| Page Range | 63889-64304 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 64303 - National Forest Products Week, 2015 | |
| 80 FR 64299 - National Character Counts Week, 2015 | |
| 80 FR 63996 - Sunshine Act Meeting | |
| 80 FR 64030 - Sunshine Act Meeting | |
| 80 FR 64038 - Sunshine Act Meeting | |
| 80 FR 63975 - Proposed Priorities, Requirements, Definitions, and Selection Criteria-Performance Partnership Pilots for Disconnected Youth | |
| 80 FR 63957 - Subsidy Programs Provided by Countries Exporting Softwood Lumber and Softwood Lumber Products to the United States; Request for Comment | |
| 80 FR 63911 - Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 2016 | |
| 80 FR 63916 - Special Local Regulation for Battle of Hampton; Hampton River, Hampton, VA | |
| 80 FR 63923 - Safety Zone; Mississippi River Between Mile 467.0 and 472.0; Transylvania, LA | |
| 80 FR 63918 - Drawbridge Operation Regulation; English Kills, Brooklyn, NY | |
| 80 FR 63926 - Safety Zone; Mississippi River Between Mile 488.0 and 480.5; Lake Providence, LA | |
| 80 FR 63921 - Safety Zone; Pago Pago Harbor, American Samoa | |
| 80 FR 63974 - National Board for Education Sciences | |
| 80 FR 63889 - Defining Bona Fide Cotton Spot Markets for the World Cotton Futures Contract | |
| 80 FR 63909 - Soybean Promotion and Research: Amend the Order To Adjust Representation on the United Soybean Board | |
| 80 FR 64010 - Filing of Plats of Survey: Oregon/Washington | |
| 80 FR 64060 - Application To Renew Information Collection Request OMB No. 2105-0551 | |
| 80 FR 64061 - West Los Angeles VA Medical Center; Preliminary Draft Final Master Plan-Public Comment Period | |
| 80 FR 63935 - Amendments to Regional Consistency Regulations | |
| 80 FR 64002 - Sunshine Act; Notice of ETAC Meeting | |
| 80 FR 64022 - Request for Comments on Circular No. A-130, Managing Information as a Strategic Resource | |
| 80 FR 63995 - Administrative Agreement and Order on Consent for Post Removal Site Control Activities by Bona Fide Prospective Purchaser: Rocky Flats Industrial Park Superfund Site, Jefferson County, Colorado | |
| 80 FR 63994 - Board of Scientific Counselors (BOSC) Chemical Safety for Sustainability Subcommittee; Public Teleconference Meeting-November 2015 | |
| 80 FR 63993 - Proposed Settlement Agreement | |
| 80 FR 63936 - Basic Health Program; Federal Funding Methodology for Program Years 2017 and 2018 | |
| 80 FR 63972 - Proposed Changes in Levels of Service at Locks and Dams on the Ouachita and Black Rivers | |
| 80 FR 63928 - Defense Federal Acquisition Regulation Supplement: Network Penetration Reporting and Contracting for Cloud Services (DFARS Case 2013-D018) | |
| 80 FR 63973 - Availability of a Final Integrated Feasibility Report (Feasibility Study/Environmental Impact Statement/Environmental Impact Report), Los Angeles River Ecosystem Restoration Study, City of Los Angeles, Los Angeles County, CA | |
| 80 FR 64049 - Overseas Security Advisory Council (OSAC) Meeting Notice | |
| 80 FR 64052 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Application for Certificate of Waiver or Authorization | |
| 80 FR 64055 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Hazardous Materials Training Requirements | |
| 80 FR 64054 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Suspected Unapproved Parts Notification | |
| 80 FR 64051 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Training and Qualification Requirements for Check Airmen and Flight Instructors | |
| 80 FR 64053 - Notice of Approval of Finding of No Significant Impact/Record of Decision (FONSI/ROD) for the Proposed Replacement Airport (XWA) Serving D-III Aircraft in Williston, North Dakota | |
| 80 FR 63929 - Fisheries of the Northeastern United States; Atlantic Herring Fishery; Georges Bank Haddock Catch Cap Harvested | |
| 80 FR 63912 - Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS | |
| 80 FR 63930 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the Bering Sea Subarea of the Bering Sea and Aleutian Islands Management Area | |
| 80 FR 64011 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 80 FR 64053 - Notice of Availability for Draft Environmental Assessment (EA) for the Proposed Part 139 Operating Certificate and Related Actions and Notice for Public Hearing at Paulding Northwest Atlanta Airport | |
| 80 FR 64002 - Proposed Vaccine Information Materials for HPV (Human Papillomavirus) Gardasil®-9 Vaccine | |
| 80 FR 64028 - Self-Regulatory Organizations; the Options Clearing Corporation; Notice of Filing of Advance Notice of and No Objection to the Options Clearing Corporation's Proposal To Enter a New Credit Facility Agreement | |
| 80 FR 64050 - Twenty-Fifth Meeting: RTCA Special Committee (217) Aeronautical Databases Joint with EUROCAE WG-44-Aeronautical Databases | |
| 80 FR 64050 - Eleventh Meeting: RTCA Tactical Operations Committee (TOC) | |
| 80 FR 64051 - Seventh Meeting: RTCA Special Committee (231) Terrain Awareness Warning Systems (TAWS) | |
| 80 FR 64053 - Fifth Meeting: RTCA Special Committee (232) Airborne Selective Calling Equipment | |
| 80 FR 64051 - Twenty-First Meeting: RTCA Special Committee (222) AMS(R)S | |
| 80 FR 64054 - Ninth Meeting: RTCA Special Committee (228) Minimum Operational Performance Standards for Unmanned Aircraft Systems | |
| 80 FR 64025 - Construction Permit Application for the SHINE Medical Radioisotope Production Facility | |
| 80 FR 64026 - Submission of Information Collection for OMB Review; Comment Request; Qualified Domestic Relations Orders Submitted to PBGC | |
| 80 FR 63958 - Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy Civilian Port Defense Activities at the Ports of Los Angeles/Long Beach, California | |
| 80 FR 63989 - Environmental Management Site-Specific Advisory Board, Nevada Meeting | |
| 80 FR 63990 - Environmental Management Site-Specific Advisory Board, Oak Ridge Reservation Meeting | |
| 80 FR 63989 - Environmental Management Site-Specific Advisory Board, Savannah River Site Meeting | |
| 80 FR 63988 - Environmental Management Site-Specific Advisory Board, Paducah Meeting | |
| 80 FR 64009 - Eastern States: Filing of Plats of Survey | |
| 80 FR 63914 - Schedule of Fees for Access to NOAA Environmental Data, Information, and Related Products and Services | |
| 80 FR 64005 - Selection of the Appropriate Package Type Terms and Recommendations for Labeling Injectable Medical Products Packaged in Multiple-Dose, Single-Dose, and Single-Patient-Use Containers for Human Use; Draft Guidance for Industry; Availability | |
| 80 FR 64000 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 64003 - Proposed Information Collection Activity; Comment Request | |
| 80 FR 63950 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program | |
| 80 FR 64004 - Proposed Information Collection Activity; Comment Request | |
| 80 FR 63933 - Virginia Regulatory Program | |
| 80 FR 64005 - Submission for OMB Review; Comment Request | |
| 80 FR 63957 - Proposed Amendment to the Puerto Rico Coastal Zone Management Program | |
| 80 FR 64008 - Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input | |
| 80 FR 63973 - Notice of Proposed Methodology for the 2016 Delaware River and Bay Water Quality Assessment Report | |
| 80 FR 63973 - Notice of Public Hearing and Business Meeting November 10 and December 9, 2015 | |
| 80 FR 63992 - Pacific Gas and Electric Company; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests | |
| 80 FR 63991 - Combined Notice of Filings #1 | |
| 80 FR 64008 - Draft Environmental Assessment; Dallas Zoo Management; Dallas, Texas | |
| 80 FR 63971 - Agency Information Collection Activities Under OMB Review | |
| 80 FR 63919 - Safety Zone; Ironman 70.3 Miami; Miami, FL | |
| 80 FR 63988 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Application for Grants Under the Educational Opportunity Centers Program (1894-0001) | |
| 80 FR 64017 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Safety Standards for Roof Bolts in Metal and Nonmetal Mines and Underground Coal Mines | |
| 80 FR 64018 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Health Standards for Diesel Particulate Matter Exposure in Underground Metal and Nonmetal Mines | |
| 80 FR 64016 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Prohibited Transaction Class Exemption for Cross-Trades of Securities by Index and Model-Driven Funds | |
| 80 FR 64012 - Investigations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 80 FR 64014 - Notice of Determinations Regarding Eligibility to Apply for Worker Adjustment Assistance | |
| 80 FR 64020 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Migrant and Seasonal Farmworker Monitoring Report and One-Stop Career Center Complaint/Referral Record | |
| 80 FR 64019 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Ground Control Plans for Surface Coal Mines and Surface Work Areas of Underground Coal Mines | |
| 80 FR 64024 - Comment Request: Biological Sciences Proposal Classification Form | |
| 80 FR 64048 - Agency Information Collection Activities: Proposed Request and Comment Request | |
| 80 FR 64031 - Order Extending Temporary Conditional Exemption for Nationally Recognized Statistical Rating Organizations From Requirements of Rule 17g-5(A)(3) Under the Securities Exchange Act of 1934 and Request for Comment | |
| 80 FR 63919 - Drawbridge Operation Regulation; Willamette River, Portland, OR | |
| 80 FR 64027 - New Postal Product | |
| 80 FR 64000 - Proposed Agency Information Collection Activities; Comment Request | |
| 80 FR 64010 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 80 FR 64020 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Unemployment Compensation for Federal Employees | |
| 80 FR 64042 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of Fees | |
| 80 FR 64046 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of Fees | |
| 80 FR 64041 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of Fees | |
| 80 FR 64039 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Amendment No. 1 and Order Granting Accelerated Approval to a Proposed Rule Change, as Modified by Amendment No. 1, To Require an Indicator When a TRACE Report Does Not Reflect a Commission or Mark-up/Mark-down | |
| 80 FR 64027 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change Regarding a Change to the Reference Index of the Market Vectors Short High Yield Municipal Index ETF | |
| 80 FR 64037 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of Fees | |
| 80 FR 64033 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of Fees | |
| 80 FR 64057 - Cooper Tire & Rubber Company, Receipt of Petition for Decision of Inconsequential Noncompliance | |
| 80 FR 64056 - Mack Trucks, Inc., Grant of Petition for Decision of Inconsequential Noncompliance | |
| 80 FR 64058 - Ford Motor Company, Grant of Petition for Decision of Inconsequential Noncompliance | |
| 80 FR 64021 - Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO): Meeting | |
| 80 FR 63993 - Combined Notice of Filings #2 (October 9, 2015) | |
| 80 FR 63990 - Combined Notice of Filings #1 | |
| 80 FR 64000 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 80 FR 63932 - Investment and Deposit Activities-Bank Notes | |
| 80 FR 64023 - NASA Advisory Council; Institutional Committee; Meeting. | |
| 80 FR 64024 - NASA Advisory Council; Aeronautics Committee Meeting | |
| 80 FR 64023 - International Space Station National Laboratory Advisory Committee; Charter Renewal | |
| 80 FR 64022 - Aerospace Safety Advisory Panel; Charter Renewal | |
| 80 FR 63996 - Notice of Establishment of Housing Price Index | |
| 80 FR 64007 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 63890 - Agriculture Priorities and Allocations System | |
| 80 FR 64025 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Metallurgy and Reactor Fuels; Notice of Meeting | |
| 80 FR 64048 - Data Collection Available for Public Comments | |
| 80 FR 64191 - 2013 Liquid Chemical Categorization Updates | |
| 80 FR 64261 - Greenhouse Gas Reporting Rule: 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems | |
| 80 FR 64159 - Air Plan Approval; Minnesota and Michigan; Revision to Taconite Federal Implementation Plan | |
| 80 FR 64063 - National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule |
Agricultural Marketing Service
Farm Service Agency
International Trade Administration
National Oceanic and Atmospheric Administration
Defense Acquisition Regulations System
Engineers Corps
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
Surface Mining Reclamation and Enforcement Office
Employment and Training Administration
Federal Aviation Administration
National Highway Traffic Safety Administration
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.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Agricultural Marketing Service, USDA.
Final rule.
The Agricultural Marketing Service (AMS) is amending the regulatory language to designate which bona fide cotton spot markets will be used to determine actual commercial differences in value for various grades above or below the basis grade in the settlement of World cotton futures contracts on the Intercontinental Exchange (ICE). Designating bona fide cotton spot markets for the World cotton futures contract in the regulatory language will allow for AMS to collect spot market price data and publish spot quotes for the settlement of these specific contracts.
Darryl Earnest, Deputy Administrator, Cotton & Tobacco Program, AMS, USDA, 3275 Appling Road, Room 11, Memphis, TN 38133. Telephone (901) 384-3060, facsimile (901) 384-3021, or email
Executive Orders 12866 and 13563 direct agencies to access all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).
This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities and has determined that its implementation will not have a significant economic impact on a substantial number of small businesses.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. There are approximately sixty cotton merchant organizations of various sizes active in trading U.S. cotton. Many of these cotton merchants are small businesses under the criteria established by the Small Business Administration (13 CFR 121.201). Small business entities that are merchants in the U.S. cotton industry are defined as having fewer than 100 employees. Amendments to the regulation concerning bona fide cotton spot market designations will not significantly affect small businesses as defined in the RFA because:
(1) How spot prices are estimated are not expected to be impacted by this action;
(2) Business practices of the U.S. cotton industry are not expected to change as a result of this action;
(3) Costs associated with providing market news services will not be significantly changed by this action;
(4) Market news services are paid for by appropriated funds, therefore users are not charged fees for the provision of the services.
In compliance with OMB regulations (5 CFR part 1320), which implement the Paperwork Reduction Act (PRA) (44 U.S.C. 3501), the information collection requirements contained in the provisions to be amended by this proposed rule have been previously approved by OMB and were assigned OMB control number 0581-0009, Cotton Classification and Market News Service.
The Secretary of Agriculture is authorized under the United States Cotton Futures Act (7 U.S.C. 15b) to designate at least five bona fide cotton spot markets from which cotton price information can be collected. A spot market—also called the “cash market” or “physical market”—is a market where commodities are sold on the spot for cash at current market prices and delivered immediately. Designation of these bona fide cotton spot markets and the determination of which counties and states compose each of these spot markets was most recently published in the
In order to better manage price risk in the global cotton market, the American Cotton Shippers Association (ACSA) and the International Cotton Association (ICA) requested that the Intercontinental Exchange (ICE) offer a World cotton futures contract. In response, ICE
A proposed rule was published in the
The U.S. cotton industry and ICE requested that AMS, Cotton and Tobacco Program to collect and publish cotton spot market price information relevant to the World cotton contract prior to the offering of this new futures contract, which is scheduled for the fourth quarter of 2015.
Commodity futures, Cotton.
For the reasons set forth in the preamble, 7 CFR part 27 is amended as follows:
7 U.S.C. 15b, 7 U.S.C. 473b, 7 U.S.C. 1622(g).
(a) For cotton delivered in settlement of any Cotton No. 2 or World Cotton contract on the Intercontinental Exchange (ICE); the spot markets are Southeastern, North and South Delta, Eastern Texas and Oklahoma, West Texas, and Desert Southwest.
Farm Service Agency, USDA.
Final rule.
The Farm Service Agency (FSA) is establishing the regulation for the Agriculture Priorities and Allocations System (APAS). Food is a critical commodity essential to the national defense (including civil emergency preparedness and response). To avoid civilian hardship during national defense emergencies, it may be necessary to regulate the production, processing, storage, and wholesale distribution of food. Through the APAS rule, the U.S. Department of Agriculture (USDA) will respond to requests to place priority ratings on contracts or orders (establishing priority on which contracts or orders are filled first) for agriculture commodities up through the wholesale levels, including agriculture production equipment, and allocate resources, as specified in the Defense Production Act (DPA) of 1950, as amended, if the necessity arises. FSA is implementing this rule as a way to redirect the agriculture commodities and resources to areas of hardship or potential hardship due to national emergencies. In most cases, there is likely to be no economic impact in filling priority orders because it would generally just be changing the timing in which orders are completed.
Effective December 21, 2015.
Robert Haughton, telephone (202) 702-0135. Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact the USDA Target Center at (202) 720-2600 (voice and TDD).
APAS is a USDA program that supports not only national defense needs (such as food for combat rations), but also emergency preparedness initiatives by addressing essential civilian needs (food and food resources) through the placing of priorities on contracts for items and services or allocating resources, as necessary. Although a specific Presidential disaster designation is not required, the ability to prioritize or allocate items or services can be triggered by a determination by the President or designated entities that this action is necessary or appropriate to promote national defense including the imminent need for emergency preparedness. Under DPA (50 U.S.C. App. 2061 to 2170, 2171, and 2172), the term “national defense” includes emergency preparedness, response, and critical infrastructure protection and restoration. Authority for priorities and allocations is specified in DPA and further defined in Executive Order 13603, “National Defense Resources Preparedness,” dated March 16, 2012. Executive Order 13603 replaced Executive Order 12919 (referenced in the proposed rule) and further defined jurisdictional areas and national defense preparedness roles and responsibilities for specific Departments. Executive Order 13603 did not change the intent of DPA as it applies to USDA's functions in national defense, including emergency preparedness; instead it gave additional jurisdiction to USDA for livestock, veterinary, and plant health resources.
For the final rule, only those sections in the “Supplementary Information” part of the proposed rule preamble that required modifications due to Executive Order 13603 or for other reasons are further discussed in the “Supplementary Information” section of this final rule. A more thorough explanation along with examples of APAS applicability was provided in the proposed rule that was published on May 19, 2011 (76 FR 29084-29106). References in those examples to Executive Order 12919 should be read to mean Executive Order 13603. Also contained in this summary are descriptions of comments received and responses developed on the proposed rule. We are not reiterating the “Section by Section Discussion of Rule” section of the proposed rule preamble in this document. Any changes to those sections are discussed in this document.
Title I of DPA and Executive Order 13603 authorize jurisdictional areas for each Department that is involved in national defense including emergency preparedness. USDA has jurisdiction for items that fall under the categories of:
(1) Food resources (including potable water packaged in commercially marketable containers) and food resource facilities;
(2) Livestock resources, veterinary resources, and plant health resources; and
(3) Domestic distribution of farm equipment and commercial fertilizer.
USDA cannot use its DPA authority for items or services not in its
USDA intends to work with other resource agencies to address instances where USDA does not have jurisdiction for all of the items necessary to complete the order. For example, if an order for the delivery of milk needs to be prioritized, USDA would have jurisdiction over the milk as a food resource, but it would not have jurisdiction over the truck or fuel for the vehicle. Therefore, USDA intends to work with the other resource agencies to receive delegations to prioritize contracts or orders for other items or services necessary for use in support of programs approved for use by USDA (see next section). Until such delegations are received, USDA will follow the procedure described in the previous paragraph.
USDA also plans to provide delegations to other resource agencies to ensure they can respond timely to emergency events.
USDA has three approved programs for priorities and allocations support under section 202 of Executive Order 13603. Items or services for which USDA may provide priorities or allocations support must fall under one of the following programs:
(1) Food and food resources (civilian): Programs involving food and food resources processing and storage in support of emergency preparedness activities conducted pursuant to Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act, 42 U.S.C. 5195-5197h).
(2) Agriculture and food critical infrastructure protection and restoration (civilian): Programs to protect or restore the agriculture and food system from terrorist attacks, major disasters, and other emergencies.
(3) Military food rations: Programs to provide the Department of Defense with food resources for combat rations.
For all other requests for items under USDA's jurisdiction that are not covered by these three programs, USDA will request concurrence from the Secretary of Homeland Security before placing a priority rating on the items.
APAS covers only those government and private entities that have national defense, or emergency preparedness, response, and recovery responsibilities. This small realm strictly limits the participants eligible to request assistance through APAS. Also, the vendors that supply agriculture related items (food, food resources) and in the quantity that is expected to be requested is inherently limited in scope. Only a limited number of vendors are able to produce or deliver the large quantities of items required for emergency preparedness activities that would fall under the authority of Title I of DPA. For example, for preparations in advance of Hurricane Ike hitting the Texas Coast in 2008, one Federal agency considered requesting 1 million meals-ready-to-eat. In this example, it is clear that there would be limited companies that would be able to quickly supply 1 million meals-ready-to-eat. This is a representative example of the type of needs for which a priority rating would be requested through APAS. As a result, this program has a very limited customer base of large manufacturers and suppliers as well as those Government and public agencies (for example, the Red Cross), having national defense, or emergency preparedness, response, and recovery responsibilities.
Government organizations may request priority ratings through APAS to ensure that they are able to obtain critical resources during or in anticipation of an emergency to lessen the effects of the hazard on civilian populations.
As an example of how the Department of Commerce (DOC) has needed to use its Defense Priorities and Allocations System (DPAS) (15 CFR part 700), during the aftermath of Hurricane Katrina, after the request was endorsed by the Federal Emergency Management Agency (FEMA), DOC authorized a railroad to place a priority rated order with Company X for equipment to repair the damages to the railroad system supporting commodity movements in and around the New Orleans area. This rated order allowed the vendor responsible for repairing the railroad infrastructure around the New Orleans area to complete repairs in the fastest time possible. This allowed the response organizations to quickly receive items in bulk quantities needed to support the mass care and housing of those displaced by the hurricane and its aftermath. When the railroad placed the rated order for equipment, Company X was required to fill the railroad's order first, before any other orders, unless Company X had a legal basis for rejecting the rated order. In addition, all customers currently under contract obligations from Company X would not have breach-of-contract cause of action against Company X if their orders could not be filled by the original agreed-to time due to unplanned delays due to filling the rated order.
Section 101 of DPA (50 U.S.C. App. 2071) establishes the broad authority for the President to require the acceptance and priority performance of contracts or orders (other than contracts of employment) to support or promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense. This is commonly referred to as “priorities and allocations” authority. Through Executive Order 13603 the President delegated the DPA section 101 priorities and allocations authority to the following agency heads:
• The Secretary of Agriculture with respect to food resources (including potable water packaged in commercially marketable containers), food resource facilities, livestock resources, veterinary resources, plant health resources, and the domestic distribution of farm equipment and commercial fertilizer.
• The Secretary of Energy with respect to all forms of energy.
• The Secretary of Health and Human Services with respect to health resources.
• The Secretary of Transportation with respect to all forms of civil transportation.
• The Secretary of Defense with respect to water resources.
• The Secretary of Commerce with respect to all other materials, services, and facilities, including construction materials.
Since the initial enactment, Congress has continued to reauthorize DPA. On September 30, 2009, Congress enacted the Defense Production Act Reauthorization (DPAR) of 2009 (Pub. L.111-67). A significant difference in that reauthorization was the requirement for Departments other than DOC to initiate rulemaking to implement their responsibilities under DPA. Specifically, section 101(d) of DPA (50 U.S.C. App. 2071(d)), as added by DPAR, directed the head of each Federal agency to issue final rules that establish standards and procedures to use the authority of section 101 to promote the national defense under both emergency and nonemergency
DPA was extended again through September 30, 2019, by Pub. L. 113-172 (Sept. 26, 2014). In the most recent reauthorization, Congress retained the requirement in section 101(d) (50 U.S.C. App. 2071(d)) to issue final rules but also added a requirement to annually review and update those regulations whenever appropriate.
FEMA in the Department of Homeland Security (DHS) is responsible for coordinating priorities and allocations rulemaking efforts among the six Federal agencies that have been delegated DPA section 101 authority (referred to as “resource agencies”) to ensure consistency and uniformity of rule language and provisions across resource agency jurisdictions. Together, the priorities and allocations system regulations of each resource agency will constitute FPAS.
USDA is working with FEMA and the other Departments that have DPA authority to have common rules for the implementation of priorities and allocations. Those Departments are in various stages of developing and publishing their own rules covering the jurisdictional areas outlined in Executive Order 13603. DOC published a final rule revising its DPAS regulation on August 14, 2014 (79 FR 47560). The Department of Energy published the rule for the Energy Priorities and Allocations System on June 9, 2011 (76 FR 33615); the Department of Transportation published the rule for the Transportation Priorities and Allocations System on October 1, 2012 (77 FR 59793); and the Department of Health and Human Services published the rule for the Health Resources Priority and Allocations System on July 17, 2015 (80 FR 42408-42423).
Within USDA, authority to administer APAS has been delegated to the FSA Administrator. FSA will manage APAS for all USDA.
This rule establishes APAS, one-part of the FPAS, to implement USDA's administration of its delegated authority under DPA section 101 and other related statutes such as the priorities provisions of the Military Selective Service Act
APAS provides guidance and procedures for use of DPA priorities and allocations authority with respect to the resource areas delegated by the President to the Secretary of Agriculture as specified in Executive Order 13603: Food resources; food resource facilities; livestock, veterinary, and plant health resources; and the domestic distribution of farm equipment and commercial fertilizer. As specified in Executive Order 13603, section 202, priorities and allocations may be used only to support programs that have been determined in writing “as necessary or appropriate to promote the national defense” by:
(a) The Secretary of Defense with respect to military production and construction, military assistance to foreign nations, military use of civil transportation, stockpiles managed by the Department of Defense, space, and directly related activities;
(b) The Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; or
(c) The Secretary of Homeland Security, with respect to all other national defense programs, including civil defense and continuity of Government.
Under DPA, the term “national defense” specifically includes emergency preparedness activities conducted pursuant to title VI of the Stafford Act.
(1) Preparedness, including actions taken before an event occurs to lessen the severity of hardships to civilians,
(2) Response, including actions taken immediately after the event happens, but before any recovery actions are taken, to relieve the effects on civilians; response includes both the anticipation of the event and the immediate response to it; and
(3) Recovery, including actions taken to restore critical infrastructure and key resources to normal operations.
USDA expects the requests for priority ratings will predominately be from Federal government agencies, and the State and local governments with a responsibility in emergency preparedness. USDA expects that a request from a private entity will be for the purpose of fulfilling a government contract; however, USDA will act on other requests that are appropriate for the regulation.
According to Executive Order 13603 the priorities and allocations authority of DPA may be used by the Secretary of Agriculture only to support programs that have been determined in writing as necessary or appropriate to promote the national defense. USDA has coordinated with the Secretary of Homeland Security and the Secretary of Defense to identify and approve programs that will cover everything for which we expect to need to provide priorities and allocations as covered in this regulation.
USDA has two programs that have been approved by the Secretary of Homeland Security for priorities and allocations support pursuant to the authority of the Secretary of Homeland Security as currently reflected in section 202(c) of Executive Order 13603:
(1) Food and food resources (civilian): Programs involving food and food resources processing and storage in support of emergency preparedness activities conducted pursuant to Title VI of the Stafford Act. Such programs involve activities and measures designed or undertaken to prepare for or minimize the effects of a hazard upon the civilian population, to handle immediate emergency conditions that would be created by the hazard, and to
(2) Agricultural and food critical infrastructure protection and restoration: Programs to protect or restore the agriculture and food system from terrorist attacks, major disasters, and other emergencies. In Homeland Security Presidential Directive HSPD-9, “Defense of United States Agriculture and Food,” dated January 30, 2004, such programs involve activities and measures to:
• Identify and prioritize critical infrastructure and key resources in the agriculture and food system for establishing protection requirements;
• Develop awareness and early warning capabilities to recognize threats;
• Mitigate vulnerabilities at critical production and processing nodes;
• Enhance screening procedures for domestic and imported products; and
• Enhance response and recovery procedures.
These programs support the national defense by providing for essential civilian needs to ensure a viable food and agriculture sector during an emergency preparedness event or a military conflict. Both programs involve emergency preparedness activities and the maintenance and restoration of the critical infrastructure and key resources.
USDA has one program, Food Resources (combat rations), that has been approved by the Secretary of Defense for priorities and allocations support pursuant to the authority of the Secretary of Defense as currently reflected in section 202(a) of Executive Order 13603. USDA delegated implementation authority of the agricultural portion of DPA to DOC. DOC in turn delegated authority to the Department of Defense to administer a “priorities” program for combat rations to meet troop requirements (an agreement between DOC and USDA, dated January 28, 1991, and approved by FEMA on February 1, 1991). USDA is rescinding the delegation of authority with DOC and delegating authority directly to the Department of Defense to administer the combat rations programs.
The approved programs are listed in Schedule I of the APAS regulation (see Schedule I at the end of this document for a complete list of approved programs).
Before USDA can exercise its priorities or allocations authority for any requirements not covered under the approved programs, as specified in section 202 of Executive Order 13603, the Secretaries of Defense, Energy, or Homeland Security, as appropriate, would have to concur, in writing, with USDA that use of priorities or allocations authority by USDA would be necessary or appropriate to promote the national defense.
Commodities covered under the APAS regulation include those items required for production of agriculture commodities (including fertilizer, agriculture seed, and livestock feed), raw and processed agriculture products for wholesale distribution, and agriculture production equipment.
APAS has two principal components: Priorities and allocations.
In the “priorities” component of APAS, certain contracts between the government and private parties, or contracts between private parties, would be required to be given priority (priority rating) over other respective contracts to ensure timely delivery of an item needed for an “approved program.” “Approved program” is defined in 7 CFR 789.8 as a program determined by the Secretary of Defense, the Secretary of Energy, or the Secretary of Homeland Security to be necessary or appropriate to promote the national defense, as specified in section 202 of Executive Order 13603. As stated above, certain USDA programs have been approved by the Secretary of Homeland Security and by the Secretary of Defense as necessary or appropriate to promote the national defense. Other programs could be approved in the future.
If you (as a vendor) receive a rated order, you must give it preferential treatment as required by subpart C, §§ 789.10 through 789.18 (see the proposed rule for the section by section discussion of the regulation). This means that you must accept and fill rated orders for items that you normally supply and consistent with regularly established terms of sale (see § 789.13(a)). Failure to comply with the provisions of the rated order may result in legal actions and fines against the recipient of the rated order. However, certain grounds for mandatory rejection or optional rejection of the rated order may apply (see § 789.13(b) and (c)). Rated orders must be accepted or rejected within specified time frames (see §§ 789.13(d) and 789.13(e)).
All rated orders must be scheduled in a manner and to the extent possible to ensure timely delivery by the required delivery date contained in each order (see § 789.14(a)).
The existence of previously accepted unrated orders or contracts or lower rated orders is not sufficient reason for rejecting a rated order. In fact, you (as a supplier or vendor) are required to displace or defer lower rated or unrated orders if they conflict with your performance against a higher rated order (see § 789.14(b)). When you receive multiple rated orders for specific goods or services and the orders have the same rating level and scheduled date, you must give precedence to the conflicting order in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting orders are scheduled to be delivered or performed on the same day, the person must give precedence to those orders that have the earliest receipt dates (see § 789.14(c)).
To ensure that contracts and orders for authorized programs are completed in a timely fashion, you (as a supplier or vendor) must place, as necessary, a priority rating on all the contracts and orders you issue with suppliers for items needed to fill rated orders you have received (see § 789.15). This requirement ensures that priority treatment will be afforded your orders by your suppliers and from vendor to vendor throughout the supply chain. Other requirements apply to changes or cancellations of priority ratings and rated orders (see § 789.16) and use of rated orders for certain items (see § 789.17).
You may place a priority rating on your contracts or orders only if you are in receipt of a rated order or if you have been otherwise explicitly authorized to do so by USDA or a delegate agency (see § 789.18 for other limitations on placing rated orders).
An “allocation” is defined in § 789.8 as the control of the distribution of materials, services, or facilities for a purpose deemed necessary or appropriate to promote the national defense. As specified in the allocations component of the APAS regulation (see subpart E, §§ 789.30 through 789.37), USDA has the authority to allocate specified items to promote the national defense.
Allocations authority would be used only when there is insufficient supply of a material, service, or facility to satisfy national defense supply requirements through the use of priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities (see
Additionally, as specified in DPA section 101(b) and section 201(e) of Executive Order 13603, USDA may not use an allocation to control the general distribution of a material in the civilian market unless:
• The Secretary has made a written finding that such material is a scarce and critical material essential to the national defense and the requirements of the national defense for such material cannot otherwise be met without a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship;
• The Secretary has submitted the finding for the President's approval through the Assistant to the President and National Security Advisor and the Assistant to the President for Homeland Security and Counterterrorism; and
• The President has approved the finding (see § 789.33).
DOC has extensive experience using its priorities authority (under its DPAS regulation), but has not used its allocations authority in more than 50 years. Much like DPAS, APAS is expected to primarily be used for prioritizing contracts and to a much lesser extent for making allocations. However, USDA is including allocations in the regulation to have the option ready, if needed. The allocations standards and procedures provide strong assurance that allocations would only be used in situations where the circumstances justify such orders.
For example, in a situation where dairy operations are brought to a standstill due to a detected presence of Foot and Mouth disease. The output of milk produced in the United States is curtailed by 80 percent as a result of reduced herd numbers in response to the outbreak. Prices for processed and unprocessed milk would skyrocket. In such an example, when USDA determines that allocating milk commodities to processors or wholesalers is necessary to promote the national defense, namely, as an emergency response action under Title VI of the Stafford Act (which is an approved program by the Secretary of Homeland Security under section 202(c) of Executive Order 13603). Because allocating this commodity would involve controlling its general distribution in the market, USDA then makes the required finding as specified in DPA section 101(b) for allocating this food commodity and forwards that finding to the President through the National Security Advisor. After Presidential concurrence with the determination, per Executive Order 13603, USDA may allocate this commodity on a pre-determined basis to processors or wholesalers. The purpose of this allocation would be to control the distribution of milk to ensure civilian hardships are minimized. USDA would allocate existing and new milk sources to redistribute milk products in a way that ensures previously established priorities for this food product (for example, school food programs and nutritional programs for mothers and infant children to continue to provide some level of resources for those already enrolled in such programs) are met and would continue implementing allocation policies until USDA determines that this food source shortfall no longer meets the requirements for allocation programs.
