based on our re-assessment of emissions data for newly-rebuilt furnaces (see section VI.A.2 of this preamble for a discussion of the basis of the revised emission limit for chromium compounds). We are also requiring that facilities at both major and area sources establish the materials mix, including the percentages of raw minerals and cullet used in gas-fired glass-melting furnaces during the performance test conducted to demonstrate compliance with the chromium emission limit. The source must maintain the percentage of cullet in the raw material mixture at or below the level established during the most recent performance test showing compliance with the standard. If the gas-fired glass-melting furnace uses 100-percent cullet during the performance test and is in compliance with the chromium emissions limit, then the source is not required to monitor cullet usage. Other requirements for Wool Fiberglass Manufacturing area sources, including startup and shutdown, compliance dates, test methods, monitoring, recordkeeping, and reporting are the same requirements as those specified for major source facilities in 40 CFR part 63, subpart NNN. Therefore, 40 CFR part 63, subpart NN cites 40 CFR part 63, subpart NNN, for these requirements.
The GACT standards for gas-fired glass-melting furnaces located at Wool Fiberglass Manufacturing area sources being promulgated in this action are effective on July 29, 2015. The compliance date for existing sources is July 31, 2017. New sources must comply with the all of the standards immediately upon the effective date of the standard, July 29, 2015, or upon initial startup, whichever is later.
The effective and compliance dates finalized in this action are consistent with the dates we presented in the 2014 supplemental proposal.
The requirements for electronic reporting of performance test data for wool fiberglass manufacturing area sources are the same as the requirements for the mineral wool production source category. See section III.G of this preamble for a description of the requirements.
We estimate that there are eight mineral wool facilities that are major sources and, therefore, would be subject to the final NESHAP provisions.
We estimate that there are 30 facilities in this source category (10 major sources and 20 area sources). Based on the responses to the CAA section 114 ICR, we believe that two of the 10 wool fiberglass manufacturing facilities that are major sources would rebuild two furnaces before the end of their operational lifecycles. We believe that all furnaces at area sources can comply with the final chromium emission limit without rebuilding before the end of their operational lifecycles.
Emissions of HAP from mineral wool production facilities have declined over the last decade as a result of federal and state rules and the industry's own initiatives. The amendments we are finalizing in this action would maintain COS, formaldehyde, phenol, and methanol emissions at their current low levels.
We expect that these final RTR amendments would result in reductions of 524 pounds of chromium compounds, 490 pounds of which is in the hexavalent form. Available information indicates that all affected facilities will be able to comply with the final work practice standards for HF and HCl without additional controls, and that there will be no measurable reduction in emissions of these gases.
Also, we anticipate that there will be continued reductions in PM emissions due to these final PM standards, which all sources currently are meeting due to the use of well-performing PM controls. Industry comments, statements, and sources in the technical literature indicate that as sources of industrial oxygen become available in areas proximate to wool fiberglass facilities, such sources will convert their existing furnaces to oxyfuel technology. As described in the “Mechanisms of Chromium Emissions From Wool Fiberglass Glass-Melting Furnaces,” June 2015, PM emissions are greatly reduced compared to electric furnaces and air-gas furnace technology.
Indirect or secondary air quality impacts include impacts that will result from the increased electricity usage
All lines currently in operation can meet the emission limits finalized in this action without installing new control equipment or using different input materials. The total annualized costs for these final amendments are estimated at $48,800 (2013 dollars) for additional testing and monitoring.
The capital costs for each facility were estimated based on the ability of each facility to meet the final emissions limits for PM, chromium compounds, formaldehyde, phenol, and methanol. The memorandum, “Cost Impacts of the Final NESHAP RTR Amendments for the Wool Fiberglass Manufacturing Source Category,” includes a complete description of the cost estimate methods used for this analysis and is available in the docket.
There are a total of eight gas-fired glass-melting furnaces located at five major source facilities. Compliance testing is $10,000 per furnace, resulting in total testing costs for glass-melting furnaces of $80,000. At this time, there are two facilities with a total of two gas-fired glass-melting furnaces that do not meet the final emissions limit for chromium compounds. We anticipate that these facilities would opt to reduce the operational lifecycle for both of the gas-fired glass-melting furnaces.
Based on the public comments and information received in response to November 2014 supplemental proposal, we revised our cost estimate from reducing the operational furnace lifecycle (from 10 to 7 years), to a cost estimate for rebuilding gas-fired glass-melting furnaces. In this cost estimate, we included the cost of transferring production to another facility while the furnace is being rebuilt.
For major sources, the estimated capital cost of rebuilding the furnace is $10.7 million per furnace with a total annualized cost of $462,000 per furnace.
Two major source facilities operate 13 FA manufacturing lines, and, therefore, would incur testing costs (annualized cost of $10,400 in 2013 dollars). The total annualized costs for the final amendments to the Wool Fiberglass Manufacturing NESHAP for major sources are estimated at $1.01 million (2013 dollars).
Of the 20 area source facilities, five facilities operate a total of eight gas-fired glass-melting furnaces. Under these final amendments, none of the area source wool fiberglass facilities will incur any capital costs to comply with the final chromium compounds emissions limit. Five area source facilities would be subject to new costs for compliance testing on gas-fired glass-melting furnaces, which will total $80,000 annually (2013 dollars).
As noted in the November 2014 supplemental proposal (79 FR 68025), we performed an economic impact analysis for mineral wool consumers and producers nationally. The impacts to producers affected by this final rule are annualized costs of less than 0.01 percent of their revenues, using 2013 year revenue data to be consistent with the cost year for our analysis. Prices and output for mineral wool products should increase by no more than the impact of cost to revenues for producers; thus, mineral wool prices should increase by less than 0.01 percent. Hence, the overall economic impact of this final rule would be negligible to the affected industries and their consumers. For more information, please refer to the “Economic Impact and Small Business Analysis” for this final rulemaking that is in the docket (EPA-HQ-OAR-2010-1042).
We performed an economic impact analysis for wool fiberglass consumers and producers nationally, using the annual compliance costs estimated for both the RTR and area source final rules. The impacts to producers affected by this final rule are annualized costs of less than 0.01 percent of their revenues, using 2013 revenue data to be consistent with the cost year for our analysis. Prices and output for wool fiberglass products should increase by no more than the impact on cost to revenues for producers; thus, wool fiberglass prices should increase by less than 0.01 percent. Hence, the overall economic impact of this final rule would be negligible on the affected industries and their consumers. For more information, please refer to the “Economic Impact and Small Business Analysis” for this final rulemaking that is in the docket (EPA-HQ-OAR-2010-1042).
The amendments we are finalizing in this action will maintain the reductions in COS, formaldehyde, phenol, and methanol emissions that the industry has achieved over time at their currently low levels.
We estimate that this action will achieve HAP emissions reduction of 524 pounds per year of chromium compounds from the Wool Fiberglass Manufacturing source category. The final standards will result in significant reductions in the actual and MACT-allowable emissions of chromium compounds and will reduce the actual and potential cancer risks and non-cancer health effects due to emissions of chromium compounds from this source category.
In the November 2014 supplemental proposal (79 FR 68026), we estimated that the proposed emission limits for FA and RS manufacturing lines would reduce organic HAP emissions by 123 tons per year. Based on the available data, we believe that all FA lines currently meet the final emission limits; therefore, all of the emission reductions of organic HAP presented in the 2014 supplemental proposal were attributed to RS lines. As discussed in section V.H of this preamble, we are not establishing emission limits for RS manufacturing lines in this final action. Consequently, the emissions limits for formaldehyde, methanol, and phenol finalized in this action do not achieve reductions of organic HAP; however, the emission limits codify the reductions in organic HAP from FA lines that have been achieved by the industry since the 1999 NESHAP was promulgated. We have issued a CAA section 114 ICR to obtain process and emissions data for RS manufacturing lines and we will evaluate RTR limits for these sources, based on the CAA section 114 ICR data, at a future date.
The EPA is making environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low income populations in the United States. The EPA has established policies regarding the integration of
Following these recommendations, to gain a better understanding of the source category and near source populations, the EPA conducted a proximity analysis for mineral wool production and wool fiberglass manufacturing facilities prior to proposal to identify any overrepresentation of minority, low income, or indigenous populations. This analysis gives an indication of the prevalence of sub-populations that may be exposed to air pollution from the sources.
The EPA also conducted a risk-based socio-economic analysis for populations living near wool fiberglass facilities titled “Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near Wool Fiberglass Facilities,” which is available in the docket. The analysis indicated that 1,207,000 individuals living within 50 km of the wool fiberglass facilities have a cancer risk of 1-in-1 million or greater due to emissions from wool fiberglass facilities. The specific demographic results indicate that the percentage of minority population potentially impacted by emissions from wool fiberglass facilities (
The EPA's integration of environmental justice into the agency's rulemaking efforts was also thoroughly demonstrated by EPA's Region 7 response to emissions data obtained through this rulemaking. Region 7 proactively engaged the local community and identified potential environmental concerns; conducted air monitoring and modeling; and opened lines of communication and launched several opportunities for the community to voice concerns, ask questions, and receive additional information. Additionally, EPA Headquarters and Region 7 worked together to provide resources for communities, as well as to ensure that feedback received from the Region 7 communities was being considered in this rulemaking.
Through our analyses, the EPA has determined that these final rules for 40 CFR part 63, subparts NN, DDD, and NNN will not have disproportionately high and adverse human health or environmental effects on minority, low income, or indigenous populations. Additionally, the final changes to the NESHAP for Mineral Wool Production and Wool Fiberglass Manufacturing source categories increase the level of environmental protection for all affected populations by reducing emissions of chromium compounds by over 524 pounds per year and will not cause any disproportionately high and adverse human health or environmental effects on any population, including any minority, low income, or indigenous populations. Our demographic analysis shows that disproportionately impacted minority areas will benefit from the lower emissions. Further details concerning this analysis are presented in the memorandum titled, “Updated Environmental Justice Review: Mineral Wool Production and Wool Fiberglass Manufacturing RTR,” a copy of which is available in the dockets for this action.
As part of the health and risk assessments, risk-based demographic analysis conducted for this action, risks to infants and children were assessed. This analysis is documented in the following memoranda which are available in the dockets for this action:
• “Residual Risk Assessment for the Mineral Wool Production and Wool Fiberglass Manufacturing Source Categories in Support of the June 2015 Final Rule”
• “Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near Wool Fiberglass Facilities”
The results of the risk-based socio-economic analysis for populations living near wool fiberglass facilities indicates that there are 1,207,000 individuals living within 50 km of the wool fiberglass facilities have a cancer risk of 1-in-1-million or greater (based on actual emissions). The distribution of the population with risks above 1-in-1 million is 24 percent for ages 0 to 17, 66 percent for ages 18 to 64, and 10 percent for ages 65 and up. Children ages 0 to 17 also constitute 24 percent of the population nationwide. Therefore, the analysis shows that actual emissions from wool fiberglass facilities do not have a disproportionate impacts on children ages 0 to 17.
The results of the demographic analysis show that the average percentage of children 17 years and younger in close proximity to mineral wool production and wool fiberglass manufacturing facilities is similar to the percentage of the national population in this age group. The difference in the absolute number of percentage points of the population 17 years and younger from the national average indicates a 7-percent over-representation near mineral wool production and wool fiberglass manufacturing facilities.
Consistent with the EPA's “Policy on Evaluating Health Risks to Children”, we conducted inhalation and multipathway risk assessments for the Mineral Wool Production and Wool Fiberglass Manufacturing source categories considering risk to infants and children.
For our multipathway screening assessment (
Based on the analyses described above, the EPA has determined that the
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 these rules have been submitted for approval to the OMB under the PRA. The ICR document that the EPA prepared for the Mineral Wool Production source category has been assigned EPA ICR number 1799.06. The ICR document that the EPA prepared for the Wool Fiberglass Manufacturing source category has been assigned EPA ICR number 1160.10. You can find a copy of these ICRs in the dockets for these rules, and they are briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
The information requirements in these rulemakings 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).
Mineral Wool Production source category:
Wool Fiberglass Manufacturing source category (major sources):
Wool Fiberglass Manufacturing source category (area sources):
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. Five of the eight mineral wool production parent companies affected in the final rule are considered to be small entities per the definition provided in this section. There are no small businesses in the Wool Fiberglass Manufacturing source category. We estimate that these final rules will not have a significant economic impact on any of those companies.
While there are some costs imposed on affected small businesses as a result of these rulemakings, the costs associated with this action are less than the costs associated with the limits proposed on November 25, 2011. Specifically, the cost to small entities in the Mineral Wool Production source category due to the changes in COS, HF, and HCl are lower as compared to the limits proposed on November 25, 2011, and April 15, 2013. None of the five small mineral wool parent companies is expected to have an annualized compliance cost of greater than 1 percent of its revenues. All other affected parent companies are not small businesses according to the SBA small business size standard for the affected NAICS code (NAICS 327993). Therefore, we have determined that the impacts for this final rule do not constitute a significant economic impact on a substantial number of small entities.
Although these final rules would not have a significant economic impact on a substantial number of small entities, the EPA nonetheless has tried to mitigate the impact that these rules would have on small entities. The actions we took to mitigate impacts on small businesses include less frequent compliance testing for the entire mineral wool industry and subcategorizing the Mineral Wool Production source category in developing the proposed COS, HF and HCl emissions limits. For more information, please refer to the economic impact and small business analysis that is in the docket.
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. These final rules impose requirements on owners and operators of specified area and major sources, and not tribal governments. There are no wool fiberglass manufacturing facilities or mineral wool production facilities owned or operated by Indian 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 sections IV.A, VI.A, VIII.F, VIII.G of this preamble and in the “Residual Risk Assessment for the Mineral Wool Production and Wool Fiberglass Manufacturing Source Categories” memorandum available in the dockets for this rulemaking.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking involves technical standards. Therefore, the EPA conducted searches for the Wool Fiberglass Manufacturing Area Source NESHAP through the Enhanced National Standards Systems Network (NSSN) Database managed by the American National Standards Institute (ANSI). We also contacted voluntary consensus standards (VCS) organizations and accessed and searched their databases.
As discussed in the November 2014 supplemental proposal (79 FR 68029), under 40 CFR part 63 subpart DDD, we conducted searches for EPA Methods 5, 318, and 320 of 40 CFR part 60, Appendix A. Under 40 CFR part 63, subpart NNN, we conducted searches for EPA Methods 5, 318, 320, 29, and 0061 of 40 CFR part 60, Appendix A. Under 40 CFR part 63, subpart NN, we conducted searches for EPA Methods 5 and 29. These searches did not identify any VCS that were potentially applicable for this rule in lieu of EPA reference methods. The EPA solicited comments on VCS and invited the public to identify potentially-applicable VCS; however, we did not receive comments regarding this aspect of 40 CFR part 63, subparts NN, DDD, or NNN.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations because it does not affect the level of protection provided to human health or the environment. As explained in the November 2014 supplemental proposal (79 FR 68029), the EPA determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations, because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. Further details concerning this analysis are presented in the memorandum titled, “Updated Environmental Justice Review: Mineral Wool Production and Wool Fiberglass Manufacturing RTR”, a copy of which is available in the dockets for this action. Additionally, the EPA engaged meaningfully with communities throughout this rulemaking process, to help them engage in the rulemaking process and to get their feedback on the proposed rulemaking. Also, EPA worked closely with Region 7, to ensure that communities that raised concerns by the sectors covered in this rulemaking, were being adequately engaged throughout this process.
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, Mineral wool production, Reporting and recordkeeping requirements, Wool fiberglass manufacturing.
For the reasons stated in the preamble, part 63 of title 40, chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(a) The requirements of this subpart apply to the owner or operator of each wool fiberglass manufacturing facility that is an area source or is located at a facility that is an area source.
(b) The requirements of this subpart apply to emissions of chromium compounds, as measured according to the methods and procedures in this subpart, emitted from each new and existing gas-fired glass-melting furnace located at a wool fiberglass manufacturing facility that is an area source.
(c) The provisions of subpart A of this part that apply and those that do not apply to this subpart are specified in Table 1 to this subpart.
(d) Gas-fired glass-melting furnaces that are not subject to subpart NNN of this part are subject to this subpart.
(e) Gas-fired glass-melting furnaces using electricity as a supplemental energy source are subject to this subpart.
Terms used in this subpart are defined in the Clean Air Act, in § 63.2, or in this section as follows:
(a)
(b)
(1)(i) You must initiate corrective action within one hour of an alarm from a bag leak detection system and complete corrective actions in a timely manner according to the procedures in the operations, maintenance, and monitoring plan.
(ii) You must implement a Quality Improvement Plan consistent with the compliance assurance monitoring provisions of 40 CFR part 64, subpart D when the bag leak detection system alarm is sounded for more than 5 percent of the total operating time in a 6-month block reporting period.
(2)(i) You must initiate corrective action within one hour when any 3-hour block average of the monitored electrostatic precipitator (ESP) parameter is outside the limit(s) established during the performance test as specified in § 63.884 and complete corrective actions in a timely manner according to the procedures in the operations, maintenance, and monitoring plan.
(ii) You must implement a Quality Improvement Plan consistent with the compliance assurance monitoring provisions of 40 CFR part 64, subpart D when the monitored ESP parameter is outside the limit(s) established during the performance test as specified in § 63.884 for more than 5 percent of the total operating time in a 6-month block reporting period.
(iii) You must operate the ESP such that the monitored ESP parameter is not outside the limit(s) established during the performance test as specified in § 63.884 for more than 10 percent of the total operating time in a 6-month block reporting period.
(3)(i) You must initiate corrective action within one hour when any 3-hour block average value for the monitored parameter(s) for a gas-fired glass-melting furnace, which uses no add-on controls, is outside the limit(s) established during the performance test as specified in § 63.884 and complete corrective actions in a timely manner according to the procedures in the operations, maintenance, and monitoring plan.
(ii) You must implement a Quality Improvement Plan consistent with the compliance assurance monitoring provisions of 40 CFR part 64, subpart D when the monitored parameter(s) is outside the limit(s) established during the performance test as specified in § 63.884 for more than 5 percent of the total operating time in a 6-month block reporting period.
(iii) You must operate a gas-fired glass-melting furnace, which uses no add-on technology, such that the monitored parameter(s) is not outside the limit(s) established during the performance test as specified in § 63.884 for more than 10 percent of the total operating time in a 6-month block reporting period.
(4)(i) You must initiate corrective action within one hour when the average glass pull rate of any 4-hour block period for gas-fired glass-melting furnaces equipped with continuous glass pull rate monitors, or daily glass pull rate for glass-melting furnaces not so equipped, exceeds the average glass pull rate established during the performance test as specified in § 63.884, by greater than 20 percent and complete corrective actions in a timely manner according to the procedures in the operations, maintenance, and monitoring plan.