FSA's proposed rule had a 60-day comment period that ended on July 18, 2011. This final rule addresses the comments received on the proposed rule; and makes minor revisions to address the public comments and the recently published Executive Order 13603. As explained above, Executive Order 13603 added new categories to USDA's jurisdiction. These additional categories did not require substantive changes to the regulation; therefore, additional comments are not being requested.
FSA received two comments; one comment was from a pet food association and the other comment was submitted jointly by a grain and feed association (representing all sectors of the grain and feed industry—not limited to food) and a trade association. The comments raised the same set of concerns about APAS, including concerns on how APAS will be initiated or triggered, and how APAS will affect the agricultural sectors in potential cases of market disturbances or disruptions. The following summarizes each issue raised by the commenters and FSA's response to each issue.
Comment: Improper use of APAS authority poses a risk of undermining the United States' hard-fought reputation as a reliable supplier of agricultural products to domestic and foreign markets.
Response: APAS authority is granted to USDA by DPA and Executive Order 13603. APAS provides the ability to expedite the provision of agricultural resources to areas affected by a disaster, and is only authorized for times when the normal market channels cannot provide the resources to the disaster areas in a timely manner. If normal market channels are capable of providing the resources, APAS will not be used to expedite delivery of the resources. Further, with respect to allocations, FSA expects that the allocations section of this regulation would be used only in worst case scenarios, relying first on priorities authority to respond to emergency conditions. This is evident by the fact that DOC has the same allocations authority under DPA and has not used the allocations authority in over 50 years. Additionally, even if allocations orders were issued, the regulation has strict parameters in place. As stated in § 789.30(b), allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market. As a result, FSA expects that if APAS were used in the event of an emergency, domestic and foreign markets would not be adversely affected, including the United States' ability to readily supply agricultural products to domestic and foreign markets. Therefore, no change was made to the regulation in response to this comment.
Comment: USDA should fully investigate whether it has sufficient existing authority under the Commodity Credit Corporation (CCC) Charter Act or other laws to execute orders to prioritize and reallocate the distribution of food resources.
Response: The CCC Charter Act (15 U.S.C. 714-714p) was established with the intent to stabilize commodity market prices for agricultural producers during volatile economic periods through price support and disaster programs. The intent of the CCC Charter Act was never to provide immediate food and food resource assistance to a civilian population that has been impacted by a disaster. As a result, the CCC has no jurisdiction in this area of national defense and emergency preparedness. Therefore, no change was made to the regulation in response to this comment.
Comment: Craft language in the regulation itself specifying the triggering events(s) under which USDA would activate APAS, and more clearly define the `national defense' aspects of APAS, differentiating those from a limited regional or local natural disaster for which the ability to respond effectively already exists.
Response: The term “national defense” is defined in DPA. In implementing DPA, Executive Order 13603 also uses that definition. The Federal Departments that collaborated on developing a priorities and allocations common regulation use the definition found in Executive Order 13603 in their respective regulation. FEMA and other Federal agencies responsible for emergency response and recovery by law cannot enter a disaster impacted zone unless specific protocols have been met. The protocols are to ensure that first response is the responsibility of State, local, and Tribal authorities, and only when those State, local, and Tribal authorities are overwhelmed and national security is at risk, then the Federal agencies begin to play a role. If the disaster or event is of such a magnitude that the State, local, and Tribal authorities cannot meet the needs of the public, then APAS could be used by Federal Departments with response functions to request priority ratings to support the efforts of first responders in national defense (including emergency preparedness) initiatives. Under DPA and Executive Order 13603, Federal Departments do not need a Stafford Act declaration to use their priorities and allocations authorities. Therefore, no change was made to the regulation in response to this comment.
Comment: The proposed regulation, if finalized, should vest in the President the sole power to activate the use of APAS's priority-ranking and allocations-order authority. Further, the Secretary of Agriculture should have sole power to authorize the actual issuance of any order under APAS.
Response: Executive Order 13603 delegates the President's priorities and allocations authorities under DPA to the heads of specific Federal agencies. This includes the authority to require acceptance and priority performance of contracts or orders to promote the national defense over performance of any other contracts or orders, as well as authority to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense. Subject to the Executive Order's limitation that the priorities and allocations authority be used only to support programs that have been determined in writing (by the Secretaries of Defense, Energy, or Homeland Security, depending on the activity) as necessary or appropriate to promote the national defense, the agency heads have broad discretion in determining the circumstances in which the priorities or allocations authority will be used. The President has delegated these authorities to the Secretary of Agriculture in Executive Order 13603 with respect to certain resource areas (and previously in Executive Order 12919). The Secretary of Agriculture has re-delegated DPA authority to the FSA Administrator through the Under Secretary for Farm and Foreign Agricultural Services (see 7 CFR 2.16(a)(6); 2.42(a)(5)). Therefore, no change was made to the regulation in response to this comment; however, minor changes were made in this rule as a result of the release of Executive Order 13603 to include a revised definition of “food resources.”
Comment: The proposed rule dismisses and fails to accurately assess the economic cost of APAS to the agriculture industry and other sectors, including transporters, if USDA uses its authority to issue orders that circumvent existing commercial and governmental contracts.
Response: As noted above, there is a limited group of participants eligible for participation in the APAS program; therefore, there were limited data available to analyze the economic costs. DOC's use of DPAS, which has been used for similar priority ratings using its delegation of authority from the Secretary of Agriculture, has not resulted in known economic hardships to participants involved in the agricultural industry and other sectors. USDA and other Federal agencies will not use APAS to circumvent existing commercial and government contracts. Instead, they will use APAS to speed up delivery of items under contract or increase amounts procured under contract. Therefore, no change was made to the regulation in response to this comment.
Comment: As proposed, APAS requires that parties accept or reject priority orders received in response to emergency preparedness conditions within 6 to 12 hours, as opposed to the 15 days generally provided under the DPAS. Such a requirement may be unreasonably short to make such a management-level decision.
Response: The requirement for acceptance or rejection of a rated order for certain emergency preparedness conditions within 6 hours (where the order is issued in response to a hazard that has occurred) or the greater of 12 hours or the time specified in the order (where the order is issued to prepare for an imminent hazard) was based on the principle that food and drinking water are critical elements to sustain human life and any delays after this timeframe can cause life-threatening hardships. The 15 days requirement for DO-rated orders pertains to other conditions, when time is not as critical to provide food resources to the population. If a vendor cannot meet the requirement of the 6 to 12 hours to accept a rated order, it must reject the order on the basis that it cannot meet the required timeframe. Vendors should not accept rated orders if they are unsure of their capacity to fill the order. Therefore, no change was made to the regulation in response to this comment.
Comment: The FSA Administrator should not be authorized to reject a request for an informal hearing to appeal a rated order, particularly since the agency would continue to require that contract performance under the order not be stayed pending the outcome of the appeal.
Response: Due to the nature of this regulation and the potential life and death situations that warrant use of priority ratings, we cannot grant every request for an informal hearing during an appeal. The FSA Administrator will address each request on a case by case basis. Therefore, no change was made to the regulation in response to this comment.
Comment: If USDA proceeds to finalize an APAS rule, it needs to reexamine and improve upon the proposed language currently found in § 789.70, which provides legal protection to private-sector companies that find it necessary to cancel or delay their performance on other commercial contracts so they can fulfill any APAS-related orders prioritized by USDA.
Response: The text of 7 CFR 789.70 restates the liability protection provisions of DPA (50 U.S.C. app. 2157). USDA believes that the DPA liability protection from damages or penalties for actions resulting directly or indirectly from compliance with APAS extends to legal actions brought by private parties and covers not only the vendor(s) receiving a rated order or subject to an allocations order, but also to other vendors whose contracts are affected as a result of the other vendor's compliance with the rated order or allocation. Therefore, no change was made to the regulation in response to this comment.
As explained above, the jurisdiction delegated by the President to the Secretary of Agriculture as specified in Executive Order 13603 was expanded to include livestock, veterinary, and plant health resources, in addition to the previous delegations for food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer. Therefore, nondiscretionary changes were made
• § 789.1, “Purpose;”
• Section 789.2, “Priorities and Allocations Authority,” which summarizes the delegations of priorities and allocations authority; and
• Section 789.8, “Definitions.”
USDA's Animal and Plant Health Inspection Service developed the definitions that were added for the new jurisdiction for livestock, veterinary, and plant health resources. These new definitions are:
• “Animal” means any member of the animal kingdom (except a human).
• “Livestock” means all farm-raised animals.
• “Livestock resources” means materials, facilities, vehicles, health supplies, services, and equipment required for the production and distribution of livestock.
• “Plant health resources” means biological products, materials, facilities, vehicles, supplies, services, and equipment required to prevent the impairment of, improve, or restore plant health conditions.
• “Veterinary resources” means drugs, biological products, medical devices, materials, facilities, vehicles, health supplies, services, and equipment required to diagnose, mitigate or prevent the impairment of, improve, treat, cure, or restore the health conditions of the animal population.
Executive Order 13603 modifies the following definitions: “Civil transportation,” “energy,” “food resources,” “food resource facilities,” “health resources,” and “water resources.” The most significant changes are in the definitions of “food resources” and “water resources,” which establish that the jurisdiction for potable water packaged in commercially marketable containers belongs to the Secretary of Agriculture. All other modifications clarify existing definitions.
In addition, several non-substantive changes were made for consistency with the related regulations being implemented by other agencies. For example, minor edits were made to this rule to parallel edits made to the final DPA rule published by the Department of Transportation on October 1, 2012 (77 FR 59793-59818). The nature of all of these changes was minor clarifying changes, for example:
• Updated the Executive Order number from 12919 to 13603 and updated the citation,
• Updated the references to the authorizing jurisdictions throughout for consistency with the changes made by Executive Order 13603,
• Revised the definitions for “civil transportation,” “energy,” “food resources,” “food resource facilities,” “health resources,” and “water resources” for consistency with Executive Order 13603,
• Removed, to avoid confusion, the reference to the Federal Priorities and Allocations System because it is only the concept of the combination of all of the priorities and allocations rules being implemented by each of the agencies required to implement DPA,
• Added a citation to the DOC regulation, and
• Updated titles for clearances required for the President's approval, and
• Corrected minor typographical errors.
The Office of Management and Budget (OMB) designated this rule as significant under Executive Order 12866, “Regulatory Planning and Review,” and has reviewed this rule. A summary of the cost benefit analysis is provided below; the cost benefit analysis is available at
DPA requires the head of each Federal agency to which the President delegates authority to prioritize contracts and orders to meet the needs of national defense. In Executive Order 13603 the President delegated DPA authority with respect to food resources; food resource facilities; livestock, veterinary, and plant health resources; and the domestic distribution of farm equipment and commercial fertilizer to the Secretary of Agriculture. To implement DPA, FSA is implementing the APAS regulation, which is modeled after DPAS.
Food is essential to national defense including civil emergency response. APAS is designed to use the DPA authority to help ensure that food is available when and where it is needed most, such as after a hurricane or an earthquake. The authority under DPA extends beyond emergency conditions to also cover nonemergency conditions. Under DPA, USDA may develop plans and programs to expedite and expand the supply of critical resources from the private sector for the production, processing, storage, and distribution of agricultural commodities to promote national defense and to prevent civilian hardship in the food marketplace. In addition, DPA enables USDA to further support domestic emergency preparedness, response, and recovery activities, critical infrastructure protection and restoration, and homeland security activities.
The impact of APAS on private companies receiving priority orders is expected to vary depending on economic factors. In most cases, there is likely to be no economic impact in filling priority orders because it would generally just be changing the timing in which orders are completed. No data were provided by the commenters to change this analysis, anecdotally, the comments stated that “manufacturing and distribution processes . . . would be altered by allocation orders . . . will have a negative economic impact.”
APAS is expected to primarily be used for prioritizing contracts and to a lesser extent for determining allocations. USDA does not expect any program outlays under APAS for prioritizing contracts and potentially determining allocations. USDA will likely incur administrative expenses associated with assessing priorities and allocations requests and providing oversight for approved requests. The administrative expenses are expected to be marginal as APAS will presumably be administered using existing USDA personnel.
APAS is expected to have an overall positive impact on the U.S. public and industry by maintaining and restoring the production, processing, storage, and distribution of agricultural commodities during times of both emergency and nonemergency conditions to promote national defense and to prevent civilian hardship in the food marketplace. While USDA has not yet administered APAS under DPA authority, the continued use of the Department of Commerce's DPAS by the Department of Defense proves the usefulness of a priorities and allocations system.
As discussed above, FSA received one comment about the analysis, as follows:
Comment: The proposed rule dismisses and fails to accurately assess the economic cost of APAS to the agriculture industry and other sectors, including transporters, if USDA uses its authority to issue orders that circumvent existing commercial and governmental contracts.
Response: As noted above, there are a limited group of participants eligible for participation in the APAS program; therefore, there were limited data available to analyze the economic costs. DOC's use of DPAS, which has been used for similar priority ratings using its delegation of authority from the Secretary of Agriculture, has not resulted in any known economic hardships to participants involved in the agricultural industry and other sectors. USDA and other Federal
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) 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. FSA has determined that this rule will not have a significant impact on a substantial number of small entities for the reasons explained below. Consequently, FSA has not prepared a regulatory flexibility analysis.
Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, a small business, as described in the Small Business Administration's Table of Small Business Size Standards Matched to North American Industry Classification System Codes (August 2008 Edition), has a maximum annual revenue of $33.5 million and a maximum of 1,500 employees (for some business categories, these numbers are lower). Due to the scope of this rule and for consistency with DPAS and other regulations implementing DPA, these general size standards were used for this analysis. The range of small business size standards varies. For example, SBA classifies a small business for Food Manufacturing as one that has a maximum annual revenue of $750,000 and for Crop or Animal Production a maximum of 500 employees. Due to the wide variety of businesses that could be involved in APAS, and that the potential impacts are expected to be minor, the more narrow categories were not used for this analysis. A small governmental jurisdiction is a government of a city, town, school district or special district with a population of less than 50,000. A small organization is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.
This rule establishes criteria under which USDA (or agencies to which USDA delegates authority) will authorize prioritization of certain orders or contracts as well as criteria under which USDA would issue orders allocating resources or production facilities. Because the rule affects commercial transactions, USDA believes that small organizations and small governmental jurisdictions are unlikely to be affected by this rule. However, FSA has no basis on which to estimate the number of small businesses that are likely to be affected by this rule.
FSA believes that any impact that this rule might have on small businesses would be minor. The rule has two principal components: Prioritization and allocation. Prioritization is the process that is, by far, more likely to be used. Under prioritization, USDA designates certain orders, which may be placed by Government or by private entities, and assigned under one of two possible priority levels. Once so designated, such orders are referred to as “rated orders.” The recipient of a rated order must give it priority over an unrated order. The recipient of a rated order with a higher priority rating must give that order priority over any rated orders with the lower priority rating and over unrated orders as necessary to meet the delivery requirements of each rated order. A recipient of a rated order may place more than one order at the same priority level with suppliers and subcontractors for supplies and services necessary to fulfill the recipient's rated order and the suppliers and subcontractors must treat the request from the rated order recipient as a rated order with the same priority level as the original rated order. The rule does not require recipients to fulfill rated orders if the price or terms of sale are not consistent with the price or terms of sale of similar non-rated orders. The rule provides a defense from any liability for damages or penalties for actions or inactions made in compliance with the rule.
Although rated orders could require a recipient to fill one order prior to filling another, they would not require a reduction in the total volume of orders nor would they require the recipient to reduce prices or provide rated orders with more favorable terms than a similar non-rated order. Under these circumstances, the economic effects on the rated order recipient of substituting one order for another are likely to be mutually offsetting, resulting in no net loss.
Allocations could be used to control the general distribution of materials or services in the civilian market. Specific allocations actions that FSA might take are set-asides, allocations directives, and allotments. Any allocations actions would be used only in extraordinary circumstances. As required by section 101(b) of DPA (50 U.S.C. App. 2071) and by section 201(e) of Executive Order 13603, allocations may be implemented only if the Secretary of Agriculture made, and the President approved, a finding: (1) That the material [or service] is a scarce and critical material [or service] essential to the national defense, and (2) that the requirements of the national defense for such material [or service] cannot otherwise be met without creating a significant dislocation of the normal distribution of such material [or service] in the civilian market to such a degree as to create appreciable hardship.
Any allocations actions would also have to comply with section 701(e) of DPA (50 U.S.C. app. sec. 2151(e)), which provides that small business be included. To the extent practicable, a fair share of the material, including services, will be provided to small business in proportion to the share received by such business concerns under normal conditions. Although FSA cannot determine precisely the number of small entities that would be affected by this rule, FSA believes that the overall impact on such entities would not be significant. In most instances, rated contracts would be in addition to other (unrated) contracts and would not reduce the total amount of business the firm receives. Because allocations can be imposed only after a determination by the President, and there have been no allocations actions under DPA authority in more than 50 years, allocations are expected to be a rare occurrence. Therefore, estimating the impact of an allocation, should one occur, is difficult. FSA believes that the requirement for a Presidential determination and the provisions of section 701 of the DPA provide reasonable assurance that any impact on small business will not be significant.
Therefore, for the reasons set forth above, FSA certifies that this action would not have a significant impact on a substantial number of small entities.
The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500 through 1508), and the FSA regulation for compliance with NEPA (7 CFR part 799). The provisions of this rule are specifically related to acquisition and are considered solely
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. This rule does not provide Federal financial assistance, direct Federal development, grants, or cooperative agreements. Therefore, this program is not subject to Executive Order 12372.
This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule would not preempt State and or local laws, and regulations, or policies unless they present an irreconcilable conflict with this rule. Before any judicial action may be brought concerning the provisions of this rule, appeal provisions of 7 CFR parts 11 and 780 would need to be exhausted.
This final rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
This final rule has been reviewed for compliance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” The policies contained in this rule do not have Tribal implications that preempt Tribal law. FSA continues to consult with Tribal officials to have a meaningful consultation and collaboration on the development and strengthening of FSA regulations.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, or tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates as defined by Title II of UMRA for State, local, or tribal governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), FSA described the new information collection activities in the request for public comment in the proposed rule. No comments related to the Paperwork Reduction Act were received, and no change to the information collection was required. The currently approved information collection is covered under OMB control number 0560-0280.
FSA is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Administrative practice and procedure, Business and industry, Government contracts, National defense, Reporting and recordkeeping requirements.
Schedule I to Part 789—Approved Programs and Delegate Agencies
50 U.S.C. App. 2061-2170, 2171, and 2172; 42 U.S.C. 5195-5197h.
This part provides guidance and procedures for use of the Defense Production Act priorities and allocations authority by the United States Department of Agriculture (USDA) with respect to food resources,
(a) Section 201 of Executive Order 13603 (3 CFR, 2012 Comp., p. 225) delegates the President's authority under section 101 of the Defense Production Act to require acceptance and priority performance of contracts and orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense to the following agencies. Essentially, this allows the following agencies to place priority on the performance of contracts for items and materials under their jurisdiction as required for national defense initiatives including emergency preparedness activities:
(1) The Secretary of Agriculture with respect to food resources, food resource facilities, livestock resources, veterinary resources, plant health resources, and the domestic distribution of farm equipment and commercial fertilizer;
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to health resources;
(4) The Secretary of Transportation with respect to all forms of civil transportation;
(5) The Secretary of Defense with respect to water resources; and
(6) The Secretary of Commerce with respect to all other materials, services, and facilities, including construction materials.
(b) Section 202 of Executive Order 13603 specifies that the priorities and allocations authority may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense by:
(1) The Secretary of Defense with respect to military production and construction, military assistance to foreign nations, military use of civil transportation, stockpiles managed by the Department of Defense, space, and directly related activities;
(2) The Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; or
(3) The Secretary of Homeland Security with respect to all other national defense programs, including civil defense and continuity of Government.
Certain programs that promote the national defense are eligible for priorities and allocations support. These include programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity. Other eligible programs include emergency preparedness activities conducted pursuant to Title VI of the Stafford Act and critical infrastructure protection and restoration.
(1) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems, the construction or preparation of shelters, shelter areas, and control centers, and, when appropriate, the non-military evacuation of the civilian population).
(2) Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications).
(3) Measures to be undertaken following a hazard (including activities for fire fighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).
(1) To prevent terrorist attacks within the United States;
(2) To reduce the vulnerability of the United States to terrorism;
(3) To minimize damage from a terrorist attack in the United States; and
(4) To recover from a terrorist attack in the United States.
(1)
(2)
(3)
(4)
(1) Any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and
(2) Any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items.
(1) The development, production, processing, distribution, delivery, or use of an industrial resource or a critical technology item;
(2) The construction of facilities;
(3) The movement of individuals and property by all modes of civil transportation; or
(4) Other national defense programs and activities.
(a) [Reserved]
(b) Within USDA, authority to administer APAS has been delegated to the Administrator, Farm Service Agency, through the Under Secretary for Farm and Foreign Agricultural Services. (See §§ 2.16(a)(6) and 2.42(a)(5) of this title.) The Farm Service Agency Administrator will coordinate APAS implementation and administration through the Director, USDA Office of Homeland Security and Emergency Coordination, as delegated by the Assistant Secretary for Administration. (See §§ 2.24(a)(8)(ii)(A) and 2.24(a)(8)(v); 2.95(b)(1)(i) and 2.95(b)(4) of this title.)
(a)
(1) There are two levels of priority established by APAS, identified by the rating symbols “DO” and “DX.”
(2) All DO-rated orders have equal priority with each other and take precedence over unrated orders. All DX-rated orders have equal priority with each other and take precedence over DO-rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 789.14(c).)
(3) In addition, a directive regarding priority treatment for a given item issued by the resource agency with priorities jurisdiction for that item takes precedence over any DX-rated order, DO-rated order, or unrated order, as stipulated in the directive. (For more information on directives, see § 789.42.)
(b)
(c)
(a) Each rated order must include:
(1) The appropriate priority rating (for example, DO-P1 for food and food resources processing and storage);
(2) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. Some purchase orders, such as a “requirements contract,” “basic ordering agreement,” “prime vendor contract,” or similar procurement document, bearing a priority rating may contain no specific delivery date or dates if it provides for the furnishing of items or services from time-to-time or within a stated period against specific purchase orders, such as calls, requisitions, and delivery orders. Specific purchase orders must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document;
(3) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature or use of the name certifies that the rated order is authorized under this part and that the requirements of this part are being followed; and
(4) A statement as follows:
(i) A statement that reads:
This is a rated order certified for national defense use, and you are required to follow all the provisions of the Agriculture Priorities and Allocations System regulation in 7 CFR part 789.
(ii) If the rated order is placed in support of emergency preparedness requirements and expedited action is necessary and appropriate to meet these requirements, the following sentences should be added following the
This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected within six (6) hours after receipt of the order if the order is issued in response to a hazard that has occurred; or within the greater of twelve (12) hours or the time specified in the order, if the order is issued to prepare for an imminent hazard, in accordance with 7 CFR 789.13(e).
(b) [Reserved]
(a)
(1) Except as otherwise specified in this section, a person must accept every rated order received and must fill such orders regardless of any other rated or unrated orders that have been accepted.
(2) A person must not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.
(b)
(1) A person must not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection in this section.
(2) A person must not accept a DO-rated order for delivery on a date that would interfere with delivery of any previously accepted DO- or DX-rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.
(3) A person must not accept a DX-rated order for delivery on a date that would interfere with delivery of any previously accepted DX-rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.
(4) If a person is unable to fill all of the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders that can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.
(5) A person must reject the rated order if the person is prohibited by Federal law from meeting the terms of the order.
(c)
(1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not capable of being performed;
(3) If the order is for an item or service produced, acquired, or provided only for the supplier's own use for which no orders have been filled for 2 years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items or provided similar services, the supplier is obligated to accept rated orders up to that quantity or portion of production or service, whichever is greater, sold or provided within the past 2 years;
(4) If the person placing the rated order, other than the Federal Government, makes the item or performs the service being ordered;
(5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of USDA, issued under the authority of the Defense Production Act or another relevant law.
(d)
(1) Except as provided in paragraph (e) of this section, a person must accept or reject a rated order in writing or electronically within fifteen (15) working days after receipt of a DO-rated order and within ten (10) working days after receipt of a DX-rated order. If the order is rejected, the person must give reasons in writing or electronically for the rejection.
(2) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written or electronic confirmation must be provided within 5 working days.
(e)
(1) Within 6 hours after receipt of the order if the order is issued in response to a hazard that has occurred; or
(2) Within the greater of 12 hours or the time specified in the order, if the order is issued to prepare for an imminent hazard.
(a) A person must schedule operations, including the acquisition of all needed production items or services, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.
(b) DO-rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery or services being performed against unrated orders. Similarly, DX-rated orders must be given preference over DO-rated orders and unrated orders. (Examples: If a person receives a DO-rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX-rated order is received calling for delivery on July 15 and a person has a DO-rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX-rated order.)
(c) For conflicting rated orders:
(1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person must give precedence to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting orders are scheduled to be delivered or performed on the same day, the person must give precedence to
(2) If a person is unable to resolve rated order delivery or performance conflicts as specified in this section, the person should promptly seek special priorities assistance as provided in §§ 789.20 through 789.24. If the person's customer objects to the rescheduling of delivery or performance of a rated order, the customer should promptly seek special priorities assistance as specified in §§ 789.20 through 789.24. For any rated order against which delivery or performance will be delayed, the person must notify the customer as provided in § 789.13(d)(2).
(d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 789.17(b).
(a) A person must use rated orders as necessary with suppliers to obtain items or services needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this part or as directed by USDA.
(b) The priority rating must be included as necessary on each successive order placed to obtain items or services needed to fill a customer's rated order. This continues from contractor to subcontractor to supplier throughout the entire procurement chain.
(a) The priority rating on a rated order may be changed or canceled by:
(1) An official action of USDA; or
(2) Written notification from the person who placed the rated order.
(b) If an unrated order is amended so as to make it a rated order, or a DO rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.
(c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule constitutes a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 789.13.
(d) The following amendments do not constitute a new rated order:
(1) A change in shipping destination;
(2) A reduction in the total amount of the order;
(3) An increase in the total amount of the order that has a negligible impact upon deliveries;
(4) A minor variation in size or design; or
(5) A change that is agreed upon between the supplier and the customer.
(e) If a person no longer needs items or services to fill a rated order, any rated orders placed with suppliers for the items or services, or the priority rating on those orders, must be canceled.
(f) When a priority rating is added to an unrated order, or is changed or canceled, all suppliers must be promptly notified in writing.
(a) A person must use rated orders as necessary to obtain:
(1) Items that will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed or converted into scrap or by-products in the course of processing;
(2) Containers or other packaging materials required to make delivery of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill rated orders; and
(4) MRO needed to produce the finished items to fill rated orders.
(b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:
(1) The order must be placed within 90 days of the date of use of the inventory.
(2) A DO rating and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating must not be used even if the inventory was used to fill a DX-rated order.
(3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol P4 must be used (that is DO-P4).
(c) A person may combine DX- and DO-rated orders from one customer or several customers if the items or services covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol P4 (that is DO-P4 or DX-P4).
(d) For combining rated and unrated orders:
(1) A person may combine rated and unrated order quantities on one purchase order provided that:
(i) The rated quantities are separately and clearly identified; and
(ii) The four elements of a rated order, as required by § 789.12, are included on the order with the statement required in § 789.12(a)(4)(i) modified to read:
This purchase order contains rated order quantities certified for national defense use, and you are required to follow all the provisions of the Agriculture Priorities and Allocations System regulation in 7 CFR part 789 only as it pertains to the rated quantities.
(2) A supplier must accept or reject the rated portion of the purchase order as provided in § 789.13 and give preferential treatment only to the rated quantities as required by this part. This part must not be used to require preferential treatment for the unrated portion of the order.
(3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this part or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception as specified in § 789.60.
(e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.
(f) A person is not required to place a priority rating on an order for less than $75,000 or one-half of the Simplified Acquisition Threshold (as established in the Federal Acquisition Regulation (FAR) (see 48 CFR 2.101) or in other authorized acquisition regulatory or management systems) whichever amount is greater, provided that delivery can be obtained in a timely fashion without the use of the priority rating.
(a)
(1) A person must not place a DO- or DX-rated order unless authorized by USDA to do so under this part.
(2) Rated orders must not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item or services than needed, except to obtain a minimum procurable quantity. Separate rated orders must not be placed solely for the purpose of obtaining minimum procurable quantities on each order;
(iii) Items or services in advance of the receipt of a rated order, except as specifically authorized by USDA (see § 789.21(c) for information on obtaining authorization for a priority rating in advance of a rated order);
(iv) Items that are not needed to fill a rated order, except as specifically authorized by USDA or as otherwise permitted by this part;
(v) Any of the following items unless specific priority rating authority has been obtained from USDA or the Department of Commerce, as appropriate:
(A) Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; and
(B) Production or construction equipment or items to be used for the manufacture of production equipment. For information on requesting priority rating authority, see § 789.21; or
(vi) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.
(b)
(i) All forms of energy (Resource agency with jurisdiction—Department of Energy);
(ii) Health resources (Resource agency with jurisdiction—Department of Health and Human Services);
(iii) All forms of civil transportation (Resource agency with jurisdiction—Department of Transportation);
(iv) Water resources (Resource agency with jurisdiction—Department of Defense, U.S. Army Corps of Engineers);
(v) All materials, services, and facilities, including construction materials for which the authority has not been delegated to other agencies under Executive Order 13603 (Resource agency with jurisdiction—Department of Commerce); and
(2) The priorities and allocations authority in this part may not be applied to communications services subject to Executive Order 13618 of July 6, 2012 (3 CFR, 2012 Comp., p. 273).
(a) APAS is designed to be largely self-executing. However, if production or delivery problems arise, a person should immediately contact the Farm Service Agency Administrator for special priorities assistance pursuant to §§ 789.20 through 789.24 and as directed by § 789.73. If the Farm Service Agency is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, USDA may forward the request to another resource agency, as appropriate, for action. Special priorities assistance is a service provided to alleviate problems.
(b) Special priorities assistance is available for any reason consistent with this part. Generally, special priorities assistance is provided to expedite deliveries, resolve delivery conflicts, place rated orders, locate suppliers, or verify information supplied by customers and vendors. Special priorities assistance may also be used to request rating authority for items that are not normally eligible for priority treatment.
(c) A request for special priorities assistance or priority rating authority must be submitted on Form AD-2102 (OMB Control Number 0560-0280) to the Farm Service Agency as provided in paragraph (a) of this section. Form AD-2102 may be obtained from USDA by downloading the form and instructions from
(a)
(b)
(1) A request for priority rating authority for production or construction equipment must be submitted to the U.S. Department of Commerce on Form BIS-999 (see 15 CFR 700.51). Form BIS-999 may be obtained from USDA as specified in § 789.20(c) or from the Department of Commerce as specified in 15 CFR 700.50.
(2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell.
(c) For rating authority in advance of a rated prime contract:
(1) In certain cases and upon specific request, USDA, in order to promote the national defense, may authorize a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract. In these instances, the person requesting advance rating authority must obtain sponsorship of the request from USDA. The person assumes any business risk associated with the placing of a rated order if the order has to be canceled in the event the rated prime contract is not issued.
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from USDA and our use of that priority rating with our suppliers in no way commits USDA or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government will not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.
(3) In reviewing requests for rating authority in advance of a rated prime contract, USDA will consider, among other things, the following criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time; and
(v) The time period for which the rating is being requested.
(4) USDA may require periodic reports on the use of the rating authority granted through paragraph (c) of this section.
(5) If a rated prime contract is not issued, the person will promptly notify each supplier who has received any rated order related to the advanced rating authority that the priority rating on the order is canceled.
(a) While special priorities assistance may be provided for any reason in
(1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item or service needed to fill a rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by suppliers;
(2) Resolving production or delivery conflicts between various rated orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
(a) Requests for special priorities assistance should be timely (for example, the request has been submitted promptly and enough time exists for USDA to meaningfully resolve the problem), and must establish that:
(1) There is an urgent need for the item; and
(2) The applicant has made a reasonable effort to resolve the problem.
(b) [Reserved]
(a) Special priorities assistance is provided at the discretion of USDA when it is determined that such assistance is warranted to meet the objectives of this part. Examples in which assistance must not be provided include situations in which a person is attempting to:
(1) Secure a price advantage;
(2) Obtain delivery prior to the time required to fill a rated order;
(3) Gain competitive advantage;
(4) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or
(5) Overcome a supplier's regularly established terms of sale or conditions of doing business.
(b) [Reserved]
(a) It is the policy of the Federal Government that the allocations authority under Title I of the Defense Production Act may:
(1) Only be used when there is insufficient supply of a material, service, or facility to satisfy national defense supply requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and
(2) Not be used to ration materials or services at the retail level.
(b) Allocations orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market.
(a) When USDA plans to execute its allocations authority to address a supply problem within its resource jurisdiction, USDA will develop a plan that includes the following information:
(1) A copy of the written determination made in accordance with section 202 of Executive Order 13603, that the program or programs that would be supported by the allocations action are necessary or appropriate to promote the national defense;
(2) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocations action;
(3) A statement of the specific objective(s) of the allocations action;
(4) A list of the materials, services, or facilities to be allocated;
(5) A list of the sources of the materials, services, or facilities that will be subject to the allocations action;
(6) A detailed description of the provisions that will be included in the allocations orders, including the type(s) of allocations orders, the percentages or quantity of capacity or output to be allocated for each purpose, and the duration of the allocations action (for example, anticipated start and end dates);
(7) An evaluation of the impact of the proposed allocations action on the civilian market; and
(8) Proposed actions, if any, to mitigate disruptions to civilian market operations.
(b) [Reserved]
If a conflict occurs between an allocations order and an unrelated rated order or priorities directive, the allocations order takes precedence.
(a) No allocations by USDA may be used to control the general distribution of a material in the civilian market, unless the Secretary has:
(1) Made a written finding that:
(i) Such material is a scarce and critical material essential to the national defense; and
(ii) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship;
(2) Submitted the finding for the President's approval through the Assistant to the President and National Security Advisor and the Assistant to the President for Homeland Security and Counterterrorism; and
(3) The President has approved the finding.
(b) [Reserved]
(a) The three types of allocations orders that may be used for allocations actions are:
(1) Set-asides;
(2) Directives; and
(3) Allotments.
(b) [Reserved]
(a) Each allocations order will include:
(1) A detailed description of the required allocations action(s);
(2) Specific start and end calendar dates for each required allocations action;
(3) The Secretary's written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary. The signature or use of the name certifies that the order is authorized as specified in this part and that the requirements of this part are being followed;
(4) A statement that reads: “This is an allocations order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of 7 CFR part 789;” and
(5) A current copy of the APAS regulation (7 CFR part 789).
(b) [Reserved]
(a) A person must accept every allocations order received that the person is capable of fulfilling, and must comply with such orders regardless of any rated order that the person may be in receipt of or other commitments involving the resource(s) covered by the allocations order.
(b) A person must not discriminate against an allocations order in any
(c) If circumstances prevent a person from being able to accept an allocations order, the person must comply with the provisions specified in § 789.60 upon realization of the inability to accept the order.
An allocations order may be changed or canceled by an official action of USDA.
(a) USDA may take specific official actions to implement the provisions of this part.
(b) Several of these official actions (rating authorizations, directives, and letters of understanding) are discussed in this subpart. Other official actions that pertain to compliance (administrative subpoenas, demands for information, and inspection authorizations) are discussed in § 789.51(c).
(a) A rating authorization is an official action granting specific priority rating authority that:
(1) Permits a person to place a priority rating on an order for an item or service not normally ratable under this part; or
(2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.
(b) To request priority rating authority, see section § 789.21.
(a) A directive is an official action that requires a person to take or refrain from taking certain actions in accordance with the provisions of the directive.
(b) A person must comply with each directive issued. However, a person may not use or extend a directive to obtain any items from a supplier, unless expressly authorized to do so in the directive.
(c) A priorities directive takes precedence over all DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the directive.
(d) An allocations directive takes precedence over all priorities directives, DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the directive.
(a) A letter of understanding is an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (USDA, the Department of Commerce (if applicable), a delegate agency (if applicable), the supplier, and the customer).
(b) A letter of understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this part, or to take other official actions. Rather, letters of understanding are used to confirm production or shipping schedules that do not require modifications to other rated orders.
(a) USDA may take specific official actions for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or an official action. Such actions include administrative subpoenas, demands for information, and inspection authorizations.
(b) Any person who places or receives a rated order or an allocations order must comply with the provisions of this part.
(c) Willful violation of the provisions of Title I or section 705 of the Defense Production Act and other applicable statutes, this part, or an official action of USDA, is a criminal act, punishable as provided in the Defense Production Act and other applicable statutes, and as specified in § 789.54.
(a) Audits and investigations are official examinations of books, records, documents, other writings, and information to ensure that the provisions of the Defense Production Act and other applicable statutes, this part, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this part.
(b) When undertaking an audit, investigation, or other inquiry, USDA will:
(1)
(2)
(c) In administering this part, USDA may issue the following documents that constitute official actions:
(1)
(2)
(3)
(d) The production of books, records, documents, other writings, and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the administrative subpoena or demand for information, a duly authorized official of USDA is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of USDA as to the content of the material.
(e) An administrative subpoena, demand for information, or inspection authorization will include the name, title, or official position of the person to be served, the evidence sought, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or
(f) Service of documents will be made in the following manner:
(1)
(2)
(3)
(a) If a person refuses to permit a duly authorized representative of USDA to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act and other applicable laws, this part, or official actions, the USDA representative may seek compulsory process. Compulsory process is the institution of appropriate legal action, including ex parte application for an inspection warrant or its equivalent, in any forum of appropriate jurisdiction.
(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of USDA, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist that make such process desirable or necessary.
(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, USDA may inform the person in writing when compliance with the requirements of the Defense Production Act and other applicable laws, this part, or an official action was not met.
(b) In cases in which USDA determines that failure to comply with the provisions of the Defense Production Act and other applicable laws, this part, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act and other applicable laws, this part, or an official action.
(a) Willful violation of the Defense Production Act, the priorities provisions of the Military Selective Service Act (50 U.S.C. App. 468), this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalty provided by the Defense Production Act is a $10,000 fine, or 1 year in prison, or both. The maximum penalty provided by the Military Selective Service Act is a $50,000 fine, or 3 years in prison, or both.
(b) The Government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this part, or an official action.
(c) In order to secure the effective enforcement of the Defense Production Act and other applicable laws, this part, and official actions, certain actions as follows are prohibited:
(1) Soliciting, influencing, or permitting another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable laws, this part, or an official action.
(2) Conspiring or acting in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable laws, this part, or an official action.
(3) Delivering any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act and other applicable laws, this part, or an official action. In such instances, the person must immediately notify USDA that, in accordance with this provision, delivery has not been made.
If compliance with any provision of the Defense Production Act and other applicable laws, this part, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act and other applicable laws, this part, or an official action, the person must immediately notify USDA for resolution of the conflict.
(a) A person may submit a request to the Farm Service Agency Deputy Administrator for Management, as directed in § 789.73, for an adjustment or exception on the ground that:
(1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or
(2) The consequences of following a provision of this part or an official action is contrary to the intent of the Defense Production Act and other applicable laws, or this part.
(b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.
(c) The submission of a request for adjustment or exception will not relieve any person from the obligation of complying with the provision of this part or official action in question while the request is being considered unless such interim relief is granted in writing by the Farm Service Agency Deputy Administrator for Management.
(d) A decision of the Farm Service Agency Deputy Administrator for Management under this section may be appealed to the Farm Service Agency Administrator. (For information on the appeal procedure, see § 789.61.)
(a) Any person whose request for adjustment or exception has been denied by the Farm Service Agency Deputy Administrator for Management as specified in § 789.60, may appeal to the Farm Service Agency Administrator who will review and reconsider the denial.
(b) A person must submit the appeal in writing to the Farm Service Agency Administrator as follows:
(1) Except as provided in paragraph (b)(2) of this section, an appeal must be received by the Farm Service Agency Administrator no later than 45 days after receipt of a written notice of denial from the Farm Service Agency Deputy Administrator for Management. After the 45-day period, an appeal may be accepted at the discretion of the Farm Service Agency Administrator if the person shows good cause.
(2) For requests for adjustment or exception involving rated orders placed for the purpose of emergency preparedness (see § 789.13(e)), an appeal must be received by the Farm Service Agency Administrator no later than 15 days after receipt of a written notice of denial from the Farm Service Agency Deputy Administrator for Management.
(c) Contract performance under the order may not be stayed pending resolution of the appeal.
(d) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the appealed action and a full and precise statement of the reasons the decision should be modified or reversed.
(e) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Farm Service Agency Administrator.
(f) When a hearing is granted, the Farm Service Agency Administrator may designate an employee of the Farm Service Agency to conduct the hearing and to prepare a report. The hearing officer will determine all procedural questions and impose such time or other limitations deemed reasonable. If the hearing officer decides that a printed transcript is necessary, the transcript expenses must be paid by the appellant.
(g) When determining an appeal, the Farm Service Agency Administrator may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to USDA, or consult with any other person or group.
(h) The submission of an appeal under this section will not relieve any person from the obligation of complying with the provision of this part or official action in question while the appeal is being considered unless such relief is granted in writing by the Farm Service Agency Administrator.
(i) The decision of the Farm Service Agency Administrator will be made within 5 days after receipt of the appeal, or within 1 day for appeals pertaining to emergency preparedness, and will be the final administrative action. The Administrator will issue a written statement of the reasons for the decision to the appellant.
A person will not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this part, or an official action, even if such provision or action is subsequently declared invalid by judicial or other competent authority.
(a) Persons are required to make and preserve for at least 3 years, accurate and complete records of any transaction covered by this part or an official action.
(b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used.
(c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of USDA as provided in § 789.51.
(d) In addition, persons must develop, maintain, and submit any other records and reports to USDA that may be required for the administration of the Defense Production Act and other applicable statutes, and this part.
(e) Section 705(d) of the Defense Production Act, as implemented by Executive Order 13603, provides that information obtained under that section which the Secretary deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, will not be published or disclosed unless the Secretary determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to USDA in connection with the enforcement or administration of the Defense Production Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Defense Production Act and will be handled in accordance with applicable Federal law.
(a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any State, territory, or possession of the United States and the District of Columbia.
(b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.
(c) This part and its schedules will not be construed to affect any administrative actions taken by USDA, or any outstanding contracts or orders placed based on any of the regulations, orders, schedules, or delegations of authority previously issued by USDA based on authority granted to the President in the Defense Production Act. Such actions, contracts, or orders will continue in full force and effect under this part unless modified or terminated by proper authority.
Except as otherwise provided, all communications concerning this part, including requests for copies of this part and explanatory information, requests for guidance or clarification, and submission of appeals as specified in § 789.61 will be addressed to the Administrator, Farm Service Agency, Room 4752, Mail Stop 0512, USDA, 1400 Independence Ave. SW., Washington, DC 20250-0512 or email:
The programs listed in this schedule have been approved for priorities and allocations support under this part by the Department of Defense, Department of Energy, or Department of Homeland Security as required by section 202 of Executive Order 13603. They have equal preferential status. USDA has authorized the delegate agencies to use the authorities in this part in support of those programs assigned to them, as indicated below.
Agricultural Marketing Service, USDA.
Final rule.
This final rule adjusts the number of members on the United Soybean Board (Board) to reflect changes in production levels that have occurred since the Board was last reapportioned in 2012. As required by the Soybean Promotion, Research, and Consumer Information Act (Act), membership on the Board is reviewed every 3 years and adjustments are made accordingly. This change will result in an increase in Board membership for three States, resulting in an increase in the total number of Board members from 70 to 73. These changes will be reflected in the Soybean Promotion and Research Order (Order) and will be effective for the 2016 appointment process.
James Brow; Research and Promotion Division, Livestock, Poultry, and Seed Program, Agricultural Marketing Service (AMS), USDA, Room 2096-S, STOP 0249, 1400 Independence Avenue SW., Washington, DC 20250-0249, telephone 202-720-0633, fax 202-720-1125, or email:
The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.
This final rule was reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect. This action would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 1971 of the Act, a person subject to the Order may file a petition with the U.S. Department of Agriculture (USDA) stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order, is not in accordance with the law and request a modification of the Order or an exemption from the Order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The Act provides that district courts of the United States in any district in which such person is an inhabitant, or has their principal place of business, has jurisdiction to review USDA's ruling on the petition, if a complaint for this purpose is filed within 20 days after the date of the entry of the ruling.
AMS has determined that this rule will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), because it only adjusts representation on the Board to reflect changes in production levels that have occurred since the Board was last reapportioned in 2012. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. As such, these changes will not impose a significant impact on persons subject to the program.
There are an estimated 569,998 soybean producers and an estimated 10,000 first purchasers who collect the assessment, most of whom would be considered small businesses under the criteria established by the Small Business Administration (SBA) [13 CFR 121.201]. SBA defines small agricultural producers as those having annual receipts of less than $750,000.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the reporting and recordkeeping requirements included in 7 CFR part 1220 were previously approved by OMB and were assigned control number 0581-0093.
The Act (7 U.S.C. 6301-6311) provides for the establishment of a coordinated program of promotion and research designed to strengthen the soybean industry's position in the marketplace, and to maintain and expand domestic and foreign markets and uses for soybeans and soybean products. The program is financed by an assessment of 0.5 percent of the net market price of soybeans sold by producers. Pursuant to the Act, an Order was made effective July 9, 1991. The Order established an initial Board with 60 members. For purposes of establishing the Board, the United States was divided into 31 States and geographical units. Representation on the Board from each unit was determined by the level of production in each unit. The initial Board was appointed on July 11, 1991. The Board is comprised of soybean producers.
Section 1220.201(c) of the Order provides that at the end of each 3-year period, the Board shall review soybean production levels in the geographic units throughout the United States. The Board may recommend to the Secretary of Agriculture (Secretary) modification in the levels of production necessary for Board membership for each unit.
Section 1220.201(d) of the Order provides that at the end of each 3-year
The Board was last reapportioned in 2012. The total Board membership increased from 69 to 70 members, with Mississippi gaining one additional member. The final rule was published in the
Currently, the Board has 70 members representing 31 geographical units. This membership is based on average production levels for the years 2007-2011 (excluding crops in years that production was the highest and production was the lowest) as reported by USDA's National Agricultural Statistics Service (NASS).
This final rule increases total membership on the Board from 70 to 73. Production data for the years 2010-2014 (excluding the crops in years in which production was the highest and in which production was the lowest) was gathered from NASS. This change will not affect the number of geographical units. The NASS information combines the production from the Western and Eastern Regions into one production data without distinguishing between the two regions. The NASS data does not support a change in membership for either region. As such, this final rule will leave the membership of both regions unchanged with one member each.
This final rule adjusts representation on the Board as follows:
Board adjustments will become effective with the 2016 appointment process.
A proposed rule was published in the
During the drafting of this final rule, AMS found a typographical error in the table titled “§ 1220.201 Membership of board” as presented in the proposed rule. The table showed the State of Georgia with two representatives on the Board. Based on production, Georgia is currently entitled to one member. As a result, AMS has corrected the table in this final rule to reflect Georgia with one member rather than two. This correction does not impact the makeup of the Board or this reapportionment.
Administrative practice and procedure, Advertising, Agricultural research, Marketing agreements, Soybeans and soybean products, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, Title 7, part 1220 is amended as follows:
7 U.S.C. 6301-6311 and 7 U.S.C. 7401.
U.S. Citizenship and Immigration Services, DHS.
Notification of numerical limitation.
The Secretary of Homeland Security announces that the annual fiscal year numerical limitation for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrant classification for fiscal year (FY) 2016 (Oct. 1, 2015-Sept. 30, 2016) is set at 12,999. This document announces the mandated annual reduction of the CW-1 numerical limitation and provides the public with additional information regarding the new CW-1 numerical limit. This docuemnt ensures that CNMI employers and employees have sufficient information regarding the maximum number of foreign workers who may be granted CW-1 transitional worker status during FY 2016.
Paola Rodriguez Hale, Adjudications Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060. Contact telephone (202) 272-1470.
Title VII of the Consolidated Natural Resources Act of 2008 (CNRA) extended U.S. immigration law to the CNMI and provided CNMI-specific provisions affecting foreign workers.
The CNRA authorized the Department of Homeland Security (DHS) to create a nonimmigrant classification that would ensure adequate employment in the CNMI during the transition period.
The CNRA mandates an annual reduction in the allocation of the number of permits issued per year and the total elimination of the CW nonimmigrant classification by December 31, 2019.
DHS subsequently opted to publish any future annual numerical limitations by
DHS followed this same rationale for the FY 2013 and FY 2014 fiscal year numerical limitations. After assessing all workforce needs, including the opportunity for economic growth, DHS set the CW-1 numerical limitation at 15,000 and 14,000 respectively for FY 2013 and FY 2014.
The CNRA directed that the U.S. Secretary of Labor determine whether an extension of the CW program for an additional period of up to 5 years is necessary to ensure that an adequate number of workers will be available for legitimate businesses in the CNMI, and further provided the Secretary of Labor with the authority to provide for such an extension through notice in the
The FY 2015 numerical limitation was based on a number of factors, including:
• The Department of Labor's extension of the CW program;
• The CNMI's labor market needs; and
• The CNRA's mandate to annually reduce the number of transitional workers until the end of the extended transitional worker program.
Since the Secretary of Labor significantly extended the CW program at least until December 31, 2019, DHS decided to preserve the status quo, or current conditions, rather than aggressively reduce CW-1 numbers for FY 2015. DHS therefore reduced the numerical limitation nominally by one, resulting in an FY 2015 limit of 13,999.
On December 16, 2014, Congress amended the CNRA to extend the transition period until December 31, 2019.
The CNRA requires an annual reduction in the number of transitional
To comply with these requirements, meet the CNMI's labor market's needs, provide opportunity for growth, and preserve access to foreign labor, DHS has set the numerical limitation for FY 2016 at 12,999. DHS arrived at this figure by taking the number of CW-1 nonimmigrant workers needed based on the FY 2015 limitation of 13,999, and then moderately reducing it by 1,000 or approximately 7.2 percent. The new number will accommodate continued economic growth within the CNMI that might result in a need for additional CW-1 nonimmigrant workers during FY 2016. Therefore, CNMI businesses can continue to hire CW-1 workers to meet their current and future need for foreign workers.
In setting this new numerical limitation for FY 2016, DHS considered its effect in conjunction with the published media reports indicating that the CNMI economy continues to grow
For the aforementioned reasons, DHS recognizes that any numerical limitation must account for the fact that the CNMI economy continues to be based on a workforce composed primarily of foreign workers. Therefore, any new fiscal year numerical limit should allow for economic growth until the end of the transitional worker program, which is now December 31, 2019. DHS must reduce the annual numerical limitation as statutorily mandated, but also should ensure that there are enough CW-1 workers for future fiscal years until the end of the program.
As noted previously, Congress has mandated that the transition period end on December 31, 2019, without the possibility of an administrative extension of the CW program.
The FY 2016 numerical limitation for CW-1 nonimmigrant workers will be in effect beginning on October 1, 2015. DHS still retains the ability to adjust the numerical limitation for a fiscal year or other period, in its discretion, at any time by notice in the
Generally, each CW-1 nonimmigrant worker with an approved employment start date that falls within FY 2016
This document does not affect the current immigration status of foreign workers who have CW-1 nonimmigrant status. Foreign workers, however, will be affected by this document when their CNMI employers file:
• For an extension of their CW-1 nonimmigrant classification, or
• A change of status from another nonimmigrant status to that of CW-1 nonimmigrant status.
This document does not affect the status of any individual currently holding CW-2 nonimmigrant status as the spouse or minor child of a CW-1 nonimmigrant worker. This document also does not directly affect the ability of any individual to extend or otherwise obtain CW-2 status, as the numerical limitation applies to CW-1 principals only. This document, however, may indirectly affect individuals seeking CW-2 status since their status depends on the CW-1 principal's ability to obtain or retain CW-1 status.
Department of Transportation and Federal Aviation Administration.
Clarification and request for information.
This document clarifies the applicability of the statutory requirements regarding aircraft registration to UAS, including those operating as model aircraft. In addition, the DOT announces the formation of a UAS registration task force to explore and develop recommendations to streamline the registration process for UAS to ease the burden associated with the existing aircraft registration process. This document requests information and recommendations regarding what information and registration platform would be appropriate for UAS registration and ways to minimize the burden to the regulated community. In addition, we request comment on which UAS, based on their weight or performance capabilities, warrant a continued exercise of discretion with respect to requiring registration because of the negligible risk they pose to the national airspace system (NAS).
This clarification goes into effect October 22, 2015. To assist the task force in developing its recommendations, the Department
The docket will remain open after this time and the Department will consider all comments received in developing a registration process.
You may submit comments by any of the following methods:
•
•
•
•
Questions regarding this document may be directed to Earl Lawrence, Director, FAA UAS Integration Office, 800 Independence Ave. SW., Washington DC 20591; phone: (202) 267-6556; email:
In the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) (the Act), Congress mandated that the DOT, in consultation with other government partners and industry stakeholders, develop a comprehensive plan to safely accelerate the integration of civil UAS in the NAS. Since 2012, the Department has made progress in enabling UAS operations, through issuing exemptions under section 333 of the Act to permit commercial operations; creating a UAS test site program to encourage further research and testing of UAS operations in real-world environments; issuing a notice of proposed rulemaking, Operation and Certification of Small Unmanned Aircraft Systems (RIN 2120-AJ60) (small UAS NPRM), that sets forth a framework for integrating small UAS operations in the NAS; and developing a Pathfinder program to encourage research and innovation that will enable advanced UAS operations.
A foundational statutory and regulatory requirement that the Department has employed for each of these integration programs is aircraft registration and marking. In order to operate in the NAS, the Department must ensure that operators are not only aware of the system in which they are operating, but that we also have a means to identify and track the UAS to its operator. One means to accomplish this is through aircraft registration and marking. To date, UAS operators that the Department has authorized have been required to register their UAS through the FAA's existing paper-based registration process under 14 CFR part 47. As an exercise of discretion, historically we have not required model aircraft to be registered under this system.
UAS hold enormous promise for our economy and for the aviation industry. But for the industry to develop to its full potential, we have to ensure that it develops safely. Over the past several months, we have received increasing reports of unauthorized and unsafe use of small UAS. Pilot reports of UAS sightings in 2015 are double the rate of 2014. Pilots have reported seeing drones at altitudes up to 10,000 feet, or as close as half-a-mile from the approach end of a runway. In recent weeks, the presence of multiple UAS in the vicinity of wild fires in the western part of the country prompted firefighters to ground their aircraft on several occasions. These UAS operations are unsafe and illegal. However, only a small percentage of these incidents have resulted in enforcement actions against individuals for unsafe or unauthorized UAS operation because identifying an individual or entity responsible for the dangerous operation of UAS is very difficult. This situation is troubling to the unmanned aircraft industry, to responsible model aircraft users, and to users of the NAS, all of whom always put safety first.
The risk of unsafe operations will only increase as more UAS enter the NAS. Some retailers have projected huge holiday sales. We are committed to ensuring that the U.S. continues to lead the world in the development and implementation of aviation technology, and in doing so, that we create a space for the creativity, innovation and exploration that will drive this industry forward in the years and decades ahead. At the same time, we must create a culture of accountability and responsibility among all UAS operators. To maintain safety in the NAS, the Department has reconsidered its past practice of exercising discretion with respect to requiring UAS to be registered, consistent with statutory requirements of 49 U.S.C. 44101-44103, and has determined that registration of all UAS is necessary to enforce personal accountability while operating an aircraft in our skies.
Federal law requires that a person may only operate an aircraft when it is registered with the FAA. 49 U.S.C. 44101(a).
Historically, the FAA, through the exercise of its discretion, has not enforced the statutory requirements for aircraft registration in 49 U.S.C. 44101 for model aircraft. As evidenced by the recent reports of unsafe UAS operations, the lack of awareness of operators regarding what must be done to operate UAS safely in the NAS, and the lack of identification of UAS and their operators pose significant challenges in ensuring accountability for responsible use. Without increased awareness and knowledge of the statutory and regulatory requirements for safe operation, the risk of unsafe UAS operations will only rise. Aircraft identification and marking will assist the Department in identifying owners of UAS that are operated in an unsafe manner, so we may continue to educate these users, and when appropriate, take enforcement action.
Requiring registration of all UAS, including those operated for hobby or recreation, embraces and applies the Academy of Model Aeronautics' (AMA)'s policy of identification to UAS operators who may not be modelers registered with the AMA. Additionally, it would ensure consistency with other UAS operations currently required to be registered, such as public aircraft, those operated under exemptions, and certificated aircraft, as well as those operations contemplated in the small UAS NPRM.
Based on the Department's experience in registering small UAS authorized by exemptions granted under the authority of section 333 of the FAA Modernization and Reform Act of 2012, and the comments received on the proposed registration requirements in the small UAS NPRM, it is apparent that the current paper-based system for aircraft registration is too burdensome for small UAS, to include model aircraft. To facilitate compliance with the statutory obligation for registration, the DOT is currently evaluating options for a streamlined, electronic-based registration system for small UAS. The Department has convened a UAS registration task force, under the FAA's authority in 49 U.S.C. 106(p)(5) to designate aviation rulemaking committees. This task force will provide recommendations on the type of registration platform needed to accommodate small UAS, as well as the information that will need to be provided to register these aircraft. The UAS registration task force also will explore and provide recommendations on whether it is appropriate for the FAA to continue to exercise discretion with respect to requiring registration of certain UAS based on their weight and performance capabilities. The task force will meet and provide its recommendations to the Department by November 20, 2015. To facilitate the task force's work, we are requesting information and data from the public in the following areas:
1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?
2. At what point should registration occur (
3. If registration occurs at point-of-sale, who should be responsible for submission of the data? What burdens would be placed on vendors of UAS if DOT required registration to occur at point-of-sale? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?
4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight? If so, please submit information or data to help support the suggestions, and whether any other criteria should be considered.
5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?
6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?
7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?
8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?
9. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs at point-of-sale? Are there payment services that can be leveraged to assist (
10. Are there additional means beyond aircraft registration to encourage accountability and responsible use of UAS?
National Environmental Satellite, Data and Information Service (NESDIS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Final rule.
In this final rule, NESDIS establishes a new schedule of fees for the sale of its data, information, and related products and services to users. NESDIS is revising the fee schedule that has been in effect since 2013 to ensure that the fees accurately reflect the costs of providing access to the environmental data, information, and related products and services. NESDIS is authorized under 15 U.S.C. 1534 to assess fees, up to fair market value, for access to environmental data, information, and products derived from, collected, and/or archived by NOAA. Other than depreciation, costs to upgrade computer hardware and software systems will not be included in the fees charged to users. NESDIS is updating its schedule of fees for access to NOAA Environmental Data, Information, and Related Products and Services as costs of providing access have changed since 2013.
James Lewis (301) 713-7073.
NESDIS operates NOAA's National Center for Environmental Information (NCEI). Through NCEI, NESDIS provides and ensures timely access to global environmental data from satellites and other sources, provides information services, and develops science products.
NESDIS maintains some 1,300 databases containing over 2,400 environmental variables at NCEI and seven World Data Centers. These centers respond to over 2,000,000 requests for these data and products annually from over 70 countries. This collection of environmental data and products is growing rapidly, both in size and sophistication, and as a result the associated costs have increased.
Users have the ability to access the data offline, online and through the NESDIS
In this final rule, NESDIS establishes a new schedule of fees for the sale of its data, information, and related products and services to users. NESDIS is revising the fee schedule that has been in effect since 2013 to ensure that the fees accurately reflect the costs of providing access to the environmental data, information, and related products and services. The new fee schedule lists both the current fee charged for each item and the new fee to be charged to users that will take effect beginning November 23, 2015. The schedule applies to the listed services provided by NESDIS on or after this date, except for products and services covered by a subscription agreement in effect as of this date that extends beyond this date. In those cases, the increased fees will apply upon renewal of the subscription agreement or at the earliest amendment date provided by the agreement.
NESDIS will continue to review the user fees periodically, and will revise such fees as necessary. Any future changes in the user fees and their effective date will be announced through notice in the
This rule has been determined to be not significant for purposes of E.O. 12866. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation are inapplicable because this rule falls within the public property exception of subparagraph (a)(2) of section 553, as it is limited only to the assessment of fees, per 15 U.S.C. 1534, that accurately reflect the costs of providing access to publicly available environmental data, information, and related products. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Organization and functions (Government agencies).
For the reasons set forth above, 15 CFR part 950 is amended as follows:
(5 U.S.C. 552, 553). Reorganization Plan No. 4 of 1970.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a special local regulation on the navigable waters of Hampton River, in the vicinity of the Crowne Plaza Hampton Marina in Hampton, Virginia. This regulated area will restrict vessel movement in the specified area during the revolutionary sea battle re-enactment Battle of Hampton. This action is necessary to provide for the safety of life and property on the surrounding navigable waters during the re-enactment.
This rule is effective from 1 p.m. on October 24 through 1:30 p.m. on October 25, 2015. This rule will only be enforced from 1:00 p.m. to 1:30 p.m. each day.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LCDR Barbara Wilk, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; 757-668-5580, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule due to the short time period between event planners notifying the Coast Guard of details concerning the event, on August 15, 2015, and publication of this special local regulation. As such, it is impracticable for the Coast Guard to provide a full comment period due to lack of time. Furthermore, delaying the effective date of this special local regulation would be contrary to the public interest as immediate action is needed to ensure the safety of the event participants, patrol vessels, spectator craft and other vessels transiting the event area. The Coast Guard will provide advance notifications to users of the affected waterway via marine information broadcasts, local notice to mariners. This same location is used for an annually occurring marine event, Blackbeard Festival, that is regulated under 33 CFR 100.501, Table to § 100.501, section (c) line 1, and includes sea battle re-enactments and fireworks. The organizers wanted to hold an additional revolutionary sea battle re-enactment closer to the anniversary date of the actual historical battle in Hampton, VA. This event will become an annual marine event and will be scheduled to occur on the second to last weekend in October.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
On October 24 and October 25, 2015, the Hampton History Museum and City of Hampton Parks and Recreation will sponsor the “Battle of Hampton” on the waters of the Hampton River in Hampton, VA. The event will consist of approximately four time-period vessels carrying out a revolutionary sea battle
This special local regulation will restrict vessel movement in the navigable waters of the Hampton River from hazards associated with battle re-enactments. The potential hazards to mariners within the special local regulation include accidental shockwaves, flying debris and loud noises.
The Captain of the Port of Hampton Roads will establish a special local regulation on the waters of the Hampton River, near the Crowne Plaza Hampton Marina, bounded by the shoreline and a line drawn from 37°01′30.09″ N./076°20′25.44″ W., to 37°01′29.47″ N./076°20′24.24″ W., to 37° 01′22.93″ N./076°20′30.62″ W., to 37°01′24.47″ N./076°20′31.43″ W. (NAD 1983), in Hampton, Virginia. This regulation will be enforced on October 24 and October 25, 2015 between the hours of 1 p.m. and 1:30 p.m. Access to the regulated area will be restricted during the specified date and time.
Except for vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the regulated area during the time frame listed. The COTP will give notice of the enforcement of the regulated area by all appropriate means to provide the widest dissemination of notice among the affected segments of the public. This will include publication in the Local Notice to Mariners and Marine Information Broadcasts.
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 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. E.O. 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 E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration, and time-of-year of the restricted area. Although this regulation restricts access to the regulated area, the effect of this rule will not be significant because: (i) This rule will only be enforced for the limited size and duration of the event; and (ii) the Coast Guard will make extensive notification to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule affects the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in waters of the Hampton River, during the enforcement period.
This regulated area will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) it will only be in effect for a limited duration, and (ii) before the enforcement period, Sector Hampton Roads will issue maritime advisories widely available to users of the Hampton River, allowing mariners to adjust their plans accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sailboat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sailboard racing. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Metropolitan Ave. Bridge across the English Kills, mile 3.4, at Brooklyn, New York. This deviation is necessary to perform operating machinery installation. This deviation allows the bridge to remain in the closed position for approximately 3 days.
This deviation is effective from 6 a.m. on November 2, 2015 to 5 p.m. on November 5, 2015.
The docket for this deviation, [USCG-2015-0952] is available at
If you have questions on this temporary deviation, call or email Ms. Judy K. Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 514-4330, email
The Metropolitan Ave. Bridge, mile 3.4, across the English Kills has a vertical clearance in the closed position of 10 feet at mean high water and 15 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.801(e).
The waterway has one commercial facility located upstream of the bridge.
New York City DOT requested this temporary deviation from the normal
Under this temporary deviation, the Metropolitan Ave. Bridge may remain in the closed position from 6 a.m. on November 2, 2015 through 5 p.m. on November 5, 2015.
Vessels able to pass through the bridge in the closed positions may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessel to pass.
The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Hawthorne Bridge, mile 13.1, across the Willamette River at Portland, OR. The deviation is necessary for maintenance repairs to the bridge lifting mechanism. This deviation allows the bridges to remain in the closed-to-navigation position to allow safe and timely movement of workers.
This deviation is effective from 5 a.m. to 5 p.m. on November 15, 2015.
The docket for this deviation, [USCG-2015-0967] is available at
If you have questions on this temporary deviation, call or email the Bridge Administrator, Coast Guard Thirteenth District; telephone 206-220-7234 email
Multnomah County has requested that the Hawthorne Bridge, mile 13.1, across the Willamette River at Portland, Oregon remain in the closed-to-navigation position from 5 a.m. until 5 p.m. on November 15, 2015 to allow for critical maintenance repairs to the bridge lifting mechanism.
The Hawthorne Bridge is a vertical lift bridge providing 49 feet of vertical clearance in the closed-to-navigation position, and unlimited clearance in the open position referenced to the vertical clearance above Columbia River Datum 0.0. The Hawthorne Bridge operates in accordance with 33 CFR 117.897, which allows the bridge to remain closed between 7 a.m. and 9 a.m. and 4 p.m. and 6 p.m. Monday through Friday. No advance notice for an opening is required.
Moderate to heavy vessel traffic exists on this part of the Willamette River, including vessels ranging from commercial tug and barge to small pleasure craft. The average number of drawbridge openings for the time covered by this deviation is three lifts. This deviation allows the lift span of the Hawthorne Bridge across the Willamette River, mile 13.1, to remain in the closed-to-navigation position, and need not open for maritime traffic from 5 a.m. until 5 p.m. on November 15, 2015. The bridge shall operate in accordance to 33 CFR 117.897 at all other times.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will not be able to immediately open for emergencies, and there is no immediate alternate route for vessels to pass. However, with a two hour notification for an emergency opening request, the lift mechanism may be reassembled for the lift span to be opened. Major waterway users have been notified and coordinated with for this deviation period. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridges so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a safety zone on the waters of Biscayne Bay, east of Bayfront Park, in Miami, Florida during the 2015 Ironman 70.3 Miami, a triathlon. The Ironman 70.3 Miami is scheduled to take place on October 25, 2015. Approximately 2,500 participants are anticipated to participate in the swim portion of the event. No spectators are expected to be present during the event. The safety zone is necessary to ensure the safety of participants, vessels, and the general public during the event. Persons and vessels, except those participating in the event, are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Miami or a designated representative.