(ii) You must implement a Quality Improvement Plan consistent with the compliance assurance monitoring provisions of 40 CFR part 64, subpart D when the glass pull rate exceeds, by more than 20 percent, the average glass pull rate established during the performance test as specified in § 63.884 for more than 5 percent of the total operating time in a 6-month block reporting period.
(iii) You must operate each gas-fired glass-melting furnace such that the glass pull rate does not exceed, by more than 20 percent, the average glass pull rate established during the most recent successful performance test as specified in § 63.884 for more than 10 percent of the total operating time in a 6-month block reporting period.
(5)(i) You must initiate corrective action within one hour when the average pH (for a caustic scrubber) or pressure drop (for a venturi scrubber) for any 3-hour block period is outside the limits established during the performance tests as specified in § 63.884 for each wet scrubbing control
(ii) You must implement a Quality Improvement Plan consistent with the compliance assurance monitoring provisions of 40 CFR part 64, subpart D when any scrubber parameter is outside the limit(s) established during the performance test as specified in § 63.884 for more than 5 percent of the total operating time in a 6-month block reporting period.
(iii) You must operate each scrubber such that each monitored parameter is not outside the limit(s) established during the performance test as specified in § 63.884 for more than 10 percent of the total operating time in a 6-month block reporting period.
You must meet all applicable monitoring requirements contained in subpart NNN of this part.
(a) If you are subject to the provisions of this subpart you must conduct a performance test to demonstrate compliance with the applicable emission limits in § 63.882. For existing sources, compliance is demonstrated when the emission rate of the pollutant is equal to or less than each of the applicable emission limits in § 63.882 by July 31, 2017. For new sources compliance is demonstrated when the emission rate of the pollutant is equal to or less than each of the applicable emission limits in § 63.882 by January 25, 2016 or 180 days after initial startup, whichever is later. You must conduct the performance test according to the procedures in subpart A of this part and in this section.
(b) You must meet all applicable performance test requirements contained in subpart NNN of this part.
(a) You must use the following methods to determine compliance with the applicable emission limits:
(1) Method 1 at 40 CFR part 60, appendix A-1 for the selection of the sampling port location and number of sampling ports;
(2) Method 2 at 40 CFR part 60, appendix A-1 for volumetric flow rate;
(3) Method 3 or 3A (40 CFR part 60, appendix A-2) for oxygen and carbon dioxide for diluent measurements needed to correct the concentration measurements to a standard basis;
(4) Method 4 at 40 CFR part 60, appendix A-4 for moisture content of the stack gas;
(5) Method 29 (40 CFR part 60, appendix A-8) for the concentration of chromium compounds. Each run must consist of a minimum sample volume of two dry standard cubic meters.
(6) An alternative method, subject to approval by the Administrator.
(b) Each performance test must consist of three runs. You must use the average of the three runs in the applicable equation for determining compliance.
You must meet all applicable notification, recordkeeping and reporting requirements contained in subpart NNN of this part.
(a)
(1) Except as noted in paragraph (a)(3) of this section, the compliance date for an owner or operator of an existing source subject to the provisions in this subpart would be July 31, 2017.
(2) Except as noted in paragraph (a)(3) of this section, the compliance date for new and reconstructed sources is upon initial startup of a new gas-fired glass-melting furnace or on July 29, 2015, whichever is later.
(3) The compliance date for the provisions related to the electronic reporting provisions of § 63.886 is on July 29, 2015.
(b)
You must meet all applicable startup and shutdown provisions contained in subpart NNN of this part.
(a) You must control emissions from each cupola as specified in Table 2 to this subpart.
(b) * * *
(3) Additionally, on or after the applicable compliance date for each new or reconstructed cupola, you must either:
(i) Maintain the operating temperature of the incinerator so that the average operating temperature for each three-hour block period never falls below the average temperature established during the performance test, or
(ii) Maintain the percent excess oxygen in the cupola at or above the level established during the performance test. You must determine the percent excess oxygen using the following equation:
(a) You must control emissions from each curing oven or combined collection/curing operations as specified in Table 2 to this subpart.
(b) You must meet the following operating limits for each curing oven or combined collection/curing operation:
(a) Cupolas and curing ovens or combined collection/curing operations. You must comply with the emissions limits specified in Table 2 to this subpart no later than the dates specified in Table 2 to this subpart.
(b) 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 which 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.
To comply with the carbon monoxide, carbonyl sulfide, hydrogen fluoride, and hydrogen chloride standards, you must meet the following:
(a) Install, calibrate, maintain, and operate a device that continuously measures the operating temperature in the firebox of each thermal incinerator.
(b) Conduct a performance test as specified in § 63.1188 that shows compliance with the carbon monoxide, carbonyl sulfide, hydrogen fluoride, and hydrogen chloride emissions limits specified in Table 2 to this subpart, while the device for measuring incinerator operating temperature is installed, operational, and properly calibrated. Establish the average operating temperature based on the performance test as specified in § 63.1185(a).
To comply with the formaldehyde, phenol, and methanol standards, you must meet all of the following:
(b) Conduct a performance test as specified in § 63.1188 while manufacturing the product that requires a binder formulation made with the resin containing the highest free-formaldehyde content specification range. Show compliance with the formaldehyde, phenol, and methanol emissions limits, specified in Table 2 to this subpart, while the device for measuring the control device operating parameter is installed, operational, and properly calibrated. Establish the average operating parameter based on the performance test as specified in § 63.1185(a).
(d) Following the performance test, monitor and record the free-formaldehyde content of each resin lot and the formulation of each batch of binder used, including the formaldehyde, phenol, and methanol content.
(b) Conduct a performance test, consisting of three test runs, for each cupola and curing oven or combined collection/curing operation subject to this subpart at the maximum production rate to demonstrate compliance with each of the applicable emissions limits specified in Table 2 to this subpart.
(c) Following the initial performance or compliance test to be conducted within 180 days of the effective date of this rule, you must conduct a performance test to demonstrate compliance with each of the applicable emissions limits specified in Table 2 to this subpart, at least once every 5 years.
(d) To demonstrate compliance with the applicable emission limits specified in Table 2 to this subpart, measure emissions of PM, carbon monoxide, carbonyl sulfide, hydrogen fluoride, and hydrogen chloride from each existing, new, or reconstructed cupola.
(e) To demonstrate compliance with the applicable emission limits specified in Table 2 to this subpart, measure emissions of formaldehyde, phenol, and methanol from each existing, new, or reconstructed curing oven or combined collection/curing operation.
(f) To demonstrate compliance with the applicable emission limits specified in Table 2 to this subpart, measure emissions at the outlet of the control device for PM, carbon monoxide, carbonyl sulfide, hydrogen fluoride, hydrogen chloride, formaldehyde, phenol, and methanol.
(g) Method 318 at 40 CFR part 60, appendix A to this part for the concentration of formaldehyde, phenol, methanol, and carbonyl sulfide.
(i) Method 26A or 320 at 40 CFR part 60, appendix A to this part for the concentration of hydrogen fluoride and hydrogen chloride.
(b) Using the results from the performance tests, you must use the following equation to determine compliance with the carbon monoxide, carbonyl sulfide, hydrogen fluoride, hydrogen chloride, formaldehyde, phenol, and methanol numerical emissions limits as specified in Table 2 to this subpart:
You must submit written or electronic notifications to the Administrator as required by § 63.9(b) through (h). Electronic notifications are encouraged when possible. These notifications include, but are not limited to, the following:
(d) Records must be maintained in a form suitable and readily available for expeditious review, according to § 63.10 of the General Provisions that are referenced in Table 1 to this subpart. Electronic recordkeeping is encouraged.
(a) 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 (a)(1) or (2) of this section.
(1) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (
(2) 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.
(b) [Reserved]
(g) All reports required by this subpart not subject to the requirements in paragraph (a) of this section must be sent to the Administrator at the appropriate address listed in § 63.13. If acceptable to both the Administrator and the owner or operator of a source, these reports may be submitted on electronic media. The Administrator retains the right to require submittal of reports subject to paragraph (a) of this section in paper format.
The additions and revision read as follows:
(a) The provisions set forth in this subpart apply at all times.
(b) You must not shut down items of equipment that are utilized for compliance with this subpart during times when emissions are being, or are otherwise required to be, routed to such items of equipment.
(c) Startup begins when fuels are ignited in the cupola. Startup ends when the cupola produces molten material.
(d) Shutdown begins when the cupola has reached the end of the melting campaign and is empty. No molten material continues to flow from the cupola during shutdown.
(e) During periods of startups and shutdowns you must operate your cupola according to one of the following methods:
(1) You must keep records showing that your emissions were controlled using air pollution control devices operated at the parameters established by the most recent performance test that showed compliance with the standard; or
(2) You must keep records showing the following:
(i) You used only clean fuels during startup and shutdown; and
(ii) You operate the cupola during startup and shutdown with three percent oxygen over the fuel demand for oxygen.
(b) * * *
(3) Each new and existing flame attenuation wool fiberglass manufacturing line producing a bonded product.
The addition and revisions read as follows:
(a) You must control emissions from each glass-melting furnace, rotary spin manufacturing line, and flame attenuation manufacturing line as specified in Table 2 to this subpart.
(b) On or after July 29, 2015 to reduce emissions of hydrogen chloride and hydrogen fluoride from each existing, new, or reconstructed glass-melting furnace, you must either:
(1) Require cullet providers to provide records of their inspections showing that no glass from industrial (also known as continuous strand, or textile) fiberglass, cathode ray tubes (CRT), computer monitors that include CRT, and glass from microwave ovens, televisions or other electronics is included in the cullet; or
(2) Sample your raw materials and maintain records of your sampling showing that the cullet is free of glass from industrial fiberglass, cathode ray tubes, computer monitors that include cathode ray tubes, and glass from microwave ovens, televisions or other electronics.
(c) * * *
(11) The owner or operator must maintain the percentage of cullet in the materials mix for each gas-fired glass-melting furnace at or below the level established during the performance test as specified in § 63.1384(a)(4).
(f) If you use a control device to control HAP emissions from a glass-melting furnace, RS manufacturing line, or FA manufacturing line, you must install, calibrate, maintain, and operate a monitoring device that continuously measures an appropriate parameter for the control device. You must establish the value of that parameter during the performance test conducted to demonstrate compliance with the applicable emission limit as specified in Table 2 to this subpart.
(m) For all control device and process operating parameters measured during the initial performance tests, including the materials mix used in the test, you may change the limits established during the initial performance tests if you conduct additional performance testing to verify that, at the new control device or process parameter levels, you comply with the applicable emission limits specified in Table 2 to this subpart. You must conduct all additional performance tests according to the procedures in this part 63, subpart A and in § 63.1384.
(a) * * *
(4) The owner or operator shall conduct a performance test for each existing and new gas-fired glass-melting furnace. During the performance test of each gas-fired glass-melting furnace, the owner or operator must measure and record the materials mix, including the percentages of raw materials and cullet, melted in the furnace during the performance test.
(c) To determine compliance with the emission limits specified in Table 2 to this subpart, for formaldehyde for RS manufacturing lines; formaldehyde, phenol, and methanol for FA manufacturing lines; and chromium compounds for gas-fired glass-melting furnaces, use the following equation:
(d) Following the initial performance or compliance test conducted to demonstrate compliance with the chromium compounds emissions limit specified in Table 2 to this subpart, you must conduct an annual performance test for chromium compounds emissions from each gas-fired glass-melting furnace (no later than 12 calendar months following the previous compliance test).
(e) Following the initial performance or compliance test to demonstrate compliance with the PM, formaldehyde, phenol, and methanol emissions limits specified in Table 2 to this subpart, you must conduct a performance test to
(a) * * *
(5) Method 5 or Method 29 (40 CFR part 60, appendix A-3) for the concentration of total PM. When using Method 5, each run must consist of a minimum sample volume of 2 dry standard cubic meters (dscm). When using Method 29, each run must consist of a minimum sample volume of 3 dscm. When measuring PM concentration using either Method 5 or 29, the probe and filter holder heating system must be set to provide a gas temperature no greater than 120±14°C (248±25 °F).
(6) For measuring the concentration of formaldehyde, use one of the following test methods:
(i) Method 318 (appendix A of this part). Each test run must consist of a minimum of 10 spectra.
(ii) Method 316 (appendix A of this part). Each test run must consist of a minimum of 2 dry standard cubic meters (dscm) of sample volume.
(10) For measuring the concentration of phenol, use Method 318 (appendix A of this part). Each test run must consist of a minimum of 10 spectra.
(11) For measuring the concentration of methanol, use one of the following test methods:
(i) Method 318 (appendix A of this part). Each test run must consist of a minimum of 10 spectra.
(ii) Method 308 (appendix A of this part). Each test run must consist of a minimum of 2 hours.
(12) Method 29 (40 CFR part 60, appendix A-8) for the concentration of chromium compounds. Each test run must consist of a minimum sample volume of 3 dscm.
(a) * * *
(2) Notification that a source is subject to the standard, where the initial startup is before November 25, 2011.
(3) Notification that a source is subject to the standard, where the source is new or has been reconstructed the initial startup is after November 25, 2011, and for which an application for approval of construction or reconstruction is not required;
(4) Notification of intention to construct a new affected source or reconstruct an affected source; of the date construction or reconstruction commenced; of the anticipated date of startup; of the actual date of startup, where the initial startup of a new or reconstructed source occurs after November 25, 2011, and for which an application for approval or construction or reconstruction is required (See § 63.9(b)(4) and (5));
(c)
(2) For each failure to meet a standard record and retain a list of the affected source or equipment, an estimate of the volume of each regulated pollutant emitted over the standard for which the source failed to meet the standard, and a description of the method used to estimate the emissions.
(3) Record actions taken to minimize emissions in accordance with § 63.1382, including corrective actions to restore process and air pollution control and monitoring equipment to its normal or usual manner of operation.
(4) If an affected unit fails to meet a standard, report such events in the notification of compliance status required by § 63.1386(a)(7). Report the number of failures to meet a standard since the prior notification. For each instance, report the date, time, and duration of each failure. For each failure the report must include a list of the affected units or equipment, an estimate of the volume of each regulated pollutant emitted over the standard, and a description of the method used to estimate the emissions.
(d) * * *
(2) * * *
(x) Records of your cullet sampling or records of inspections from cullet providers.
(xi) For each gas-fired glass-melting furnace that uses cullet, records of the daily average cullet percentage, and the 30-day rolling average percent cullet in the materials mix charged to the furnace. The initial daily average should be recorded on the compliance date and the first 30-day rolling average should be calculated 30 days after the compliance date.
(f) Within 60 days after the date of completing each performance test (as defined in § 63.2) required in this subpart, you must submit the results of the performance tests, including any associated fuel analyses, following the procedure specified in either paragraph (f)(1) or (2) of this section.
(1) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (
(2) 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.
(g) All reports required by this subpart not subject to the requirements in paragraph (f) of this section must be sent to the Administrator at the appropriate address listed in § 63.13. If acceptable to both the Administrator and the owner or
(a)
(c) 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 which 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) The provisions set forth in this subpart apply at all times.
(b) You must not shut down items of equipment that are required or utilized for compliance with the provisions of this subpart during times when emissions are being, or are otherwise required to be, routed to such items of equipment.
(c) Startup begins when the wool fiberglass glass-melting furnace has any raw materials added and reaches 50 percent of its typical operating temperature. Startup ends when molten glass begins to flow from the wool fiberglass glass-melting furnace. For cold-top electric furnaces, startup ends when the batch cover is established and the temperature of the glass batch-cover surface is below 300 °F.
(d) Shutdown begins when the heat sources to the glass-melting furnace are reduced to begin the glass-melting furnace shut down process. Shutdown ends when the glass-melting furnace is empty or the contents are sufficiently viscous to preclude glass flow from the glass-melting furnace.
(e) During periods of startup and shutdown in a cold-top furnace that is routed to a baghouse during normal operation, you must establish the batch cover and operate your furnace according to the following requirements during startup and shutdown:
(1) You must keep records showing that you used only natural gas or other clean fuels to heat each furnace; and
(2) Except after batch cover is established, you must keep records showing that you used only cullet as a raw material during the startup of each cold-top furnace; and
(3) Once a batch cover is established and a control device can be safely operated, you must keep records showing that furnace emissions were controlled using air pollution control devices operated at the parameters established by the most recent performance test that showed compliance with the standard.
(4) During periods of shutdown in a cold-top furnace, until the conditions above the glass reach a point at which the control device may be damaged if it continues to operate, you must keep records showing furnace emissions were controlled using air pollution control devices operated at the parameters established by the most recent performance test that showed compliance with the standard.
(f) During both periods of startups and shutdowns for all furnace types other than cold-top furnaces, you must operate each furnace according to the following requirements:
(1) You must record the type of fuel used to heat the furnace during startup and shutdown to demonstrate that you used only natural gas or other clean fuels; and
(2) You must keep records showing that furnace emissions were controlled using air pollution control devices operated at the parameters established by the most recent performance test that showed compliance with the standard.
Environmental Protection Agency (EPA).
Proposed rule; notice of conference.
In this action, the Environmental Protection Agency (EPA) proposes to revise the
Within this action, the EPA is also announcing the Eleventh Conference on Air Quality Modeling and invites the public to participate in the conference. The conference will focus on the proposed revisions to the
Comments must be received on or before October 27, 2015.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0310, by one of the following methods:
•
•
•
•
•
Mr. George M. Bridgers, Air Quality Assessment Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C439-01, Research Triangle Park, NC 27711; telephone: (919) 541-5563; fax: (919) 541-0044; email:
The following topics are discussed in this preamble:
This action applies to federal, state, territorial, and local air quality management programs that conduct air quality modeling as part of State Implementation Plan (SIP) submittals and revisions, New Source Review (NSR), including new or modifying industrial sources under Prevention of Significant Deterioration (PSD), Conformity, and other air quality assessments required under EPA regulation. Categories and entities potentially regulated by this action include:
1.
2.
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
In addition to being available in the docket, an electronic copy of this proposed rule will also be available on the Worldwide Web (WWW) through the EPA's Technology Transfer Network (TTN). Following signature, a copy of this proposed rule will be posted on the TTN's Support Center for Regulatory Atmospheric Modeling (SCRAM) Web site at the following address:
The
The EPA originally published the
To support the process of developing and revising the
In October 1988, we held the Fourth Conference on Air Quality Modeling to advise the public on new modeling techniques and to solicit comments to guide our consideration of any rulemaking needed to further revise the
The Seventh Conference was held in June 2000, and also served as a public hearing for another round of proposed changes to the recommended air quality models in the
Subsequently, the EPA revised the
We held the Eighth Conference on Air Quality Modeling in September 2005. This conference provided details on changes to the preferred air quality models, including available methods for model performance evaluation and the notice of data availability that the EPA published in September 2003, related to the incorporation of the PRIME downwash algorithm in the AERMOD dispersion model (in response to comments received from the Seventh Conference). Additionally, at the Eighth Conference, a panel of experts discussed the use of state-of-the-science prognostic meteorological data for informing the dispersion models.