This rule is effective and will be enforced from 6 a.m. to 11 a.m. on October 25, 2015.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Benjamin Colbert, Waterways Management Division, U.S. Coast Guard; telephone 305-535-4317, email
On May 27, 2015, the Miami Tri Events, LLC notified the Coast Guard that from 6:30 a.m. to 10 a.m., on October 25, 2015, it will organize a triathlon with a swim portion in Biscayne Bay east of Bayfront Park. In response, on August 14, 2015, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Mack Ironman 70.3, Biscayne Bay; Miami, FL (80 FR 48784). There, we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this swim event. During the comment period that ended September 28, 2015, we received no comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1. The Captain of the Port Miami (COTP) has determined that potential hazards associated with this swim event warrant a temporary safety zone. This zone will ensure necessary precautions are in place to mitigate dangers to human life.
As noted above, we received no comments on the NPRM published on August 14, 2015. The regulatory text of this rule is unchanged from the rule proposed in the NPRM.
This rule will establish a safety zone that will encompass certain waters of Biscayne Bay, Miami, Florida. The safety zone will be enforced from 6 a.m. until 11 a.m. on October 25, 2015. The safety zone will establish an area around the swim portion of the event where non-participant persons and vessels are prohibited from entering, transiting, anchoring, or remaining within. Non-participant persons and vessels may request authorization to enter, transit through, anchor in, or remain within the event area by contacting the Captain of the Port Miami by telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the event area is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 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. E.O. 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 E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
The economic impact of this rule is not significant for the following reasons: (1) The safety zone will be enforced for only five hours; (2) although non-participant persons and vessels will not be able to enter, transit through, anchor in, or remain within the event area without authorization from the Captain of the Port Miami or a designated representative, they may operate in the surrounding area during the enforcement period; (3) non-participant persons and vessels may still enter, transit through, anchor in, or remain within the event area during the enforcement period if authorized by the Captain of the Port Miami or a designated representative; and (4) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than 5 hours. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Non-participant persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port Miami by telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative.
(3) The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners and on-scene designated representatives.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a safety zone during the 2015 Fautasi Ocean Challenge in Pago Pago Harbor, American Samoa. This action is necessary to safeguard the participants and spectators, including all crews, vessels, and persons on the water in Pago Pago Harbor during the Fautasi Race. This regulation will functionally close the port to commercial vessel traffic during the start and finish of the race, but will not require the evacuation of any vessels from harbor. Entry into, transiting, or anchoring in the harbor is prohibited to all vessels not registered with the
This rule is effective from 10:00 a.m. (SST) to 4:00 p.m. (SST) on November 11, 2015 and from 10:00 a.m. (SST) to 4:00 p.m. (SST) on November 27, 2015.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Nicolas Jarboe, Waterways Management Division, U.S. Coast Guard Sector Honolulu; telephone (808) 541-4359, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the specific details of the event were received less than 90 days prior to event and needed to be worked through between the event coordinator and the Coast Guard over an extended period of time. The Coast Guard's discussions with the event sponsor to determine the requirements for this zone were finalized on 28 September 2015, which would not allow for a 30 day comment period. This safety zone is required to restrict vessel traffic to ensure the safety of the participants, spectators, the marine patrol and race officials. It is impracticable to publish an NPRM because we must establish this safety zone by November 11, 2015.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The statutory basis for this rulemaking is 33 U.S.C. 1231, which gives the Coast Guard, under a delegation from the Secretary of Homeland Security, regulatory authority to enforce the Ports and Waterways Safety Act. A safety zone is a water area, shore area, or water and shore area, for safety or environmental purposes, of which access is limited to authorized persons, vehicles, or vessels.
The purpose of this rule is to minimize vessel traffic in Pago Pago Harbor during the start and finish of the Fautasi canoe race. This is a major marine event in American Samoa. It is anticipated that a large number of spectator pleasure crafts will be drawn to the event. These vessels will pose a significant hazard to those operating in or near the area. The COTP Honolulu is establishing a temporary safety zone for Pago Pago Harbor. This rule is needed to safeguard persons and vessels during the canoe boat races.
This rule will create a safety zone in Pago Pago Harbor. The Coast Guard is closing the harbor to all vessels not authorized by the Captain of the Port to enter, depart, or transit within the port for the duration of the event. The Captain of the Port authorizes registered participants, support vessels, and enforcement vessels to enter and remain in the zone. The harbor will remain closed until the Coast Guard issues an “All Clear” for the harbor after the race has concluded and the harbor is deemed safe for normal operations. This rule does not require any vessel to evacuate the port if moored.
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 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. E.O. 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 E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Due to the number of participants and the size of the harbor, vessels cannot safely transit the harbor during the race. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves temporary and limited safety zone in Pago Pago Harbor. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Safety measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) No spectator shall anchor, block, loiter or impede the through transit of participants or support/enforcement vessels in the safety zone during the effective date and times, unless cleared for entry by or through a support/enforcement vessel.
(3) Spectator vessels may be moored to a waterfront facility within the safety zone in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the safety zone and remain moored through the duration of the event.
(d)
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing an emergency temporary safety zone for all waters of the Lower Mississippi River between mile 467.0 and 472.0. Transit into and through this area is prohibited beginning at 11:32 p.m. on September 10, 2015 and will continue through October 31, 2015 or until the width and depth of the navigational channel improves. This safety zone is needed to protect persons, property and infrastructure from the safety hazards associated with the navigational channel being reduced in width and depth due to shallow water and shifting shoals. This has created an especially hazardous situation that does not allow for normal transit through this reach of the river. Deviation from the safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Lower Mississippi River or a designated representative.
This rule is effective without actual notice from October 22, 2015 until 11:59 p.m. on October 31, 2015. For purposes of enforcement, actual notice will be used from 11:32 p.m. on September 10, 2015 until October 22, 2015.
Documents mentioned in this preamble are part of docket [USCG-2015-0893]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Tyrone L. Conner, U.S. Coast Guard; telephone 901-521-4825, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule.
On September 10, 2015 the Coast Guard was notified that shallow water and shifting shoals have reduced the width and depth of the navigational channel, creating an especially hazardous situation that does not to allow for normal transit through this reach of the river. This safety zone may include waterways closures, navigation restrictions, and/or other requirements that are vital to maintaining safe navigation. Accordingly, the Coast Guard has determined that immediate and emergency action is necessary to restrict navigation on this stretch of the river.
Therefore, it is impracticable to publish an NPRM because we must establish this safety zone by September 10, 2015. Broadcast Notices to Mariners (BNM) and information sharing with the waterway users will update mariners of the restrictions, requirements, and enforcement times during this emergency situation.
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this emergency rule effective less than 30 days after publication in the
The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1; 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define safety zones.
The purpose of this emergency safety zone is to protect life and property from safety hazards associated with the navigational channel being reduced in width and depth due to shallow water and shifting shoals. This situation poses significant safety hazards to vessels and mariners operating in the area. Establishing a safety zone that may include waterways closures, navigation restrictions, and/or other requirements that extends from mile 467.0 to mile 472.0 on Mississippi River is necessary for the Coast Guard to maintain navigational safety.
The Coast Guard is establishing a temporary emergency safety zone for all vessel traffic on the Mississippi River between mile 467.0 and mile 472.0, extending the entire width of the Mississippi River. Transit into and through this area is prohibited beginning at 11:32 p.m. on September 10, 2015 and will continue through October 31, 2015 or until navigational channel width and depth is improved and response efforts are complete. Deviation from this emergency safety zone is prohibited unless specifically authorized by the COTP Lower Mississippi River, or a designated representative. Deviation requests will be considered and reviewed on a case-by-case basis. The COTP Lower Mississippi River may be contacted by telephone at 1-901-521-4822 or can be reached by VHF-FM channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This rule establishes a temporary emergency safety zone for
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the Mississippi River, from 11:32 p.m. on September 10, 2015 to 11:59 p.m. on October 31, 2015. This emergency safety zone will not have a significant economic impact on a substantial number of small entities due to its limited scope and short duration. Additionally, requests to deviate from the rule will be considered on a case-by-case basis. Notifications to the marine community will be made through BNM, LNM, and communications with local waterway users. Notices of changes to the safety zone and effective times will also be made.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. Because this safety zone is established in response to an emergency situation and is less than one week in duration, an environmental analysis checklist and a categorical exclusion determination are not required. Should this emergency situation require a safety zone lasting longer than one week, an environmental analysis checklist and a categorical exclusion determination will be made available as indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1; 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons or vessels desiring to enter into or passage through the zone must request permission from the COTP Lower Mississippi River or a designated representative. They may be contacted on VHF-FM channel 16 or by telephone at 901-521-4822.
(3) If permission is granted, all persons and vessels shall comply with the instructions of the COTP Lower Mississippi River or designated representative.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing an emergency temporary safety zone for all waters of the Lower Mississippi River between mile 488.0 and 480.5. Transit into and through this area is prohibited beginning at 5:43 p.m. on September 9, 2015 and will continue through October 31, 2015 or until the width and depth of the navigational channel improves. This safety zone is needed to protect persons, property and infrastructure from the safety hazards associated with the navigational channel being reduced in width and depth due to shallow water and shifting shoals. This has created an especially hazardous situation that does not allow for normal transit through this reach of the river. Deviation from the safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Lower Mississippi River or a designated representative.
This rule is effective without actual notice from October 22, 2015 until 11:59 p.m. on October 31, 2015. For purposes of enforcement, actual notice will be used from 5:43 p.m. on September 9, 2015 until October 22, 2015.
Documents mentioned in this preamble are part of docket [USCG-2015-0894]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Tyrone L. Conner, U.S. Coast Guard; telephone 901-521-4825, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. On September 9, 2015, the Coast Guard was notified that shallow water and shifting shoals have reduced the width and depth of the navigational channel, creating an especially hazardous situation that does not to allow for normal transit through this reach of the river. This safety zone may include waterways closures, navigation restrictions, and/or other requirements that are vital to maintaining safe navigation. Accordingly, the Coast Guard has determined that immediate and emergency action is necessary to restrict navigation on this stretch of the river.
Therefore, delaying the effective date for this emergency safety zone to complete the NPRM process is impracticable because we must establish this safety zone by September 9, 2015. Broadcast Notices to Mariners (BNM) and information sharing with the waterway users will update mariners of the restrictions, requirements, and enforcement times during this emergency situation.
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that
The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1; 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define safety zones.
The purpose of this emergency safety zone is to protect life and property from safety hazards associated with the navigational channel being reduced in width and depth due to shallow water and shifting shoals. This situation poses significant safety hazards to vessels and mariners operating in the area. Establishing a safety zone that may include waterways closures, navigation restrictions, and/or other requirements that extends from mile 488.0 to mile 480.5 on Mississippi River is necessary for the Coast Guard to maintain navigational safety.
The Coast Guard is establishing a temporary emergency safety zone for all vessel traffic on the Mississippi River between mile 488.0 and mile 480.5, extending the entire width of the Mississippi River. Transit into and through this area is prohibited beginning at 5:43 p.m. on September 9, 2015 and will continue through October 31, 2015 or until navigational channel width and depth is improved and response efforts are complete. Deviation from this emergency safety zone is prohibited unless specifically authorized by the COTP Lower Mississippi River, or a designated representative. Deviation requests will be considered and reviewed on a case-by-case basis. The COTP Lower Mississippi River may be contacted by telephone at 1-901-521-4822 or can be reached by VHF-FM channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This rule establishes a temporary emergency safety zone for vessels on all waters of the Mississippi River from mile 488.0 to mile 480.5. Notifications of enforcement times will be communicated to the marine community via BNM and through Local Notice to Mariners (LNM). The impacts on navigation will be limited to ensuring the safety of mariners and vessels associated with hazards associated with the navigational channel being reduced in width, depth and shoaling.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit the Mississippi River, from 5:43 p.m. September 9, 2015 to 11:59 p.m. on September 16, 2015. This emergency safety zone will not have a significant economic impact on a substantial number of small entities due to its limited scope and short duration. Additionally, requests to deviate from the rule will be considered on a case-by-case basis. Notifications to the marine community will be made through BNM, LNM, and communications with local waterway users. Notices of changes to the safety zone and effective times will also be made.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. Because this safety zone is established in response to an emergency situation and is less than one week in duration, an environmental analysis checklist and a categorical exclusion determination are not required. Should this emergency situation require a safety zone lasting longer than one week, an environmental analysis checklist and a categorical exclusion determination will be made available as indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1; 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons or vessels desiring to enter into or passage through the zone must request permission from the COTP Lower Mississippi River or a designated representative. They may be contacted on VHF-FM channel 16 or by telephone at 901-521-4822.
(3) If permission is granted, all persons and vessels shall comply with the instructions of the COTP Lower Mississippi River or designated representative.
(d)
Defense Acquisition Regulations System, Department of Defense (DoD).
Interim rule; extension of comment period.
DoD issued an interim rule (DFARS Case 2013-D018) on August 26, 2015, amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2013 and a section of the National Defense Authorization Act for Fiscal Year 2015, both of which require contractor reporting on network penetrations. The comment period on the interim rule is being extended to November 20, 2015.
For the interim rule published on August 26, 2015 (80 FR 51739), submit comments by November 20, 2015.
Submit comments identified by DFARS Case 2013-D018, using any of the following methods:
○
○
○
○
Comments received generally will be posted without change to
Mr. Dustin Pitsch, telephone 571-372-6090.
On August 26, 2015, DoD published an interim rule (DFARS Case 2013-D018) in the
The due date for comments on the interim rule (DFARS Case 2013-D018) is being extended from October 26, 2015 to November 20, 2015, to provide additional time for interested parties to submit comments on the interim rule.
Government procurement.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is closing the directed herring fishery in the Herring Georges Bank Haddock Accountability Measure Area based on a determination that the Georges Bank Haddock Catch Cap has been harvested. Federally permitted vessels may not fish for, possess, transfer, receive, land or sell more than 2,000 lb (907.2 kg) of Atlantic herring in or from the Herring Georges Bank Haddock Accountability Measure Area for the remainder of the fishing year. Also, vessels issued Federal permits for Atlantic herring fishing with midwater trawl gear, or vessels issued an All Areas and/or Areas 2 and 3 Limited Access Atlantic herring permit on a declared Atlantic herring trip, regardless of gear used, may not possess haddock, unless also on a declared Northeast multispecies trip with a Northeast multispecies permit.
Effective 0001 hr local time, October 22, 2015, through April 30, 2016.
Shannah Jaburek, Fishery Management Specialist, (978) 282-8456.
Regulations governing the Atlantic herring fishery and the Northeast (NE) multispecies fishery can be found at 50 CFR part 648. The NE multispecies regulations require specification of acceptable biological catches (ABC), annual catch limits, and overfishing limits for each of the NE multispecies stocks. The haddock catch allowance for vessels issued a Federal herring permit is one percent of each of the ABCs for Gulf of Maine haddock and Georges Bank (GB) haddock stocks. The 2015 haddock ABC is 53,717,835 million lb (24,366 mt), and one percent of the ABC has been allocated to the GB Haddock Catch Cap for the 2015 fishing year, which is further reduced by seven percent to 500,449 lb (227 mt) to account for management uncertainty (80 FR 25109).
The regulations at § 648.201 require the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), to determine when the GB Haddock Catch Cap has been fully harvested. Once the GB Haddock Catch Cap has been harvested, regulations require NMFS to prohibit herring vessel permit holders from fishing for, possessing, transferring, receiving, landing, or selling more than 2,000 lb (907.2 kg) of herring per trip or calendar day in or from the Herring GB Haddock AM Area for the remainder of the fishing year. Additionally, federally permitted herring vessels fishing with midwater trawl gear can no longer possess haddock in the Herring GB Haddock Accountability Management (AM) Area for the reminder of the fishing year, unless vessels are also fishing on a declared NE multispecies trip with a NE multispecies permit. Vessels issued an All Areas or Areas 2 and 3 Limited Access herring permit on a declared herring trip cannot possess haddock in the Herring GB Haddock AM Area, regardless of the gear used.
The Regional Administrator has determined, based on dealer reports and other available information, that the herring fleet has fully harvested the GB Haddock Catch Cap. Therefore, effective 0001 hr local time, October 22, 2015, federally permitted vessels may not fish for, possess, transfer, receive, land, or sell more than 2,000 lb (907.2 kg) of herring per trip or calendar day, in or from the Herring GB Haddock AM Area through April 30, 2016, except vessels that have entered port before 0001 hr on October 22, 2015, may land and sell more than 2,000 lb (907.2 kg) of herring from the Herring GB Haddock AM Area from that trip. A vessel may transit through the Herring GB Haddock AM Area with more than 2,000 lb (907.2 kg) of herring on board, provided all herring onboard was caught outside the Herring GB Haddock AM Area and all fishing gear is stowed and not available for immediate use as defined by § 648.2. Effective 0001 hr, October 22, 2015, herring vessels fishing with midwater trawl gear cannot possess haddock and
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
NMFS finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest and impracticable. This action severely restricts the catch of GB herring in the GB Haddock AM Area until May 1, 2016. The regulations at § 648.201(a) require such action to ensure that herring vessels do not exceed the haddock catch allocated to the herring fishery. Data indicating the herring fleet will have harvested GB Haddock Catch Cap have only recently become available. If implementation of this closure is delayed to solicit prior public comment, the catch of GB haddock allocated to the herring fishery for this fishing year may be exceeded, thereby undermining the conservation objectives of the FMP. NMFS further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure.
NMFS is opening directed fishing for Pacific ocean perch in the Bering Sea subarea of the Bering Sea and Aleutian Islands management area. This action is necessary to fully use the 2015 total allowable catch of Pacific ocean perch specified for the Bering Sea subarea of the Bering Sea and Aleutian Islands management area.
Effective 1200 hrs, Alaska local time (A.l.t.), October 20, 2015, through 1200 hrs, A.l.t., December 31, 2015. Comments must be received at the following address no later than 4:30 p.m., A.l.t., November 3, 2015.
You may submit comments on this document, identified by FDMS Docket Number 2014-0134, by any of the following methods:
•
•
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
NMFS closed directed fishing for Pacific ocean perch (POP) in the Bering Sea subarea of the BSAI under § 679.20(d)(1)(iii) (80 FR 11919, March 5, 2015).
NMFS has determined that approximately 5,000 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2015 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI, effective 1200 hrs, A.l.t., October 20, 2015, through 1200 hrs, A.l.t., December 31, 2015. This will enhance the socioeconomic well-being of harvesters dependent on POP in this area.
The Administrator, Alaska Region considered the following factors in reaching this decision: (1) the current catch of POP in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for POP in the Bering Sea subarea of the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until November 3, 2015.
This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Credit Union Administration (NCUA).
Proposed rule.
The NCUA Board (Board) proposes to amend the maturity requirement for bank notes to be permissible investments for federal credit unions (FCUs) by removing the word “original” from the current requirement that bank notes have “original weighted average maturities of less than 5 years.” This amendment will provide regulatory relief for FCUs.
Comments must be received on or before November 23, 2015.
You may submit comments by any of the following methods, but please send comments by one method only:
•
•
•
•
•
•
John Nilles, Senior Capital Markets Specialist, Office of Examination and Insurance, at the above address or telephone (703) 518-6360; or Justin M. Anderson, Senior Staff Attorney, Office of General Counsel, at the above address or telephone (703) 518-6540.
By NCUA regulation, bank notes with original weighted average maturities of less than 5 years are permissible investments for FCUs.
When the Board first added “bank notes” as a permissible investment to its investment regulation, Part 703, the Board noted in the preamble to that proposed rule that it was codifying the position NCUA had taken in previously issued legal opinions on the topic.
This proposed rule will amend the maturity requirement for bank notes to be permissible investments for FCUs by removing the word “original” from the current requirement that bank notes have “original weighted average maturities of less than 5 years.” As noted, this will more closely align NCUA's investment restrictions with the definition of “deposit” in Regulation D. This proposed rule also will provide FCUs with some measure of regulatory relief. By removing the word “original,” which ties the bank note's maturity to its original date of issuance, FCUs will be permitted to select from a much larger pool of possible bank note offerings. Expanding the list of permissible offerings will result in: (1) Cheaper execution prices, as the “less than 5 years” element resulted in those bank notes often selling at a premium; (2) flexibility for FCUs to purchase bank notes that were originally issued
Further, removing the word “original” will not pose any safety or soundness concerns. Safety and soundness concerns generally apply to an FCU's overall maturity risk on a portfolio-wide basis and not to any one investment. If this rule is finalized as proposed, FCUs would be permitted to purchase bank notes that had original maturities greater than 5 years but have
The Board is issuing this proposal with a 30-day comment period rather than its traditional 60-day comment period. The shortened period reflects the simplicity of the proposed amendment and also enables the Board to provide expedited regulatory relief in this area.
The Regulatory Flexibility Act requires NCUA to prepare an analysis of any significant economic impact a regulation may have on a substantial number of small entities (primarily those under $50 million in assets).
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden or increases an existing burden.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. The proposed rule does 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. NCUA has, therefore, determined that this proposal does not constitute a policy that has federalism implications for purposes of the executive order.
NCUA has determined that this proposed rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).
Credit unions, Investments.
For the reasons discussed above, the National Credit Union Administration proposes to amend 12 CFR part 703 as follows:
12 U.S.C. 1757(7), 1757(8), and 1757(15).
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
The Office of Surface Mining Reclamation and Enforcement (OSMRE), is announcing receipt of a proposed amendment to the Virginia regulatory program (the Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Through this proposed amendment, the State seeks to revise the Virginia Coal Surface Mining Reclamation Regulations (the State regulations) in light of legislative changes made by the General Assembly of Virginia. If approved, the proposed amendment would incorporate these legislative changes into the approved State program. Additionally, the State regulations would be amended to revise the language of the public participation regulations to clarify proof of publication, remove the self-bonding instrument, and remove duplicate pool bond regulations already addressed under the Code of Virginia.
This document gives the times and locations that the Virginia program and this proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4:00 p.m., Eastern Standard Time (E.S.T.), November 23, 2015. If requested, we will hold a public hearing on the amendment on November 16, 2015. We will accept requests to speak at a hearing until 4:00 p.m., E.S.T. on November 6, 2015.
You may submit comments, identified by SATS No. VA-127-FOR, by any of the following methods:
• Mail/Hand Delivery: Mr. Earl Bandy, Field Office Director, Knoxville Field Office, Office of Surface Mining Reclamation and Enforcement, 710 Locust Street, 2nd Floor, Knoxville, Tennessee 37902.
• Federal eRulemaking Portal:
Mr. Earl Bandy, Field Office Director, Knoxville Field Office, Office of Surface Mining Reclamation and Enforcement, 710 Locust Street, 2nd Floor, Knoxville, Tennessee 37902, Telephone: (865) 545-4103 ext 186, Email:
In addition, you may review a copy of the amendment during regular business hours at the following location:
Mr. Harve A. Mooney, Legal Services Officer, Virginia Department of Mines, Minerals and Energy, 3405 Mountain Empire Road, Big Stone Gap, Virginia
Mr. Earl Bandy, Field Office Director, Knoxville Field Office. Telephone: (865) 545-4103 ext 186. Email:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “. . . State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.”
By letter dated June 12, 2015 (Administrative Record No. VA 2024), the Virginia Department of Mines, Minerals and Energy (VADMME) sent us an amendment to its program under SMCRA (30 U.S.C. 1201
At the VADMME's request, an actuarial group performed an audit of the Virginia Coal Surface Mining Reclamation Fund (the Fund). In evaluation year 2013, the actuary group provided a final report (Administrative Record No. VA 2022) with recommendations to improve the financial soundness of the Fund. In an effort to improve the operation of the Fund, the General Assembly of Virginia enacted legislation to amend certain provisions of the Virginia Coal Surface Mining Control and Reclamation Act of 1979 (VASMCRA).
Accordingly, VADMME now seeks to amend its State program to reflect the VASMCRA changes made through H.B. 710. VADMME's proposed changes to its State regulations are grouped into three categories for the purpose of this proposed rule notice and summarized below.
VADMME proposes to amend its State program by removing certain duplicate regulations for the pool bond because it states that these items are already addressed in the amended VASMCRA at Va. Code Ann. § 45.1-241.
VADMME proposes to remove, in whole, the State regulations at 4 VAC 25-130-801.11, 801.14, and 801.16, which address participation in the pool bond fund, the reclamation tax, and reinstatement to the pool bond fund.
The proposed amendment would amend 4 VAC 25-130-801.12 entitled “Entrance fee and bond” by removing a majority of the language in subsection (a), and would delete subsections (d) and (g) of this regulations. Additionally, VADMME's proposed amendment would remove subsection (c) of this regulation since it references self-bonding, which is no longer permitted by the State as addressed in a separate category below. Approval of these proposed modifications would result in the renumbering of the remaining subsections.
As VADMME seeks to remove section 801.14 of the State regulations, the proposed revisions to 4 VAC 25-130-801.15, entitled “Collection of the reclamation tax and penalties for non-payment”, entail an amended reference to § 45.1-270.4 of the Code of Virginia within subsections (b) and (d). A minor revision is also proposed at subsection (a) to update the point of contact for the Fund tax reporting form.
VADMME proposes to revise the public participation language referenced in 4 VAC 25-130-772.12, 778.21, and 800.40, to be consistent with the corresponding Federal regulations and to clarify proof of publication requirements.
The proposed amendment would revise the public notice language in subsection (c)(1) of 4 VAC 25-130-772.12, entitled “Permit requirements for exploration removing more than 250 tons of coal, or occurring on lands designated as unsuitable for surface coal mining operations” and the language in 4 VAC 25-130-778.21, entitled “Proof of publication” to be more consistent with the language provided in the Federal regulations at 30 CFR 772.12 and 778.21. The revised language would clarify that the required proof of publication shall be made a part of a subsequent submittal after the last date of publication prior to approval.
Additionally, the proposed amendment would revise the language in 4 VAC 25-130-800.40, entitled “Requirements to release performance bonds” referencing public notice and proof of publication required for bond release applications. VADMME also proposes to create a new subsection by moving language from 4 VAC 25-130-800.40(a)(2), discussing the permittee's duty to submit copies of notices sent to those within the locality as part of the bond release application, into a new subsection (a)(3). The existing subsection (a)(3) would be renumbered to (a)(4).
In response to changes made to the Code of Virginia through the enactment of H.B. 710, VADMME proposes to remove the self-bonding instrument in an effort to improve the financial soundness of the Fund. As definitions associated with self-bonding procedures, VADMME also seeks to remove the definitions of “Self-bonding”, “Cognovit note”, and “Indemnity agreement” currently provided under 4 VAC 25-130-700.5. The corresponding Federal regulation for this section is 30 CFR 800.5.
Furthermore, VADMME proposes to remove the provision allowing for Escrow bonding, outlined at 4 VAC 25-130-800.23, to reflect changes in the bonding requirements in the Code of Virginia. This type of bonding, in addition to the self-bonding option,
The full text of the program amendment is available for you to read at the locations listed above under
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.
If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.
We cannot ensure that comments received after the close of the comment period (see
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the
Intergovernmental relations, Surface mining, Underground mining.
Environmental Protection Agency (EPA).
Proposed rule; reopening of comment period.
On August 19, 2015, the Environmental Protection Agency (EPA) proposed revisions to its Regional Consistency regulations. The EPA is reopening the comment period on the proposed rule that closed on October 19, 2015. The EPA received a single letter from 16 trade and business organizations requesting additional time to review and comment on the proposed rule revisions.
The public comment period for the proposed rule published in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0616, to the
For additional information, contact Greg Nizich, Air Quality Policy Division, Office of Air Quality Planning and Standards (C504-03), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number (919) 541-3078; fax number (919) 541-5509; email address:
After considering the request received from 16 trade and business organizations to extend the public comment period, the EPA has decided to reopen the public comment period until November 3, 2015. This extension will help ensure that the public has additional time to review the proposed changes to the existing rule.
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed methodology.
This document provides the methodology and data sources necessary to determine federal payment amounts made in program years 2017 and 2018 to states that elect to establish a Basic Health Program under the Affordable Care Act to offer health benefits coverage to low-income individuals otherwise eligible to purchase coverage through Affordable Insurance Marketplaces.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on November 23, 2015.
In commenting, refer to file code CMS-2396-PN. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Christopher Truffer, (410) 786-1264; Stephanie Kaminsky (410) 786-4653.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
Section 1331 of the Patient Protection and Affordable Care Act (Pub. L. 111-148, enacted on March 23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152, enacted on March 30, 2010) (collectively referred as the Affordable Care Act) provides states with an option to establish a Basic Health Program (BHP). In the states that
BHP provides another option for states in providing affordable health benefits to individuals with incomes in the ranges described above. States may find BHP a useful option for several reasons, including the ability to potentially coordinate standard health plans in BHP with their Medicaid managed care plans, or to potentially reduce the costs to individuals by lowering premiums or cost-sharing requirements.
Federal funding will be available for BHP based on the amount of PTC and cost-sharing reductions (CSRs) that BHP enrollees would have received had they been enrolled in QHPs through Marketplaces. These funds are paid to the states through trust funds dedicated to BHP, and the states then administer the payments to standard health plans within BHP.
In the March 12, 2014
In the BHP final rule, we specified that the BHP Payment Notice process would include the annual publication of both a proposed and final BHP Payment Notice. The proposed BHP Payment Notice would be published in the
As described in the BHP final rule, once the final methodology has been published, we will only make modifications to the BHP funding methodology on a prospective basis with limited exceptions. The BHP final rule provided that retrospective adjustments to the state's BHP payment amount may occur to the extent that the prevailing BHP funding methodology for a given program year permits adjustments to a state's federal BHP payment amount due to insufficient data for prospective determination of the relevant factors specified in the payment notice. Additional adjustments could be made to the payment rates to correct errors in applying the methodology (such as mathematical errors).
Under section 1331(d)(3)(ii) of the Affordable Care Act, the funding methodology and payment rates are expressed as an amount per eligible individual enrolled in a BHP standard health plan (BHP enrollee) for each month of enrollment. These payment rates may vary based on categories or classes of enrollees. Actual payment to a state would depend on the actual enrollment of individuals found eligible in accordance with a state's certified blueprint eligibility and verification methodologies in coverage through the state BHP. A state that is approved to implement BHP must provide data showing quarterly enrollment of eligible individuals in the various federal BHP payment rate cells. Such data should include the following:
1. Personal identifier;
2. Date of birth;
3. County of residence;
4. Indian status;
5. Family size;
6. Household income;
7. Number of person in household enrolled in BHP;
8. Family identifier;
9. Months of coverage;
10. Plan information; and
11. Any other data required by CMS to properly calculate the payment.
In the February 24, 2015
In this proposed payment notice, we are proposing that the methodology described within be for program years 2017 and 2018 for states that elect to establish a BHP under the Affordable Care Act to offer health benefits coverage to low-income individuals otherwise eligible to purchase coverage through Affordable Insurance Marketplaces. We are proposing that the payment methodology be for 2 years because after 2 years of publishing single year methodologies, few year-to-year changes are needed at this point. If we find, based on additional data that is generated from 2015 operations, that we would like to further analyze enrollment data for another year before finalizing the methodology for 2018, we will only finalize for 2017 and then either finalize later or repropose our payment methodology for 2018.
Section 1331(d)(3) of the Affordable Care Act directs the Secretary to
Section 1331(d)(3)(A)(ii) of the Affordable Care Act specifies that the payment determination shall take into account all relevant factors necessary to determine the value of the premium tax credits and cost-sharing reductions that would have been provided to eligible individuals, including the age and income of the enrollee, whether the enrollment is for self-only or family coverage, geographic differences in average spending for health care across rating areas, the health status of the enrollee for purposes of determining risk adjustment payments and reinsurance payments that would have been made if the enrollee had enrolled in a qualified health plan through an Marketplace, and whether any reconciliation of PTC and CSR would have occurred if the enrollee had been so enrolled. This proposed payment methodology takes each of these factors into account. We propose a methodology that is the same as the 2016 payment methodology, with minor changes to update the value of certain factors used to calculate the payments, but with no changes in methods. These updates are explained in later sections of this notice. Accordingly, while this notice uses the term “proposed methodology” throughout, the methodology proposed is essentially identical to that already in place for the BHP.
In this proposed methodology, we are proposing to establish a payment methodology for the 2017 and 2018 BHP program years. The same methodology would apply for both years, but the values of a number of factors would be updated for 2018, as noted throughout this notice. We reserve the right to specify a different methodology for 2018.
We propose that the total federal BHP payment amount would be based on multiple rate cells in each state. Each rate cell would represent a unique combination of age range, geographic area, coverage category (for example, self-only or two-adult coverage through BHP), household size, and income range as a percentage of FPL. Thus, there would be distinct rate cells for individuals in each coverage category within a particular age range who reside in a specific geographic area and are in households of the same size and income range. We would develop BHP payment rates that would be consistent with those states' rules on age rating. Thus, in the case of a state that does not use age as a rating factor on the Marketplace, the BHP payment rates would not vary by age.
The proposed rate for each rate cell would be calculated in two parts. The first part (as described in Equation (1)) would equal 95 percent of the estimated PTC that would have been paid if a BHP enrollee in that rate cell had instead enrolled in a QHP in the Marketplace. The second part (as described in Equation (2)) would equal 95 percent of the estimated CSR payment that would have been made if a BHP enrollee in that rate cell had instead enrolled in a QHP in the Marketplace. These 2 parts would be added together and the total rate for that rate cell would be equal to the sum of the PTC and CSR rates.
We propose that Equation (1) would be used to calculate the estimated PTC for eligible individuals enrolled in the BHP in each rate cell and Equation (2) would be used to calculate the estimated CSR payments for eligible individuals enrolled in the BHP in each rate cell. (Indeed, we note that throughout the payment notice, when we refer to enrollees and enrollment data, we mean data regarding individuals who are enrolled in the BHP who have been found eligible for the BHP using the eligibility and verification requirements that are applicable in the state's most recent certified Blueprint.) By applying the equations separately to rate cells based on age, income and other factors, we would effectively take those factors into account in the calculation. In addition, the equations would reflect the estimated experience of individuals in each rate cell if enrolled in coverage through the Marketplace, taking into account additional relevant variables. Each of the variables in the equations is defined in this section, and further detail is provided later in this section of the payment notice.
In addition, we describe how we propose to calculate the adjusted reference premium (described later in this section of the payment notice) that is used in Equations (1) and (2). This is defined in Equation (3a) and Equation (3b).
We propose that the estimated PTC, on a per enrollee basis, would continue to be calculated for each rate cell for each state based on age range, geographic area, coverage category, household size, and income range. The PTC portion of the rate would be calculated in a manner consistent with the methodology used to calculate the PTC for persons enrolled in a QHP, with 3 adjustments. First, the PTC portion of the rate for each rate cell would represent the mean, or average, expected PTC that all persons in the rate cell would receive, rather than being calculated for each individual enrollee. Second, the reference premium used to calculate the PTC (described in more detail later in the section) would be adjusted for BHP population health status, and in the case of a state that elects to use 2016 premiums for the basis of the BHP federal payment, for the projected change in the premium from the 2016 to 2017, to which the rates announced in the final payment methodology would apply. These adjustments are described in Equation (3a) and Equation (3b). Third, the PTC would be adjusted prospectively to reflect the mean, or average, net expected impact of income reconciliation on the combination of all persons enrolled in BHP; this adjustment, as described in section II.D.5. of this proposed methodology, would account for the impact on the PTC that would have occurred had such reconciliation been performed. Finally, the rate is multiplied by 95 percent, consistent with section 1331(d)(3)(A)(i) of the Affordable Care Act. We note that in the situation where the average income contribution of an enrollee would exceed the adjusted reference premium, we would calculate the PTC to be equal to 0 and would not allow the value of the PTC to be negative.
We propose using Equation (1) to calculate the PTC rate, consistent with the methodology described above:
We propose that the CSR portion of the rate would continue to be calculated for each rate cell for each state based on age range, geographic area, coverage category, household size, and income range defined as a percentage of FPL. The CSR portion of the rate would be calculated in a manner consistent with the methodology used to calculate the CSR advance payments for persons enrolled in a QHP, as described in the “HHS Notice of Benefit and Payment Parameters for 2016” final rule published in the February 27, 2015
We propose using Equation (2) to calculate the CSR rate, consistent with the methodology described above:
As part of these calculations for both the PTC and CSR components, we propose to continue to calculate the value of the adjusted reference premium as described below. Consistent with the approach last year, we are proposing to allow states to choose between using the actual 2017 and 2018 QHP premiums or the 2016 and 2017 QHP premiums multiplied by the premium trend factor (for the 2017 and 2018 program years, respectively, and as described in section II.F). Therefore, we are proposing how we would calculate the adjusted reference premium under each option.
In the case of a state that elected to use the reference premium based on the 2017 premiums for the 2017 program year, we propose to calculate the value of the adjusted reference premium as specified in Equation (3a). The adjusted reference premium would be equal to the reference premium, which would be based on the second lowest cost silver plan premium in 2017, multiplied by the BHP population health factor (described in section II.D of this proposed methodology), which would reflect the projected impact that enrolling BHP-eligible individuals in QHPs on an Marketplace would have had on the average QHP premium.
In the case of a state that elected to use the reference premium based on the 2016 premiums for the 2017 program year (as described in section II.F of this proposed methodology), we propose to calculate the value of the adjusted reference premium as specified in Equation (3b). The adjusted reference premium would be equal to the reference premium, which would be based on the second lowest cost silver plan premium in 2016, multiplied by the BHP population health factor (described in section II.D of this proposed methodology), which would reflect the projected impact that enrolling BHP-eligible individuals in QHPs on an Marketplace would have had on the average QHP premium, and by the premium trend factor, which would reflect the projected change in the premium level between 2016 and 2017 (including the estimated impact of changes resulting from the transitional
This methodology would also apply for the 2018 program year, using either actual 2018 QHP premiums or the 2017 QHP premiums multiplied by a premium trend factor.
In general, the rate for each rate cell would be multiplied by the number of BHP enrollees in that cell (that is, the number of enrollees that meet the criteria for each rate cell) to calculate the total monthly BHP payment. This calculation is shown in Equation 4.
Consistent with the 2015 and 2016 payment methodologies, we propose that a state implementing BHP provide us an estimate of the number of BHP enrollees it projects will enroll in the upcoming BHP program year, by applicable rate cell, prior to the first quarter and each subsequent quarter of program operations until actual enrollment data is available. Upon our approval of such estimates as reasonable, they would be used to calculate the prospective payment for the first and subsequent quarters of program operation until the state has provided us actual enrollment data. These data would be required to calculate the final BHP payment amount, and make any necessary reconciliation adjustments to the prior quarters' prospective payment amounts due to differences between projected and actual enrollment. Subsequent, quarterly deposits to the state's trust fund would be based on the most recent actual enrollment data submitted to us. Actual enrollment data must be based on individuals enrolled for the quarter submitted who the state found eligible and whose eligibility was verified using eligibility and verification requirements as agreed to by the state in its applicable BHP Blueprint for the quarter that enrollment data is submitted. Procedures will ensure that federal payments to a state reflect actual BHP enrollment during a year, within each applicable category, and prospectively determined federal payment rates for each category of BHP enrollment, with such categories defined in terms of age range, geographic area, coverage status, household size, and income range, as explained above.
We propose requiring the use of certain rate cells as part of the proposed methodology. For each state, we propose using rate cells that separate the BHP population into separate cells based on the 5 factors described as follows:
• Ages 0-20.
• Ages 21-34.
• Ages 35-44.
• Ages 45-54.
• Ages 55-64.
• 0 to 50 percent of the FPL.
• 51 to 100 percent of the FPL.
• 101 to 138 percent of the FPL.
• 139 to 150 percent of the FPL.
• 151 to 175 percent of the FPL.
• 176 to 200 percent of the FPL.
These rate cells would only be used to calculate the federal BHP payment amount. A state implementing BHP would not be required to use these rate cells or any of the factors in these rate cells as part of the state payment to the standard health plans participating in BHP or to help define BHP enrollees' covered benefits, premium costs, or out-of-pocket cost-sharing levels.
We propose using averages to define federal payment rates, both for income ranges and age ranges, rather than varying such rates to correspond to each individual BHP enrollee's age and income level. We believe that the proposed approach will increase the administrative feasibility of making federal BHP payments and reduce the likelihood of inadvertently erroneous payments resulting from highly complex methodologies. We believe that this approach should not significantly change federal payment amounts, since within applicable ranges, the BHP-eligible population is distributed relatively evenly.
The number of factors contributing to rate cells, when combined, can result in over 350,000 rate cells which can increase the complexity when generating quarterly payment amounts. In future years, we will consider whether to combine or eliminate certain rate cells, once we are certain that the effect on payment would be insignificant in the interest of administrative simplification.
To the extent possible, we intend to continue to use data submitted to the federal government by QHP issuers seeking to offer coverage through an Marketplace to perform the calculations that determine federal BHP payment cell rates. We propose that the current methodology would not change, but we also propose clarifications regarding the submission of state data in this section.
States operating a State Based Marketplace in the individual market, however, must provide certain data, including premiums for second lowest cost silver plans, by geographic area, for CMS to calculate the federal BHP payment rates in those states. We propose that a State Based Marketplace interested in obtaining the applicable federal BHP payment rates for its state must submit such data accurately, completely, and as specified by CMS, by no later than October 15, 2016, for CMS to calculate the applicable rates for 2017 and by October 15, 2017 for 2018. If additional state data (that is, in addition to the second lowest cost silver plan premium data) are needed to determine the federal BHP payment rate, such data must be submitted in a timely manner, and in a format specified by CMS to support the development and timely release of annual BHP payment notices. The specifications for data collection to support the development of BHP payment rates will be published in CMS guidance and will be available at
States must submit to CMS enrollment data on a quarterly basis and should be technologically prepared to begin submitting data at the start of their BHP. This requirement is necessary for us to implement the payment methodology that is tied to a quarterly reconciliation based on actual enrollment data.
We newly propose 2 additional clarifications regarding state-submitted data. First, for states that have BHP enrollees who do not file federal tax returns (non-filers), the state must develop a methodology which they must submit to CMS as the time of their Blueprint submission to determine the enrollees' household income and household size consistently with Marketplace requirements. We reserve the right to approve or disapprove the state's methodology to determine income and household size for non-filers.
Second, as the federal payments are determined quarterly and the enrollment data is required to be submitted by the states to CMS quarterly, we propose that the quarterly payment would be based on the characteristics of the enrollee at the beginning of the quarter (or their first month of enrollment in BHP in each quarter). Thus, if an enrollee were to experience a change in county of residence, income, household size, or other factors related to the BHP payment determination during the quarter, the payment for the quarter would be based on the data as of the beginning of the quarter. Payments would still be made only for months that the person is enrolled in and eligible for BHP. We do not anticipate that this would have a significant effect on the federal BHP payment. The states must maintain data that are consistent with CMS' verification requirements, including auditable records for each individual enrolled, indicating an eligibility determination and a determination of income and other criteria relevant to the payment methodology as of the beginning of each quarter.
As described in § 600.610 (Secretarial determination of BHP payment amount), the state is required to submit certain data in accordance with this Notice. We require that this data be collected and validated by states operating BHP and that this data be submitted to CMS.
To calculate the estimated PTC that would be paid if individuals enrolled in QHPs through the Marketplace, we must
The reference premium would be the premium applicable to non-tobacco users. This is consistent with the provision in 26 U.S.C. 36B(b)(3)(C) that bases the PTC on premiums that are adjusted for age alone, without regard to tobacco use, even for states that allow insurers to vary premiums based on tobacco use in accordance with 42 U.S.C. 300gg(a)(1)(A)(iv).
Consistent with the policy set forth in 26 CFR 1.36B-3(f)(6) to calculate the PTC for those enrolled in a QHP through an Marketplace, we propose not to update the payment methodology, and subsequently the federal BHP payment rates, in the event that the second lowest cost silver plan used as the reference premium, or the lowest cost silver plan, changes (that is, terminates or closes enrollment during the year).
The applicable second lowest cost silver plan premium will be included in the BHP payment methodology by age range, geographic area, and self-only or applicable category of family coverage obtained through BHP.
American Indians and Alaska Natives with household incomes between 100 percent and 300 percent of the FPL are eligible for a full cost sharing subsidy regardless of the plan they select (as described in sections 1402(d) and 2901(a) of the Affordable Care Act). We assume that American Indians and Alaska Natives would be more likely to enroll in bronze plans as a result, as it would reduce the amount of the premium they would pay compared to the costs of enrolling in a silver plan; thus, for American Indian/Alaska Native BHP enrollees, we propose to use the lowest cost bronze plan as the basis for the reference premium for the purposes of calculating the CSR portion of the federal BHP payment as described further in section II.E of this proposed methodology.
We note that the choice of the second lowest cost silver plan for calculating BHP payments would rely on several simplifying assumptions in its selection. For the purposes of determining the second lowest cost silver plan for calculating PTC for a person enrolled in a QHP through an Marketplace, the applicable plan may differ for various reasons. For example, a different second lowest cost silver plan may apply to a family consisting of 2 adults, their child, and their niece than to a family with 2 adults and their children, because 1 or more QHPs in the family's geographic area might not offer family coverage that includes the niece. We believe that it would not be possible to replicate such variations for calculating the BHP payment and believe that in aggregate they would not result in a significant difference in the payment. Thus, we propose to use the second lowest cost silver plan available to any enrollee for a given age, geographic area, and coverage category.
This choice of reference premium relies on 2 assumptions about enrollment in the Marketplaces. First, we assume that all persons enrolled in BHP would have elected to enroll in a silver level plan if they had instead enrolled in a QHP through the Marketplaces. It is possible that some persons would have chosen not to enroll at all or would have chosen to enroll in a different metal-level plan (in particular, a bronze level plan with a premium that is less than the PTC for which the person was eligible). We do not believe it is appropriate to adjust the payment for an assumption that some BHP enrollees would not have enrolled in QHPs for purposes of calculating the BHP payment rates, since section 1331(d)(3)(A)(ii) of the Affordable Care Act requires the calculation of such rates as if the enrollee had enrolled in a qualified health plan through an Marketplace.
Second, we assume that, among all available silver plans, all persons enrolled in BHP would have selected the second-lowest cost plan. Both this and the prior assumption allow an administratively feasible determination of federal payment levels. They also have some implications for the CSR portion of the rate. If persons were to enroll in a bronze level plan through the Marketplace, they would not be eligible for CSRs, unless they were an eligible American Indian or Alaska Native; thus, assuming that all persons enroll in a silver level plan, rather than a plan with a different metal level, would increase the BHP payment. Assuming that all persons enroll in the second lowest cost silver plan for the purposes of calculating the CSR portion of the rate may result in a different level of CSR payments than would have been paid if the persons were enrolled in different silver level plans on the Marketplaces (with either lower or higher premiums). We believe that it would be difficult to project how many BHP enrollees would have enrolled in different silver level QHPs, and thus propose to use the second lowest cost silver plan as the basis for the reference premium and calculating the CSR portion of the rate. While some data is available from the Marketplaces, developing projections of how persons in different income ranges choose plans and extrapolating that to other states, with different numbers of plans and different premiums, would not be an improvement upon the current methodology. For American Indian/Alaska Native BHP enrollees, we propose to use the lowest cost bronze plan as the basis for the reference premium as described further in section II.E. of this proposed methodology.
The applicable age bracket will be one dimension of each rate cell. We propose to assume a uniform distribution of ages and estimate the average premium amount within each rate cell. We believe that assuming a uniform distribution of ages within these ranges is a reasonable approach and would produce a reliable determination of the PTC and CSR components.
We also believe this approach would avoid potential inaccuracies that could otherwise occur in relatively small payment cells if age distribution were measured by the number of persons eligible or enrolled.
We propose to use geographic areas based on the rating areas used in the Marketplaces. We propose to define each geographic area so that the reference premium is the same throughout the geographic area. When the reference premium varies within a rating area, we propose defining geographic areas as aggregations of counties with the same reference premium. Although plans are allowed to serve geographic areas smaller than counties after obtaining our approval, we propose that no geographic area, for
Finally, in terms of the coverage category, we propose that federal payment rates only recognize self-only and two-adult coverage, with exceptions that account for children who are potentially eligible for BHP. First, in states that set the upper income threshold for children's Medicaid and CHIP eligibility below 200 percent of FPL (based on modified adjusted gross income), children in households with incomes between that threshold and 200 percent of FPL would be potentially eligible for BHP. Currently, the only states in this category are Arizona, Idaho, and North Dakota.
We propose that the population health factor be included in the methodology to account for the potential differences in the average health status between BHP enrollees and persons enrolled in the Marketplace. To the extent that BHP enrollees would have been enrolled in the Marketplace in the absence of BHP in a state, the exclusion of those BHP enrollees in the Marketplace may affect the average health status of the overall population and the expected QHP premiums. Our proposal continues the methodology currently in place, except to update reference years.
We currently do not believe that there is evidence that the BHP population would have better or poorer health status than the Marketplace population. At this time, there is a lack of experience available in the Marketplace that limits the ability to analyze the health differences between these groups of enrollees. Marketplaces have been in operation since 2014, and 2 states have operated BHP in 2015, but we do not have the data available to do the analysis necessary to make this adjustment at this time. In addition, differences in population health may vary across states. Thus, at this time, we believe that it is not feasible to develop a methodology to make a prospective adjustment to the population health factor that is reliably accurate.
Given these analytic challenges and the limited data about Marketplace coverage and the characteristics of BHP-eligible consumers that will be available by the time we establish federal payment rates for 2017 and 2018, we believe that the most appropriate adjustment for 2017 and 2018 would be 1.00.
In the 2015 and 2016 payment methodologies, we included an option for states to include a retrospective population health status adjustment. Similarly, we propose for the 2017 and 2018 payment methodology to provide states with the same option, as described further in section II.G of this proposed methodology, to include a retrospective population health status adjustment in the certified methodology, which is subject to our review and approval. Regardless of whether a state elects to include a retrospective population health status adjustment, we anticipate that, in future years, when additional data become available about Marketplace coverage and the characteristics of BHP enrollees, we may estimate this factor differently.
While the statute requires consideration of risk adjustment payments and reinsurance payments insofar as they would have affected the PTC and CSRs that would have been provided to BHP-eligible individuals had they enrolled in QHPs, we are not proposing to require that a BHP program's standard health plans receive such payments. As explained in the BHP final rule, BHP standard health plans are not included in the risk adjustment program operated by HHS on behalf of states. Further, standard health plans do not qualify for payments from the transitional reinsurance program established under section 1341 of the Affordable Care Act.
Household income is a significant determinant of the amount of the PTC and CSRs that are provided for persons enrolled in a QHP through the Marketplace. Accordingly, both the current and proposed BHP payment methodology incorporates income into the calculations of the payment rates through the use of income-based rate cells. We propose defining income in accordance with the definition of modified adjusted gross income in 26 U.S.C. 36B(d)(2)(B) and consistent with the definition in 45 CFR 155.300. Income would be measured relative to the FPL, which is updated periodically in the
• 0-50 percent.
• 51-100 percent.
• 101-138 percent.
• 139-150 percent.
• 151-175 percent.
• 176-200 percent.
We further propose to assume a uniform income distribution for each federal BHP payment cell. We believe that assuming a uniform income distribution for the income ranges proposed would be reasonably accurate for the purposes of calculating the PTC and CSR components of the BHP
Thus, when calculating the mean, or average, PTC for a rate cell, we propose to calculate the value of the PTC at each one percentage point interval of the income range for each federal BHP payment cell and then calculate the average of the PTC across all intervals. This calculation would rely on the PTC formula described in section II.4 of this proposed methodology.
As the PTC for persons enrolled in QHPs would be calculated based on their income during the open enrollment period, and that income would be measured against the FPL at that time, we propose to adjust the FPL by multiplying the FPL by a projected increase in the CPI-U between the time that the BHP payment rates are calculated and the QHP open enrollment period, if the FPL is expected to be updated during that time. We propose that the projected increase in the CPI-U would be based on the intermediate inflation forecasts from the most recent OASDI and Medicare Trustees Reports.
In Equation 1 described in section II.A.1 of this proposed methodology, we propose to use the formula described in 26 U.S.C. 36B(b) to calculate the estimated PTC that would be paid on behalf of a person enrolled in a QHP on an Marketplace as part of the BHP payment methodology. This formula is used to determine the contribution amount (the amount of premium that an individual or household theoretically would be required to pay for coverage in a QHP on an Marketplace), which is based on (A) the household income; (B) the household income as a percentage of FPL for the family size; and (C) the schedule specified in 26 U.S.C. 36B(b)(3)(A) and shown below. The difference between the contribution amount and the adjusted monthly premium for the applicable second lowest cost silver plan is the estimated amount of the PTC that would be provided for the enrollee.
The PTC amount provided for a person enrolled in a QHP through an Marketplace is calculated in accordance with the methodology described in 26 U.S.C. 36B(b)(2). The amount is equal to the lesser of the premium for the plan in which the person or household enrolls, or the adjusted premium for the applicable second lowest cost silver plan minus the contribution amount.
The applicable percentage is defined in 26 U.S.C. 36B (b)(3)(A) and 26 CFR 1.36B-3(g) as the percentage that applies to a taxpayer's household income that is within an income tier specified in Table 1, increasing on a sliding scale in a linear manner from an initial premium percentage to a final premium percentage specified in the table (see Table 1). The methodology is unchanged, but we propose to update the percentages:
These are the applicable percentages for calendar year (CY) 2016 and would be used for the 2017 payment methodology. We plan to use the CY 2017 percentages when they become available for the 2018 payment methodology, as the percentages are indexed annually and published by the Internal Revenue Service (IRS). The applicable percentages will be updated in future years in accordance with 26 U.S.C. 36B(b)(3)(A)(ii).
For persons enrolled in a QHP through an Marketplace who receive an advance payment of the premium tax credit (APTC), there will be an annual reconciliation following the end of the year to compare the advance payments to the correct amount of PTC based on household circumstances shown on the federal income tax return. Any difference between the latter amounts and the advance payments made during the year would either be paid to the taxpayer (if too little APTC was paid) or charged to the taxpayer as additional tax (if too much APTC was made, subject to any limitations in statute or regulation), as provided in 26 U.S.C. 36B(f).
Section 1331(e)(2) of the Affordable Care Act specifies that an individual eligible for BHP may not be treated as a qualified individual under section 1312 eligible for enrollment in a QHP offered through an Marketplace. We are defining “eligible” to mean anyone for whom the state agency or the Marketplace assesses or determines, based on the single streamlined application or renewal form, as eligible for enrollment in the BHP. Because
Therefore, in accordance with current practice, we propose including in Equation 1 an income adjustment factor that would account for the difference between calculating estimated PTC using: (a) Income relative to FPL as determined at initial application and potentially revised mid-year, under proposed § 600.320, for purposes of determining BHP eligibility and claiming federal BHP payments; and (b) actual income relative to FPL received during the plan year, as it would be reflected on individual federal income tax returns. This adjustment would seek prospectively to capture the average effect of income reconciliation aggregated across the BHP population had those BHP enrollees been subject to tax reconciliation after receiving APTC assistance for coverage provided through QHPs. Consistent with the methodology used in 2015 (and that will be used in 2016), for 2017 and 2018, we propose estimating reconciliation effects based on tax data for 2 years, reflecting income and tax unit composition changes over time among BHP-eligible individuals.
The Office of Tax Analysis in the U.S. Department of Treasury (OTA) maintains a model that combines detailed tax and other data, including Marketplace enrollment and PTC claimed, to project Marketplace premiums, enrollment, and tax credits. For each enrollee, this model compares the APTC based on household income and family size estimated at the point of enrollment with the PTC based on household income and family size reported at the end of the tax year. The former reflects the determination using enrollee information furnished by the applicant and tax data furnished by the IRS. The latter would reflect the PTC eligibility based on information on the tax return, which would have been determined if the individual had not enrolled in BHP. We propose that the ratio of the reconciled PTC to the initial estimation of PTC would be used as the income reconciliation factor in Equation (1) for estimating the PTC portion of the BHP payment rate.
For 2016, OTA estimated that the income reconciliation factor for states that have implemented the Medicaid eligibility expansion to cover adults up to 133 percent of the FPL will be 100.25 percent, and for states that have not implemented the Medicaid eligibility expansion and do not cover adults up to 133 percent of the FPL will be 100.24 percent. In the 2016 payment methodology, the IRF was set equal to 100.25 percent. We propose updating this calculation and the IRF for 2017 and 2018.
As described previously, the reference premium is estimated, for purposes of determining both the PTC and related federal BHP payments, based on premiums charged for non-tobacco users, including in states that allow premium variations based on tobacco use, as provided in 42 U.S.C. 300gg (a)(1)(A)(iv). In contrast, as described in 45 CFR 156.430, the CSR advance payments are based on the total premium for a policy, including any adjustment for tobacco use. Accordingly, we propose to continue our current methodology and to incorporate a tobacco rating adjustment factor into Equation 2 that reflects the average percentage increase in health care costs that results from tobacco use among the BHP-eligible population and that would not be reflected in the premium charged to non-users. This factor will also take into account the estimated proportion of tobacco users among BHP-eligible consumers.
To estimate the average effect of tobacco use on health care costs (not reflected in the premium charged to non-users), we propose to calculate the ratio between premiums that silver level QHPs charge for tobacco users to the premiums they charge for non-tobacco users at selected ages. To calculate estimated proportions of tobacco users, we propose to use data from the Centers for Disease Control and Prevention to estimate tobacco utilization rates by state and relevant population characteristic.
We propose to provide tobacco rating factors that may vary by age and by geographic area within each state. To the extent that the second lowest cost silver plans have a different ratio of tobacco user rates to non-tobacco user rates in different geographic areas, the tobacco rating adjustment factor may differ across geographic areas within a state. In addition, to the extent that the second lowest cost silver plan has a different ratio of tobacco user rates to non-tobacco user rates by age, or that there is a different prevalence of tobacco use by age, the tobacco rating adjustment factor may differ by age.
The Factor for Removing Administrative Costs represents the average proportion of the total premium that covers allowed health benefits, and we propose to continue including this factor in our calculation of estimated CSRs in Equation 2. The product of the reference premium and the Factor for Removing Administrative Costs would
The actuarial value is defined as the percentage paid by a health plan of the total allowed costs of benefits, as defined under 45 CFR 156.20. (For example, if the average health care costs for enrollees in a health insurance plan were $1,000 and that plan has an actuarial value of 70 percent, the plan would be expected to pay on average $700 ($1,000 × 0.70) for health care costs per enrollee.) By dividing such estimated costs by the actuarial value in the proposed methodology, we would calculate the estimated amount of total EHB-allowed claims, including both the portion of such claims paid by the plan and the portion paid by the consumer for in-network care. (To continue with that same example, we would divide the plan's expected $700 payment of the person's EHB-allowed claims by the plan's 70 percent actuarial value to ascertain that the total amount of EHB-allowed claims, including amounts paid by the consumer, is $1,000.)
For the purposes of calculating the CSR rate in Equation 2, we propose to continue to use the standard actuarial value of the silver level plans in the individual market, which is equal to 70 percent.
The induced utilization factor is proposed to continue to be a factor in calculating estimated CSRs in Equation 2 to account for the increase in health care service utilization associated with a reduction in the level of cost sharing a QHP enrollee would have to pay, based on the cost-sharing reduction subsidies provided to enrollees.
The 2016 HHS Notice of Benefit and Payment Parameters provided induced utilization factors for the purposes of calculating cost-sharing reduction advance payments for 2016. In that Notice, the induced utilization factors for silver plan variations ranged from 1.00 to 1.12, depending on income. Using those utilization factors, the induced utilization factor for all persons who would qualify for BHP based on their household income as a percentage of FPL is 1.12; this would include persons with household income between 100 percent and 200 percent of FPL, lawfully present non-citizens below 100 percent of FPL who are ineligible for Medicaid because of immigration status, and American Indians and Alaska Natives with household income between 100 and 300 percent of FPL, not subject to any cost-sharing. Thus, consistent with last year, we propose to set the induced utilization factor equal to 1.12 for the BHP payment methodology.
We note that for CSRs for QHPs, there will be a final reconciliation at the end of the year and the actual level of induced utilization could differ from the factor proposed in the rule. Our proposed methodology for BHP funding would not include any reconciliation for utilization and thus may understate or overstate the impact of the effect of the subsidies on health care utilization.
The increase in actuarial value would account for the impact of the cost-sharing reduction subsidies on the relative amount of EHB claims that would be covered for or paid by eligible persons, and we propose including it as a factor in calculating estimated CSRs in Equation 2.
The actuarial values of QHPs for persons eligible for cost-sharing reduction subsidies are defined in 45 CFR 156.420(a), and eligibility for such subsidies is defined in 45 CFR 155.305(g)(2)(i) through (iii). For QHP enrollees with household incomes between 100 percent and 150 percent of FPL, and those below 100 percent of FPL who are ineligible for Medicaid because of their immigration status, CSRs increase the actuarial value of a QHP silver plan from 70 percent to 94 percent. For QHP enrollees with household incomes between 150 percent and 200 percent of FPL, CSRs increase the actuarial value of a QHP silver plan from 70 percent to 87 percent.
We propose to continue to apply this factor by subtracting the standard AV from the higher AV allowed by the applicable cost-sharing reduction. For BHP enrollees with household incomes at or below 150 percent of FPL, this factor would be 0.24 (94 percent minus 70 percent); for BHP enrollees with household incomes more than 150 percent but not more than 200 percent of FPL, this factor would be 0.17 (87 percent minus 70 percent).
There are several exceptions made for American Indians and Alaska Natives enrolled in QHPs through an Marketplace to calculate the PTC and CSRs. Thus, we propose adjustments to the payment methodology described above to be consistent with the Marketplace rules.
We propose the following adjustments, unchanged from the current methodology: 1. We propose that the adjusted reference premium for use in the CSR portion of the rate would use the lowest cost bronze plan instead of the second lowest cost silver plan, with the same adjustment for the population health factor (and in the case of a state that elects to use the 2016 or 2017 premiums as the basis of the federal BHP payment, the same adjustment for the premium trend factor). American Indians and Alaska Natives are eligible for CSRs with any metal level plan, and thus we believe that eligible persons would be more likely to select a bronze level plan instead of a silver level plan. (It is important to note that this would not change the PTC, as that is the maximum possible PTC payment, which is always based on the applicable second lowest cost silver plan.)
2. We propose that the actuarial value for use in the CSR portion of the rate would be 0.60 instead of 0.70, which is consistent with the actuarial value of a bronze level plan.
3. We propose that the induced utilization factor for use in the CSR portion of the rate would be 1.15 for 2017/2018, which is consistent with the 2016 HHS Notice of Benefit and Payment Parameters induced utilization factor for calculating advance CSR payments for persons enrolled in bronze level plans and eligible for CSRs up to 100 percent of actuarial value.
4. We propose that the change in the actuarial value for use in the CSR portion of the rate would be 0.40. This reflects the increase from 60 percent actuarial value of the bronze plan to 100 percent actuarial value, as American Indians and Alaska Natives with household incomes between 100 and 300 percent FPL are eligible to receive CSRs up to 100 percent of actuarial value.
In the interest of allowing states greater certainty in the total BHP federal payments for 2017 or 2018, we propose providing states the option to have their final 2017 and 2018 federal BHP
For a state that would elect to use the 2016 or 2017 premiums as the basis for the 2017 and 2018 BHP federal payments, respectively, we propose requiring that the state inform us no later than May 15, 2016 for the 2017 program year and May 15, 2017 for the 2018 program year. Our experience to date has been that states have elected to use the premium data that correlates to the year of payment. If this trend continues, we will consider in future payment notices whether to eliminate the choice of the premium from the prior year moving forward.
For Equation (3b), we propose to continue to define the premium trend factor, with minor changes in calculation sources and methods, as follows:
Premium Trend Factor (PTF): In Equation (3b), we propose to calculate an adjusted reference premium (ARP) based on the application of certain relevant variables to the reference premium (RP), including a premium trend factor (PTF). In the case of a state that would elect to use the 2016 or 2017 premiums as the basis for determining the BHP payment, it would be appropriate to apply a factor that would account for the change in health care costs between the year of the premium data and the BHP plan year. We are proposing to define this as the premium trend factor in the BHP payment methodology. This factor would approximate the change in health care costs per enrollee, which would include, but not be limited to, changes in the price of health care services and changes in the utilization of health care services. This would provide an estimate of the adjusted monthly premium for the applicable second lowest cost silver plan that would be more accurate and reflective of health care costs in the BHP program year, which would be the year following issuance of the final federal payment notice. In addition, we believe that it would be appropriate to adjust the trend factor for the estimated impact of changes to the transitional reinsurance program on the average QHP premium.
For the trend factor we propose to use the annual growth rate in private health insurance expenditures per enrollee from the National Health Expenditure projections, developed by the Office of the Actuary in CMS (
We propose to also include an adjustment for changes in the transitional reinsurance program. We propose that this adjustment would be developed from analysis by CMS' Center for Consumer Information and Insurance Oversight (CCIIO).
States may want to consider that the increase in premiums for QHPs from 2016 to 2017 or from 2017 to 2018 may differ from the premium trend factor developed for the BHP funding methodology for several reasons. In particular, states may want to consider that the second lowest cost silver plan for 2016 or 2017 may not be the same as the second lowest cost silver plan in 2017 or 2018, respectively. This may lead to the premium trend factor being greater than or less than the actual change in the premium of the second lowest cost silver plan in 2016 compared to the premium of the second lowest cost silver plan in 2017 (or from 2017 to 2018).
To determine whether the potential difference in health status between BHP enrollees and consumers in the Marketplace would affect the PTC, CSRs, risk adjustment and reinsurance payments that would have otherwise been made had BHP enrollees been enrolled in coverage on the Marketplace, we propose to continue to provide states implementing the BHP the option to propose and to implement, as part of the certified methodology, a retrospective adjustment to the federal BHP payments to reflect the actual value that would be assigned to the population health factor (or risk adjustment) based on data accumulated during program years 2017 and 2018 for each rate cell.
We acknowledge that there is uncertainty with respect to this factor due to the lack of experience of QHPs on the Marketplace and other payments related to the Marketplace, which is why, absent a state election, we propose to use a value for the population health factor to determine a prospective payment rate which assumes no difference in the health status of BHP enrollees and QHP enrollees. There is considerable uncertainty regarding whether the BHP enrollees will pose a greater risk or a lesser risk compared to the QHP enrollees, how to best measure such risk, and the potential effect such risk would have had on PTC, CSRs, risk adjustment and reinsurance payments that would have otherwise been made had BHP enrollees been enrolled in coverage on the Marketplace. To the extent, however, that a state would develop an approved protocol to collect data and effectively measure the relative risk and the effect on federal payments, we propose to permit a retrospective adjustment that would measure the actual difference in risk between the two populations to be incorporated into the certified BHP payment methodology and used to adjust payments in the previous year.
For a state electing the option to implement a retrospective population health status adjustment, we propose requiring the state to submit a proposed protocol to CMS, which would be subject to approval by us and would be required to be certified by the Chief Actuary of CMS, in consultation with the Office of Tax Analysis, as part of the BHP payment methodology. We describe the protocol for the population health status adjustment in guidance in
In the 2015 proposed payment methodology, we included an example of how the BHP funding methodology would be applied (Proposed Basic Health Program 2015 Funding Methodology, (78 FR 77399), published in the
In the final BHP payment methodology, we provided the option for states to elect to use the 2015 premiums to calculate the BHP payment rates instead of the 2014 premiums multiplied by the premium trend factor. The example in the previous proposed payment methodology used the 2014 premiums multiplied by the premium trend factor only.