The EPA further revised the
The Ninth Conference on Air Quality Modeling was held in October 2008, and emphasized the following topics: Reinstituting the Model Clearinghouse, review of non-guideline applications of dispersion models, regulatory status updates of AERMOD and CALPUFF, continued discussions on the use of prognostic meteorological data for informing dispersion models, and presentations reviewing the available model evaluation methods.
The most recent EPA modeling conference was the Tenth Conference on Air Quality Modeling held in March 2012. This conference covered multiple topics which have been vital in the development of the proposed revisions to the
The EPA promulgated a new 1-hour NAAQS for NO
Several presentations at the Tenth Modeling Conference addressed issues and challenges associated with demonstrating compliance with these new 1-hour NAAQS for NO
Prior to the promulgation of the 1-hour NO
These presentations included an overview of an API funded study to develop a Tier 2 ambient ratio method for the 1-hour NO
In addition, modeling of single-source impacts for ozone and secondarily formed PM
As introduced at the Tenth Modeling Conference, the Interagency Workgroup on Air Quality Modeling (IWAQM) process was formally reinitiated in June 2013 to inform the EPA's process of updating the
Interested persons may provide the EPA with their views on the proposed revisions to the
The public hearing for this action and the Eleventh Conference on Air Quality Modeling will be held August 12-13, 2015, from 8:30 a.m. to 5:00 p.m., in the EPA Auditorium, Room C111, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711. On August 12, 2015, the first half of the conference will consist of a structured agenda with presentations. The second half of the first and all of the second day (August 13, 2015), is reserved for the public hearing on this proposed rule. Advance requests for reserved time to speak during the public hearing should be submitted by August 7, 2015, to Mr. George M. Bridgers, Air Quality Assessment Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C439-01, Research Triangle Park, NC 27711; telephone: (919) 541-5563; fax: (919) 541-0044; email:
The Eleventh Conference on Air Quality Modeling will begin with introductory remarks by the presiding EPA official. The EPA staff will then provide an overview of the revisions to the
At the conclusion of the presentations, the EPA will convene the public hearing on the proposed revisions to the
Those wishing to reserve time to speak at the public hearing, whether to volunteer a presentation on a special topic or to offer general comment on any of the modeling techniques scheduled for presentation, should contact us at the address given in the
Any person in attendance wishing to speak at the public hearing who has not reserved time prior to the conference may provide oral comments on the proposed revisions to the
Additional written statements or comments on the proposed revisions should be sent to the OAR Regulatory Docket (
In this action, the EPA is proposing two type of revisions to the
This section provides a detailed overview of the substantive proposed changes to the
The EPA's PSD permitting regulations specify that “[a]ll applications of air quality modeling involved in this subpart shall be based on the applicable models, data bases, and other requirements specified in appendix W of this part (
Ambiguity can result because the
Considering the non-mandatory language used throughout the
“Although appendix W has been promulgated as codified regulatory text, appendix W provides permit issuers broad latitude and considerable flexibility in application of air quality modeling. Appendix W is replete with references to “recommendations,” “guidelines,” and reviewing authority discretion.”
Although this approach is typical throughout the
Based on studies presented and discussed at the Tenth Modeling Conference, and additional relevant research since 2010, the EPA and other researchers have conducted additional model evaluations and developed changes to the model formulation of the AERMOD modeling system to improve model performance in its regulatory applications. We propose the following updates to the AERMOD modeling system to address a number of technical concerns expressed by stakeholders:
1. A proposed option incorporated in AERMET to adjust the surface friction velocity (u*) to address issues with AERMOD model overprediction under stable, low wind speed conditions. This proposed option is selected by the user with the METHOD STABLEBL ADJ_U* record in the AERMET Stage 3 input file.
2. A proposed low wind option in AERMOD to address issues with model overprediction under low wind speed conditions. The low wind option will increase the minimum value of the lateral turbulence intensity (sigma-v) from 0.2 to 0.3 and adjusts the dispersion coefficient to account for the effects of horizontal plume meander on the plume centerline concentration. It also eliminates upwind dispersion which is incongruous with a straight-line, steady-state plume dispersion model such as AERMOD. The proposed option is selected by specifying “LOWWIND3” on the CO MODELOPT keyword in the AERMOD input file.
3. Modifications to AERMOD formulation to address issues with overprediction for applications involving relatively tall stacks located near relatively small urban areas (no user input is required).
4. Proposed regulatory default options in AERMOD to address plume rise for horizontal and capped stacks based on the July 9, 1993, Model Clearinghouse memorandum,
5. A proposed buoyant line source option, based on the BLP model, has been incorporated in AERMOD. This proposed option is selected by the model user with the SOURCE type “BOUYLINE” to specify the individual buoyant line source locations and emissions and the new “BLAVGVAL” keyword to specify average parameters for a composite buoyant line.
6. Proposed updates to the NO
Model performance evaluation and peer scientific review references for the updated AERMOD modeling system are cited, as appropriate. An updated user's guide and model formulation documents for version 15181 have been placed in the docket. We have updated the summary description of the AERMOD modeling system to appendix A of the
We invite comments on whether we have reasonably addressed the technical concerns expressed by the stakeholder community and are on sound footing to recommend these updates to the regulatory default version of the AERMOD modeling system which includes its replacement of BLP as an appendix A model for the intended regulatory applications.
In the preamble of the 2005
We invite comment on incorporation of AERSCREEN into the
Section 5.2.4 of the 2005
In January 2010, a new 1-hour NO
For the Tier 2 technique, the EPA is proposing to replace the existing ARM with a revised Ambient Ratio Method 2 (ARM2). The existing Tier 2 technique, ARM, was based on a study that focused exclusively on long-term averages.
For the Tier 3 technique, the EPA proposes that the existing detailed screening options of the Ozone Limiting Method (OLM)
We invite comments on whether we have reasonably addressed technical concerns regarding the 3-tiered demonstration approach and specific NO
The 2005
We solicit comments on our proposal to identify AERMOD as a replacement for CALINE3 as an appendix A model for its intended regulatory applications.
On January 4, 2012, the EPA granted a petition submitted on behalf of the Sierra Club on July 28, 2010,
In the petition grant, the EPA committed to engage in rulemaking to evaluate whether updates to the
The EPA initiated Phase 3 of the IWAQM process in June 2013 to inform this process to update the
For this proposed revision to the
Quantifying secondary pollutant formation requires simulating chemical reactions and thermodynamic partitioning in a realistic chemical and physical environment. Chemical transport models treat atmospheric chemical and physical processes such as deposition and transport. There are two types of chemical transport models, which are differentiated based on a fixed frame of reference (
Comparing these two types of chemical transport models, photochemical grid models are integrated, three-dimensional grid-based models that treat chemical and physical processes in each grid cell and use Eulerian diffusion and transport processes to move chemical species to other grid cells.
In light of these differences between photochemical grid models and Lagrangian models that address chemistry, the EPA believes photochemical grid models are generally most appropriate for addressing ozone and secondary PM
For assessing secondary pollutant impacts from single sources, the degree of complexity required to assess potential impacts varies depending on the nature of the source, its emissions, and the background environment. In order to provide the user community flexibility in estimating single-source secondary pollutant impacts and given the emphasis on the use of photochemical grid models for these purposes, the EPA is proposing a two-tiered demonstration approach for addressing single-source impacts on ozone and secondary PM
To fully implement these proposed changes to the
While the development of MERPs for ozone and secondary PM
For those situations for which existing modeling or screening estimates are not available or appropriate, the second tier proposed by the EPA would apply and involve use of more sophisticated case-specific chemical transport models (
Near-source in-plume aircraft based measurement field studies provide an opportunity for evaluating model estimates of (near-source) downwind transport and chemical impacts from single stationary point sources.
We invite comments on whether the proposed two-tiered demonstration approach and related EPA guidance is appropriately based on sound science and practical application of available models and tools to address single-source impacts on ozone and secondary PM
The 2003
To determine if a Class I PSD increment analyses may be necessary beyond 50 km (
As previously noted, Phase 3 of the IWAQM process was reinitiated in June 2013 to inform the EPA's commitment to update the
To inform future consideration of visibility modeling in regulatory applications consistent with proposed changes for addressing chemistry for single-source impact on ozone and secondary PM
Photochemical transport models are suitable for estimating visibility and deposition since important physical and chemical processes related to the formation and transport of PM are realistically treated. Source sensitivity and apportionment techniques implemented in photochemical grid models have evolved sufficiently and provide the opportunity for estimating potential visibility and deposition impacts from one or a small group of emission sources using a full science photochemical grid model. Photochemical grid models using meteorology output from prognostic meteorological models have demonstrated skill in estimating source-receptor relationships in the near-field
It is important that modeling tools used for single-source long-range transport impacts assessments demonstrate skill in adequately replicating source-receptor relationships that are not in close proximity. For
In 2005, the EPA issued guidelines for implementation of the best available retrofit technology (BART) requirements under the Regional Haze Rule. In these BART Guidelines, the EPA addressed the question of how states could best predict a single source's contribution to visibility impairment.
The current version of the
The proposed changes to the
The EPA is seeking comment on its proposed screening approach to address long-range transport for purposes of assessing PSD increments; its decision to remove CALPUFF as a preferred model in appendix A for such long-range transport assessments; and its decision to consider CALPUFF as a screening technique along with other Lagrangian models to be used in consultation with the appropriate reviewing authority. It is important to note that the EPA's proposed action to remove CALPUFF as an appendix A model in this
The EPA's Model Clearinghouse has been a fundamental aspect of communication between the EPA Region Offices and with the broader permitting community on technical modeling and compliance demonstration issues for almost three decades. The Model Clearinghouse serves a critical role in helping resolve issues that arise from unique situations that are not specifically addressed in the
In this action, we are proposing to codify the long-standing process of the Regional Offices consulting and coordinating with the Model Clearinghouse on all approvals of alternative models or techniques. While the Regional Administrators are the delegated authority to issue such approvals under section 3.2 of the
We invite comment on our proposal to codify existing practice of requiring consultation and coordination between the EPA Regional Offices and the EPA's Model Clearinghouse on all approvals under section 3.2 of alternative models or techniques.
Based on input from the Tenth Modeling Conference and recent permit modeling experiences under new short-term NAAQS for SO
We have provided a more definitive definition of the appropriate modeling domain and how to best characterize the various contributions to air quality concentrations within that domain. Specifically, we provide the following recommendations:
• Definition and/or factors to consider in determining appropriate modeling domain for NAAQS and PSD increment assessments and for SIP attainment demonstrations (
• Revised requirements on how to characterize emissions from nearby sources to be explicitly modeled for purposes of a cumulative impact assessment under PSD and new language regarding how to characterize direct and precursor emissions from modeled sources for SIP attainment demonstrations for ozone, PM
• Revised recommendations on how to determine background concentrations in constructing the design concentration, or total air quality concentration, as part of a cumulative impact analysis for NAAQS and PSD increments. Specific recommendations are proposed for situations involving isolated single-source(s) and multi-source areas (
Given the added complexity of the technical issues that arise in the context of demonstrating compliance with NAAQS through dispersion modeling, we strongly encourage adherence to the recommendations in section 9.2.1 of the proposed
We invite comments on whether the updates proposed in section 8 of the
For near-field dispersion modeling applications using National Weather Service (NWS) Automated Surface Observing Stations (ASOS), the EPA released a pre-processor to AERMET, called AERMINUTE, in 2011 that calculates hourly averaged winds from 2-minute winds reported every minute at NWS ASOS sites. AERMET substitutes these hourly averaged winds for the standard hourly observations, thus reducing the number of calms and missing winds for input into AERMOD. The presence of calms and missing winds were due to the METAR reporting methodology of surface observations. In March 2013, the EPA released a memorandum regarding the use of ASOS data in AERMOD as well as the use of AERMINUTE. When using meteorological data from ASOS sites for input to AERMOD, hourly averaged winds from AERMINUTE should be used in most cases.
For a near-field dispersion modeling application where there is no representative NWS station, and it is prohibitive or not feasible to collect adequately representative site-specific data, it may be necessary to use prognostic meteorological data for the application. The EPA released the MMIF program that converts the prognostic meteorological data into a format suitable for dispersion modeling applications. The most recent 3 years of prognostic data are preferred. Use of the prognostic data is contingent on the concurrence of the appropriate reviewing authorities and collaborating agencies that the data are of acceptable quality and representative of the modeling application.
We solicit comments on our proposed updates regarding use of meteorological input data for regulatory application of dispersion models.
In previous rulemakings to revise the
The EPA believes such a transition period is appropriate to avoid the time and expense of revisiting modeling that is substantially complete, which would cause undue delays to permit applications that are pending when the proposed revisions to the
Where a proposed revision to the
The EPA is proposing to make editorial changes to update and reorganize information throughout the
Editorial changes are described below for each affected section. We invite comment on any of the changes proposed below for the
Only a few minor text revisions are proposed to this section for consistency with the remainder of the
The EPA propose to update the introduction section to reflect the reorganized nature of the revised
The EPA proposes to revise section 2 to more appropriately discuss the process by which models are evaluated and considered for use in particular applications. We propose to incorporate information from the previous section 9 pertaining to model accuracy and uncertainty within this section to clarify how model performance evaluation is critical in determining the suitability of models for particular application.
We also propose to provide a discussion in section 2.1 (Model Accuracy and Uncertainty) of the three types of models historically used for regulatory demonstrations. For each type of model, some strengths and weaknesses are listed to assist readers in the understanding of the particular regulatory applications to which they are most appropriate.
In addition, the EPA proposes revisions to section 2.2 with respect to the recommended practice of progressing from simplified and conservative air quality analysis toward more complex and refined analysis. In this section, the EPA proposes to clarify distinctions between various types of models that have previously been described as screening models. In addition, this section clarifies distinctions between models used for screening purposes and screening techniques and demonstration tools that may be acceptable in certain applications.
The EPA proposes minor modifications to section 3 to more accurately reflect current EPA practices and by moving the discussion of the EPA's Model Clearinghouse to a revised section 3.3 for ease of reference and prominence within the
The EPA proposes to significantly revise section 4 to incorporate the modeling approaches recommended for air quality impact analyses for the criteria pollutants of CO, lead, SO
As proposed, this section provides an in-depth discussion of screening and refined models, including the introduction of AERSCREEN as the recommended screening model for simple and complex terrain for single sources and options for multi-source screening with AERMOD.
The EPA is proposing to add a subsection specifically addressing the modeling recommendations for SO
As already stated, much of the previous section 5 with respect to the inert criteria pollutants is proposed to be incorporated into the revised section 4. As proposed, the revised section 5 is now focused only on the modeling approaches recommended for ozone and secondary PM
Both ozone and secondary PM
While the proposed revision to section 5 do not specify a particular EPA-preferred model or technique for use in air quality assessments, a two-tiered screening approach is proposed for ozone and secondary PM
Revisions to section 6 are proposed to more clearly address the modeling recommendations of other federal agencies, such as the FLM(s), that have been developed in response to EPA rules or standards. While no attempt is made to comprehensively discuss each topic, the EPA proposes to provide appropriate references to the respective federal agency guidance documents.
The proposed revision to section 6 focus primarily on AQRVs, including near-field and long-range transport assessments for visibility impairment and deposition. The interests of the Bureau of Ocean Energy and Management for Outer Continental Shelf permitting situations and of the Federal Aviation Administration for airport and air base permitting situations are represented in proposed section 6.3 (Modeling Guidance for Other Governmental Programs).
The discussion of Good Engineering Practices (GEP) for stack height consideration is proposed to be modified and moved to section 7. The EPA proposed to remove the discussion of long-range transport for PSD Class I increment and references to the previously preferred long-range transport model, CALPUFF, in accordance with the more detailed discussion in the Proposed Actions section of this Preamble.
We propose to revise section 7 to be more streamlined and appropriate to the variety of general modeling issues and considerations that are not already been covered in sections 4, 5, and 6 of the
The EPA proposes to expand the recommendations for determining rural or urban dispersion coefficients to provide more clarity with respect to appropriate characterization within AERMOD, including a discussion on the existence of highly industrialized areas where population density is low that may be best treated with urban rather than rural dispersion coefficients. References to CALPUFF in the Complex Winds subsection are proposed to be removed due to technical issues described in the Proposed Actions section of this preamble. As proposed, if necessary for special complex wind situations, the setup and application of an alternative model should now be determined in consultation with the appropriate reviewing authority. Finally, the EPA proposes to revise section 7 to include a new discussion of modeling considerations specific to mobile sources.
The EPA propose extensive updates and modifications to section 8 to reflect current EPA practices, requirements, and recommendations for determining the appropriate modeling domain and model input data from new or modifying source(s) or sources under consideration for a revised permit limit, from background concentrations (including air quality monitoring data and nearby and others sources), and from meteorology. As with earlier sections, the EPA proposes to modify section 8 to incorporate requirement subsections where previously section 8 ambiguously included various requirements under recommendation subheadings.
The Background Concentration subsection is proposed to be significantly modified from the existing
The use of prognostic mesoscale meteorological models to provide meteorological input for regulatory dispersion modeling applications is proposed to be incorporated throughout the Meteorological Input Data subsection, including the introduction of the MMIF as a tool to inform regulatory model applications. Other than additional minor modifications to the recommendations through this subsection based on current EPA practices, the most substantive proposed edits relate to the recommendation to use the AERMINUTE meteorological data processor to calculate hourly average wind speed and direction when processing NWS ASOS data for developing AERMET meteorological inputs to the AERMOD dispersion model.
The EPA proposes to move all of the information previously in section 9 related to model accuracy and evaluation into other sections in the revised
The EPA proposes to revise the discussion portion of section 9 to more clearly summarize the general concepts presented in earlier sections of the
The information related to design concentrations is proposed to be updated and unified from previous language found in sections 7 and 10. An expanded discussion of receptor sites is proposed based on language from the previous section 7 and new considerations given past practices of model users tending to define an excessively large and inappropriate number of receptors based on vague guidance.
The recommendations for NAAQS and PSD increment compliance demonstrations are proposed to be overhauled to more clearly and accurately reflect the long-standing EPA recommendation and practice of performing a single-source impact analysis as a first stage of the NAAQS and PSD increment compliance demonstration and, as necessary, conducting a more comprehensive cumulative impact analysis as the second stage. The appropriate considerations and applications of screening and/or refined model are described in each stage.