In addition, we provided the option for the state to develop a risk adjustment protocol to revise the population health factor in the final payment methodology. The example in the previous proposed payment methodology did not assume any adjustment to the population health factor.
Furthermore, we modified the age ranges used to develop the rate cells after the proposed payment methodology was published. The age range for persons ages 21-44 was divided into age ranges of 21-34 and 35-44.
This 2017 and 2018 proposed methodology is mostly unchanged from the 2016 final methodology published on February 24, 2015 (80 FR 9636). For states that have BHP enrollees who do not file federal tax returns (“non-filers”), this methodology notice clarifies that the state must develop a methodology to determine the enrollee's household income and household size consistent with Marketplace requirements. Since the requirement applies to fewer than 10 states, the 2017 and 2018 methodology does not require additional OMB review under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Because of the large number of public comments we normally receive on
We have examined the impacts of this proposed methodology as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995) (UMRA), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). As noted in the BHP final rule, BHP provides states the flexibility to establish an alternative coverage program for low-income individuals who would otherwise be eligible to purchase coverage through the Marketplace. Because we propose no changes in methodology that would have a consequential effect on state participation incentives, or on the size of either the BHP program or offsetting PTC and CSR expenditures, the effects of the changes made in this methodology notice would not approach the $100 million threshold, and hence it is neither an economically significant rule under E.O. 12866 nor a major rule under the Congressional Review Act. The size of the BHP program depends on several factors, including the number of and which particular states choose to implement or continue BHP in 2017 or 2018, the level of QHP premiums in 2016 and 2017, the number of enrollees in BHP, and the other coverage options for persons who would be eligible for BHP. In particular, while we generally expect that many enrollees would have otherwise been enrolled in a QHP through the Marketplace, some persons may have been eligible for Medicaid under a waiver or a state health coverage program. For those who would have enrolled in a QHP and thus would have received PTCs or CSRs, the federal expenditures for BHP would be expected to be more than offset by a reduction in federal expenditures for PTCs and CSRs. For those who would have been enrolled in Medicaid, there would likely be a smaller offset in federal expenditures (to account for the federal share of Medicaid expenditures), and for those who would have been covered in non-federal programs or would have been uninsured, there likely would be an increase in federal expenditures. None of these factors or incentives would be materially affected by the updates we propose.
In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
Section 1331 of the Affordable Care Act (codified at 42 U.S.C. 18051)
Many of the factors proposed in this notice are specified in statute; therefore, we are limited in the alternative approaches we could consider. One area in which we had a choice was in selecting the data sources used to determine the factors included in the proposed methodology. Except for state-specific reference premiums and enrollment data, we propose using national rather than state-specific data. This is due to the lack of currently available state-specific data needed to develop the majority of the factors included in the proposed methodology. We believe the national data will produce sufficiently accurate determinations of payment rates. In addition, we believe that this approach will be less burdensome on states. In many cases, using state-specific data would necessitate additional requirements on the states to collect, validate, and report data to CMS. By using national data, we are able to collect data from other sources and limit the burden placed on the states. To reference premiums and enrollment data, we propose using state-specific data rather than national data as we believe state-specific data will produce more accurate determinations than national averages.
In addition, we considered whether or not to provide states the option to develop a protocol for a retrospective adjustment to the population health factor in 2017 and 2018 as we did in the 2015 and 2016 payment methodologies. We believe that providing this option again in 2017 and 2018 is appropriate and likely to improve the accuracy of the final payments.
We also considered whether or not to require the use of 2017 and 2018 QHP premiums to develop the 2017 and 2018 federal BHP payment rates. We believe that the payment rates can still be developed accurately using either the 2016 and 2017 QHP premiums (for the 2017 and 2018 program years, respectively) or the 2017 and 2018 program year premiums and that it is appropriate to provide the states the option, given the interests and specific considerations each state may have in operating the BHP.
The provisions of this notice are designed to determine the amount of funds that will be transferred to states offering coverage through a BHP rather than to individuals eligible for premium and cost-sharing reductions for coverage purchased on the Marketplace. We are uncertain what the total federal BHP payment amounts to states will be as these amounts will vary from state to state due to the varying nature of state composition. For example, total federal BHP payment amounts may be greater in more populous states simply by virtue of the fact that they have a larger BHP-eligible population and total payment amounts are based on actual enrollment. Alternatively, total federal BHP payment amounts may be lower in states with a younger BHP-eligible population as the reference premium used to calculate the federal BHP payment will be lower relative to older BHP enrollees. While state composition will cause total federal BHP payment amounts to vary from state to state, we believe that the proposed methodology, like the current methodology, accounts for these variations to ensure accurate BHP payment transfers are made to each state.
Section 202 of the UMRA requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation, by state, local, or tribal governments, in the aggregate, or by the private sector. In 2015, that threshold is approximately $144 million. States have the option, but are not required, to establish a BHP. Further, the proposed methodology would establish federal payment rates without requiring states to provide the Secretary with any data not already required by other provisions of the Affordable Care Act or its implementing regulations. Thus, neither the current nor the proposed payment methodologies mandate expenditures by state governments, local governments, or tribal governments.
The Regulatory Flexibility Act (5 U.S.C. 601
Because this proposed methodology is focused solely on federal BHP payment rates to states, it does not contain provisions that would have a direct impact on hospitals, physicians, and other health care providers that are designated as small entities under the RFA. Accordingly, we have determined that the proposed methodology, like the current methodology and the final rule that established the BHP program, will not have a significant economic impact on a substantial number of small entities.
Section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a proposed methodology may have a significant economic impact on the operations of a substantial number of small rural hospitals. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. For the preceding reasons, we have determined that the proposed methodology will not have a significant impact on a substantial number of small rural hospitals.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct effects on states, preempts state law, or otherwise has federalism implications. The BHP is entirely optional for states, and if implemented in a state, provides access to a pool of funding that would not otherwise be available to the state. Accordingly, the requirements of the Executive Order do not apply to this proposed methodology notice.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues a proposed rule to implement Amendment 44 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (FMP) and a regulatory amendment that would modify regulations governing the Crab Rationalization (CR) Program. The proposed rule would modify regulations to reflect that a Right of First Refusal (ROFR) may continue with the current ROFR holder or a new ROFR holder when processor quota share (PQS) is transferred and would require PQS holders to make specific certifications regarding ROFR contracts when annually applying for individual processor quota (IPQ) and when transferring PQS that are subject to a ROFR. In addition, this proposed rule would amend CR Program regulations to separate the annual individual fishing quota (IFQ)/IPQ application into two separate applications, and would require that crab harvesting cooperatives list the name of each member of the cooperative in its application for IFQ rather than provide NMFS with copies of each member's IFQ application. These actions are necessary to improve available information concerning transfer and use of PQS and IPQ subject to a ROFR, thereby enhancing the ability of eligible crab communities to retain their historical processing interests in the Bering Sea and Aleutian Islands (BSAI) crab fisheries, and to improve the administration of the CR Program. These actions are intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.
Submit comments on or before November 23, 2015.
You may submit comments, identified by NOAA-NMFS-2013-0057, by any one of the following methods.
•
•
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to NMFS at the above address; emailed to
Electronic copies of Amendment 44 to the FMP, the Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and the Categorical Exclusion prepared for this action may be obtained from
Rachel Baker, 907-586-7228.
NMFS manages the king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S. C. 1801
NMFS published the final rule to implement the Crab Rationalization (CR) Program on March 2, 2005 (70 FR 10174). Fishing under the CR Program started with the 2005/2006 crab fishing year.
The Council submitted Amendment 44 for review by the Secretary of Commerce. A notice of availability of Amendment 44 was published in the
The CR Program is a catch share program for nine BSAI crab fisheries that allocates those resources among harvesters, processors, and coastal communities. Under the CR Program, NMFS issued quota share (QS) to eligible harvesters based on their historical participation during a set of qualifying years in one or more of the nine CR Program fisheries. QS is an exclusive, revocable privilege allowing the holder to harvest a specific percentage of the annual total allowable catch (TAC) in a CR Program fishery.
A QS holder's annual allocation, called individual fishing quota (IFQ), is expressed in pounds and is based on the amount of QS held in relation to the total QS pool for that fishery. NMFS issues IFQ in three classes: Class A IFQ, Class B IFQ, and Class C IFQ. Three percent of IFQ is issued as Class C IFQ for captains and crew. Of the remaining IFQ, 90 percent is issued as Class A IFQ and 10 percent is issued as Class B IFQ.
NMFS issued processor quota share (PQS) to qualified individuals and entities based on processing activities in CR Program fisheries during a period of qualifying years. PQS is an exclusive, revocable privilege to receive deliveries of a fixed percentage of the annual TAC from a CR Program fishery. A PQS holder's annual allocation is known as individual processing quota (IPQ). NMFS issues IPQ at a one-to-one correlation with the amount of Class A
The CR Program includes several provisions intended to protect specific communities that had historically been active in the processing of king and Tanner crab from adverse impacts that could result from the CR Program. The CR Program established eligibility criteria and regulations at 50 CFR 680.2 identified the nine communities that satisfy the eligibility criteria: Adak, Akutan, Dutch Harbor, Kodiak, King Cove, False Pass, St. George, St. Paul, and Port Moller. These communities are referred to as “eligible crab communities” for purposes of the CR Program's community protection measures. Additional detail on the rationale and criteria used to establish the eligible crab communities can be found in the final rule implementing the CR Program (March 2, 2005, 70 FR 10174). Additional information on the eligible crab communities is provided in Section 3.1.4 of the RIR/IRFA prepared for this action.
With the exception of Adak, the CR Program provides eligible crab communities, or ECCs, with a right of first refusal (ROFR) on certain PQS and IPQ transfers. A ROFR provides an eligible crab community with the right to intervene in the sale (
Of the eight eligible crab communities, four are community development quota (CDQ) communities, and four are non-CDQ communities. In the case of eligible crab communities that are also CDQ communities, the local CDQ group is the entity that can exercise the ROFR on behalf of the community (see § 680.41(l)(2)(i)). For the other four non-CDQ eligible crab communities, regulations authorize the governing bodies of these eligible crab communities to identify the entity that can exercise the ROFR on behalf of the community (see § 680.41(l)(2)(ii)).
PQS and IPQ from the Bristol Bay red king crab, Bering Sea snow crab, Eastern Aleutian Islands golden king crab, St. Matthew Island blue king crab, and Pribilof red and blue king crab fisheries are subject to a ROFR. Section 3.1.3 of the RIR/IRFA describes the specific amounts of PQS and IPQ that were, and are, subject to ROFR.
Under the ROFR, an eligible crab community entity is provided an opportunity to meet the same terms and conditions being offered to a proposed buyer of a proposed sale of PQS or IPQ. If an eligible crab community entity can meet the terms and conditions of a proposed sale, then the eligible crab community entity receives by transfer the PQS, IPQ, and any other goods instead of the proposed buyer. For a more detailed summary of ROFR, see section 3.1.3 of the RIR/IRFA.
The CR Program included a ROFR to provide eligible crab communities an opportunity to retain crab PQS, IPQ, and other goods before they are transferred to another buyer who could then choose to use that PQS, IPQ, and other goods outside of the community. Such a transfer could adversely affect the economic stability of the community. The ROFR is intended to strike a balance between the interest of communities historically reliant on crab processing to retain that processing capacity within their communities, and the interest of PQS or IPQ holders to be able to engage in open market transfers of PQS, IPQ, and other goods.
The ROFR is administered under the CR Program through contractual arrangements between eligible crab community entities and PQS/IPQ holders. Persons who hold PQS/IPQ that is subject to a ROFR must enter into a contract with the eligible crab community entity eligible to exercise a ROFR for those PQS/IPQ shares. The terms required in a ROFR contract between an eligible crab community entity and PQS/IPQ holder were established with implementation of the CR Program and are set forth in Chapter 11 of the FMP. ROFR applies to any proposed sale of PQS, and sales of IPQ, if more than 20 percent of the PQS holders' community based IPQ in the fishery were processed outside of the community by another company (intra-company transfers within a region are excluded) in three of the preceding five years. Intra-company transfers within a region and transfers of PQS for continued use in the community are exempt from (
The ROFR contract terms also state that all terms of any ROFR and contract entered into related to ROFR will be enforced through civil law. Additional details on the rationale for the civil enforcement of the terms in a ROFR contract are provided in the EIS, RIR, and Social Impact Assessment prepared for the CR Program, and the final rule implementing the CR Program (March 2, 2005, 70 FR 10174).
An eligible crab community entity must meet two important requirements to complete a ROFR and receive PQS, IPQ, or other goods associated with a proposed sale. The eligible crab community entity must: (1) Exercise its ROFR, that is, provide a clear commitment to complete a purchase agreement within a specific time frame; and (2) perform under the ROFR, that is, meet all of the terms and conditions of the underlying agreement for the proposed sale within a specific time frame.
To exercise the ROFR, an eligible crab community entity must provide the seller of PQS or IPQ subject to a ROFR with notice of its intent to exercise the ROFR and earnest money in the amount of 10 percent of the contract amount or $500,000, whichever is less, within 60 days of notice of a sale and receipt of the contract defining the sale's terms. To perform the ROFR, the eligible crab community entity must meet the terms and conditions of the proposed sale (
The CR Program, including the ROFR contract terms, was implemented under authority provided at section 313(j)(1) of the Magnuson-Stevens Act. Section 313(j)(3) states that after initial implementation of the CR Program, the Council may submit and the Secretary may implement changes to conservation and management measures for crab fisheries of the Bering Sea and Aleutian Islands to achieve on a continuing basis the purposes identified by the Council. This provision allows the Council to
As noted earlier, the terms in a ROFR contract are enforced through civil contract law rather than through regulations implemented by NMFS. Amendment 44 to the FMP and this proposed rule would not change the civil enforcement of the terms in a ROFR contract. The proposed rule would revise regulations to implement Amendment 44 and to amend the CR Program. Regulations implemented by NMFS are enforced by NMFS. Therefore, the regulatory changes in this proposed rule (
In developing the CR Program, the Council and NMFS recognized the unique historical relationship between eligible crab communities and processors associated with those communities, and established ROFR provisions to provide opportunities for eligible crab communities to be notified and intervene in sales of crab processing assets important to those communities. However, with experience gained from implementation, the Council has determined that some of the ROFR contract terms and the lack of regulatory requirements to ensure adequate notification and tracking of PQS and IPQ transfers are limiting the effectiveness of the ROFR provisions.
Stakeholders, including representatives from the eight eligible crab community entities that can exercise a ROFR, noted several concerns with ROFR contract terms that could hinder an eligible crab community entity from effectively exercising and performing under a ROFR. Eligible crab community entities also supported additional regulatory provisions to ensure proper notification of proposed sales. Holders of PQS/IPQ subject to a ROFR concurred that several changes to the ROFR contract terms and notification requirements could improve the ability of eligible crab community entities to exercise and perform under a ROFR without unduly limiting open market transfers of PQS, IPQ, and other goods. The Council reviewed and analyzed these concerns in a series of documents that have been consolidated under the RIR/IRFA prepared for Amendment 44 and this proposed rule (see
Proposed Amendment 44 and this proposed rule are intended to address four categories of concern that stakeholders have for the existing ROFR contract terms and regulations implementing ROFR. These are: (1) Inadequate time for an eligible crab community entity to exercise and perform under a ROFR; (2) ROFR contract terms that allow a ROFR to lapse; (3) ROFR contract terms that do not allow an eligible crab community entity and a PQS/IPQ holder to mutually agree to the specific assets subject to a ROFR and to exclude “other goods” if desired; and (4) the lack of verification that proper notification and reporting of proposed sales between PQS/IPQ holders and eligible crab community entities has occurred.
The specific provisions of proposed Amendment 44 are described in detail in the Notice of Availability published by NMFS on October 9, 2015 (80 FR 61150). The following briefly summarizes the provisions of proposed Amendment 44.
If approved by NMFS, Amendment 44 would modify the ROFR contract term specifying the amount of time to exercise and perform under a ROFR. Amendment 44 would increase the time allowed for an eligible crab community entity to exercise a ROFR from 60 days to 90 days from receipt of the sales contract. This modification would also increase the time allowed for an eligible crab community entity to perform under the ROFR from 120 days to 150 days. The time period to exercise and the time period to perform under a ROFR begin on the date of receipt of the sales contract by the eligible crab community entity and run concurrently. The extension of both time periods is intended to help accommodate eligible crab community entities when deciding whether to exercise their ROFR, but also continue to recognize that time may be of the essence for a PQS holder or buyer under a contract.
Amendment 44 would remove the ROFR contract term that allows a ROFR to lapse if the IPQ derived from the PQS subject to ROFR was processed outside the community of origin for a period of three consecutive years. This amendment would allow a ROFR to remain in effect for PQS subject to a ROFR regardless of the location in which the IPQ associated with that PQS was processed. However, if approved, Amendment 44 would not reinstate a ROFR that lapsed prior to implementation of Amendment 44. The Council determined, and NMFS agrees, that this amendment would strengthen the connection between PQS and the community from which it originated, by maintaining the right regardless of whether the yielded IPQ is used outside the community for extended periods. By maintaining the right despite use of IPQ outside of the community, the eligible crab community entity and the community of origin that it represents would maintain an interest in the PQS into the future.
Amendment 44 also would remove the ROFR contract term stating that a ROFR will lapse if an eligible crab community entity fails to exercise its ROFR after it is triggered by a transfer of PQS and replace it with a ROFR contract term that would require the recipient of a PQS transfer to enter into a new ROFR contract with an eligible crab community entity of its choosing in the designated region of the PQS. This amendment would ensure that eligible crab community entities within the designated region of the PQS retain a ROFR on that PQS even if the original eligible crab community entity chooses not to exercise a ROFR.
ROFR contract terms currently require that the ROFR apply to all terms and conditions of the underlying sale agreement, including all processing shares and other goods included in the agreement. Amendment 44 would revise this ROFR contract term to specify that, “Any right of first refusal must be on the same terms and conditions of the underlying agreement and will include all processing shares and other goods included in this agreement, or to any subset of those assets, as otherwise agreed to by the PQS holder and the community entity.” The proposed addition of the last clause in this ROFR contract term would allow a PQS holder and an eligible crab community entity to negotiate what assets may be subject to a ROFR. This would provide PQS holders and eligible crab community entities with more flexibility compared to the status quo. For example, it would allow an eligible crab community entity to reach an agreement with the PQS
Amendment 44 also would establish two new ROFR contract terms. First, Amendment 44 would add a ROFR contract term that requires a PQS holder to notify the eligible crab community entity of any proposed transfer of IPQ or PQS subject to ROFR, regardless of whether the PQS holder believes the proposed transfer triggers the right. Second, Amendment 44 would add a ROFR contract term that requires a PQS holder to annually notify the eligible crab community entity of the location at which IPQ derived from PQS subject to a ROFR was processed and whether that IPQ was processed by the PQS holder. Both of these proposed notifications would provide the eligible crab community entities with more information on what is occurring with the PQS for which they hold a ROFR.
If Amendment 44 is approved, all ROFR contracts would be required to contain the newly revised ROFR contract terms. Because Amendment 44 would modify the terms required to be included in a ROFR contract, a PQS/IPQ holder and an eligible crab community entity would need to establish a new or revised ROFR contract to contain all of these terms.
This proposed rule contains three actions. The first action would implement those aspects of Amendment 44 that require implementing regulations. The second action would implement the regulatory amendment adopted by the Council. The third action would implement minor administrative changes to the CR Program regulations to improve the application and reporting practices for participants in the CR Program. The following paragraphs provide additional detail on these proposed actions.
Most of the provisions of Amendment 44 only modify the ROFR contract terms contained in the FMP and do not require adjustments or additions to regulations implementing ROFR at 50 CFR part 680. However, one provision of proposed Amendment 44 requires modification to regulations at § 680.41(i)(8) governing transfers of PQS subject to ROFR.
As explained above, a ROFR would no longer lapse if an eligible crab community entity fails to exercise its ROFR after the ROFR is triggered by a transfer of PQS under proposed Amendment 44. Instead, proposed Amendment 44 would require the recipient of a PQS transfer, or buyer, to enter into a new ROFR contract with an eligible crab community entity of its choosing in the designated region of the PQS. The buyer could enter into a new ROFR contract with the eligible crab community entity that held the ROFR with the seller, or the buyer could enter into a new ROFR contract with an eligible crab community entity that represents an eligible crab community within the region for which the PQS is designated. This provision of Amendment 44 would ensure that one eligible crab community entity within the designated region of the PQS retains a ROFR on that PQS even if the original eligible crab community entity does not exercise its ROFR. This provision is intended to strengthen the ROFR program by maintaining a link between PQS and eligible crab communities in perpetuity. In addition, the proposed provision may provide the original eligible crab community entity that is not able to exercise a ROFR with another opportunity to use ROFR at some point in the future, should it be triggered again through a proposed sale of the PQS.
Because the buyer's choice of an eligible crab community entity would occur at the time of transfer of the PQS, regulations at § 680.41(i)(8) governing transfer of PQS would need to be modified to require the seller to certify that the eligible crab community entity did not exercise its ROFR within the time provided and to require the buyer to certify that the buyer has entered into a ROFR contract with an eligible crab community entity in the designated region of the PQS. These proposed changes to § 680.41(i)(8) would not alter the current requirement that NMFS wait 10 days before approving a transfer of PQS subject to ROFR when such transfer triggers the ROFR.
At the time it took action on Amendment 44, the Council also recommended that holders of PQS/IPQ subject to ROFR provide NMFS with specific certifications regarding notice to ROFR holders and the existence of ROFR contracts when submitting an application to transfer PQS or when annually applying for IPQ. The Council's recommendations for certifications to NMFS do not require modifications to the FMP but require modifications to the regulations implementing ROFR in 50 CFR part 680.
First, this proposed rule would modify regulations at § 680.4(f)(2) to require an applicant, as part of the Application for Annual Crab IPQ Permit, to certify to NMFS that a ROFR contract that includes the required ROFR contract terms specified in Chapter 11 of the FMP exists between the applicant and the eligible crab community entity that holds the ROFR for that PQS/IPQ. If Amendment 44 is approved, all ROFR contracts would be required to contain the newly revised ROFR contract terms. Because Amendment 44 would modify the terms required to be included in a ROFR contract, a PQS/IPQ holder and an eligible crab community entity would need to establish a new or revised ROFR contract to contain all of these terms and the PQS/IPQ holder would need to certify annually that a ROFR contract was in place. By including this certification as part of the annual application for IPQ, NMFS realizes that if an applicant for IPQ is unable to establish a revised ROFR contract with an eligible crab community entity and provide that confirmation to NMFS in the annual application for crab IPQ permit prior to the date that application is due, then NMFS would consider the application to be incomplete. In that case, NMFS would withhold issuance of IPQ until this requirement is met.
Second, this proposed rule would modify regulations at § 680.41(i)(8) and (9) to require specific certifications by the seller or the buyer when transferring PQS subject to ROFR. If a transfer of PQS triggers a ROFR, regulations at § 680.41(i)(8) would require the seller to certify, as part of the application to transfer PQS, that the PQS holder notified the eligible crab community entity holding the ROFR for that PQS of the proposed transfer at least 90 days prior to the date of the transfer application, and that the eligible crab community entity did not exercise its ROFR during that period. If a transfer of PQS does not trigger a ROFR, regulations at § 680.41(i)(9) would be modified to require the buyer and the eligible crab community entity to certify, as part of the application to transfer PQS, either that the eligible crab community entity wishes to permanently waive ROFR for the PQS or that the buyer and the eligible crab community entity completed a ROFR contract that includes the ROFR contract terms specified in Chapter 11 of the FMP. NMFS would not complete a transfer of PQS until these requirements are met.
The Council determined and NMFS agrees that these additional notice requirements would directly address the concerns of eligible crab community entities and PQS/IPQ holders that there
NMFS proposes two minor administrative changes to CR Program regulations. First, NMFS proposes revising regulations at § 680.4(d) to separate the current combined application for IFQ/IPQ into two separate applications, an application for IFQ and an application for IPQ. This proposed revision is intended to reduce confusion among applicants who sometimes misunderstand the requirements for the combined IFQ/IPQ application and would improve the ability of applicants to correctly provide the necessary information. This revision would allow applicants for IFQ to use an application form specific to IFQ, and applicants for IPQ to use an application form specific to IPQ. Except for the proposed modification to the annual IPQ application described above in the “Action 2: Regulatory Revisions Needed To Implement the Regulatory Amendment” section, the proposed changes would not modify the specific information currently required of IFQ or IPQ applicants, but would change the application form required to be submitted and the format of the application form.
Second, NMFS proposes revisions to reporting requirements for crab harvesting cooperatives at § 680.21(b)(1). Currently, regulations at § 680.4(f) require each member of a crab harvesting cooperative to submit to NMFS an Application for Annual Crab IFQ Permit, and regulations at § 680.21(b) require a crab harvesting cooperative to submit to NMFS a copy of each member's Application for Annual Crab IFQ Permit along with the cooperative's Application for Annual Crab Harvesting Cooperative IFQ Permit. NMFS has determined that while the identification of cooperative members is critical to the cooperative application process, NMFS can obtain this information through less burdensome means. Therefore, NMFS proposes revising the regulations at § 680.21(b)(1) so that a crab harvesting cooperative would be responsible only for submitting a list of the names of each cooperative member with the cooperative's annual IFQ application. Under the proposed rule, crab harvesting cooperatives would no longer be required to submit copies of each member's annual IFQ application. NMFS notes that the proposed rule does not modify the requirements at § 680.4(f) and each cooperative member would continue to be responsible for submitting to NMFS a complete annual IFQ permit application by the deadline of June 15. This proposed change would provide NMFS with necessary information while reducing duplicative reporting requirements for crab harvesting cooperatives.
Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. Copies of the RIR/IRFA prepared for this proposed rule are available from NMFS (see
The IRFA for this proposed action describes the action, why this action is being proposed, the objectives and legal basis for the proposed rule, the type and number of small entities to which the proposed rule would apply, and the projected reporting, recordkeeping, and other compliance requirements of the proposed rule. It also identifies any overlapping, duplicative, or conflicting Federal rules and describes any significant alternatives to the proposed rule that would accomplish the stated objectives of the Magnuson-Stevens Act and other applicable statues and that would minimize any significant adverse economic impact of the proposed rule on small entities. The description of the proposed action, its purpose, and its legal basis are described in the preamble and are not repeated here. The IRFA prepared for this proposed rule incorporates by reference an extensive RIR/FRFA prepared for Amendments 18 and 19 to the FMP that detail the impacts of the CR Program on small entities.
The proposed rule includes three separate actions. Action 1 includes regulatory revisions to implement Amendment 44. The proposed revisions would require the buyer of PQS to certify to NMFS that the buyer has entered into a ROFR contract with an eligible crab community entity in the designated region of the PQS.
Action 2 would require PQS holders to provide two notifications to NMFS regarding the status of their ROFR. The first certification would require PQS holders applying to receive IPQ to attest that a ROFR contract that includes the required ROFR contract terms exists between the applicant and the eligible crab community entity that holds the ROFR for that PQS/IPQ. The second certification would require the seller of PQS to certify to NMFS that the seller provided the eligible crab community entity with notice of the proposed sale at least 90 days prior to the date of the transfer application and that the entity did not exercise ROFR during that time period. These notifications would be incorporated into the Application for Annual Crab IPQ and the Application for Transfer of Crab QS or PQS, respectively.
The small entities that would be directly regulated by Action 1 and Action 2 are persons that hold PQS or IPQ under the CR Program. Currently, 21 entities hold PQS or IPQ subject (now or previously) to ROFR. Estimates of the number of large entities were made, based on available records of revenue, employment information, and known affiliations among these entities. Of these 21 entities, 10 are estimated to be large entities and 11 are deemed to be small entities. It is possible that additional entities could be directly regulated under the proposed rule if an entity that does not already hold PQS receives PQS by transfer. The new PQS holder would be directly regulated because the entity would be required to certify to NMFS that they have entered into a ROFR contract. It is not possible to estimate whether these new PQS holders would be small entities for purposes of this proposed rule.
Action 3 would make minor administrative changes to clarify permit application procedures for IFQ holders and IPQ holders, and reduce reporting requirements for crab cooperatives that are directly regulated under the CR Program. Currently, there are 10 crab harvesting cooperative entities. Based on available records of revenue, and known affiliations among these entities, 4 of the entities are estimated to be large entities and 6 are deemed to be small entities. Because these changes would reduce the reporting burden for all crab harvesting cooperatives, Action 3 would not have an adverse impact on directly regulated small entities.
The certifications in the proposed rule are straightforward, simple and are provided annually or at the time of a transfer of shares as part of applications. While the new notification requirements would add administrative reporting requirements for 11 PQS/IPQ holders that are small entities, the Council determined that the administrative burden associated with the notification requirements would be minimal and would not negatively impact these entities.
NMFS has not identified any duplication, overlap, or conflict between this proposed action and existing Federal rules.
The recordkeeping and reporting requirements would be increased slightly under this proposed rule. This proposed rule would include new reporting requirements for PQS/IPQ holders. The PQS/IPQ holders would be required to certify to NMFS that a current ROFR contract is in place when applying for IPQ and notify NMFS of the status of the ROFR when transferring PQS or IPQ. These additional reporting requirements would be relatively straightforward and simple, and NMFS proposes including these certifications requirements into the Application for Annual Crab IPQ and the Application for Transfer of Crab PQS that are already required for directly regulated entities to receive IPQ or to transfer PQS or IPQ. Therefore, the additional recordkeeping and reporting requirements associated with the proposed rule would be minimal.
This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval under OMB Control Number 0648-0514. Public reporting burden is estimated to average per response: 1.5 hours for the Annual Application for Crab IFQ Permit; 1.5 hours for the Annual Application for Crab IPQ Permit; 1 hour for the Application for an Annual Crab Harvesting Cooperative IFQ permit; and 2 hours for Application to Transfer Crab QS or PQS. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden statement; ways to enhance quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information, to NMFS (see ADDRESSES), and by email to
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number.
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 680 is proposed to be amended as follows:
16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.
The revisions and additions to read as follows:
(d) * * *
(3) On an annual basis, the Regional Administrator will issue a crab IFQ permit to a person who submits a complete Application for Annual Crab Individual Fishing Quota (IFQ) Permit, described at paragraph (f) of this section, that is subsequently approved by the Regional Administrator.
(e) * * *
(1) A crab IPQ permit authorizes the person identified on the permit to receive/process the IPQ crab identified on the permit during the crab fishing year for which the permit is issued, subject to conditions of the permit. A crab IPQ permit is valid under the following circumstances:
(3) On an annual basis, the Regional Administrator will issue a crab IPQ permit to a person who submits a complete Application for Annual Crab Individual Processing Quota (IPQ) Permit, described at paragraph (f) of this section, that is subsequently approved by the Regional Administrator.
(2) * * *
(ii)
(iv)
(b) * * *
(1)
(i) * * *
(8) In the case of an application for transfer of PQS or IPQ for use outside an ECC that has designated an entity to represent it in exercise of ROFR under paragraph (l) of this section:
(i) The Regional Administrator will not act upon the application for a period of 10 days. At the end of that time period, the application will be approved pending meeting the criteria set forth in paragraph (i) of this section.
(ii) The person applying to transfer PQS subject to ROFR must include an affidavit certifying that the ECC entity was provided with notice of the proposed transfer at least 90 days prior to the date of the transfer application and that the ECC entity did not exercise its ROFR during that period.
(iii) The person applying to receive the PQS must include an affidavit certifying that a ROFR contract that includes the ROFR contract terms specified in Chapter 11 section 3.4.4.1.2 of the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs has been completed with an ECC entity eligible to hold a ROFR under paragraph (l) of this section and that represents an EEC within the region for which the PQS is designated.
(9) In the case of an application for transfer of PQS for use within an ECC that has designated an entity to represent it in exercise of ROFR under paragraph (l) of this section, the Regional Administrator will not approve the application unless the proposed recipient of the PQS and the ECC entity provide an affidavit to the Regional Administrator certifying that either the ECC wishes to permanently waive ROFR for the PQS or that a ROFR contract that includes the ROFR contract terms specified in Chapter 11 section 3.4.4.1.2 of the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs has been completed by the proposed recipient of the PQS and the ECC entity.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) seeks public comment on any subsidies, including stumpage subsidies, provided by certain countries exporting softwood lumber or softwood lumber products to the United States during the period January 1, 2015 through June 30, 2015.
Comments must be submitted within 30 days after publication of this notice.
James Terpstra, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3965.
On June 18, 2008, section 805 of Title VIII of the Tariff Act of 1930 (the Softwood Lumber Act of 2008) was enacted into law. Under this provision, the Secretary of Commerce is mandated to submit to the appropriate Congressional committees a report every 180 days on any subsidy provided by countries exporting softwood lumber or softwood lumber products to the United States, including stumpage subsidies.
The Department submitted its last subsidy report on June 16, 2015. As part of its newest report, the Department intends to include a list of subsidy programs identified with sufficient clarity by the public in response to this notice.
Given the large number of countries that export softwood lumber and softwood lumber products to the United States, we are soliciting public comment only on subsidies provided by countries whose exports accounted for at least one percent of total U.S. imports of softwood lumber by quantity, as classified under Harmonized Tariff Schedule code 4407.1001 (which accounts for the vast majority of imports), during the period January 1, 2015 through June 30, 2015. Official U.S. import data published by the United States International Trade Commission Tariff and Trade DataWeb indicate that only two countries, Canada and Chile, exported softwood lumber to the United States during that time period in amounts sufficient to account for at least one percent of U.S. imports of softwood lumber products. We intend to rely on similar previous six-month periods to identify the countries subject to future reports on softwood lumber subsidies. For example, we will rely on U.S. imports of softwood lumber and softwood lumber products during the period July 1, 2015 through December 31, 2015, to select the countries subject to the next report.