Finally, the section on Use of Measured Data in Lieu of Model Estimates subsection is proposed to be revised to provide more details on the process for determining the rare circumstances in which air quality monitoring data may be considered for determining the most appropriate emissions limit for a modification to an existing source. As with other portions of the revised section 9, the language throughout this subsection is proposed to be updated to reflect current EPA practices, as appropriate.
As discussed, the majority of the information found previously in section 10 is proposed to be incorporated into the revised section 9. As proposed, section 10 consists of the references that were in the previous section 12. We also propose to update each reference, as appropriate, based on the text revisions throughout the
In a streamlining effort, the EPA proposes to remove this bibliography section from the
As stated earlier, this references section is now proposed as section 10 with appropriate updates.
The EPA proposes to revise appendix A to the
This proposed action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore not subject to OMB review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This proposed action does not impose an information collection burden subject to OMB review under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities, small entity is defined as (1) a small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
The modeling techniques described in this proposed action are primarily used by air agencies and by industries owning major sources subject to NSR permitting requirements. To the extent that any small entities would have to conduct air quality assessments, using the models and/or techniques described in this proposed action are not expect to pose any additional burden (compared to the existing models and/or techniques) on these entities. The proposal features updates to the existing EPA-preferred model, AERMOD, that serves to increase efficiency and accuracy by changing only mathematical formulations and specific data elements. Also, this proposed action will streamline resources necessary to conduct necessary modeling with AERMOD by incorporating model algorithms from the BLP model and replacing CALINE3 for mobile source applications. Although this proposed action calls for new models and/or techniques for use in addressing ozone and secondary PM
After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
This proposed action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This proposed action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule does not create a mandate on state, local or tribal governments nor does it impose any enforceable duties on these entities. This action would add better, more accurate techniques for conducting air quality assessments and does not add
This proposed action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed rule imposes no requirements on tribal governments. Accordingly, Executive Order 13175 does not apply to this action. In the spirit of Executive Order 13175, the EPA specifically solicits additional comment on this proposed action from tribal officials.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This rulemaking does not involve technical standards.
The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment.
Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate Matter, Reporting and recordkeeping requirements, Sulfur oxides.
For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:
23 U.S.C. 101; 42 U.S.C. 7401-7671q.
a. Industry and control agencies have long expressed a need for consistency in the application of air quality models for regulatory purposes. In the 1977 Clean Air Act (CAA), Congress mandated such consistency and encouraged the standardization of model applications. The
b. The continuing development of new air quality models in response to regulatory requirements and the expanded requirements for models to cover even more complex problems have emphasized the need for periodic review and update of guidance on these techniques. Historically, three primary activities have provided direct input to revisions of the
c. Based primarily on these three activities, new sections and topics have been included as needed. The EPA does not make changes to the guidance on a predetermined schedule, but rather on an as-needed basis. The EPA believes that revisions of the
a. The
b. Air quality measurements
c. It would be advantageous to categorize the various regulatory programs and to apply a designated model to each proposed source needing analysis under a given program. However, the diversity of the nation's topography and climate, and variations in source configurations and operating characteristics dictate against a strict modeling “cookbook.” There is no one model capable of properly addressing all conceivable situations even within a broad category such as point sources. Meteorological phenomena associated with threats to air quality standards are rarely amenable to a single mathematical treatment; thus, case-by-case analysis and judgment are frequently required. As modeling efforts become more complex, it is increasingly important that they be directed by highly competent individuals with a broad range of experience and knowledge in air quality meteorology. Further, they should be coordinated closely with specialists in emissions characteristics, air monitoring and data processing. The judgment of experienced meteorologists, atmospheric scientists, and analysts is essential.
d. The model that most accurately estimates concentrations in the area of interest is always sought. However, it is clear from the needs expressed by the EPA Regional Offices, by state, local, and tribal agencies, by many industries and trade associations, and also by the deliberations of Congress that consistency in the selection and application of models and databases should also be sought, even in case-by-case analyses. Consistency ensures that air quality control agencies and the general public have a common basis for estimating pollutant concentrations, assessing control strategies, and specifying emissions limits. Such consistency is not, however, promoted at the expense of model and database accuracy. The
e. Recommendations are made in the
f. From time to time, situations arise requiring clarification of the intent of the guidance on a specific topic. Periodic workshops are held with EPA headquarters, EPA Regional Office, and state, local, and tribal agency modeling representatives to ensure consistency in modeling guidance and to promote the use of more accurate air quality models, techniques, and databases. The workshops serve to provide further explanations of
g. All changes to the
h. A wide range of topics on modeling and databases are discussed in the
i. Appendix W to 40 CFR part 51 contains an appendix: Appendix A. Thus, when reference is made to “appendix A” in this document, it refers to appendix A to appendix W to 40 CFR part 51. Appendix A contains summaries of refined air quality models that are “preferred” for particular applications; both EPA models and models developed by others are included.
a. Increasing reliance has been placed on concentration estimates from air quality models as the primary basis for regulatory decisions concerning source permits and emission control requirements. In many situations, such as review of a proposed new source, no practical alternative exists. Before attempting to implement the guidance contained in this document, the reader should be aware of certain general information concerning air quality models and their evaluation and use. Such information is provided in this section.
a. The extent to which a specific air quality model is suitable for the assessment of source impacts depends upon several factors. These include: (1) The topographic and meteorological complexities of the area; (2) the detail and accuracy of the input databases,
b. Air quality models are most accurate and reliable in areas that have gradual transitions of land use and topography. Meteorological conditions in these areas are spatially uniform such that observations are broadly representative and air quality model projections are not further complicated by a heterogeneous environment. Areas subject to major topographic influences experience meteorological complexities that are often difficult to measure and simulate. Models with adequate performance are available for increasingly complex environments. However, they are resource intensive and frequently require site-specific observations and formulations. Such complexities and the related challenges for the air quality simulation should be considered when selecting the most appropriate air quality model for an application.
c. Appropriate model input data should be available before an attempt is made to evaluate or apply an air quality model. Assuming the data are adequate, the greater the detail with which a model considers the spatial and temporal variations in meteorological conditions and permit-enforceable emissions, the greater the ability to evaluate the source impact and to distinguish the effects of various control strategies.
d. There are three types of models that have historically been used in the regulatory demonstrations applicable in the
i. Gaussian plume models use a “steady-state” approximation, which assumes that over the model time step, the emissions, meteorology and other model inputs, are constant throughout the model domain, resulting in a resolved plume with the emissions distributed throughout the plume according to a Gaussian distribution. This formulation allows Gaussian models to estimate near-field impacts of a limited number of sources at a relatively high resolution, with temporal scales of an hour and spatial scales of meters. However, this formulation allows for only relatively inert pollutants, with very limited considerations of transformation and removal (
ii. Lagrangian puff models, on the other hand, are non-steady-state, and assume that model input conditions are changing over the model domain and model time step. Lagrangian models can also be used to determine near and far-field impacts from a limited number of sources at a high resolution. Traditionally, Lagrangian models have been used for relatively inert pollutants, with slightly more complex considerations of removal than Gaussian models. Some Lagrangian models treat in-plume gas and particulate chemistry. However, these models require time and space varying concentration fields of oxidants and, in the case of fine particulate matter (PM
iii. Photochemical grid models are three-dimensional Eulerian grid-based models that treat chemical and physical processes in each grid cell and use diffusion and transport processes to move chemical species between grid cells.
e. Competent and experienced meteorologists, atmospheric scientists, and analysts are an essential prerequisite to the successful application of air quality models. The need for such specialists is critical when the more sophisticated models are used or the area being investigated has complicated meteorological or topographic features. It is important to note that a model applied improperly or with inappropriate data can lead to serious misjudgments regarding the source impact or the effectiveness of a control strategy.
f. The resource demands generated by use of air quality models vary widely depending on the specific application. The resources required may be important factors in the selection and use of a model or technique for a specific analysis. These resources depend on the nature of the model and its complexity, the detail of the databases, the difficulty of the application, the amount and level of expertise required, and the costs of manpower and computational facilities.
a. The formulation and application of air quality models are accompanied by several sources of uncertainty. “Irreducible” uncertainty stems from the “unknown” conditions, which may not be explicitly accounted for in the model (
b. Evaluations of model accuracy should focus on the reducible uncertainty associated with physics and the formulation of the model. The accuracy of the model is normally determined by an evaluation procedure which involves the comparison of model concentration estimates with measured air quality data.
c. Since the 1980's, the EPA has worked with the modeling community to encourage development of standardized model evaluation methods and the development of continually improved methods for the characterization of model performance.
• Scientific peer review;
• Supportive analyses (diagnostic evaluations, code verification, sensitivity analyses);
• Diagnostic and performance evaluations with data obtained in trial locations; and
• Statistical performance evaluations in the circumstances of the intended applications.
d. Performance evaluations allow the EPA and model users to determine the relative performance of a model in comparison with alternative modeling systems. Diagnostic evaluations allow determination of a model capability to simulate individual processes that affect the results, and usually employ smaller spatial/temporal scale date sets (
a. It is desirable to begin an air quality analysis by using simplified or conservative methods (or both) followed, as appropriate, by more complex and refined methods. The purpose of this approach is to streamline the process and sufficiently address regulatory requirements by eliminating the need of more detailed modeling when it is not necessary in a specific regulatory application. For example, in the context of a PSD permit application, a simplified or conservative analysis may be sufficient where it shows the proposed construction clearly will not cause or contribute to ambient concentrations in excess of either the NAAQS or the PSD increments.
b. There are two general levels of sophistication of air quality models. The first level consists of screening models that provide conservative modeled estimates of the air quality impact of a specific source or source category based on simplified assumptions of the model inputs (
c. The second level consists of refined models that provide more detailed treatment of physical and chemical atmospheric processes, require more detailed and precise input data, and provide spatially and temporally resolved concentration estimates. As a result they provide a more sophisticated and, at least theoretically, a more accurate estimate of source impact and the effectiveness of control strategies.
d. There are situations where a screening model or a refined model is not available such that screening and refined modeling are not viable options to determine source-specific air quality impacts. In such situations, a screening technique or reduced-form model may be viable options for estimating source impacts.
i. Screening techniques are differentiated from a screening model in that screening techniques are approaches that make simplified and conservative assumptions about the physical and chemical atmospheric processes important to determining source impacts while screening models make assumptions about conservative inputs to a specific model. The complexity of screening techniques ranges from simplified assumptions of chemistry applied to refined or screening model output to sophisticated approximations of the chemistry applied within a refined model.
ii. Reduced-form models are computationally efficient simulation tools for characterizing the pollutant response to specific types of emission reductions for a particular geographic area or background environmental conditions that reflect underlying atmospheric science of a refined model but reduce the computational resources of running a complex, numerical air quality model such as a photochemical grid model.
e. Consistent with the general principle described in paragraph 2.2(a), the EPA may establish a demonstration tool or method as a sufficient means for a user or applicant to make a demonstration required by regulation, either by itself or as part of a modeling demonstration. To be used for such regulatory purposes, such a tool or method must be reflected in a codified regulation or have a well-documented technical basis and reasoning that is contained or incorporated in the record of the regulatory decision in which it is applied.
a. For most of the screening and refined models discussed in the
a. This section specifies the approach to be taken in determining preferred models for use in regulatory air quality programs. The status of models developed by the EPA, as well as those submitted to the EPA for review and possible inclusion in this
b. When approval is required for a specific modeling technique or analytical procedure in this
c. In all regulatory analyses, early discussions among the EPA Regional Office staff, state, local, and tribal agency staff, industry representatives, and where appropriate, the FLM, are invaluable and are strongly encouraged. Prior to the actual analyses, agreement on the databases to be used, modeling techniques to be applied, and the overall technical approach helps avoid misunderstandings concerning the final results and may reduce the later need for additional analyses. The preparation of a written modeling protocol that is vetted with the appropriate reviewing authority helps to keep misunderstandings and resource expenditures at a minimum.
d. The identification of preferred models in this
a. The EPA has developed some models suitable for regulatory application, while other models have been submitted by private developers for possible inclusion in the
b. An American Society for Testing and Materials (ASTM) reference
c. When a single model is found to perform better than others, it is recommended for application as a preferred model and listed in appendix A. If no one model is found to clearly perform better through the evaluation exercise, then the preferred model listed in appendix A may be selected on the basis of other factors such as past use, public familiarity, resource requirements, and availability. Accordingly, the models listed in appendix A meet these conditions:
i. The model must be written in a common programming language, and the executable(s) must run on a common computer platform.
ii. The model must be documented in a user's guide or model formulation report which identifies the mathematics of the model, data requirements and program operating characteristics at a level of detail comparable to that available for other recommended models in appendix A.
iii. The model must be accompanied by a complete test dataset including input parameters and output results. The test data must be packaged with the model in computer-readable form.
iv. The model must be useful to typical users,
v. The model documentation must include a robust comparison with air quality data (and/or tracer measurements) or with other well- established analytical techniques.
vi. The developer must be willing to make the model and source code available to users at reasonable cost or make them available for public access through the Internet or National Technical Information Service. The model and its code cannot be proprietary.
d. The EPA's process of establishing a preferred model includes a determination of technical merit, in accordance with the above six items including the practicality of the model for use in ongoing regulatory programs. Each model will also be subjected to a performance evaluation for an appropriate database and to a peer scientific review. Models for wide use (not just an isolated case) that are found to perform better will be proposed for inclusion as preferred models in future
e. No further evaluation of a preferred model is required for a particular application if the EPA requirements for regulatory use specified for the model in the
a. Appendix A identifies refined models that are preferred for use in regulatory applications. If a model is required for a particular application, the user must select a model from appendix A or follow procedures in section 3.2.2 for use of an alternative model or technique. Preferred models may be used without a formal demonstration of applicability as long as they are used as indicated in each model summary in appendix A. Further recommendations for the application of preferred models to specific source applications are found in subsequent sections of the
b. If changes are made to a preferred model without affecting the modeled concentrations, the preferred status of the model is unchanged. Examples of modifications that do not affect concentrations are those made to enable use of a different computer platform or those that only affect the format or averaging time of the model results. The integration of a graphical user interface (GUI) to facilitate setting up the model inputs and/or analyzing the model results without otherwise altering the model kernel is another example of a modification that does not affect concentrations. However, when any changes are made, the Regional Administrator must require a test case example to demonstrate that the modeled concentration are not affected.
c. A preferred model must be operated with the options listed in appendix A for its intended regulatory application. If other options are exercised, the model is no longer “preferred.” Any other modification to a preferred model that would result in a change in the concentration estimates likewise alters its status so that it is no longer a preferred model. Use of the modified model must then be justified as an alternative model on a case-by-case basis to the appropriate reviewing authority and approved by the Regional Administrator.
d. Where the EPA has not identified a preferred model for a particular pollutant or situation, the EPA may establish a multi-tiered approach for making a demonstration required under PSD or another CAA program. The initial tier or tiers may involve use of demonstration tools, screening models, screening techniques, or reduced-form models; while the last tier may involve the use of demonstration tools, refinded models or techniques, or alternative models approved under section 3.2.
a. Selection of the best model or techniques for each individual air quality analysis is always encouraged, but the selection should be done in a consistent manner. A simple listing of models in this
b. This subsection discusses the use of alternate models and defines three situations when alternative models may be used. This subsection also provides a procedure for implementing 40 CFR 51.166(l)(2) in PSD permitting. This provision requires written approval of the Administrator for any modification or substitution of an applicable model. An applicable model for purposes of 40 CFR 51.166(l) is a preferred model in appendix A to the
a. Determination of acceptability of an alternative model is an EPA Regional Office responsibility in consultation with EPA's Model Clearinghouse as discussed in paragraphs 3.0(b) and 3.2.1(b). Where the Regional Administrator finds that an alternative model is more appropriate than a preferred model, that model may be used subject to the approval of the EPA Regional Office based on the requirements of this subsection. This finding will normally result from a determination that (1) a preferred air quality model is not appropriate for the particular application; or (2) a more appropriate model or technique is available and applicable.
b. An alternative model shall be evaluated from both a theoretical and a performance perspective before it is selected for use. There are three separate conditions under which such a model may be approved for use:
1. If a demonstration can be made that the model produces concentration estimates equivalent to the estimates obtained using a preferred model;
2. If a statistical performance evaluation has been conducted using measured air quality data and the results of that evaluation indicate the alternative model performs better for the given application than a comparable model in appendix A; or
3. If there is no preferred model.
c. Equivalency, condition (1) in paragraph (b) of this subsection, is established by demonstrating that the maximum or highest, second highest concentrations are within+/− 2 percent of the estimates obtained from the preferred model. The option to show equivalency is intended as a simple demonstration of acceptability for an alternative model that is so nearly identical (or contains options that can make it identical) to a preferred model that it can be treated for practical purposes as the preferred model. However, notwithstanding this demonstration, models that are not equivalent may be used when one of the two other conditions described in paragraphs (d) and (e) of this subsection are satisfied.
d. For condition (2) in paragraph (b) of this subsection, established statistical performance evaluation procedures and techniques
e. Finally, for condition (3) in paragraph (b) of this subsection, an alternative model or technique may be approved for use provided that:
i. The model or technique has received a scientific peer review;
ii. The model or technique can be demonstrated to be applicable to the problem on a theoretical basis;
iii. The databases which are necessary to perform the analysis are available and adequate;
iv. Appropriate performance evaluations of the model or technique have shown that the model or technique is not inappropriately biased for regulatory application;
v. A protocol on methods and procedures to be followed has been established.
f. To formally document that the requirements of section 3.2 for use of an alternative model are satisfied for a particular application or range of applications, a memorandum will be prepared by the EPA's Model Clearinghouse through a consultative process with the Region Office.
a. The Regional Administrator has the authority to select models that are appropriate for use in a given situation. However, there is a need for assistance and guidance in the selection process so that fairness, consistency, and transparency in modeling decisions are fostered among the EPA Regional Offices and the state, local, and tribal agencies. To satisfy that need, the EPA established the Model Clearinghouse
b. The EPA Regional Office should always be consulted for information and guidance concerning modeling methods and interpretations of modeling guidance, and to ensure that the air quality model user has available the latest most up-to-date policy and procedures. As appropriate, the EPA Regional Office may also request assistance from the EPA's Model Clearinghouse on other applications of models, analytical techniques, or databases or to clarify interpretation of the
c. The EPA Regional Office will coordinate with the EPA's Model Clearinghouse after an initial evaluation and decision has been developed concerning the application of an alternative model. The acceptability and formal approval process for an alternative model is described in section 3.2.