Under U.S. trade law, a subsidy exists where an authority: (i) Provides a financial contribution; (ii) provides any form of income or price support within the meaning of Article XVI of the GATT 1994; or (iii) makes a payment to a funding mechanism to provide a financial contribution to a person, or entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the practice does not differ in substance from practices normally followed by governments, and a benefit is thereby conferred.
Parties should include in their comments: (1) The country which provided the subsidy; (2) the name of the subsidy program; (3) a brief description (at least 3-4 sentences) of the subsidy program; and (4) the government body or authority that provided the subsidy.
Persons wishing to comment should file comments by the date specified above. Comments should only include publicly available information. The Department will not accept comments accompanied by a request that a part or all of the material be treated confidentially due to business proprietary concerns or for any other reason. The Department will return such comments or materials to the persons submitting the comments and will not include them in its report on softwood lumber subsidies. The Department requests submission of comments filed in electronic Portable Document Format (PDF) submitted on CD-ROM or by email to the email address of the EC Webmaster, below.
The comments received will be made available to the public in PDF on the Enforcement and Compliance Web site at the following address:
All comments and submissions in response to this Request for Comment should be received by the Department no later than 5 p.m. Eastern Standard Time on the above-referenced deadline date.
National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management, National Ocean Service, Department of Commerce.
Availability of program change submission in Spanish; extension of comment period.
The National Oceanic and Atmospheric Administration's (NOAA) Office for Coastal Management is announcing the availability of a Spanish language version of analysis documents submitted by the Commonwealth of Puerto Rico supporting a request for approval of changes to the Puerto Rico Coastal Zone Management Program (PRCZMP), and an extension of the public review and comment period on the program changes.
Please send written comments to Joelle Gore, Stewardship Division Chief (Acting), NOAA Office for Coastal Management, NOS/OCM/SD, 1305 East-West Highway, 10th Floor, Room 10622, N/OCM6, Silver Spring, Maryland 20910, or
Jackie Rolleri, at
On July 17, 2015, the Office for Coastal Management published a
At the September 2, 2015, public hearing, requests were made by members of the public to have a Spanish language version of the program change analysis documents submitted by the Commonwealth in support of the requested approval, along with an extension of the comment period on the program changes. The Commonwealth has translated the analysis documents and made it available for public review and comment on its Web site under the heading “Solicitud de aprobación de cambios al Programa.” The documents may be found at:
Written comments from the public on the Commonwealth's request for approval of changes to the PRCZMP will continue to be accepted through 30 days from the date of publication of this
Comments should address the question of whether the PRCZMP, as changed, continues to meet the requirements for approval to participate in the federal Coastal Zone Management Program as described in section 306 of the federal Coastal Zone Management Act, and its implementing regulations at 15 CFR part 923. NOAA is particularly interested in comments addressing the requirements for the authorities and organization of coastal management programs found at 15 CFR part 923, subpart E, and opportunities for meaningful public participation in the decision-making process for the program under 15 CFR part 923, subpart F. Comments regarding implementation issues should be specific to how the changes to the program have affected implementation.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with regulations implementing the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the U.S. Navy (Navy) to take marine mammals, by harassment, incidental to Civilian Port Defense training activities within and near the Ports of Los Angeles and Long Beach, California.
Effective October 25, 2015, through December 31, 2015.
John Fiorentino, Office of Protected Resources, NMFS, (301) 427-8477.
An electronic copy of the Navy's application, which contains a list of the references used in this document, may be obtained by visiting the internet at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
The National Defense Authorization Act of 2004 (NDAA) (Public Law 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, to a point where such behavioral patterns are abandoned
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On April 16, 2015, NMFS received a final application from the Navy requesting an IHA for the taking of marine mammals incidental to 2015 Civilian Port Defense activities at the Ports of Los Angeles and Long Beach, California.
The Study Area includes the waters within and near the Ports of Los Angeles and Long Beach, California. Since the Ports of Los Angeles and Long Beach are adjacent and are both encompassed within the larger proposed action area (Study Area) they will be described collectively as Los Angeles/Long Beach (see Figure 2-1 of the application for a map of the Study Area). These activities are classified as military readiness activities. Marine mammals present in the Study Area may be exposed to sound from active acoustic sources (sonar). The Navy is requesting authorization to take 7 marine mammal species by Level B harassment (behavioral). No injurious takes (Level A harassment) of marine mammals are predicted and, therefore, none are being authorized.
Additional detail regarding the specified activity was provided in our
Civilian Port Defense activities are naval mine warfare exercises conducted in support of maritime homeland defense, per the Maritime Operational Threat Response Plan. These activities are conducted in conjunction with other federal agencies, principally the Department of Homeland Security. The three pillars of Mine Warfare include airborne (helicopter), surface (ship and unmanned vehicles), and undersea (divers, marine mammal systems, and unmanned vehicles), all of which are used in order to ensure that strategic U.S. ports are cleared of mine threats. Civilian Port Defense events are conducted in ports or major surrounding waterways, within the shipping lanes, and seaward to the 300 feet (ft, 91 meters [m]) depth contour. The events employ the use of various mine detection sensors, some of which utilize active acoustics for detection of mines and mine-like objects in and around various ports. Assets used during Civilian Port Defense training include up to four unmanned underwater vehicles, marine mammal systems, up to two helicopters operating (two to four hours) at altitudes as low as 75 to 100 ft (23 to 31 m), explosive ordnance disposal platoons, a Littoral Combat Ship or Landing Dock Platform and AVENGER class ships. The AVENGER is a surface mine countermeasure vessel specifically outfitted for mine countermeasure capability. The proposed Civilian Port Defense activities for Los Angeles/Long Beach include the use of up to 20 bottom placed non explosive mine training shapes. Mine shapes may be retrieved by Navy divers, typically explosive ordnance disposal personnel, and may be brought to beach side locations to ensure that the neutralization measures are effective and the shapes are secured. The final step to the beach side activity is the intelligence gathering and identifying how the mine works, disassembling it or neutralizing it. The entire training event takes place over multiple weeks utilizing a variety of assets and scenarios. The following descriptions detail the possible range of activities which could take place during a Civilian Port Defense training event. This is all inclusive and many of these activities are not included within the analysis of this specific event. Mine detection including towed or hull mounted sources would be the only portion of this event which we are proposing authorization.
Mine detection systems are used to locate, classify, and map suspected mines. Once located, the mines can either be neutralized or avoided. These systems are specialized to either locate mines on the surface, in the water column, or on the sea floor.
• Towed or Hull-Mounted Mine Detection Systems. These detection systems use acoustic and laser or video sensors to locate and classify suspect mines. Helicopters, ships, and unmanned vehicles are used with towed systems, which can rapidly assess large areas.
• Unmanned/Remotely Operated Vehicles. These vehicles use acoustic and video or lasers systems to locate and classify mines. Unmanned/remotely operated vehicles provide mine warfare capabilities in nearshore littoral areas, surf zones, ports, and channels.
• Airborne Laser Mine Detection Systems. Airborne laser detection systems work in concert with neutralization systems. The detection system initially locates mines and a neutralization system is then used to relocate and neutralize the mine.
• Marine Mammal Systems. Navy personnel and Navy marine mammals work together to detect specified underwater objects. The Navy deploys trained bottlenose dolphins and California sea lions as part of the marine mammal mine-hunting and object-recovery system.
Sonar systems to be used during Civilian Port Defense Mine Detection training would include AN/SQQ-32, AN/SLQ-48, AN/AQS-24, and handheld sonars (
Mine neutralization systems disrupt, disable, or detonate mines to clear ports and shipping lanes. Mine neutralization systems can clear individual mines or a large number of mines quickly. Two types of mine neutralization could be conducted, mechanical minesweeping and influence system minesweeping. Mechanical minesweeping consists of cutting the tether of mines moored in the water column or other means of physically releasing the mine. Moored mines cut loose by mechanical sweeping must then be neutralized or rendered safe for subsequent analysis. Influence minesweeping consists of simulating the magnetic, electric, acoustic, seismic, or pressure signature of a ship so that the mine detonates (no
The description of the Dates, Duration, and Geographical Region of authorized activities has not changed from what was provided in the notice of the proposed IHA (80 FR 53658; September 4, 2015; page 53659). Civilian Port Defense training activities are scheduled every year, typically alternating between the east and west coasts of the United States. Civilian Port Defense activities in 2015 are proposed to occur on the U.S. west coast near Los Angeles/Long Beach, California. Civilian Port Defense events are typically conducted in areas of ports or major surrounding waterways and within the shipping lanes and seaward to the 300 ft (91 m) depth contour.
Civilian Port Defense activities would occur at the Ports of Los Angeles/Long Beach from October through December 2015. The training exercise would occur for a period of two weeks in which active sonar would be utilized for two separate periods of four-day events. The AN/SQQ-32 sonar could be active for up to 24 hours a day during these training events; however, the use of the AN/SQQ-32 would not be continuously active during the four-day period. Additional activities would occur during this time and are analyzed within the Navy's Environmental Assessment for 2015 Civilian Port Defense training activities. The Navy has determined there is potential for take as defined under MMPA for military readiness activities. Specifically, take has potential to occur from utilization of active sonar sources. This stressor is the only aspect of the proposed training activities for which this IHA is being requested.
The Ports of Los Angeles and Long Beach combined represent the busiest port along the U.S. West Coast and second busiest in the United States. In 2012 and 2013, approximately 4,550 and 4,500 vessel calls, respectively, for ships over 10,000 deadweight tons arrived at the Ports of Los Angeles and Long Beach (Louttit and Chavez, 2014; U.S. Department of Transportation). This level of shipping would mean approximately 9,000 large ship transits to and from these ports and through the Study Area. By comparison, the next nearest large regional port, Port of San Diego, only had 318 vessel calls in 2012.
Nineteen marine mammal species are known to occur in the study area, including five mysticetes (baleen whales), nine odontocetes (dolphins and toothed whales), and five pinnipeds (seals and sea lions). The Description of Marine Mammals in the Area of the Specified Activities section has not changed from what was in the notice of the proposed IHA (80 FR 53658; September 4, 2015; page 53660). All species were quantitatively analyzed in the Navy Acoustic Effects Model (NAEMO; see Chapter 6.4 of the application for additional information on the modeling process). After completing the modeling simulations, seven species (each with a single stock) are estimated to potentially be taken by harassment as defined by the MMPA, as it applies to military readiness, during the proposed Civilian Port Defense activities due to use of active sonar sources. Based on a variety of factors, including source characterization, species presence, species hearing range, duration of exposure, and impact thresholds for species that may be present, the remainder of the species were not quantitatively predicted to be exposed to or affected by active acoustic transmissions related to the proposed activities that would result in harassment under the MMPA and, therefore, are not discussed further. Other potential stressors related to the proposed Civilian Port Defense activities (
The proposed IHA and the Navy's application include a complete description of information on the status, distribution, abundance, vocalizations, density estimates, and general biology of marine mammal species in the Study Area. In addition, NMFS publishes annual stock assessment reports for marine mammals, including some stocks that occur within the Study Area (
We provided a detailed discussion of the potential effects of the specified activity on marine mammals and their habitat in the notice of the proposed IHA (80 FR 53658; September 4, 2015; pages 53663-53674). Please see that document for more information.
In order to issue an incidental take authorization under section 101(a)(5)(A) and (D) of the MMPA, NMFS must set forth the “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.” NMFS' duty under this “least practicable adverse impact” standard is to prescribe mitigation reasonably designed to minimize, to the extent practicable, any adverse population-level impacts, as well as habitat impacts. While population-level impacts can be minimized by reducing impacts on individual marine mammals, not all takes translate to population-level impacts. NMFS' primary objective under the “least practicable adverse impact” standard is to design mitigation targeting those impacts on individual marine mammals that are most likely to lead to adverse population-level effects.
The NDAA of 2004 amended the MMPA as it relates to military-readiness activities and the ITA process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the “military readiness activity.” The training activities described in the Navy's application are considered military readiness activities.
NMFS reviewed the proposed activities and the suite of mitigation measures as described in the application to determine if they would result in the least practicable adverse effect on marine mammals, which includes a careful balancing of the likely benefit of any particular measure to the marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the effectiveness of the “military-readiness activity.” NMFS described the Navy's proposed mitigation measures in detail in the notice of the proposed IHA (80 FR 53658; September 4, 2015; pages 53674-53675), and they have not changed. NMFS worked with the Navy to develop
The Navy's proposed mitigation measures are modifications to the proposed activities that are implemented for the sole purpose of reducing a specific potential environmental impact on a particular resource. These do not include standard operating procedures, which are established for reasons other than environmental benefit. Most of the following mitigation measures are currently, or were previously, implemented as a result of past environmental compliance documents. The Navy's overall approach to assessing potential mitigation measures is based on two principles: (1) Mitigation measures will be effective at reducing potential impacts on the resource, and (2) from a military perspective, the mitigation measures are practicable, executable, and safety and readiness will not be impacted.
The mitigation measures applicable to the proposed Civilian Port Defense training activities are the same as those identified in the Mariana Islands Training and Testing Environmental Impact Statement/Overseas Environmental Impact Statement (MITT EIS/OEIS), Chapter 5. All mitigation measures which could be applicable to the proposed activities are provided below. For the mitigation measures described below, the Lookout Procedures and Mitigation Zone Procedure sections from the MITT EIS/OEIS have been combined. For details regarding the methodology for analyzing each measure, see the MITT EIS/OEIS, Chapter 5.
The Navy will have two types of lookouts for the purposes of conducting visual observations: (1) Those positioned on surface ships, and (2) those positioned in aircraft or on boats. Lookouts positioned on surface ships will be dedicated solely to diligent observation of the air and surface of the water. They will have multiple observation objectives, which include but are not limited to detecting the presence of biological resources and recreational or fishing boats, observing mitigation zones, and monitoring for vessel and personnel safety concerns. Lookouts positioned on surface ships will typically be personnel already standing watch or existing members of the bridge watch team who become temporarily relieved of job responsibilities that would divert their attention from observing the air or surface of the water (such as navigation of a vessel).
Due to aircraft and boat manning and space restrictions, Lookouts positioned in aircraft or on boats will consist of the aircraft crew, pilot, or boat crew. Lookouts positioned in aircraft and boats may necessarily be responsible for tasks in addition to observing the air or surface of the water (for example, navigation of a helicopter or rigid hull inflatable boat). However, aircraft and boat lookouts will, to the maximum extent practicable and consistent with aircraft and boat safety and training requirements, comply with the observation objectives described above for Lookouts positioned on surface ships.
The Navy will have one Lookout on ships or aircraft conducting high-frequency active sonar (HFAS) activities associated with mine warfare activities at sea.
Mitigation will include visual observation from a vessel or aircraft (with the exception of platforms operating at high altitudes) immediately before and during active transmission within a mitigation zone of 200 yards (yds. [183 m]) from the active sonar source. Active transmission will cease if a marine mammal is sighted within the mitigation zone. Active transmission will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on a determination of its course and speed and the relative motion between the animal and the source, (3) the mitigation zone has been clear from any additional sightings for a period of 10 minutes for an aircraft-deployed source, (4) the mitigation zone has been clear from any additional sightings for a period of 30 minutes for a vessel-deployed source, (5) the vessel or aircraft has repositioned itself more than 400 yds (366 m) away from the location of the last sighting, or (6) the vessel concludes that dolphins are deliberately closing in to ride the vessel's bow wave (and there are no other marine mammal sightings within the mitigation zone).
Although the Navy does not anticipate that any marine mammals would be struck during the conduct of Civilian Port Defense training activities, the mitigation measures below will be implemented and adhered to.
The Navy will ensure that towed in-water devices being towed from manned platforms avoid coming within a mitigation zone of 250 yds (229 m) around any observed marine mammal, providing it is safe to do so.
NMFS has carefully evaluated the Navy's proposed mitigation measures—many of which were developed with NMFS' input during previous Navy Training and Testing authorizations—and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: The manner in which, and the degree to which, the successful implementation of the mitigation measures is expected to reduce the likelihood and/or magnitude of adverse impacts to marine mammal species and stocks and their habitat; the proven or likely efficacy of the measures; and the practicability of the suite of measures for applicant implementation, including consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to accomplishing one or more of the general goals listed below:
a. Avoid or minimize injury or death of marine mammals wherever possible (goals b, c, and d may contribute to this goal).
b. Reduce the number of marine mammals (total number or number at biologically important time or location) exposed to received levels of mid-frequency active sonar/high-frequency active sonar (MFAS/HFAS), underwater detonations, or other activities expected to result in the take of marine mammals
c. Reduce the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of MFAS/HFAS, underwater detonations, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing harassment takes only).
d. Reduce the intensity of exposures (either total number or number at biologically important time or location) to received levels of MFAS/HFAS, underwater detonations, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
e. Avoid or minimize adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
f. For monitoring directly related to mitigation—increase the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation (shut-down zone, etc.).
Based on our evaluation of the Navy's proposed measures, as well as other measures considered by NMFS, NMFS has determined that the Navy's proposed mitigation measures are adequate means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, while also considering personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The proposed IHA comment period provided the public an opportunity to submit recommendations, views, and/or concerns regarding this action and the proposed mitigation measures. NMFS did not receive any public comments on the proposed mitigation measures.
Section 101(a)(5)(A) and (D) of the MMPA states that in order to issue an ITA for an activity, NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present. NMFS described the Navy's proposed Monitoring and Reporting in the notice of the proposed IHA (80 FR 53658; September 4, 2015; pages 53675-53677), and they have not changed.
The U.S. Navy has coordinated with NMFS to develop an overarching program plan in which specific monitoring would occur. This plan is called the Integrated Comprehensive Monitoring Program (ICMP) (U.S. Department of the Navy, 2011). The ICMP has been developed in direct response to Navy permitting requirements established in various MMPA Final Rules, Endangered Species Act consultations, Biological Opinions, and applicable regulations. As a framework document, the ICMP applies by regulation to those activities on ranges and operating areas for which the Navy is seeking or has sought incidental take authorizations. The ICMP is intended to coordinate monitoring efforts across all regions and to allocate the most appropriate level and type of effort based on set of standardized research goals, and in acknowledgement of regional scientific value and resource availability.
The ICMP is designed to be a flexible, scalable, and adjustable plan. The ICMP is evaluated annually through the adaptive management process to assess progress, provide a matrix of goals for the following year, and make recommendations for refinement. Future monitoring will address the following ICMP top-level goals through a series of regional and ocean basin study questions with a priority study and funding focus on species of interest as identified for each range complex.
• An increase in our understanding of the likely occurrence of marine mammals and/or ESA-listed marine species in the vicinity of the action (
• An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammals and/or ESA-listed species to any of the potential stressor(s) associated with the action (
• An increase in our understanding of how individual marine mammals or ESA-listed marine species respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible,
• An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: (1) The long-term fitness and survival of an individual; or (2) the population, species, or stock (
• An increase in our understanding of the effectiveness of mitigation and monitoring measures;
• A better understanding and record of the manner in which the authorized entity complies with the ITA and Incidental Take Statement;
• An increase in the probability of detecting marine mammals (through improved technology or methods), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals; and
• A reduction in the adverse impact of activities to the least practicable level, as defined in the MMPA.
The ICMP will also address relative investments to different range complexes based on goals across all range complexes, and monitoring will leverage multiple techniques for data acquisition and analysis whenever possible. Because the ICMP does not specify actual monitoring field work or projects in a given area, it allows the Navy to coordinate its monitoring to gather the best scientific data possible across all areas in which the Navy operates. The Navy continually improves the level of marine mammal scientific information in support of ongoing environmental documentation or permit compliance. Numerous Navy monitoring projects associated with the Southern California Range Complex are ongoing (details are available at
The Navy also developed the Strategic Planning Process for Marine Species Monitoring, which establishes the guidelines and processes necessary to develop, evaluate, and fund individual projects based on objective scientific study questions. The process uses an underlying framework designed around top-level goals, a conceptual framework incorporating a progression of knowledge, and in consultation with a Scientific Advisory Group and other regional experts. The Strategic Planning Process for Marine Species Monitoring would be used to set intermediate scientific objectives, identify potential species of interest at a regional scale, and evaluate and select specific monitoring projects to fund or continue supporting for a given fiscal year. This process would also address relative investments to different range complexes based on goals across all range complexes, and monitoring would leverage multiple techniques for data acquisition and analysis whenever possible. The Strategic PlanningProcess for Marine Species Monitoringis also available online (
Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Reports from individual monitoring events, results of analyses, publications, and periodic progress reports for specific monitoring projects would be posted to the Navy's Marine Species Monitoring Web portal:
General Notification of Injured or Dead Marine Mammals—If any injury or death of a marine mammal is observed during the Civilian Port Defense training activities, the Navy will immediately halt the activity and report the incident to NMFS following the standard monitoring and reporting measures consistent with the MITT EIS/OEIS and Hawaii-Southern California Training and Testing EIS/OEIS. The reporting measures include the following procedures:
Navy personnel shall ensure that NMFS (regional stranding coordinator) is notified immediately (or as soon as clearance procedures allow) if an injured or dead marine mammal is found during or shortly after, and in the vicinity of, any Navy training activity utilizing high-frequency active sonar. The Navy shall provide NMFS with species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available). The Navy shall consult the Stranding Response and Communication Plan to obtain more specific reporting requirements for specific circumstances.
Vessel Strike—Vessel strike during Navy Civilian Port Defense activities in the Study Area is not anticipated; however, in the event that a Navy vessel strikes a whale, the Navy shall do the following:
Immediately report to NMFS (pursuant to the established Communication Protocol) the:
• Species identification (if known);
• Location (latitude/longitude) of the animal (or location of the strike if the animal has disappeared);
• Whether the animal is alive or dead (or unknown); and
• The time of the strike.
As soon as feasible, the Navy shall report to or provide to NMFS, the:
• Size, length, and description (critical if species is not known) of animal;
• An estimate of the injury status (
• Description of the behavior of the whale during event, immediately after the strike, and following the strike (until the report is made or the animal is no longer sighted);
• Vessel class/type and operational status;
• Vessel length;
• Vessel speed and heading; and
• To the best extent possible, obtain a photo or video of the struck animal, if the animal is still in view.
Within 2 weeks of the strike, provide NMFS:
• A detailed description of the specific actions of the vessel in the 30-minute timeframe immediately preceding the strike, during the event, and immediately after the strike (
• A narrative description of marine mammal sightings during the event and immediately after, and any information as to sightings prior to the strike, if available; and use established Navy shipboard procedures to make a camera available to attempt to capture photographs following a ship strike.
NMFS and the Navy will coordinate to determine the services the Navy may provide to assist NMFS with the investigation of the strike. The response and support activities to be provided by the Navy are dependent on resource availability, must be consistent with military security, and must be logistically feasible without compromising Navy personnel safety. Assistance requested and provided may vary based on distance of strike from shore, the nature of the vessel that hit the whale, available nearby Navy resources, operational and installation commitments, or other factors.
A notice of the proposed IHA and request for public comments was published in the
In the Potential Effects of the Specified Activity on Marine Mammals section of the notice of the proposed IHA (80 FR 53658; September 4, 2015; pages 53663-53672), NMFS' analysis identified the lethal responses, physical trauma, sensory impairment (PTS, TTS, and acoustic masking), physiological responses (particular stress responses), and behavioral responses that could potentially result from exposure to active sonar. In the Estimated Take by Incidental Harassment section of the notice of the proposed IHA, NMFS described the potential effects to marine mammals from active sonar in relation to the MMPA regulatory definitions of Level A and Level B harassment (80 FR 53658; September 4, 2015; pages 53677-53678). That information has not changed and is not repeated here.
As mentioned previously, behavioral responses are context-dependent, complex, and influenced to varying degrees by a number of factors other than just received level. For example, an animal may respond differently to a sound emanating from a ship that is moving towards the animal than it would to an identical received level
Criteria and thresholds used for determining the potential effects from the Civilian Port Defense activities are consistent with those used in the Navy's Phase II Training and Testing EISs (
As discussed earlier, factors other than received level (such as distance from or bearing to the sound source, context of animal at time of exposure) can affect the way that marine mammals respond; however, data to support a quantitative analysis of those (and other factors) do not currently exist. It is also worth specifically noting that while context is very important in marine mammal response, given otherwise equivalent context, the severity of a marine mammal behavioral response is also expected to increase with received level (Houser and Moore, 2014). NMFS will continue to modify these criteria as new data become available and can be appropriately and effectively incorporated.
The Navy's Final EA for 2015 West Coast Civilian Port Defense training activities analyzed the following stressors for potential impacts to marine mammals:
NMFS and the Navy determined the only stressor that could potentially result in the incidental taking of marine mammals per the definition of MMPA harassment from the Civilian Port Defense activities within the Study Area is from acoustic transmissions related to high-frequency sonar.
The methods of incidental take associated with the acoustic transmissions from the proposed Civilian Port Defense are described within Chapter 2 of the application. Acoustic transmissions have the potential to temporarily disturb or displace marine mammals. Specifically, only underwater active transmissions may result in the “take” in the form of Level B harassment.
Level A harassment and mortality are not anticipated to result from any of the proposed Civilian Port Defense activities. Furthermore, Navy mitigation and monitoring measures will be implemented to further minimize the potential for Level B takes of marine mammals.
A detailed analysis of effects due to marine mammal exposures to non-impulsive sources (
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, we provide some general analysis immediately below that applies to all the species listed in Table 1, given that some of the anticipated effects (or lack thereof) of the Navy's training activities on marine mammals are expected to be relatively similar in nature. However, below that, we break our analysis into species or groups to provide more specific information
As discussed previously in the notice of the proposed IHA, marine mammals can respond to MFAS/HFAS in many different ways, a subset of which qualifies as harassment (see Behavioral Harassment). One thing that the Level B harassment take estimates do not take into account is the fact that most marine mammals will likely avoid strong sound sources to one extent or another. Although an animal that avoids the sound source will likely still be taken in some instances (such as if the avoidance results in a missed opportunity to feed, interruption of reproductive behaviors, etc.), in other cases avoidance may result in fewer instances of take than were estimated or in the takes resulting from exposure to a lower received level than was estimated, which could result in a less severe response. An animal's exposure to a higher received level is more likely to result in a behavioral response that is more likely to adversely affect the health of the animal.
Specifically, given a range of behavioral responses that may be classified as Level B harassment, to the degree that higher received levels are expected to result in more severe behavioral responses, only a small percentage of the anticipated Level B harassment from Navy activities might necessarily be expected to potentially result in more severe responses, especially when the distance from the source at which the levels below are received is considered. Marine mammals are able to discern the distance of a given sound source, and given other equal factors (including received level), they have been reported to respond more to sounds that are closer (DeRuiter
Although the Navy has been monitoring the effects of MFAS/HFAS on marine mammals since 2006, and research on the effects of active sonar is advancing, our understanding of exactly how marine mammals in the Study Area will respond to active sonar is still growing. The Navy has submitted reports from more than 60 major exercises across Navy range complexes that indicate no behavioral disturbance was observed. One cannot conclude from these results that marine mammals were not harassed from MFAS/HFAS, as a portion of animals within the area of concern were not seen, the full series of behaviors that would more accurately show an important change is not typically seen (
As noted previously, many animals perform vital functions, such as feeding, resting, traveling, and socializing on a diel cycle (24-hour cycle). Behavioral reactions to noise exposure (when taking place in a biologically important context, such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
As mentioned previously, TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths, all of which determine the severity of the impacts on the affected individual, which can range from minor to more severe. The TTS sustained by an animal is primarily classified by three characteristics:
1. Frequency—Available data (of mid-frequency hearing specialists exposed to mid- or high-frequency sounds; Southall
2. Degree of the shift (
3. Duration of TTS (recovery time)—In the TTS laboratory studies, some using exposures of almost an hour in duration or up to 217 SEL, almost all individuals recovered within 1 day (or less, often in minutes), although in one study (Finneran
Based on the range of degree and duration of TTS reportedly induced by exposures to non-pulse sounds of energy higher than that to which free-swimming marine mammals in the field are likely to be exposed during MFAS/HFAS training exercises in the Study Area, it is unlikely that marine mammals would ever sustain a TTS from active sonar that alters their sensitivity by more than 20 dB for more than a few days (and any incident of TTS would likely be far less severe due to the short duration of the majority of the exercises and the speed of a typical vessel). Also, for the same reasons discussed in the Diel Cycle section, and because of the short distance within which animals would need to approach the sound source, it is unlikely that animals would be exposed to the levels necessary to induce TTS in subsequent time periods such that their recovery is impeded. Additionally, though the frequency range of TTS that marine mammals might sustain would overlap with some of the frequency ranges of their vocalization types, the frequency range of TTS from MFAS/HFAS (the source from which TTS would most likely be sustained because the higher source level and slower attenuation make it more likely that an animal would be exposed to a higher received level) would not usually span the entire frequency range of one vocalization type, much less span all types of vocalizations or other critical auditory cues. If impaired, marine mammals would typically be aware of their impairment and are sometimes able to implement behaviors to compensate (see Acoustic Masking or Communication Impairment section), though these compensations may incur energetic costs.
Masking only occurs during the time of the signal (and potential secondary arrivals of indirect rays), versus TTS, which continues beyond the duration of the signal. Standard MFAS/HFAS nominally pings every 50 seconds for hull-mounted sources. For the sources for which we know the pulse length, most are significantly shorter than hull-mounted active sonar, on the order of several microseconds to tens of microseconds. For hull-mounted active sonar, though some of the vocalizations that marine mammals make are less than one second long, there is only a 1 in 50 chance that they would occur exactly when the ping was received, and when vocalizations are longer than one second, only parts of them are masked. Alternately, when the pulses are only several microseconds long, the majority of most animals' vocalizations would not be masked. Masking effects from MFAS/HFAS are expected to be minimal. If masking or communication impairment were to occur briefly, it would be in the frequency range of MFAS/HFAS, which overlaps with some marine mammal vocalizations; however, it would likely not mask the entirety of any particular vocalization, communication series, or other critical auditory cue, because the signal length, frequency, and duty cycle of the MFAS/HFAS signal does not perfectly mimic the characteristics of any marine mammal's vocalizations.
Behavioral reactions of marine mammals to sound are known to occur but are difficult to predict. Recent behavioral studies indicate that reactions to sounds, if any, are highly contextual and vary between species and individuals within a species (Moretti
Overall, the number of predicted behavioral reactions is low and temporary behavioral reactions in long-beaked common dolphins are unlikely to cause long-term consequences for individual animals or the population. The Civilian Port Defense activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for long-beaked common dolphin. No evidence suggests any major reproductive differences in comparison to short-beaked common dolphins (Reeves
Behavioral reactions of marine mammals to sound are known to occur but are difficult to predict. Recent behavioral studies indicate that reactions to sounds, if any, are highly contextual and vary between species and individuals within a species (Moretti
Overall, the number of predicted behavioral reactions is low and temporary behavioral reactions in short-beaked common dolphins are unlikely to cause long-term consequences for individual animals or the population. The Civilian Port Defense activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for long-beaked common dolphin. Short-beaked common dolphin gestation is approximately 11 to 11.5 months in duration (Danil, 2004; Murphy and Rogan, 2006) with most calves born from May to September (Murphy and Rogan, 2006). Therefore, calving would not occur during the Civilian Port Defense training timeframe. The California/Washington/Oregon stock of short-beaked common dolphin is not depleted under the MMPA. Abundance off California has increased dramatically since the late 1970s, along with a smaller decrease in abundance in the eastern tropical Pacific, suggesting a large-scale northward shift in the distribution of this species in the eastern north Pacific (Forney and Barlow, 1998; Forney
Behavioral reactions of marine mammals to sound are known to occur but are difficult to predict. Recent behavioral studies indicate that reactions to sounds, if any, are highly contextual and vary between species and individuals within a species (Moretti
Overall, the number of predicted behavioral reactions is low and temporary behavioral reactions in Risso's dolphins are unlikely to cause long-term consequences for individual animals or the population. The Civilian Port Defense activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for Risso's dolphin. The California/Washington/Oregon stock of Risso's dolphin is not depleted under the MMPA. The distribution of Risso's dolphins throughout the region is highly variable, apparently in response to oceanographic changes (Forney and Barlow, 1998). The status of Risso's dolphins off California, Oregon and Washington relative to optimum sustainable population is not known,
Behavioral reactions of marine mammals to sound are known to occur but are difficult to predict. Recent behavioral studies indicate that reactions to sounds, if any, are highly contextual and vary between species and individuals within a species (Moretti
Overall, the number of predicted behavioral reactions is low and temporary behavioral reactions in Pacific white-sided dolphins are unlikely to cause long-term consequences for individual animals or the population. The Civilian Port Defense activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for long-beaked common dolphin. Pacific white-sided dolphin calves are typically born in the summer months between April and early September (Black, 1994; NOAA, 2012; Reidenberg and Laitman, 2002). This species is predominantly located around the proposed Study Area in the colder winter months when neither mating nor calving is expected, as both occur off the coast of Oregon and Washington outside of the timeframe for the proposed activities. The California/Washington/Oregon stock of Pacific white-sided dolphin is not depleted under the MMPA. The stock is considered stable, with no indications of any positive or negative trends in abundance (NOAA, 2014). Consequently, the activities are not expected to adversely impact annual rates of recruitment or survival of Pacific white-sided dolphin.