a. This section identifies modeling approaches generally used in the air quality impact analysis of sources that emit the criteria pollutants carbon monoxide (CO), lead, sulfur dioxide (SO
b. The guidance in this section is specific to the application of the Gaussian plume models identified in appendix A. Gaussian plume models assume that emissions and meteorology are in a steady-state, which is typically based on an hourly time step. This approach results in a plume that has an hourly-averaged distribution of emission mass according to a Gaussian curve through the plume. Though Gaussian steady-state models conserve the mass of the primary pollutant throughout the plume, they can still take into account a limited consideration of first-order removal processes (
c. Due to the steady-state assumption, Gaussian plume models are generally considered applicable to distances less than 50 km, beyond which, modeled predictions of plume impact are likely conservative. The locations of these impacts are expected to be unreliable due to changes in meteorology that are likely to occur during the travel time.
d. The applicability of Gaussian plume models may vary depending on the topography of the modeling domain,
e. Gaussian models determine source impacts at discrete locations (receptors) for each meteorological and emission scenario, and generally attempt to estimate concentrations at specific sites that represent an ensemble average of numerous repetitions of the same “event.” Uncertainties in model estimates are driven by this formulation, and as noted in section 2.1.1, evaluations of model accuracy should focus on the reducible uncertainty associated with physics and the formulation of the model. The “irreducible” uncertainty associated with Gaussian plume models may be responsible for variation in concentrations of as much as +/− 50 percent.
f. Model evaluations and inter-comparisons should take these aspects of uncertainty into account. For a regulatory application of a model, the emphasis of model evaluations is generally placed on the highest modeled impacts. Thus, the Cox-Tikvart model evaluation approach, which compares the highest modeled impacts on several timescales, is recommended for comparisons of models and measurements and model inter-comparisons. The approach includes bootstrap techniques to determine the significance of various modeled predictions and increases the robustness of such comparisons when the number of available measurements are limited.
a. For NAAQS compliance demonstrations under PSD, use of the screening and preferred models for the pollutants listed in this subsection shall be limited to the near-field at a nominal distance of 50 km or less. Near-field application is consistent with capabilities of Gaussian plume models and, based on the EPA's assessment, is sufficient to address whether a source will cause or contribution to ambient concentrations in excess to a NAAQS. In most cases, maximum source impacts of inert pollutant are anticipated to occur within 10 to 20 km from the source. Therefore, the EPA does not consider a long-range transport assessment beyond 50 km necessary for these pollutants.
b. For assessment of PSD increments within the near-field nominal distance of 50 km or less, use of the screening and preferred models for the pollutants listed in this subsection shall be limited to the same screening and preferred models approved for NAAQS compliance demonstrations.
c. To determine if a Class I PSD increment analyses may be necessary beyond 50 km (
i. Based on application in the near-field of the appropriate screening and/or preferred model, determine the significance of the ambient impacts at or about 50 km from the new or modifying source. If this initial step indicates there may be significant ambient impacts at that distance or such near-field assessment is not available, then further assessment is necessary.
ii. For assessment of Class I significance of ambient impacts and cumulative increment analyses, there is not a preferred model or screening approach for distances beyond 50 km. Thus, the EPA Regional Office shall be consulted in determining the appropriate and agreed upon modeling approach to conduct the second level assessment. Typically a Lagrangian model may be the type of model used for this second level assessment, but applicants shall reach agreed upon approaches (models and modeling parameters) on a case-by-case basis. When Lagrangian models are used in this manner, they shall not include plume-depleting reactions, such that model estimates are considered conservative, as is generally appropriate for screening assessments.
d. In those limited situations where a cumulative increment analysis beyond 50 km is necessary, the selection and use of an alternative model shall occur in agreement with the appropriate reviewing authority (paragraph 3.0(b)) and approval by the EPA Regional Office based on the requirements of paragraph 3.2.2(e).
a. Where a preliminary or conservative estimate is desired, point source screening techniques are an acceptable approach to air quality analyses.
b. As discussed in paragraph 2.2(a), screening models or techniques are designed to provide a conservative estimate of concentrations. The screening models used in most applications are the screening versions of the preferred models for refined applications. The two screening models, AERSCREEN
c. Although AERSCREEN and CTSCREEN are designed to address a single-source scenario, there are approaches that can be used on a case-by-case basis to address multi-source situations using screening meteorology or other conservative model assumptions. However, the appropriate reviewing authority (paragraph 3.0(b)) shall be consulted, and concurrence obtained, on the protocol for modeling multiple sources with AERSCREEN or CTSCREEN to ensure that the worst case is identified and assessed.
d. As discussed in section 4.2.3.4, there are also screening techniques built into AERMOD that use simplified or limited chemistry assumptions for determining the partitioning of NO and NO
e. All screening models and techniques shall be configured to appropriately address the site and problem at hand. Close attention must be paid to whether the area should be classified urban or rural in accordance with section 7.2.1.1. The climatology of the area must be studied to help define the worst-case meteorological conditions. Agreement shall be reached between the model user and the appropriate reviewing authority (paragraph 3.0(b)) on the choice of the screening model or technique for each analysis, on the input data and model settings, and the appropriate metric for satisfying regulatory requirements.
a. Released in 2011, AERSCREEN is the EPA's recommended screening model for simple and complex terrain for single sources including point sources, area sources, horizontal stacks, capped stacks, and flares. AERSCREEN runs AERMOD in a screening mode and consists of two main components: (1) The MAKEMET program which generates a site-specific matrix of meteorological conditions for input into the AERMOD model; and (2) the AERSCREEN command-prompt interface.
b. The MAKEMET program generates a matrix of meteorological conditions, in the form of AERMOD-ready surface and profile files, based on user-specified surface characteristics, ambient temperatures, minimum wind speed, and anemometer height. The meteorological matrix is generated based on looping through a range of wind speeds, cloud covers, ambient temperatures, solar elevation angles, and convective velocity scales (w*, for convective conditions only) based on user-specified surface characteristics (Z
c. For applications involving simple or complex terrain, AERSCREEN interfaces with AERMAP. AERSCREEN also interfaces with BIPPRM to provide the necessary building parameters for applications involving building downwash using the PRIME downwash algorithm. AERSCREEN generates inputs to AERMOD via MAKEMET, AERMAP, and BPIPPRM and invokes AERMOD in a screening mode. The screening mode of AERMOD forces the AERMOD model calculations to represent values for the plume centerline, regardless of the source-receptor-wind direction orientation. The maximum concentration output from AERSCREEN represents a worst-case 1-hour concentration. Averaging-time scaling factors of 0.9 for 3-hour, 0.7 for 8-hour, 0.40 for 24-hour, and 0.08 for annual concentration averages are applied internally by AERSCREEN to the highest 1-hour concentration calculated by the model for non-area type sources. For area type source concentrations for averaging times greater than one hour, the concentrations are equal to the 1-hour estimates.
a. CTSCREEN
a. For applications utilizing AERSCREEN, AERSCREEN automatically generates a polar-grid receptor network with spacing determined by the maximum distance to model. If the application warrants a different receptor network than that generated by AERSCREEN, it may be necessary to run AERMOD in screening mode with a user-defined network. For CTSCREEN applications or AERMOD in screening mode outside of AERSCREEN, placement of receptors requires very careful attention when modeling in complex terrain. Often the highest concentrations are predicted to occur under very stable conditions, when the plume is near, or impinges on, the terrain. The plume under such conditions may be quite narrow in the vertical, so that even relatively small changes in a receptor's location may substantially affect the predicted concentration. Receptors within about a kilometer of the source may be even more sensitive to location. Thus, a dense array of receptors may be required in some cases.
b. For applications involving AERSCREEN, AERSCREEN interfaces with AERMAP to generate the receptor elevations. For applications involving CTSCREEN, digitized contour data must be preprocessed
c. Other screening techniques may be acceptable for complex terrain cases where established procedures
a. A brief description of each preferred model for refined applications is found in appendix A. Also listed in that appendix are availability, the model input requirements, the standard options that shall be selected when running the program, and output options.
a. For a wide range of regulatory applications in all types of terrain, and for aerodynamic building downwash, the recommended model is AERMOD.
b. The AERMOD modeling system has been extensively evaluated across a wide range of scenarios based on numerous field studies, including tall stacks in flat and complex terrain settings, sources subject to building downwash influences, and low-level non-buoyant sources.
c. AERMOD incorporates the Plume Rise Model Enhancements (PRIME) algorithm to account for enhanced plume growth and restricted plume rise for plumes affected by building wake effects.
d. AERMOD incorporates the Buoyant Line and Point Source (BLP) Dispersion model to account for buoyant plume rise from line sources. The BLP option within AERMOD utilizes the standard meteorological inputs provided by the AERMET meteorological processor.
e. The state-of-the-science for modeling atmospheric deposition is evolving and new modeling techniques are continually being assessed and their results are being compared with observations. Consequently, while deposition treatment is available in AERMOD, the approach taken for any purpose shall be coordinated with the appropriate reviewing authority (paragraph 3.0(b)).
a. If the modeling application involves an elevated point source with a well-defined hill or ridge and a detailed dispersion analysis of the spatial pattern of plume impacts is of interest, CTDMPLUS is available. CTDMPLUS provides greater resolution of concentrations about the contour of the hill feature than does AERMOD through a different plume-terrain interaction algorithm.
a. If the modeling application involves determining the impact of offshore emissions from point, area, or line sources on the air quality of coastal regions, the recommended model is the OCD (Offshore and Coastal Dispersion) Model. OCD is a straight-line Gaussian model that incorporates overwater plume transport and dispersion as well as changes that occur as the plume crosses the shoreline. OCD is also applicable for situations that involve platform building downwash.
a. Models for assessing the impact of CO emissions are needed to meet NSR requirements, including PSD, to address compliance with the CO NAAQS and to determine localized impacts from transportations projects. Examples include evaluating effects of point sources, congested roadway intersections, and highways, as well as the cumulative effect of numerous sources of CO in an urban area.
b. The general modeling recommendations and requirements for screening models in section 4.2.1 and refined models in section 4.2.2 shall be applied for CO modeling. Given the relatively low CO background concentrations, screening techniques are likely to be adequate in most cases. However, since the screening model specified in section 4.2.1 (AERSCREEN) can only handle one source at a time, a section 4.2.2 model may be used with screening meteorology (
a. In January 1999 (40 CFR part 58, appendix D), the EPA gave notice that concern about ambient lead impacts was being shifted away from roadways and toward a focus on stationary point sources. Thus, models for assessing the impact of lead emissions are needed to meet NSR requirements, including PSD, to address compliance with the lead NAAQS and for SIP attainment demonstrations. The EPA has also issued guidance on siting ambient monitors in the vicinity of stationary point sources.
b. For major lead point sources, such as smelters, which contribute fugitive emissions and for which deposition is important, professional judgment should be used, and there shall be coordination with the appropriate reviewing authority (paragraph 3.0(b)). For most applications, the general requirements for screening and refined models of section 4.2.1 and 4.2.2 are applicable to lead modeling.
4.2.3.3 Models for Sulfur Dioxide
a. Models for SO
b. Given the relatively inert nature of SO
4.2.3.4 Models for Nitrogen Dioxide
a. Models for assessing the impact of sources on ambient NO
b. Due to the complexity of NO
i. A first-tier (most conservative) “full” conversion approach;
ii. A second-tier approach that assumes ambient equilibrium between NO and NO
iii. A third-tier consisting of several detailed screening techniques that account for ambient ozone and the relative amount of NO and NO
c. For Tier 1, use an appropriate section 4.2.2 refined model to estimate nitrogen oxides (NO
d. For Tier 2, multiply the Tier 1 result(s) by the Ambient Ratio Method 2 (ARM2), which provides estimates of representative equilibrium ratios of NO
e. For Tier 3, a detailed screening technique shall be applied on a case-by-case basis. Because of the additional input data requirements and complexities associated with the Tier 3 options, their usage shall occur in consultation with the EPA Regional Office in addition to the appropriate reviewing authority. The Ozone Limiting Method (OLM)
f. Alternative models or techniques may be considered on a case-by-case basis and their usage shall be approved by the EPA Regional Office (section 3.2). Such techniques should consider individual quantities of NO and NO
a. The PM
b. For NSR, including PSD, modeling assessments, the refined methods in section 4.2.2 are required for modeling the primary component of PM
c. For SIP attainment demonstrations and regional haze reasonable progress goal analyses, effects of a control strategy on PM
d. The general modeling requirements for the refined models discussed in section 4.2.2 should be applied for PM
a. The NAAQS for PM
b. For most sources, the general modeling requirements for screening models in section 4.2.1 and refined models in section 4.2.2 shall be applied for PM
c. Fugitive dust usually refers to dust put into the atmosphere by the wind blowing over plowed fields, dirt roads or desert or sandy areas with little or no vegetation. Fugitive emissions include the emissions resulting from the industrial process that are not captured and vented through a stack but may be released from various locations within the complex. In some unique cases, a model developed specifically for the situation may be needed. Due to the difficult nature of characterizing and modeling fugitive dust and fugitive emissions, the proposed procedure shall be determined in consultation with the appropriate reviewing authority (paragraph 3.0(b)) for each specific situation before the modeling exercise is begun. Re-entrained dust is created by vehicles driving over dirt roads (
d. Under certain conditions, recommended dispersion models may not be suitable to appropriately address the nature of ambient PM
e. The general modeling requirements for the refined models discussed in section 4.2.2 should be applied for PM
a. Air pollutants formed through chemical reactions in the atmosphere are referred to as secondary pollutants. For example, ground-level ozone and a portion of particulate matter with aerodynamic diameter less than 2.5 μ m (PM
b. Ozone formation is driven by emissions of NO
c. PM
d. Modeled strategies designed to reduce ozone or PM
e. PM
a. Chemical transformations can play an important role in defining the concentrations and properties of certain air pollutants. Models that take into account chemical reactions and physical processes of various pollutants (including precursors) are needed for determining the current state of air quality, as well as predicting and projecting the future evolution of these pollutants. It is important that a modeling system provide a realistic representation of chemical and physical processes leading to secondary pollutant formation and removal from the atmosphere.
b. Chemical transport models treat atmospheric chemical and physical processes such as deposition and motion. There are two types of chemical transport models, Eulerian (grid based) and Lagrangian. These types of models are differentiated from each other by their frame of reference. Eulerian models are based on a fixed frame of reference and Lagrangian models use a frame of reference that moves with parcels of air between the source and receptor point.
c. Regardless of the modeling system used to estimate secondary impacts of ozone and/or PM
d. Model performance metrics comparing observations and predictions are often used to summarize model performance. These metrics include mean bias, mean error, fractional bias, fractional error, and correlation coefficient.
e. There is no preferred modeling system or technique for estimating ozone or secondary PM
a. Models that estimate ozone concentrations are needed to guide the choice of strategies for the purposes of a nonattainment area demonstrating future year attainment of the ozone NAAQS. Additionally, models that estimate ozone concentrations are needed to assess impacts from specific sources or source complexes to satisfy requirements for NSR, including PSD, and other regulatory programs. Other purposes for ozone modeling include estimating the impacts of specific events on air quality, ozone deposition impacts, and planning for areas that may be attaining the ozone NAAQS.
a. Simulation of ozone formation and transport is a complex exercise. Control agencies with jurisdiction over areas with ozone problems should use photochemical grid models to evaluate the relationship between precursor species and ozone. Use of photochemical grid models is the recommended means for identifying control strategies needed to address high ozone concentrations in such areas. Judgment on the suitability of a model for a given application should consider factors that include use of the model in an attainment test, development of emissions and meteorological inputs to the model, and choice of episodes to model. Guidance on the use of models and other analyses for demonstrating attainment of the air quality goals for ozone is available.
a. Depending on the magnitude of emissions, estimating the impact of an individual source's emissions of NO
b. The first tier of assessment for ozone impacts involves those situations where existing technical information is available (
c. The second tier of assessment for ozone impacts involves those situations where existing technical information is not available such that chemical transport models (
a. Models are needed to guide the choice of strategies to address an observed PM
a. Models for PM
a. Depending on the magnitude of emissions, estimating the impact of an individual source's emissions on secondary particulate matter concentrations is necessary for obtaining a permit. Primary PM
b. The first tier of assessment for secondary PM
c. The second tier of assessment for secondary PM
a. Other federal agencies have also developed specific modeling approaches for their own regulatory or other requirements. Although such regulatory requirements and guidance have come about because of EPA rules or standards, the implementation of such regulations and the use of the modeling techniques is under the jurisdiction of the agency issuing the guidance or directive. This section covers such situations with reference to those guidance documents, when they are available.
b. When using the model recommended or discussed in the
a. The 1997 CAA Amendments give FLMs an “affirmative responsibility” to protect the natural and cultural resources of Class I areas from the adverse impacts of air pollution and to provide the appropriate procedures and analysis techniques. The Act identifies the FLM as the Secretary of the department, or their designee, with authority over these lands. Mandatory Federal Class I areas are defined in the CAA as international parks, national parks over 6,000 acres and wilderness areas and memorial parks over 5,000 acres, established as of 1977. The FLMs are also concerned with the protection of resources in federally managed Class II areas because of other statutory mandates to protect these areas.
b. The FLM agency responsibilities include the review of air quality permit applications from proposed new or modified major pollution sources that may affect these Class I areas to determine if emissions from a proposed or modified source will cause or contribute to adverse impacts on air quality related values (AQRVs) of a Class I area and making recommendations to the FLM. AQRVs are resources identified by the FLM agencies, which have the potential to be affected by air pollution. These resources may include visibility, scenic, cultural, physical, or ecological resources for a particular area. The FLM agencies take into account the particular resources and AQRVs that would be affected; the frequency and magnitude of any potential impacts; and the direct, indirect, and cumulative effects of any potential impacts in making their recommendations.
c. While the AQRV notification and impact analysis requirements are outlined in the PSD regulations at 40 CFR 51.166(p) and 40 CFR 52.21(p), determination of appropriate analytical methods and metrics for AQRV's are determined by the FLM agencies and are published in guidance external to the general recommendations of this paragraph.
d. To develop greater consistency in the application of air quality models to assess potential AQRV impacts in both Class I areas and protected Class II areas, the FLM agencies have developed the Federal Land Managers' Air Quality Related Values Work Group Phase I Report (FLAG)
a. Visibility in important natural areas (
b. Visibility regulations (40 CFR 51.300 through 51.309) require state, local, and tribal agencies to mitigate current and prevent future visibility impairment in any of the 156 mandatory Federal Class I areas where visibility is considered an important attribute. In 1999, the EPA issued revisions to the regulations to address visibility impairment in the form of regional haze, which is caused by numerous, diverse sources (
c. The FLAG visibility modeling recommendations are divided into two distinct sections to address different requirements for (1) near field modeling where plumes or layers are compared against a viewing background and (2) distant/multi-source modeling for plumes and aggregations of plumes that affect the general appearance of a scene.
a. To calculate the potential impact of a plume of specified emissions for specific transport and dispersion conditions (“plume blight”) for source-receptor distances less than 50 km, a screening model and guidance are available.
a. Chemical transformations can play an important role in defining the concentrations and properties of certain air pollutants. Models that take into account chemical reactions and physical processes of various pollutants (including precursors) are needed for determining the current state of air quality, as well as predicting and projecting the future evolution of these pollutants. It is important that a modeling system provide a realistic representation of chemical and physical processes leading to secondary pollutant formation and removal from the atmosphere.
b. Chemical transport models treat atmospheric chemical and physical processes such as deposition and motion. There are two types of chemical transport models, Eulerian (grid based) and Lagrangian. These types of models are differentiated from each other by their frame of reference. Eulerian models are based on a fixed frame of reference and Lagrangian models use a frame of reference that moves with parcels of air between the source and receptor point.
c. Development of the requisite meteorological and emissions databases necessary for use of photochemical grid models to estimate AQRVs should conform to recommendations in section 8 and those outlined in the EPA's Modeling Guidance for Demonstrating Attainment of Air Quality Goals for Ozone, PM
a. For many Class I areas, AQRVs have been identified that are sensitive to atmospheric deposition of air pollutants. Emissions of NO
b. The FLM deposition modeling recommendations are divided into two distinct sections to address different requirements for (1) near field modeling, and (2) distant/multi-source modeling for cumulative effects. The recommendations separately address deposition assessments for sources proposing to locate relatively near and at farther distances from these areas.
a. Dispersion and photochemical grid modeling need to be conducted to ensure that individual and cumulative offshore oil and gas exploration, development, and production plans and activities do not significantly affect the air quality of any state as required under the Outer Continental Shelf Lands Act (OCSLA). Air quality modeling requires various input datasets, including emissions sources, meteorology, and pre-existing pollutant concentrations. For sources under the reviewing authority of the Department of Interior, Bureau of Ocean Energy Management (BOEM), guidance for the development of all necessary Outer Continental Shelf (OCS) air quality modeling inputs and appropriate model selection and application is available from the BOEMS's Web site:
b. The Federal Aviation Administration (FAA) is the appropriate reviewing authority for air quality assessments of primary pollutant impacts at airports and air bases. Air quality application for this purpose is intended for estimating the collective impact of changes in aircraft operations, point source, and mobile source emissions at airports on pollutant concentrations. The latest version of the Aviation Environmental Design Tool (AEDT), is developed and is supported by the FAA, and is appropriate for air quality assessment of primary pollutant impacts at airports or air bases. AEDT has adopted AERMOD for treating dispersion. Application of AEDT is intended for estimating the collective impact of changes in aircraft operations, point source, and mobile source emissions on pollutant concentrations. It is not intended for PSD, SIP, or other regulatory air quality analyses of point or mobile sources at or peripheral to airport property that are unrelated to airport operations. The latest version of AEDT may be obtained from FAA at its Web site:
a. This section contains recommendations concerning a number of different issues not explicitly covered in other sections of the
a. For any dispersion modeling exercise, the urban or rural determination of a source is critical in determining the boundary layer characteristics that affect the model's prediction of downwind concentrations. Historically, steady-state Gaussian plume models used in most applications have employed dispersion coefficients based on Pasquill-Gifford
b. The selection of rural or urban dispersion coefficients in a specific application should follow one of the procedures suggested by Irwin
i. Land Use Procedure: (1) Classify the land use within the total area, A
ii. Population Density Procedure: (1) Compute the average population density, p
c. Population density should be used with caution and generally not be applied to highly industrialized areas where the population density may be low and thus a rural classification would be indicated. However, the area is likely to be sufficiently built-up so that the urban land use criteria would be satisfied. Therefore, in this case, the classification should be “urban” and urban dispersion parameters should be used.
d. For applications of AERMOD in urban areas, under either the Land Use Procedure or the Population Density Procedure, the user needs to estimate the population of the urban area affecting the modeling domain because the urban influence in AERMOD is scaled based on a user-specified population. For non-population oriented urban areas, or areas influenced by both population and industrial activity, the user will need to estimate an equivalent population to adequately account for the combined effects of industrialized areas and populated areas within the modeling domain. Selection of the appropriate population for these applications should be determined in consultation with the appropriate reviewing authority (paragraph 3.0(b)) and the latest version of the AERMOD Implementation Guide.
e. It should be noted that AERMOD allows for modeling rural and urban sources in a single model run. For analyses of whole urban complexes, the entire area should be modeled as an urban region if most of the sources are located in areas classified as urban. For tall stacks located within or adjacent to small or moderate sized urban areas, the stack height or effective plume height may extend above the urban boundary layer and, therefore, may be more appropriately modeled using rural coefficients. Model users should consult with the appropriate reviewing authority (paragraph 3.0(b)) when evaluating this situation and the latest version of the AERMOD Implementation Guide.
f. Buoyancy-induced dispersion (BID), as identified by Pasquill,
a.
i.
ii.
iii.
a. Gravitational settling and deposition may be directly included in a model if either is a significant factor. When particulate matter sources can be quantified and settling and dry deposition are problems, professional judgment should be used, and there should be coordination with the appropriate reviewing authority (paragraph 3.0(b)). AERMOD contains algorithms for dry and wet deposition of gases and particles.
a. The use of stack height credit in excess of Good Engineering Practice (GEP) stack height or credit resulting from any other dispersion technique is prohibited in the development of emissions limits by 40 CFR 51.118 and 40 CFR 51.164. The definition of
b. If stacks for new or existing major sources are found to be less than the height defined by the EPA's refined formula for determining GEP height, then air quality impacts associated with cavity or wake effects due to the nearby building structures should be determined. The EPA refined formula height is defined as H + 1.5L.
a. The plume rise methods of Briggs
b. Gradual plume rise is generally recommended where its use is appropriate: (1) In AERMOD; (2) in complex terrain screening procedures to determine close-in impacts and (3) when calculating the effects of building wakes. The building wake algorithm in AERMOD incorporates and exercises the thermodynamically based gradual plume rise calculations as described in paragraph (a) of this subsection. If the building wake is calculated to affect the plume for any hour, gradual plume rise is also used in downwind dispersion calculations to the distance of final plume rise, after which final plume rise is used. Plumes captured by the near wake are re-emitted to the far wake as a ground-level volume source.
c. Stack tip downwash generally occurs with poorly constructed stacks and when the ratio of the stack exit velocity to wind speed is small. An algorithm developed by Briggs
a. Emissions of primary pollutants from mobile sources can be modeled with an appropriate model identified in section 4.2. Screening of mobile sources can be accomplished by using screening meteorology, such as that generated by the MAKEMET component of AERSCREEN, which can generate a range of meteorological scenarios using site-specific characteristics, such as albedo, Bowen ratio, and surface roughness. Maximum hourly concentrations computed from screening runs can be converted to longer averaging periods using the scaling ratios specific in the AERSCREEN User's Guide.
b. Mobile sources can be modeled in AERMOD as either line (
c. The EPA's quantitative PM hot-spot guidance
a. Databases and related procedures for estimating input parameters are an integral part of the modeling process. The most appropriate input data available should always be selected for use in modeling analyses. Modeled concentrations can vary widely depending on the source data or meteorological data used. This section attempts to minimize the uncertainty associated with database selection and use by identifying requirements for input data used in modeling. More specific data requirements and the format required for the individual models are described in detail in the users' guide and/or associated documentation for each model.
a. The modeling domain is the geographic area for which the required air quality analyses for the NAAQS and PSD increments are conducted.
a. For a NAAQS or PSD increment assessment, the modeling domain or project's impact area shall include all locations where the emissions of a pollutant from the new or modifying source(s) may cause a significant ambient impact. This impact area is defined as an area with a radius extending from the new or modifying source to: (1) The most distant point source where air quality modeling predicts a significant ambient impact will occur, or (2) the nominal 50 km distance considered applicable for Gaussian dispersion models, whichever is less. The required air quality analysis shall be carried out within this geographical area with characterization of source impacts, nearby source impacts, and background concentrations, as recommended later in this section.
b. For SIP attainment demonstrations for ozone and PM
a. Sources of pollutants can be classified as point, line, area, and volume sources. Point sources are defined in terms of size and may vary between regulatory programs. The line sources most frequently considered are
b. For point sources, there are many source characteristics and operating conditions that may be needed to appropriately model the facility. For example, the plant layout (
c. Modeling mobile emissions from streets and highways requires data on the road layout, including the width of each traveled lane, the number of lanes, and the width of the median strip. Additionally, traffic patterns should be taken into account (
d. Emission factors can be determined through source specific testing and measurements (
a. For SIP attainment demonstrations for the purpose of projecting future year NAAQS attainment for ozone, PM
b. For the purpose of SIP revisions for stationary point sources, the regulatory modeling of inert pollutants shall use the emissions input data shown in Table 8-1 for short-term and long-term NAAQS. To demonstrate compliance and/or establish the appropriate SIP emissions limits, Table 8-1 generally provides for the use of “allowable” emissions in the regulatory dispersion modeling of the stationary point source(s) of interest. In such modeling, these source(s) should be modeled sequentially with these loads for every hour of the year. As part of a cumulative impact analysis, Table 8-1 allows for the model user to account for actual operations in developing the emissions inputs for dispersion modeling of nearby sources, while other sources are best represented by air quality monitoring data. Consultation with the appropriate reviewing authority (paragraph 3.0(b)) is advisable on the establishment of the appropriate emissions inputs for regulatory modeling applications with respect to SIP revisions for stationary point sources.
c. For the purposes of demonstrating NAAQS compliance in a PSD assessment, the regulatory modeling of inert pollutants shall use the emissions input data shown in Table 8-2 for short and long-term NAAQS. The new or modifying stationary point source shall be modeled with “allowable” emission in the regulatory dispersion modeling. As part of a cumulative impact analysis, Table 8-2 allows for the model user to account for actual operations in developing the emissions inputs for dispersion modeling of nearby sources, while other sources are best represented by air quality monitoring data. For purposes of situations involving emissions trading refer to current EPA policy and guidance to establish input data. Consultation with the appropriate reviewing authority (paragraph 3.0(b)) is advisable on the establishment of the appropriate emissions inputs for regulatory modeling applications with respect to PSD assessments for a proposed new or modifying source.
d. For stationary source applications, changes in operating conditions that affect the physical emission parameters (
e. Emissions from mobile sources also have physical and temporal characteristics that should be appropriately accounted for. For example, an appropriate emissions model shall be used to determine emissions profiles. Such emissions should include speciation specific for the vehicle types used on the roadway (
a. Background concentrations are essential in constructing the design concentration, or total air quality concentration, as part of a cumulative impact analysis for NAAQS and PSD increments (section 9.2.4). Background air quality should not include the ambient impacts of the project source under consideration. Instead, it should include:
i. Nearby sources: These are individual sources in the vicinity of the source(s) under consideration for emissions limits that are not adequately represented by ambient monitoring data. Typically, sources that cause a significant concentration gradient in the vicinity of the source(s) under consideration for emissions limits are not adequately represented by background ambient monitoring. The ambient contributions from these nearby sources are thereby accounted for by explicitly modeling their emissions (section 8.2).
ii. Other sources: That portion of the background attributable to natural sources, other unidentified sources in the vicinity of the project, and regional transport contributions from more distant sources (domestic and international). The ambient contributions from these sources are typically accounted for through use of ambient monitoring data or, in some cases, regional-scale photochemical grid modeling results.
b. The monitoring network used for developing background concentrations is expected to conform to the same quality assurance and other requirements as those networks established for PSD purposes.
c. For photochemical grid modeling conducted in SIP attainment demonstrations for ozone, PM
d. For PSD assessments in general and SIP attainment demonstrations for inert pollutants, the development of the appropriate background concentration for a cumulative impact analysis involves proper accounting of each contribution to the design concentration and will depend upon whether the project area's situation consists of either an isolated single source(s) or a multitude of sources.
a. In areas with an isolated source(s), determining the appropriate background concentration should focus on characterization of contributions from all other sources through adequately representative ambient monitoring data.
b. The EPA recommends use of the most recent quality assured air quality monitoring data collected in the vicinity of the source to determine the background concentration for the averaging times of concern. In most cases, the EPA recommends using data from the monitor closest to and upwind of the project area. If several monitors are available, preference should be given to the monitor with the most similar characteristics as the project area. If there are no monitors located in the vicinity of the new or modify source, a “regional site” may be used to determine background concentrations. A regional site is one that is located away from the area of interest but is impacted by similar or adequately representative sources.
c. Many of the challenges related to cumulative impact analyses arise in the context of defining the appropriate metric to characterize background concentrations from ambient monitoring data and determining the appropriate method for combining this monitor-based background contribution to the modeled impact of the project and other nearby sources. For many cases, the best starting point would be use of the current design value for the applicable NAAQS as a uniform monitored background contribution across the project area. However, there are cases in which the current design value may not be appropriate. Such cases include but are not limited to:
i. For situations involving a modifying source where the existing facility is determined to impact the ambient monitor, the background concentration at each monitor can be determined by excluding values when the source in question is impacting the monitor. In such cases, monitoring sites inside a 90° sector downwind of the source may be used to determine the area of impact.
ii. There may be other circumstances which would necessitate modifications to the ambient data record. Such cases could include removal of data from specific days or hours when a monitor is being impacted activities that are not typical or expected to occur again in the future (
iii. For short-term standards, the diurnal or seasonal patterns of the air quality monitoring data may differ significantly from the patterns associated with the modeled concentrations. When this occurs, it may be appropriate to pair the air quality monitoring data in a temporal manner that reflects these patterns (
iv. For situations where monitored air quality concentrations vary across the modeling domain, it may be appropriate to consider air quality monitoring data from multiple monitors within the project area.
d. Determination of the appropriate background concentrations should be consistent with appropriate EPA modeling guidance
e. Considering the spatial and temporal variability throughout a typical modeling domain on an hourly basis and the complexities and limitations of hourly observations from the ambient monitoring network, the EPA does not recommend hourly or daily pairing of monitored background and modeled concentrations except in rare cases of relatively isolated sources where the available monitor can be shown to be representative of the ambient concentration levels in the areas of maximum impact from the proposed new source. The implicit assumption underlying hourly pairing is that the background monitored levels for each hour are spatially uniform and that the monitored values are fully
f. In those cases where adequately representative monitoring data to characterize background concentrations are not available, it may be appropriate to use results from a regional-scale photochemical grid model or other representative model application as background concentrations consistent with the considerations discussed above and in consultation with the appropriate reviewing authority (paragraph 3.0(b)).
a. In multi-source areas, determining the appropriate background concentration involves: (1) identification and characterization of contributions from nearby sources through explicit modeling, and (2) characterization of contributions from other sources through adequately representative ambient monitoring data. A key point here is the interconnectedness of each component in that the question of which nearby sources to include in the cumulative modeling is inextricably linked to the question of what the ambient monitoring data represents within the project area.
b.
i. The pattern of concentration gradients can vary significantly based on the averaging period being assessed. In general, concentration gradients will be smaller and more spatially uniform for annual averages than for short-term averages, especially for hourly averages. The spatial distribution of annual impacts around a source will often have a single peak downwind of the source based on the prevailing wind direction, except in cases where terrain or other geographic effects are important. By contrast, the spatial distribution of peak short-term impacts will typically show several localized concentration peaks with more significant gradient.
ii. Concentration gradients associated with a particular source will generally be largest between that source's location and the distance to the maximum ground-level concentrations from that source. Beyond the maximum impact distance, concentration gradients will generally be much smaller and more spatially uniform. Thus, the magnitude of a concentration gradient will be greatest in the proximity of the source and will generally not be significant at distances greater than 10 times the height of the stack(s) at that source without consideration of terrain influences.
iii. The number of nearby sources to be explicitly modeled in the air quality analysis is expected to be few except in unusual situations. In most cases, the few nearby sources will be located within 10 to 20 km from the source(s) under consideration. Owing to both the uniqueness of each modeling situation and the large number of variables involved in identifying nearby sources, no attempt is made here to comprehensively define a “significant concentration gradient.” Rather, identification of nearby sources calls for the exercise of professional judgement by the appropriate reviewing authority (paragraph 3.0(b)). This guidance is not intended to alter the exercise of that judgement or to comprehensively prescribe which sources should be included as nearby sources.
c. For cumulative impact analyses of short-term and annual ambient standards, the nearby sources as well as the project source(s) must be evaluated using an appropriate appendix A model or approved alternative model with the emission input data shown in Table 8-1 or 8-2.
i. When modeling a nearby source that does not have a permit and the emissions limits contained in the SIP for a particular source category is greater than the emissions possible given the source's maximum physical capacity to emit, the “maximum allowable emissions limit” for such a nearby source may be calculated as the emissions rate representative of the nearby source's maximum physical capacity to emit, considering its design specifications and allowable fuels and process materials. However, the burden is on the permit applicant to sufficiently document what the maximum physical capacity to emit is for such a nearby source.
ii. It is appropriate to model nearby sources only during those times when they, by their nature, operate at the same time as the primary source(s). Accordingly, it is not necessary to model impacts of a nearby source that does not, by its nature, operate at the same time as the primary source, regardless of an identified significant concentration gradient from the nearby source. The burden is on the permit applicant to adequately justify the exclusion of nearby sources to the satisfaction of the appropriate reviewing authority (paragraph 3.0(b)). The following examples illustrate two cases in which a nearby source may be shown not to operate at the same time as the primary source(s) being modeled: (1) Seasonal sources (only used during certain seasons of the year). Such sources would not be modeled as nearby sources during times in which they do not operate; and (2) Emergency backup generators, to the extent that they do not operate simultaneously with the sources that they back up. Such emergency equipment would not be modeled as nearby sources.
d.
a. This subsection covers meteorological input data for use in dispersion modeling for regulatory applications and is separate from recommendations made for photochemical grid modeling. Recommendations for meteorological data for photochemical grid modeling applications are outlined in the latest version of EPA's Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM
b. The meteorological data used as input to a dispersion model should be selected on the basis of spatial and climatological (temporal) representativeness as well as the ability of the individual parameters selected to characterize the transport and dispersion conditions in the area of concern. The representativeness of the measured data is dependent on numerous factors including but not limited to: (1) The proximity of the meteorological monitoring site to the area under consideration; (2) The complexity of the terrain; (3) The exposure of the meteorological monitoring site; and (4) The period of time during which data are collected. The spatial representativeness of the data can be adversely affected by large distances between the source and receptors of interest and the complex topographic characteristics of the area. Temporal representativeness is a function of the year-to-year variations in weather conditions. Where appropriate, data representativeness should be viewed in terms of the appropriateness of the data for constructing realistic boundary layer profiles and, where applicable, three-dimensional meteorological fields, as described in paragraphs (c) and (d) of this subsection.
c. The meteorological data should be adequately representative and may be site-specific data, data from a nearby National Weather Service (NWS) or comparable station, or prognostic meteorological data. The implementation of ASOS (automated surface observing stations) in recent years should not preclude the use of NWS-ASOS data if such a station is determined to be representative of the modeled area.
d. Model input data are normally obtained either from the NWS or as part of a site-specific measurement program. State climatology offices, local universities, FAA, military stations, industry and pollution control agencies may also be sources of such data. In specific cases, prognostic meteorological data may be appropriate for use and obtained from similar sources. Some
a. AERMET
b. Regulatory application of AERMOD necessitates careful consideration of the meteorological data for input to AERMET. Data representativeness, in the case of AERMOD, means utilizing data of an appropriate type for constructing realistic boundary layer profiles. Of particular importance is the requirement that all meteorological data used as input to AERMOD should be adequately representative of the transport and dispersion within the analysis domain. Where surface conditions vary significantly over the analysis domain, the emphasis in assessing representativeness should be given to adequate characterization of transport and dispersion between the source(s) of concern and areas where maximum design concentrations are anticipated to occur. The EPA recommends that the surface characteristics input to AERMET should be representative of the land cover in the vicinity of the meteorological data,
c. Regulatory application of CTDMPLUS requires the input of multi-level measurements of wind speed, direction, temperature, and turbulence from an appropriately sited meteorological tower. The measurements should be obtained up to the representative plume height(s) of interest. Plume heights of interest can be determined by use of screening procedures such as CTSCREEN.
d. Regulatory application of OCD requires meteorological data over land and over water. The over land or surface data processed through PCRAMMET
e. The model user should acquire enough meteorological data to ensure that worst-case meteorological conditions are adequately represented in the model results. The use of 5 years of adequately representative NWS meteorological data, at least 1 year of site-specific, or at least 3 years of prognostic meteorological data are required. If 1 year or more, up to 5 years, of site-specific data is available, these data are preferred for use in air quality analyses. Such data should have been subjected to quality assurance procedures as described in section 8.4.4.2.
f. Objective analysis in meteorological modeling is to improve meteorological analyses (the “
a. The NWS meteorological data are routinely available and familiar to most model users. Although the NWS does not provide direct measurements of all the needed dispersion model input variables, methods have been developed and successfully used to translate the basic NWS data to the needed model input. Site-specific measurements of model input parameters have been made for many modeling studies, and those methods and techniques are becoming more widely applied, especially in situations such as complex terrain applications, where available NWS data are not adequately representative. However, there are many modeling applications where NWS data are adequately representative, and the applications still rely heavily on the NWS data.
b. Many models use the standard hourly weather observations available from the National Centers for Environmental Information (NCEI)
a. The preferred models listed in appendix A all accept as input the NWS meteorological data preprocessed into model compatible form. If NWS data are judged to be adequately representative for a specific modeling application, they may be used. NEIS makes available surface
b. Although most NWS wind measurements are made at a standard height of 10 meters, the actual anemometer height should be used as input to the preferred meteorological processor and model.
c. Standard hourly NWS wind directions are reported to the nearest 10 degrees. A specific set of randomly generated numbers has been developed for use with the preferred EPA models and should be used with standard NWS data to ensure a lack of bias in wind direction assignments within the models.
d. Beginning with year 2000, NCDC began archiving 2-minute winds, reported every minute for NWS ASOS sites. The AERMINUTE processor was developed to read those winds and calculate hourly average winds for input into AERMET. When such data are available for the NWS ASOS site being processed, the AERMINUTE processor should be used in most cases to calculate hourly average wind speed and direction when processing NWS ASOS data for input to AERMOD.
e. Data from universities, FAA, military stations, industry and pollution control agencies may be used if such data are equivalent in accuracy and detail (
f. After valid data retrieval requirements have been met,
a. Spatial or geographical representativeness is best achieved by collection of all of the needed model input data in close proximity to the actual site of the source(s). Site-specific measured data are therefore preferred as model input, provided that appropriate instrumentation and quality assurance procedures are followed and that the data collected are adequately representative (free from inappropriate local or microscale influences) and compatible with the input requirements of the model to be used. It should be noted that, while site-specific measurements are frequently made “on-property” (
a. The EPA guidance
b. All processed site-specific data should be in the form of hourly averages for input into the dispersion model. These data include surface wind speed, transport direction, dilution wind speed, and turbulence measurements σ
c.
d.
e.
f.
g.
h.
i.
j. The SRDT method, described in section 6.4.4.2 of reference 108, is modified slightly from that published from earlier work
a. For some modeling applications, there may not be a representative NWS or comparable meteorological station available (
b. The EPA has developed a processor, the MMIF (Mesoscale Model Interface Program) to process MM5 (Mesoscale Model 5) or WRF (Weather Research and Forecasting) model data for input into various models including AERMOD. MMIF can process data for input into AERMET or AERMOD for a single grid cell or multiple grid cells. MMIF output has been found to compare favorably against observed data (site-specific or NWS).
a.
b.
c.
a. Treatment of calm or light and variable wind poses a special problem in modeling applications since steady-state Gaussian plume models assume that concentration is inversely proportional to wind speed, depending on model formulations. Procedures have been developed to prevent the occurrence of overly conservative concentration estimates during periods of calms. These procedures acknowledge that a steady-state Gaussian plume model does not apply during calm conditions, and that our knowledge of wind patterns and plume behavior during these conditions does not, at present, permit the development of a better technique. Therefore, the procedures disregard hours which are identified as calm. The hour is treated as missing and a convention for handling missing hours is recommended. With the advent of the AERMINUTE processor, when processing NWS ASOS data, the inclusion of hourly averaged winds from AERMINUTE will, in some instances, dramatically reduce the number of calm and missing hours, especially when the ASOS wind are derived from a sonic anemometer. To alleviate concerns about low winds, especially those introduced with AERMINUTE, the EPA implemented a wind speed threshold in AERMET for use with ASOS derived winds.
b. AERMOD, while fundamentally a steady-state Gaussian plume model, contains algorithms for dealing with low wind speed (near calm) conditions. As a result, AERMOD can produce model estimates for conditions when the wind speed may be less than1 m/s, but still greater than the instrument threshold. Required input to AERMET for site-specific data, the meteorological processor for AERMOD, includes a threshold wind speed and a reference wind speed. The threshold wind speed is typically the threshold of the instrument used to collect the wind speed data. The reference wind speed is selected by the model as the lowest level of non-missing wind speed and direction data where the speed is greater than the wind speed threshold, and the height of the measurement is between seven times the local surface roughness and 100 meters. If the only valid observation of the reference wind speed between these heights is less than the threshold, the hour is considered calm, and no concentration is calculated. None of the observed wind speeds in a measured wind profile that are less than the threshold speed are used in construction of the modeled wind speed profile in AERMOD.
a. Hourly concentrations calculated with steady-state Gaussian plume models using calms should not be considered valid; the wind and concentration estimates for these hours should be disregarded and considered to be missing. Critical concentrations for3-, 8-, and 24-hour averages should be calculated by dividing the sum of the hourly concentrations for the period by the number of valid or non-missing hours. If the total number of valid hours is less than 18 for 24-hour averages, less than 6 for 8-hour averages or less than 3 for 3-hour averages, the total concentration should be divided by 18 for the 24-hour average, 6 for the 8-hour average and 3 for the 3-hour average. For annual averages, the sum of all valid hourly concentrations is divided by the number of non-calm hours during the year. AERMOD has been coded to implement these instructions. For hours that are calm or missing, the AERMOD hourly concentrations will be zero. For other models listed in appendix A, a post-processor computer program, CALMPRO
b. Stagnant conditions that include extended periods of calms often produce high concentrations over wide areas for relatively long averaging periods. The standard steady-state Gaussian plume models are often not applicable to such situations. When stagnation conditions are of concern, other modeling techniques should be considered on a case-by-case basis (
c. When used in steady-state Gaussian plume models, measured site-specific wind speeds of less than 1 m/s but higher than the response threshold of the instrument should be input as 1 m/s; the corresponding wind direction should also be input. Wind observations below the response threshold of the instrument should be set to zero, with the input file in ASCII format. For input to AERMOD, no adjustment should be made to the site-specific wind data. For NWS ASOS data, especially data using the 1-minute ASOS winds, a wind speed threshold option is allowed with a recommended speed of 0.5 m/s.
a. Standardized procedures are valuable in the review of air quality modeling and data analyses conducted to support SIP submittals and revisions, NSR, including PSD, or other EPA requirements to ensure consistency in their regulatory application. This section recommends procedures specific to NSR, including PSD, that facilitate some degree of standardization while at the same time allowing the flexibility needed to assure the technically best analysis for each regulatory application. For SIP attainment demonstrations, refer to the appropriate EPA guidance
b. Air quality model estimates, especially with the support of measured air quality data, are the preferred basis for air quality demonstrations. A number of actions have been taken to ensure that the best air quality model is used correctly for each regulatory application and that it is not arbitrarily imposed.
• First, the
• Second, the preferred models have been subjected to a systematic performance evaluation and a peer scientific review. Statistical performance measures, including measures of difference (or residuals) such as bias, variance of difference and gross variability of the difference, and measures of correlation such as time, space, and time and space combined as described in section 2.1.1, were generally followed.
• Third, more specific information has been provided for considering the incorporation of new models into the
The
c. Air quality modeling is the preferred basis for air quality demonstrations. Nevertheless, there are rare circumstances where the performance of the preferred air quality model may be shown to be less than reasonably acceptable or where no preferred air quality model, screening model or technique, or alternative model are suitable for the situation. In these unique instances, there is the possibility of assuring compliance and establishing emissions limits for an existing source solely on the basis of observed air quality data in lieu of an air quality modeling analysis. Comprehensive air quality monitoring in the vicinity of the existing source with proposed modifications will be necessary in these cases. The same attention should be given to the detailed analyses of the air quality data as would be applied to a model performance evaluation.
d. The current levels and forms of the NAAQS for the six criteria pollutants can be found on the EPA's NAAQS Web site at
e. This section discusses general recommendations on the regulatory application of models for the purposes of NSR, including PSD permitting, and particularly for estimating design concentration(s), appropriately comparing these estimates to NAAQS and PSD increment, and developing emissions limits. Lastly, this section provides the criteria necessary for considering use of analysis based on measured ambient data in lieu of modeling as the sole basis for demonstrating compliance with NAAQS and PSD increments.
a. Every effort should be made by the appropriate reviewing authority (paragraph 3.0(b)) to meet with all parties involved in either a SIP submission or revision or a PSD permit application prior to the start of any work on such a project. During this meeting, a protocol should be established between the preparing and reviewing parties to define the procedures to be followed, the data to be collected, the model to be used, and the analysis of the source and concentration data to be performed. An example of the content for such an effort is contained in the Air Quality Analysis Checklist posted on the EPA's SCRAM Web site (section 2.3). This checklist suggests the appropriate level of detail to assess the air quality resulting from the proposed action. Special cases may require additional data collection or analysis and this should be determined and agreed upon at this pre-application meeting. The protocol should be written and agreed upon by the parties concerned, although it is not intended that this protocol be a binding, formal legal document. Changes in such a protocol or deviations from the protocol are often necessary as the data collection and analysis progresses. However, the protocol establishes a common understanding of how the demonstration required to meet regulatory requirements will be made.
a. Under the PSD permitting program, an air quality analysis for criteria pollutants is required to demonstrate that emissions from the construction or operation of a proposed new source or modification will not cause or contribute to a violation of the NAAQS or PSD increments.
i. For a NAAQS assessment, the design concentration is the combination of the appropriate background concentration (section 8.3) with the estimated modeled impact of the source. The NAAQS design concentration is then compared to the applicable NAAQS.
ii. For a PSD increment assessment, the design concentration includes impacts after the appropriate baseline date from all increment consuming and increment expanding sources. The PSD increment design concentration is then compared to the applicable PSD increment.
b. The specific form of the NAAQS for the pollutant(s) of concern will also influence how the background and modeled data should be combined for appropriate comparison with the respective NAAQS in such a modeling demonstration. Given the potential for revision of the form of the NAAQS and the complexities of combining background and modeled data, specific details on this process can be found in applicable modeling guidance available on the EPA's SCRAM Web site (section 2.3). Modeled concentrations should not be rounded before comparing the resulting design concentration to the NAAQS or PSD increments. Ambient monitoring and dispersion modeling address different issues and needs relative to each aspect of the overall air quality assessment.
c. The PSD increments for criteria pollutants are listed in 40 CFR 52.21(c) and 40 CFR 51.166(c). For short-term increments, these maximum allowable increases in pollutant concentrations may be exceeded once per year at each site, while the annual increment may not be exceeded. The highest, second-highest increase in estimated concentrations for the short-term averages as determined by a model should be less than or equal to the permitted increment. The modeled annual averages should not exceed the increment.
d. Receptor sites for refined dispersion modeling should be located within the modeling domain (section 8.1). In designing a receptor network, the emphasis should be placed on receptor density and location, not total number of receptors. Typically, the density of receptor sites should be progressively more resolved near the new or modifying source, areas of interest, and areas with the highest concentrations with sufficient detail to determine where possible violations of a NAAQS or PSD increment are most likely to occur. The placement of receptor sites should be determined on a case-by-case basis, taking into consideration the source characteristics, topography, climatology, and monitor sites. Locations of particular importance include: (1) The area of maximum impact of the point source; (2) the area of maximum impact of nearby sources; and (3) the area where all sources combine to cause maximum impact. Depending on the complexities of the source and the environment to which the source is located, a dense array of receptors may be required in
a. As described in this subsection, the recommended procedure for conducting either a NAAQS or PSD increment assessment under PSD permitting is a multi-stage approach that includes the following two stages:
i. The first stage is referred to as a single-source impact analysis, since only the new or modifying source is considered in the analysis. There are two possible levels of detail in conducting a single-source impact analysis with the model user beginning with use of a screening model and proceeding to use of a refined model as necessary.
ii. The second stage is referred to as a cumulative impact analysis, since it takes into account all sources affecting the air quality in an area. In addition to the project source impact, it includes consideration of background, which includes contributions from natural, nearby, and unknown sources.
b. Each stage involves increasing complexity and details, as required to fully demonstrate a new or modifying source will not cause of contribution to a violation of any NAAQS or PSD increment. As such, starting with a single-source impact analysis may alleviate the need for a more time consuming and comprehensive cumulative modeling analysis.
c. The single-source impact analysis, or first stage of an air quality analysis, begins by determining the potential of a proposed new or modifying source to cause or contribute to a NAAQS or PSD increment violation. In certain circumstances, a screening model or technique may be used instead of the preferred model because it will provide estimated worst-case ambient impacts from the proposed new or modifying source. If these worst case ambient concentration estimates indicate that there will not be a significant impact, then the analysis is sufficient for the required demonstration under PSD. If the ambient concentration estimates indicate that significant impacts may occur, then the use of a refined model to estimate the source's impact should be pursued. The refined modeling analysis should use a model or technique consistent with the
d. The cumulative impact analysis, or the second stage of an air quality analysis, should be conducted with the same refined model or technique to characterize the project source and then include the appropriate background concentrations (section 8.3). The resulting design concentrations are used to determine whether the source will cause or contribute to a NAAQS or PSD increment violation. This determination should be based on: (1) The appropriate design concentration for each applicable NAAQS (and averaging period); and (2) the significance of the source's contribution, in a temporal and spatial sense, to any modeled violation,
a. Emissions limits and resulting control requirements should be established to provide for compliance with each applicable NAAQS (and averaging period) and PSD increment. It is possible that multiple emissions limits will be required for a source to demonstrate compliance with several criteria pollutants (and averaging periods) and PSD increments. Case-by-case determinations must be made as to the appropriate form of the limits,
a. As described throughout the
b. There may be rare circumstances where the performance of the preferred air quality model will be shown to be less than reasonably acceptable when compared with air quality monitoring data measured in the vicinity of an existing source. Additionally, there may not be an applicable preferred air quality model, screening technique, or justifiable alternative model suitable for the situation. In these unique instances, there may be the possibility of establishing emissions limits and demonstrating compliance with the NAAQS and PSD increments solely on the basis of analysis of observed air quality data in lieu of an air quality modeling analysis. However, only in the case of a modification to an existing source should air quality monitoring data alone be a basis for determining adequate emissions limits or for demonstration that the modification will not cause or contribute to a violation of any NAAQS or PSD increment.
c. The following items should be considered prior to the acceptance of an analysis of measured air quality data as the sole basis for an air quality demonstration or determining an emissions limit:
i. Does a monitoring network exist for the pollutants and averaging times of concern in the vicinity of the existing source?
ii. Has the monitoring network been designed to locate points of maximum concentration?
iii. Do the monitoring network and the data reduction and storage procedures meet EPA monitoring and quality assurance requirements?
iv. Do the dataset and the analysis allow impact of the most important individual sources to be identified if more than one source or emission point is involved?
v. Is at least one full year of valid ambient data available?
vi. Can it be demonstrated through the comparison of monitored data with model results that available air quality models and techniques are not applicable?
c. Comprehensive air quality monitoring in the area affected by the existing source with proposed modifications will be necessary in these cases. Additional meteorological monitoring may also be necessary. The appropriate number of air quality and meteorological monitors from a scientific and technical standpoint is a function of the situation being considered. The source configuration, terrain configuration, and meteorological variations all have an impact on number and optimal placement of monitors. Decisions on the monitoring network appropriate for this type of analysis can only be made on a case-by-case basis.
d. Sources should obtain approval from the appropriate reviewing authority (paragraph
e. Given the uniqueness and complexities of these rare circumstances, the procedures can only be established on a case-by-case basis for analyzing the source's emissions data and the measured air quality monitoring data and for projecting with a reasoned basis the air quality impact of a proposed modification to an existing source in order to demonstrate that emissions from the construction or operation of the modification will not cause or contribute to a violation of the applicable NAAQS and PSD increment, and to determine adequate emissions limits. The same attention should be given to the detailed analyses of the air quality data as would be applied to a comprehensive model performance evaluation. In some cases, the monitoring data collected for use in the performance evaluation of preferred air quality models, screening technique, or existing alternative models may help inform the development of a suitable new alternative model. Early coordination with the appropriate reviewing authority (paragraph 3.0(b)) and the EPA Regional Office is fundamental with respect to any potential use of measured data in lieu of model estimates.
(1) This appendix summarizes key features of refined air quality models preferred for specific regulatory applications. For each model, information is provided on availability, approximate cost (where applicable), regulatory use, data input, output format and options, simulation of atmospheric physics, and accuracy. These models may be used without a formal demonstration of applicability provided they satisfy the recommendations for regulatory use; not all options in the models are necessarily recommended for regulatory use.
(2) Many of these models have been subjected to a performance evaluation using comparisons with observed air quality data. Where possible, several of the models contained herein have been subjected to evaluation exercises, including (1) statistical performance tests recommended by the American Meteorological Society and (2) peer scientific reviews. The models in this appendix have been selected on the basis of the results of the model evaluations, experience with previous use, familiarity of the model to various air quality programs, and the costs and resource requirements for use.
(3) Codes and documentation for all models listed in this appendix are available from the EPA's Support Center for Regulatory Air Models (SCRAM) Web site at
The model codes and associated documentation are available on EPA's SCRAM Web site (paragraph A.0(3)).
AERMOD is a steady-state plume dispersion model for assessment of pollutant concentrations from a variety of sources. AERMOD simulates transport and dispersion from multiple point, area, or volume sources based on an up-to-date characterization of the atmospheric boundary layer. Sources may be located in rural or urban areas, and receptors may be located in simple or complex terrain. AERMOD accounts for building wake effects (
(1) AERMOD is appropriate for the following applications:
• Point, volume, and area sources;
• Buoyant, elevated line sources (
• Mobile (line) sources;
• Surface, near-surface, and elevated releases;
• Rural or urban areas;
• Simple and complex terrain;
• Transport distances over which steady- state assumptions are appropriate, up to 50km;
• 1-hour to annual averaging times; and
• Continuous toxic air emissions.
(2) For regulatory applications of AERMOD, the regulatory default option should be set,
(1) Source data: Required input includes source type, location, emission rate, stack height, stack inside diameter, stack gas exit velocity, stack gas temperature, area and volume source dimensions, and source elevation. Building dimensions and variable emission rates are optional. Buoyant line sources require coordinates of the end points of the line, release height, emission rate, average line source width, average building width, average spacing between buildings, and average line source buoyancy parameter. For mobile sources, traffic volume; emission factor, source height, and mixing zone width are needed.
(2) Meteorological data: The AERMET meteorological preprocessor requires input of surface characteristics, including surface roughness (zo), Bowen ratio, and albedo, as well as, hourly observations of wind speed between 7zo and 100m (reference wind speed measurement from which a vertical profile can be developed), wind direction, cloud cover, and temperature between zo and 100m (reference temperature measurement from which a vertical profile can be developed). Meteorological data can be in the form of observed data or prognostic modeled data as discussed in paragraph 8.4.1(d). Surface characteristics may be varied by wind sector and by season or month. When using observed meteorological data, a morning sounding (in National Weather Service format) from a representative upper air station is required. Latitude, longitude, and time zone of the surface, site-specific (if applicable) and upper air meteorological stations are required. The wind speed starting threshold is also required in AERMET for applications involving site-specific data). When using prognostic data, modeled profiles of temperature and winds are input into AERMET. These can be hourly or a time that represents a morning sounding. Additionally, measured profiles of wind, temperature, vertical and lateral turbulence may be required in certain applications (
(i) Data used as input to AERMET should possess an adequate degree of representativeness to insure that the wind, temperature and turbulence profiles derived by AERMOD are both laterally and vertically representative of the source area. The adequacy of input data should be judged independently for each variable. The values for surface roughness, Bowen ratio, and albedo should reflect the surface characteristics in the vicinity of the meteorological tower or representative grid cell when using prognostic data, and should be adequately representative of the modeling domain. Finally, the primary atmospheric input variables including wind speed and direction, ambient temperature, cloud cover, and a morning upper air sounding should also be adequately representative of the source area, when using observed data.
(ii) For recommendations regarding the length of meteorological record needed to perform a regulatory analysis with AERMOD,
(3) Receptor data: Receptor coordinates, elevations, height above ground, and hill height scales are produced by the AERMAP terrain preprocessor for input to AERMOD. Discrete receptors and/or multiple receptor grids, Cartesian and/or polar, may be employed in AERMOD. AERMAP requires input of DEM terrain data produced by the U.S. Geological Survey (USGS), or other equivalent data. AERMAP can be used optionally to estimate source elevations.
Printed output options include input information, high concentration summary tables by receptor for user-specified averaging periods, maximum concentration summary tables, and concurrent values summarized by receptor for each day processed. Optional output files can be generated for: A listing of occurrences of exceedances of user-specified threshold value; a listing of concurrent (raw) results at each receptor for each hour modeled, suitable for post-processing; a listing of design values that can be imported into graphics software for plotting contours; a listing of results suitable for NAAQS analyses including NAAQS exceedances and culpability analyses; an unformatted listing of raw results above a threshold value with a special structure for use with the TOXX model component of TOXST; a listing of concentrations by rank (
AERMOD is a steady-state plume model, using Gaussian distributions in the vertical and horizontal for stable conditions, and in the horizontal for convective conditions. The vertical concentration distribution for convective conditions results from an assumed bi-Gaussian probability density function of the vertical velocity.
AERMOD is applicable to primary pollutants and continuous releases of toxic and hazardous waste pollutants. Chemical transformation is treated by simple exponential decay.
AERMOD applies user-specified locations for sources and receptors. Actual separation between each source-receptor pair is used. Source and receptor elevations are user input or are determined by AERMAP using USGS DEM terrain data. Receptors may be located at user-specified heights above ground level.
(1) In the convective boundary layer (CBL), the transport and dispersion of a plume is characterized as the superposition of three modeled plumes: The direct plume (from the stack), the indirect plume, and the penetrated plume, where the indirect plume accounts for the lofting of a buoyant plume near the top of the boundary layer, and the penetrated plume accounts for the portion of a plume that, due to its buoyancy, penetrates above the mixed layer, but can disperse downward and re-enter the mixed layer. In the CBL, plume rise is superposed on the displacements by random convective velocities (Weil
(2) In the stable boundary layer, plume rise is estimated using an iterative approach to account for height-dependent lapse rates, similar to that in the CTDMPLUS model (
(3) Stack-tip downwash and buoyancy induced dispersion effects are modeled. Building wake effects are simulated for stacks subject to building downwash using the methods contained in the PRIME downwash algorithms (Schulman,
(4) For elevated terrain, AERMOD incorporates the concept of the critical dividing streamline height, in which flow below this height remains horizontal, and flow above this height tends to rise up and over terrain (Snyder
Vertical profiles of wind are calculated for each hour based on measurements and surface-layer similarity (scaling) relationships. At a given height above ground, for a given hour, winds are assumed constant over the modeling domain. The effect of the vertical variation in horizontal wind speed on dispersion is accounted for through simple averaging over the plume depth.
In convective conditions, the effects of random vertical updraft and downdraft velocities are simulated with a bi-Gaussian probability density function. In both convective and stable conditions, the mean vertical wind speed is assumed equal to zero.
Gaussian horizontal dispersion coefficients are estimated as continuous functions of the parameterized (or measured) ambient lateral turbulence and also account for buoyancy- induced and building wake-induced turbulence. Vertical profiles of lateral turbulence are developed from measurements and similarity (scaling) relationships. Effective turbulence values are determined from the portion of the vertical profile of lateral turbulence between the plume height and the receptor height. The effective lateral turbulence is then used to estimate horizontal dispersion.
In the stable boundary layer, Gaussian vertical dispersion coefficients are estimated as continuous functions of parameterized vertical turbulence. In the convective boundary layer, vertical dispersion is characterized by a bi-Gaussian probability density function, and is also estimated as a continuous function of parameterized vertical turbulence. Vertical turbulence profiles are developed from measurements and similarity (scaling) relationships. These turbulence profiles account for both convective and mechanical turbulence. Effective turbulence values are determined from the portion of the vertical profile of vertical turbulence between the plume height and the receptor height. The effective vertical turbulence is then used to estimate vertical dispersion.
Chemical transformations are generally not treated by AERMOD. However, AERMOD does contain an option to treat chemical transformation using simple exponential decay, although this option is typically not used in regulatory applications, except for sources of sulfur dioxide in urban areas. Either a decay coefficient or a half-life is input by the user. Note also that the Plume Volume Molar Ratio Method and the Ozone Limiting Method (section 4.2.3.4) and for point-source NO
AERMOD can be used to treat dry and wet deposition for both gases and particles.
The model codes and associated documentation are available on the EPA's SCRAM Web site (paragraph A.0(3)).
CTDMPLUS is a refined point source Gaussian air quality model for use in all stability conditions for complex terrain applications. The model contains, in its entirety, the technology of CTDM for stable and neutral conditions. However, CTDMPLUS can also simulate daytime, unstable conditions, and has a number of additional capabilities for improved user friendliness. Its use of meteorological data
CTDMPLUS is appropriate for the following applications:
• Elevated point sources;
• Terrain elevations above stack top;
• Rural or urban areas;
• Transport distances less than 50 kilometers; and
• 1-hour to annual averaging times when used with a post-processor program such as CHAVG.
(1) Source data: For each source, user supplies source location, height, stack diameter, stack exit velocity, stack exit temperature, and emission rate; if variable emissions are appropriate, the user supplies hourly values for emission rate, stack exit velocity, and stack exit temperature.
(2) Meteorological data: For applications of CTDMPLUS, multiple level (typically three or more) measurements of wind speed and direction, temperature and turbulence (wind fluctuation statistics) are required to create the basic meteorological data file (“PROFILE”). Such measurements should be obtained up to the representative plume height(s) of interest (
(3) Receptor data: Receptor names (up to 400) and coordinates, and hill number (each receptor must have a hill number assigned).
(4) Terrain data: User inputs digitized contour information to the terrain preprocessor which creates the TERRAIN data file (for up to 25 hills).
(1) When CTDMPLUS is run, it produces a concentration file, in either binary or text format (user's choice), and a list file containing a verification of model inputs,
• Input meteorological data from “SURFACE” and “PROFILE”,
• Stack data for each source,
• Terrain information,
• Receptor information, and
• Source-receptor location (line printer map).
(2) In addition, if the case-study option is selected, the listing includes:
• Meteorological variables at plume height,
• Geometrical relationships between the source and the hill, and
• Plume characteristics at each receptor,
(3) If the user selects the TOPN option, a summary table of the top four concentrations at each receptor is given. If the ISOR option is selected, a source contribution table for every hour will be printed.
(4) A separate output file of predicted (1-hour only) concentrations (“CONC”) is written if the user chooses this option. Three forms of output are possible:
(i) A binary file of concentrations, one value for each receptor in the hourly sequence as run;
(ii) A text file of concentrations, one value for each receptor in the hourly sequence as run; or
(iii) A text file as described above, but with a listing of receptor information (names, positions, hill number) at the beginning of the file.
(5) Hourly information provided to these files besides the concentrations themselves includes the year, month, day, and hour information as well as the receptor number with the highest concentration.
CTDMPLUS is a refined steady-state, point source plume model for use in all stability conditions for complex terrain applications.
CTDMPLUS may be used to model non- reactive, primary pollutants.
Up to 40 point sources, 400 receptors and 25 hills may be used. Receptors and sources are allowed at any location. Hill slopes are assumed not to exceed 15°, so that the linearized equation of motion for Boussinesq flow are applicable. Receptors upwind of the impingement point, or those associated with any of the hills in the modeling domain, require separate treatment.
(1) As in CTDM, the basic plume rise algorithms are based on Briggs' (1975) recommendations.
(2) A central feature of CTDMPLUS for neutral/stable conditions is its use of a critical dividing-streamline height (H
(3) The model calculates on an hourly (or appropriate steady averaging period) basis how the plume trajectory (and, in stable/neutral conditions, the shape) is deformed by each hill. Hourly profiles of wind and temperature measurements are used by CTDMPLUS to compute plume rise, plume penetration (a formulation is included to handle penetration into elevated stable layers, based on Briggs (1984)), convective scaling parameters, the value of H
CTDMPLUS does not simulate calm meteorological conditions. Both scalar and vector wind speed observations can be read by the model. If vector wind speed is unavailable, it is calculated from the scalar wind speed. The assignment of wind speed (either vector or scalar) at plume height is done by either:
• Interpolating between observations above and below the plume height, or
• Extrapolating (within the surface layer) from the nearest measurement height to the plume height.
Vertical flow is treated for the plume component above the critical dividing streamline height (H
Horizontal dispersion for stable/neutral conditions is related to the turbulence velocity scale for lateral fluctuations, σv, for which a minimum value of 0.2 m/s is used. Convective scaling formulations are used to estimate horizontal dispersion for unstable conditions.
Direct estimates of vertical dispersion for stable/neutral conditions are based on observed vertical turbulence intensity,
Chemical transformation is not treated by CTDMPLUS.
Physical removal is not treated by CTDMPLUS (complete reflection at the ground/hill surface is assumed).
The model codes and associated documentation are available on EPA's SCRAM Web site (paragraph A.0(3)). Official contact at Minerals Management Service: Mr. Dirk Herkhof, Parkway Atrium Building, 381 Elden Street, Herndon, VA 20170, Phone: (703) 787-1735.
(1) OCD is a straight-line Gaussian model developed to determine the impact of offshore emissions from point, area or line sources on the air quality of coastal regions. OCD incorporates overwater plume transport and dispersion as well as changes that occur as the plume crosses the shoreline. Hourly meteorological data are needed from both offshore and onshore locations. These include water surface temperature, overwater air temperature, mixing height, and relative humidity.
(2) Some of the key features include platform building downwash, partial plume penetration into elevated inversions, direct use of turbulence intensities for plume dispersion, interaction with the overland internal boundary layer, and continuous shoreline fumigation.
OCD has been recommended for use by the Minerals Management Service for emissions located on the Outer Continental Shelf (50 FR 12248; 28 March 1985). OCD is applicable for overwater sources where onshore receptors are below the lowest source height. Where onshore receptors are above the lowest source height, offshore plume transport and dispersion may be modeled on a case-by-case basis in consultation with the appropriate reviewing authority (paragraph 3.0(b)).
(1) Source data: Point, area or line source location, pollutant emission rate, building height, stack height, stack gas temperature, stack inside diameter, stack gas exit velocity, stack angle from vertical, elevation of stack base above water surface and gridded specification of the land/water surfaces. As an option, emission rate, stack gas exit velocity and temperature can be varied hourly.
(2) Meteorological data (over water): Wind direction, wind speed, mixing height, relative humidity, air temperature, water surface temperature, vertical wind direction shear (optional), vertical temperature gradient (optional), turbulence intensities (optional).
(3) Meteorological data:
Over land: Surface weather data from a preprocessor such as PCRAMMET which provides hourly stability class, wind direction, wind speed, ambient temperature, and mixing height are required.
Over water: Hourly values for mixing height, relative humidity, air temperature, and water surface temperature are required; if wind speed/direction are missing, values over land will be used (if available); vertical wind direction shear, vertical temperature gradient, and turbulence intensities are optional.
(4) Receptor data: Location, height above local ground-level, ground-level elevation above the water surface.
(1) All input options, specification of sources, receptors and land/water map including locations of sources and receptors.
(2) Summary tables of five highest concentrations at each receptor for each averaging period, and average concentration for entire run period at each receptor.
(3) Optional case study printout with hourly plume and receptor characteristics. Optional table of annual impact assessment from non-permanent activities.
(4) Concentration output files can be used by ANALYSIS postprocessor to produce the highest concentrations for each receptor, the cumulative frequency distributions for each receptor, the tabulation of all concentrations exceeding a given threshold, and the manipulation of hourly concentration files.
OCD is a Gaussian plume model constructed on the framework of the MPTER model.
OCD may be used to model primary pollutants. Settling and deposition are not treated.
(1) Up to 250 point sources, 5 area sources, or 1 line source and 180 receptors may be used.
(2) Receptors and sources are allowed at any location.
(3) The coastal configuration is determined by a grid of up to 3600 rectangles. Each element of the grid is designated as either land or water to identify the coastline.
(1) As in ISC, the basic plume rise algorithms are based on Briggs' recommendations.
(2) Momentum rise includes consideration of the stack angle from the vertical.
(3) The effect of drilling platforms, ships, or any overwater obstructions near the source are used to decrease plume rise using a revised platform downwash algorithm based on laboratory experiments.
(4) Partial plume penetration of elevated inversions is included using the suggestions of Briggs (1975) and Weil and Brower (1984).
(5) Continuous shoreline fumigation is parameterized using the Turner method where complete vertical mixing through the thermal internal boundary layer (TIBL) occurs as soon as the plume intercepts the TIBL.
(1) Constant, uniform wind is assumed for each hour.
(2) Overwater wind speed can be estimated from overland wind speed using relationship of Hsu (1981).
(3) Wind speed profiles are estimated using similarity theory (Businger, 1973). Surface layer fluxes for these formulas are calculated from bulk aerodynamic methods.
Vertical wind speed is assumed equal to zero.
(1) Lateral turbulence intensity is recommended as a direct estimate of horizontal dispersion. If lateral turbulence intensity is not available, it is estimated from boundary layer theory. For wind speeds less than 8 m/s, lateral turbulence intensity is assumed inversely proportional to wind speed.
(2) Horizontal dispersion may be enhanced because of obstructions near the source. A virtual source technique is used to simulate the initial plume dilution due to downwash.
(3) Formulas recommended by Pasquill (1976) are used to calculate buoyant plume enhancement and wind direction shear enhancement.
(4) At the water/land interface, the change to overland dispersion rates is modeled using a virtual source. The overland dispersion rates can be calculated from either lateral turbulence intensity or Pasquill-Gifford curves. The change is implemented where the plume intercepts the rising internal boundary layer.
(1) Observed vertical turbulence intensity is not recommended as a direct estimate of vertical dispersion. Turbulence intensity should be estimated from boundary layer theory as default in the model. For very stable conditions, vertical dispersion is also a function of lapse rate.
(2) Vertical dispersion may be enhanced because of obstructions near the source. A virtual source technique is used to simulate the initial plume dilution due to downwash.
(3) Formulas recommended by Pasquill (1976) are used to calculate buoyant plume enhancement.
(4) At the water/land interface, the change to overland dispersion rates is modeled using a virtual source. The overland dispersion rates can be calculated from either vertical turbulence intensity or the Pasquill-Gifford coefficients. The change is implemented where the plume intercepts the rising internal boundary layer.
Chemical transformations are treated using exponential decay. Different rates can be specified by month and by day or night.
Physical removal is also treated using exponential decay.
| 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 |