Behavioral reactions of marine mammals to sound are known to occur but are difficult to predict. Recent behavioral studies indicate that reactions to sounds, if any, are highly contextual and vary between species and individuals within a species (Moretti
Overall, the number of predicted behavioral reactions is low and temporary behavioral reactions in bottlenose dolphins are unlikely to cause long-term consequences for individual animals or the population. The Civilian Port Defense activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for bottlenose dolphin. The California/Washington/Oregon stock of bottlenose dolphin is not depleted
Research and observations show that pinnipeds in the water may be tolerant of anthropogenic noise and activity (a review of behavioral reactions by pinnipeds to impulsive and non-impulsive noise can be found in Richardson
Overall, the number of predicted behavioral reactions is low and temporary behavioral reactions in harbor seals are unlikely to cause long-term consequences for individual animals or the population. The Civilian Port Defense activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for harbor seal. In California, harbor seals breed from March to May and pupping occurs between April and May (Alden
Research and observations show that pinnipeds in the water may be tolerant of anthropogenic noise and activity (a review of behavioral reactions by pinnipeds to impulsive and non-impulsive noise can be found in Richardson
Overall, the number of predicted behavioral reactions is low and temporary behavioral reactions in California sea lions are unlikely to cause long-term consequences for individual animals or the population. The Civilian Port Defense activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for California sea lions. It is likely that male California sea lions will be primarily outside of the Study Area during the timeframe of the proposed activities, but females may be present. Typically during the summer, California sea lions congregate near rookery islands and specific open-water areas. The primary rookeries off the coast of California are on San Nicolas, San Miguel, Santa Barbara, and San Clemente Islands (Boeuf and Bonnell, 1980; Carretta
Overall, the conclusions and predicted exposures in this analysis find that overall impacts on marine mammal species and stocks would be negligible for the following reasons:
• All estimated acoustic harassments for the proposed Civilian Port Defense training activities are within the non-injurious temporary threshold shift (TTS) or behavioral effects zones (Level B harassment), and these harassments (take numbers) represent only a small percentage (less than 15 percent of bottlenose dolphin coastal stock; less than 0.5 percent for all other species) of the respective stock abundance for each species taken.
• Marine mammal densities inputted into the acoustic effects model are overly conservative, particularly when considering species where data is limited in portions of the proposed Study Area and seasonal migrations extend throughout the Study Area.
• The protective measures described in Mitigation are designed to reduce sound exposure on marine mammals to levels below those that may cause physiological effects (injury).
• Animals exposed to acoustics from this two-week event are habituated to a bustling industrial port environment.
This final IHA assumes that short-term non-injurious SELs predicted to cause onset-TTS or predicted SPLs predicted to cause temporary behavioral disruptions (non-TTS) qualify as Level B harassment. This approach predominately overestimates disturbances from acoustic transmissions as qualifying as harassment under MMPA's definition for military readiness activities because there is no established scientific correlation between short term sonar use and long term abandonment or significant alteration of behavioral patterns in marine mammals.
Consideration of negligible impact is required for NMFS to authorize incidental take of marine mammals. By definition, an activity has a “negligible impact” on a species or stock when it is determined that the total taking is not likely to reduce annual rates of adult survival or recruitment (
Behavioral reactions of marine mammals to sound are known to occur but are difficult to predict. Recent behavioral studies indicate that reactions to sounds, if any, are highly contextual and vary between species and individuals within a species (Moretti
If a marine mammal does react to an underwater sound by changing its behavior or moving a small distance, the impacts of the change may not be detrimental to the individual. For example, researchers have found during a study focusing on dolphins response to whale watching vessels in New Zealand, that when animals can cope with constraint and easily feed or move elsewhere, there's little effect on survival (Lusseau and Bejder, 2007). On the other hand, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period and they do not have an alternate equally desirable area, impacts on the marine mammal could be negative because the disruption has biological consequences. Biological parameters or key elements having greatest importance to a marine mammal relate to its ability to mature, reproduce, and survive. For example, some elements that should be considered include the following:
• Growth: adverse effects on ability to feed;
• Reproduction: the range at which reproductive displays can be heard and the quality of mating/calving grounds; and
• Survival: sound exposure may directly affect survival, for example
The importance of the disruption and degree of consequence for individual marine mammals often has much to do with the frequency, intensity, and duration of the disturbance. Isolated acoustic disturbances such as acoustic transmissions usually have minimal consequences or no lasting effects for marine mammals. Marine mammals regularly cope with occasional disruption of their activities by predators, adverse weather, and other natural phenomena. It is also reasonable to assume that they can tolerate occasional or brief disturbances by anthropogenic sound without significant consequences.
The exposure estimates calculated by predictive models currently available reliably predict propagation of sound and received levels and measure a short-term, immediate response of an individual using applicable criteria. Consequences to populations are much more difficult to predict and empirical measurement of population effects from anthropogenic stressors is limited (National Research Council of the National Academies, 2005). To predict indirect, long-term, and cumulative effects, the processes must be well understood and the underlying data available for models. Based on each species' life history information, expected behavioral patterns in the Study Area, all of the modeled exposures resulting in temporary behavioral disturbance (Table 1), and the application of mitigation procedures proposed above, the proposed Civilian Port Defense activities are anticipated to have a negligible impact on marine mammal stocks within the Study Area.
NMFS concludes that Civilian Port Defense training activities within the Study Area would result in Level B takes only, as summarized in Table 1. The effects of these military readiness activities will be limited to short-term, localized changes in behavior and possible temporary threshold shift in the hearing of marine mammal species. These effects are not likely to have a significant or long-term impact on feeding, breeding, or other important biological functions. No take by injury or mortality is anticipated, and the potential for permanent hearing impairment is unlikely. Based on best available science NMFS concludes that exposures to marine mammal species and stocks due to the proposed training activities would result in only short-term effects from those Level B takes to most individuals exposed and would likely not affect annual rates of recruitment or survival.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat and dependent upon the implementation of the mitigation and monitoring measures, NMFS finds that the total taking from Civilian Port Defense training activities in the Study Area will have a negligible impact on the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
In compliance with the National Environmental Policy Act (NEPA) of 1969 (42 United States Code 4321
No species listed under the Endangered Species Act (ESA) are expected to be affected by the proposed Civilian Port Defense training activities and no takes of any ESA-listed species are authorized under the MMPA. Therefore, NMFS has determined that a formal section 7 consultation under the ESA is not required.
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 November 23, 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 (“OIRA”) in OMB, 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 Delivery/Courier at the same address.
A copy of the supporting statements for the collection of information discussed above may be obtained by visiting
Thomas Guerin, Division of Market Oversight, Commodity Futures Trading Commission, (202) 734-4194; email:
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
The Commission estimated that approximately 30,210 entities would be affected by this ICR. That number was based on the current estimate of the total number of swap data repositories, swap execution facilities, designated contract markets, derivatives clearing organizations, swap dealers, major swap participants and other swap counterparties. The Commission did not receive any comments regarding the burden estimated or any other aspect of this ICR.
44 U.S.C. 3501
U.S. Army Corps of Engineers, DoD.
Notice.
It is proposed that the hours of availability at Jonesville and Columbia Locks on the Ouachita and Black Rivers will be increased from the current schedule of 20 hours per day, separated into two 10 hour periods, 5:00 a.m. to 3:00 p.m. and 5:00 p.m. to 3:00 a.m., 7 days per week, 365 days per year to 24 hours per day, 7 days per week, 365 days per year. It is also proposed that the hours of availability at Felsenthal and H.K. Thatcher Locks on the Ouachita and Black Rivers will be reduced from the current schedule of 16 hours per day, separated into two 8 hour periods, 5:00 a.m. to 1:00 p.m. and 5:00 p.m. to 1:00 a.m., 7 days per week, 365 days per year to a 10 hour period, 5:00 a.m. to 3:00 p.m. Monday through Friday. The reduced levels of service are in response to the Inland Marine Transportation System Guidelines for Establishing and Implementing Levels of Operating Service which sets forth criteria for determining hours of availability, based on lock usage data. The intended effect is to provide lock availability that matches existing lock usage by commercial industry. The Vicksburg District will continue to work with industry to optimize the hours of availability and make adjustments as needed.
Proposed implementation date is November 15, 2015.
Submit written comments, in duplicate, to Mr. James V. Ross, Chief, Operations Division, Vicksburg District, US Army Corps of Engineers, 4155 Clay Street, Vicksburg, MS 39183, or deliver them to Mr Ross between the hours of 8:00 a.m. and 4:00 p.m., Monday through Friday at the address above. Comments received and other materials relevant to the proposed reduction in hours of lock availability can be inspected at Mr. Ross' office during the same hours. An appointment will be required for inspection, so please call ahead to make an appointment and to avoid conflicts with inspections by other interested parties. Phone: 601-631-5315
Mr. Thomas Hengst at the Corps of Engineers, Vicksburg District, River Operations Branch, by phone at 601-631-5600.
The legal authority for the regulation governing the use, administration, and navigation of the Ouachita and Black Rivers and Locks is Section 4 of the River and Harbor Act of August 18, 1894 (28 Stat. 362), as amended, which is codified at 33 U.S.C. Section 1. This statute requires the Secretary of the Army to “prescribe such regulations for the use, administration, and navigation of the navigable waters of the United States” as the Secretary determines may be required by public necessity. Reference 33 CFR part 207.249, Ouachita and Black Rivers, Ark. and La., Mile 0.0 to Mile 338.0 (Camden, Ark.) above the mouth of the Black River; the Red River, La., Mile 6.7 (Junction of Red, Atchafalaya and Old Rivers) to Mile 276.0 (Shreveport, La.); use, administration, and navigation.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice; extension of comment period.
The comment period for the Final Integrated Feasibility Report (Feasibility Study/Environmental Impact Statement/Environmental Impact Report), Los Angeles River Ecosystem Restoration Study, City of Los Angeles, Los Angeles County, CA published in the
Ms. Eileen Takata, U.S. Army Corps of Engineers, Los Angeles District,
None.
Delaware River Basin Commission.
Notice.
Notice is hereby given that the methodology proposed to be used in the 2016 Delaware River and Bay Water Quality Assessment Report is available for review and comment.
Comments on the assessment methodology or recommendations for the consideration of data sets should be submitted in writing by 5 p.m. Eastern on December 31, 2015.
Comments will be accepted
Mr. John Yagecic, Supervisor, Standards and Assessment Section, DRBC Modeling, Monitoring and Assessment Branch,
The Delaware River Basin Commission (“DRBC” or “Commission”) is an interstate and federal compact agency that was created in 1961 by concurrent legislation of the States of Delaware, New Jersey, and New York, the Commonwealth of Pennsylvania and the United States Government for purpose of jointly managing the water resources of the Delaware River Basin.
DRBC currently is compiling data for the
The proposed assessment methodology to be used in the 2016 Assessment is available for review at the following URL:
Notice is hereby given that the Delaware River Basin Commission will hold a public hearing on Tuesday, November 10, 2015. A business meeting will be held the following month, on Wednesday, December 9, 2015. The hearing and business meeting are open to the public and will be held at the Washington Crossing Historic Park Visitor Center, 1112 River Road, Washington Crossing, Pennsylvania.
The list of projects scheduled for hearing, including project descriptions, will be posted on the Commission's Web site,
Written comments on matters scheduled for hearing on November 10 will be accepted through the close of business (5 p.m.) on November 12, the day following the Veterans' Day Holiday. After the hearing on all scheduled matters has been completed, and as time allows, an opportunity for Open Public Comment (formerly known as “public dialogue”) will also be provided.
There will be no opportunity for additional public comment for the record at the December 9 business meeting on items for which a hearing was completed on November 10 or a previous date. Commission consideration on December 9 of items for which the comment period is closed may result in approval of the item (by docket or resolution) as proposed, approval with changes, denial, or deferral. When the Commissioners defer an action, they may announce an additional period for written comment on the item, with or without an additional hearing date, or they may take additional time to consider the input they have already received without requesting further public input. Any deferred items will be considered for action at a public meeting of the Commission on a future date. Items for which a public hearing has been completed and on which the Commission has not yet acted include a proposed rule amending DRBC's
Institute of Education Sciences, U.S. Department of Education.
Announcement of an open meeting.
This notice sets forth the schedule and proposed agenda of an upcoming meeting of the National Board for Education Sciences (NBES). The notice also describes the functions of the Committee. Notice of this meeting is required by Section 10(a) (2) of the Federal Advisory Committee Act and is intended to notify the public of their opportunity to attend the meeting.
The NBES meeting will be held on November 16, 2015, from 9:00 a.m. to 4:30 p.m. Eastern Standard Time.
80 F Street NW., Large Board Room, Washington, DC 20001.
Ellie Pelaez, Designated Federal Official, NBES, U.S. Department of Education, 555 New Jersey Avenue NW., Room 600 E, Washington, DC 20208; phone: (202) 219-0644; fax: (202) 219-1402; email:
The Board meeting will resume from 10:45 a.m. to 12:00 p.m. when the Board will discuss the IES Standards and Review Office. Anne Ricciuti, Deputy Director for Science, will provide opening remarks followed by a roundtable discussion with board members. The meeting will break for lunch from 12:00 p.m. to 1:00 p.m.
From 1:00 p.m. to 2:30 p.m., the board will participate in a discussion on the National Center for Education Statistics (NCES). Peggy Carr, Acting Commissioner, National Center for Education Statistics, will provide opening remarks, followed by a panel discussion with the Associate Commissioners of the National Center for Education Statistics. Roundtable discussion by board members will take place after the panel discussion. A break will take place from 2:30 p.m. to 2:45 p.m.
The meeting will resume at 2:45 p.m. to 4:15 p.m. when the Board will hold
Closing remarks will take place from 4:15 p.m. to 4:30 p.m., with adjournment scheduled for 4:30 p.m.
Section 116 of the Education Sciences Reform Act of 2002 (ESRA),
Office of Career, Technical, and Adult Education, Department of Education.
Proposed priorities, requirements, definitions, and selection criteria.
The Assistant Secretary for Career, Technical, and Adult Education (Assistant Secretary) proposes priorities, requirements, definitions, and selection criteria under the Performance Partnership Pilots (P3) for Disconnected Youth competition. The Assistant Secretary may use the priorities, requirements, definitions, and selection criteria for competitions in fiscal year (FY) 2015 and later years. We take this action in order to support the identification of strong and effective pilots that are likely to achieve significant improvements in educational, employment, and other key outcomes for disconnected youth.
We must receive your comments on or before November 23, 2015.
Submit your comments electronically through the Federal eRulemaking Portal at
If you are submitting comments electronically, we strongly encourage you to submit any comments or attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), we strongly encourage you to convert the PDF to print-to-PDF format or to use some other commonly used searchable text format.
•
•
Braden Goetz. Telephone: (202) 245-7405 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from the proposed priority, requirements, definitions, and selection criteria. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about the proposed priority, requirements, definitions, and selection criteria at
Section 524 of Division H and section 219 of Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Public Law 113-235).
The Acts authorize the Departments of Education (ED), Labor (DOL), Health and Human Services (HHS), and Justice (DOJ), the Corporation for National and Community Service (CNCS) and the Institute of Museum and Library Services (IMLS) (collectively, the Agencies) to enter into Performance Partnership Agreements (performance agreements) with State, local, or tribal governments to provide additional flexibility in using certain of the Agencies' discretionary funds,
Government and community partners have invested considerable attention and resources to meet the needs of disconnected youth. However, practitioners, youth advocates, and others on the front lines of service delivery have observed that there are significant programmatic and administrative obstacles to achieving meaningful improvements in education, employment, health, and well-being for these young people. These challenges include: limited evidence and knowledge of what works to improve outcomes for disconnected youth; poor coordination and alignment across the multiple systems that serve youth; policies that make it hard to target the neediest youth and help them overcome gaps in services; fragmented data systems that inhibit the flow of information to improve results; and administrative requirements that impede holistic approaches to serving this population. Many of these challenges can be addressed by improving coordination among programs and targeting resources to those approaches that achieve the best results for youth.
Performance Partnership Pilots test the hypothesis that additional flexibility for States, localities, and tribes, in the form of blending funds and waivers of certain programmatic requirements, can help overcome some of the significant hurdles that States, localities, and tribes face in providing intensive, comprehensive, and sustained service pathways and improving outcomes for disconnected youth. For example, P3 may help address the “wrong pockets” problem, where government entities that observe improved outcomes or other benefits due to an intervention are unable to use Federal funds to support that intervention due to program restrictions or other factors. P3 funds may also help to build additional evidence about the effectiveness of an intervention or strengthen a foundation of data capacity and performance management that would otherwise be lacking. If this hypothesis proves true, providing necessary and targeted flexibility to remove or minimize these hurdles will help to achieve significant benefits for disconnected youth, the communities that serve them, and the involved agencies and partners.
Congress first established the P3 authority in FY 2014, and the Agencies announced a competition to select up to 10 P3 pilots in the
The priorities, requirements, definitions, and selection criteria proposed in this notice are based largely on those used in the November 2014 notice. However, they differ in several important respects:
• As in the November 2014 notice, we are proposing priorities for projects that serve disconnected youth in rural and tribal communities. We also are proposing additional priorities that focus on high-need subpopulations of disconnected youth, including priorities for: disconnected youth who are unemployed and not enrolled in education; English learners; individuals with disabilities; homeless; in foster care; involved with the justice system; or immigrants or refugees. The Agencies may choose to use one or more of these additional priorities in future competitions if they decide to encourage or require pilots that are designed to serve a particular high-need subpopulation.
• In addition, we are proposing a priority for projects that provide paid work-based learning opportunities, including opportunities that are offered during the summer months and are integrated with academic and technical instruction.
• The November 2014 notice included two priorities related to
• To reduce burden on applicants, several of the application requirements have been eliminated or streamlined.
Additionally, we are proposing to collect some of the required information in table form for two reasons: to make clearer to applicants all of the data they must provide in their applications and to simplify how applicants provide these data.
• The selection criteria we are proposing in this notice have also been streamlined and simplified to reduce burden on applicants, as well as focus on the factors that we consider to be the most critical in the successful implementation of pilots.
In addition to commenting on the priorities, requirements, definitions, and selection criteria proposed in this notice, we invite public comment on the following questions:
• How else can the administration of P3 competitions be improved?
• Should other programs, including those from other agencies, be included in the P3 initiative? What programs and why?
• What interest, if any, do prospective applicants and their potential partners have in using a P3 pilot to support or inform a Pay for Success
• What technical assistance do prospective applicants need in order to prepare their applications, particularly with respect to identifying appropriate program requirements that might be modified or waived and programs that may be eligible for use in a P3 pilot?
• What, if any, State or local barriers inhibit successful implementation of P3 pilots?
• What, if any, mandatory program requirements create barriers to the successful implementation of P3 pilots?
This notice contains 12 proposed priorities. We may apply one or more of these priorities in any year in which this program is in effect. Please note that these priorities are not listed in any particular order of importance or preference.
P3 is intended, through demonstration, to identify effective strategies for serving disconnected youth. The Agencies are aware such strategies may differ across environments and wish to test the authority in a variety of settings. Projects that serve disconnected youth in any community would meet Proposed Priority 1.
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth.
In recognition of the special needs of disconnected youth who reside in rural communities, we are proposing to establish a priority for projects that serve rural communities only. We note, for example, that 85 percent of the U.S. counties that have been persistently poor (
In the Definitions section of this notice, we have proposed a definition of rural community that is based on whether a community is served only by one or more local educational agencies (LEAs) that are currently eligible under the Department of Education's Small, Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under Title VI, Part B of the Elementary and Secondary Education Act of 1965 (ESEA), as amended. Alternatively, a community also could be considered rural if it includes only schools designated by the National Center for Education Statistics (NCES) with a locale code of 42 or 43. This definition was used in the 2014 notice, as well in notices inviting applications for the Department of Education's Promise Neighborhoods program. We welcome comments on whether this definition is appropriate for use in connection with a P3 competition utilizing this priority.
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth in one or more rural communities (as defined in this notice) only.
We propose a priority for projects that will serve youth in tribal communities because American Indian and Alaska Native youth are among the most disadvantaged subpopulations of youth in our country. During school year 2012-13, American Indian and Alaska Native youth had the lowest average cohort graduation rate among all ethnic groups, with an average of only 70 percent of American Indian and Alaska Native youth completing high school within four years.
To meet this priority, an applicant must (1) propose a pilot that is designed to improve outcomes for disconnected youth who are members of one or more State- or federally-recognized Indian tribal communities; and (2) represent a partnership that includes one or more State- or federally-recognized Indian tribes.
In 2013, about 14 percent of youth ages 16 to 24 were neither enrolled in school nor working.
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth who are neither employed nor enrolled in education.
We are proposing to establish a priority for projects that serve disconnected youth who are English learners (ELs) because of the significant opportunity and achievement gaps these young people face. While the national average cohort graduation rate for all youth was 81 percent for the 2012-13 school year, the average cohort graduation rate for ELs was only 61 percent. In some States, the average cohort graduation rate for ELs was as low as 22 percent.
In the Definitions section of this notice, we have proposed a definition of English learner that is based on the definition of “English language learner” in section 203 of the Workforce Innovation and Opportunity Act (29 U.S.C. 3272(7)). We welcome comments on whether this definition is appropriate for use in connection with a P3 competition utilizing this priority.
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth who are English learners (as defined in this notice).
We are proposing to establish a priority for projects that serve disconnected youth with a disability because youth with a disability graduate at significantly lower rates than their peers who do not have a disability. For example, during the 2012-13 school year, the average cohort graduation rate for children with a disability receiving special education and related services under the Individuals with Disabilities Education Act was 62 percent, while the average cohort graduation rate for all youth was 81 percent.
As noted in the Definitions section of this notice, to define the term “individual with a disability,” we propose to use the definition found in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102). We welcome comments on whether this proposed definition is appropriate for use in connection with a P3 competition utilizing this priority.
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth who are individuals with a disability (as defined in this notice).
According to the U.S. Department of Housing and Urban Development's 2014 Annual Homeless Assessment Report to Congress, on a given night in January 2014, there were approximately 194,302 homeless children and youth ages 24 and younger, representing one-third of the individuals who were homeless that night. Of these children and youth, 45,205 were unaccompanied children and youth who experienced homelessness alone.
As noted in the Definitions section of this notice, to define the term “homeless youth,” we propose to use the definition in the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431,
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth who are homeless youth (as defined in this notice).
We are proposing a priority for projects that are designed to improve outcomes for youth who are or have
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth who are or have ever been in foster care.
In 2013, the Nation's juvenile courts processed more than one million cases of delinquency.
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth who are involved in the justice system.
We are proposing to establish a priority for projects that serve disconnected youth who are immigrants or refugees because of the great challenges these young people face in achieving civic, economic, and linguistic integration in the United States. More than one-third of immigrant youth ages 16 to 22 who are not enrolled in school lack a high school diploma. In contrast, 20 percent of nonimmigrant youth in this age group who are not enrolled in school do not have a high school diploma
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth who are immigrants or refugees.
We are proposing a priority for projects that provide disconnected youth with paid work-based learning opportunities because the employment rate among youth has declined precipitously over the last decade,
To meet this priority, an applicant must propose a pilot that will provide disconnected youth with paid work-based learning opportunities, such as opportunities during the summer, which are integrated with academic and technical instruction.
Though the Agencies are supporting a national evaluation of the implementation of P3, a great deal also
To meet this priority, an applicant must propose to conduct an independent evaluation of the impacts on disconnected youth of its overall program or specific components of its program that is a randomized controlled trial or a quasi-experimental design study. The extent to which an applicant meets this priority will be based on the clarity and feasibility of the applicant's proposed evaluation design, the appropriateness of the design to best capture key pilot outcomes, the prospective contribution of the evaluation to the knowledge base about serving disconnected youth (including the rigor of the design and the validity and generalizability of the findings), and the applicant's demonstrated expertise in planning and conducting a randomized controlled trial or quasi-experimental evaluation study.
In order to meet this priority, an applicant also must include the following two documents as separate attachments to its application:
1. A Summary Evaluation Plan that describes how the pilot or a component of the pilot (such as a discrete service-delivery strategy) will be rigorously evaluated. The evaluation plan may not exceed eight pages. The plan must include the following:
• A brief description of the research question(s) proposed for study and an explanation of its/their relevance, including how the proposed evaluation will build on the research evidence base for the project as described in the application and how the evaluation findings will be used to improve program implementation;
• A description of the randomized controlled trial or quasi-experimental design study methodology, including the key outcome measures, the process for forming a comparison or control group, a justification for the target sample size and strategy for achieving it, and the approach to data collection (and sources) that minimizes both cost and potential attrition;
• A proposed evaluation timeline, including dates for submission of required interim and final reports;
• A description of how, to the extent feasible and consistent with applicable Federal, State, local, and tribal privacy requirements, evaluation data will be made available to other, third‐party researchers after the project ends; and
• A plan for selecting and procuring the services of a qualified independent evaluator (as defined in this notice) prior to enrolling participants (or a description of how one was selected if agreements have already been reached). The applicant must describe how it will ensure that the qualified independent evaluator has the capacity and expertise to conduct the evaluation, including estimating the effort for the qualified independent evaluator. This estimate must include the time, expertise, and analysis needed to successfully complete the proposed evaluation.
2. A supplementary Evaluation Budget Narrative, which is separate from the overall application budget narrative and provides a description of the costs associated with funding the proposed program evaluation component, and an explanation of its funding source—
The Agencies will review the Summary Evaluation Plans and Evaluation Budget Narratives and provide feedback to applicants that are determined to have met the priority and that are selected as pilot finalists or alternates. After award, these pilots must submit to the lead Federal agency a detailed evaluation plan of no more than 30 pages that relies heavily on the expertise of a qualified independent evaluator. The detailed evaluation plan must address the Agencies' feedback and expand on the Summary Evaluation Plan.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
The purpose of these proposed requirements is to provide reviewers with sufficient information to evaluate applications based on the selection criteria, as well as to provide the Agencies with sufficient information to understand and assess the merits of the flexibilities sought by applicants.
The Assistant Secretary proposes the following application requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect.
a.
b.
c.
1.
2.
A. The State, local, or tribal government(s) with authority to grant any needed non-Federal flexibility, including waivers, has approved or will approve such flexibility within 60 days of an applicant's designation as a pilot finalist;
B. Non-Federal flexibility, including waivers, is not needed in order to successfully implement the pilot.
d.
1. The applicant must submit a narrative that describes the project and includes an explanation of—
A. The needs of the target population;
B. The activities or changes in practice that will be implemented to improve outcomes for the target population and how these activities differ from the status quo;
C. Why the requested flexibility is necessary to implement the pilot and improve the outcomes of participants;
D. How the requested flexibility will enable the applicant to implement changes in practice to improve outcomes for the target population; and
E. The proposed length of the pilot.
2. The applicant must provide a graphic depiction (not longer than one page) of the pilot's logic model that illustrates the underlying theory of how the pilot's strategy will produce intended outcomes.
e.
1. The number of days after award that pilot activities will start, which must be within 180 days of the award, such as participant intake and services or changes to administrative systems, practices, and policy; and
2. The number of participants expected to be served under the pilot for each period (such as quarterly or annually).
f.
1. Identify the proposed partners, including any and all State, local, and tribal entities and non-governmental organizations that would be involved in implementation of the pilot, and describe their roles in the pilot's implementation using Table 3. Partnerships that cross programs and funding sources but are under the jurisdiction of a single agency or entity must identify the different sub-organizational units involved.
2. Provide a memorandum of understanding or letter of commitment signed by the executive leader or other accountable senior representative of each partner that describes each proposed partner's commitment, including its contribution of financial or in-kind resources (if any).
Any grantees mentioned in Table 2 that are not the lead applicant must be included in Table 3.
g.
Examples of education- and employment-related outcome measures and interim indicators include:
• For the outcome measure High School Diploma Attainment, interim indicators could include high school enrollment, attendance, and grade promotion;
• For the outcome measure Community College Completion, interim indicators could include class attendance and credit accumulation; and
• For the outcome measure Sustained Employment in Career Field, interim indicators could include unsubsidized employment during the second quarter after exit from the program, unsubsidized employment during the fourth quarter after exit from the program, and median earnings during the second quarter after exit from the program.
The specific outcome measures and interim indicators the applicant uses should be grounded in its logic model, and informed by applicable program results or research, as appropriate. Applicants must also indicate the source of the data, the proposed frequency of collection, and the methodology used to collect the data.
h.
1. The applicant must complete Table 5 to provide the following budget information:
A. For each Federal program, the amount of funds to be blended or braided (as defined in this notice), and the percentage of total program funding received by the applicant or its partners that the amount to be blended or braided represents; and
B. The total amount of funds from all Federal programs that would be blended or braided under the pilot.
Applicants may propose to expand the number of Federal programs supporting pilot activities using FY 2016 or other future funding, which may be included in pilots if Congress extends the P3 authority. If an applicant intends to blend or braid multiple years of a program's funds, it must complete a separate row of the table for each fiscal year. If an applicant will use a program's funding over multiple years of the pilot, it must indicate the amounts to be used in each separate year using the Year 1, 2, and 3 rows.
2. The applicant must provide the following information about the proposed uses of funds to implement the pilot—
A. The amount and proposed uses of the start-up grant funds it is requesting (which must be within the estimated award range provided in the notice inviting applications);
B. The proposed uses of the blended and braided funds identified in Table 5; and
C. The amount and sources of any non-Federal resources, including funds and in-kind contributions from State, local, tribal, philanthropic, and other sources, that will be used for the pilot.
B. Program Requirements
We are proposing program requirements for each partnership selected as a pilot in order to ensure that each pilot participates in the national P3 evaluation and a technical assistance community of practice (as defined in this notice), as well as secures necessary consent for any data-sharing it carries out. We also specify the proposed contents of the performance agreement that will be established with each pilot. These proposed program requirements are the same requirements we established in the November 2014 notice.
The Assistant Secretary proposes the following program requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect.
a.
b.
c.
d.
1. The length of the agreement;
2. The Federal programs and federally-funded services that are involved in the pilot;
3. The Federal discretionary funds that are being used in the pilot;
4. The non‐Federal funds that are involved in the pilot, by source (which may include private funds as well as governmental funds) and by amount;
5. The State, local, or tribal programs that are involved in the pilot and their respective roles;
6. The populations to be served by the pilot;
7. The cost‐effective Federal oversight procedures that will be used for the purpose of maintaining the necessary level of accountability for the use of the Federal discretionary funds;
8. The cost‐effective State, local, or tribal oversight procedures that will be used for the purpose of maintaining the necessary level of accountability for the use of the Federal discretionary funds;
9. The outcome (or outcomes) that the pilot is designed to achieve;
10. The appropriate, reliable, and objective outcome‐measurement methodology that will be used to determine whether the pilot is achieving, and has achieved, specified outcomes;
11. The statutory, regulatory, or administrative requirements related to Federal mandatory programs that are barriers to achieving improved outcomes of the pilot; and
12. Criteria for determining when a pilot is not achieving the specified outcomes that it is designed to achieve and subsequent steps, including:
i. The consequences that will result; and
ii. The corrective actions that will be taken in order to increase the likelihood that the pilot will achieve such specified outcomes.
We propose definitions for several important terms that are associated with this program and the proposed priorities, requirements, and selection criteria in this notice.
The Assistant Secretary proposes the following definitions for this program. We may apply one or more of these definitions in any year in which this program is in effect.
(A) Whose native language is a language other than English; or
(B) Who lives in a family or community environment where a language other than English is the dominant language.
An
A
A
A
We propose to establish program-specific selection criteria for P3 because we believe the use of the more general selection criteria in the Education Department General Administrative Regulations would not result in the identification of projects that address the most compelling needs and are most likely to be successful in improving significantly the outcomes of disconnected youth. The selection criteria we are proposing are based largely on the selection criteria that appeared in the November 2014 notice. However, based on our experience in using these criteria, as well as feedback from prospective applicants and reviewers, we are proposing to simplify and streamline many of the criteria from the November 2014 notice. For example, the selection criteria for Work Plan and Project Management included nine elements in the November 2014 notice; the comparable proposed selection criteria in this notice include only three elements.
The Assistant Secretary proposes the following selection criteria for evaluating an application under this program. We may apply one or more of these criteria in any year in which this program is in effect. In the notice inviting applications, the application package, or both we will announce the maximum possible points assigned to each criterion.
a.
Applicants are encouraged to disaggregate these data according to relevant demographic factors such as race, ethnicity, gender, age, disability status, involvement in systems such as foster care or juvenile justice, status as pregnant or parenting, and other key factors selected by the applicant.
b.
1. The strength and clarity of the applicant's justification that each of the specified Federal requirements for which the applicant is seeking a waiver hinders implementation of the proposed pilot; and
2. The strength and quality of the applicant's justification of how each request for flexibility (
c.
1. The strength and logic of the proposed project design in addressing the gaps and the disparities identified in the statement of need section and the barriers identified in the flexibility section. This includes the clarity of the applicant's plan and how the plan differs from current practices. Scoring will account for the strength of both the applicant's narrative and the logic model;
The applicant's narrative should describe how the proposed project will use and coordinate resources, including building on participation in any complementary Federal initiatives or efforts.
2. The strength of the evidence base supporting the pilot design, based on the use of evidence-based and evidence-informed interventions (as defined in this notice) as documented by citations to the relevant evidence;
Applicants should cite the studies on interventions and system reforms that informed their pilot design and explain the relevance of the cited evidence to the proposed project in terms of subject matter and evaluation evidence. Applicants proposing reforms on which there are not yet evaluations (such as innovations that have not been formally tested or tested only on a small scale) should document how evidence or practice knowledge informed the proposed pilot design.
3. The strength of the applicant's evidence that the project design, including any protections and safeguards that will be established, ensures that the consequences or impacts of the changes from current practices in serving youth through the proposed funding streams:
A. Will not result in denying or restricting the eligibility of individuals for services that (in whole or in part) are otherwise funded by these programs; and
B. Based on the best available information, will not otherwise adversely affect vulnerable populations that are the recipients of those services.
d.
1. Clearly defined and appropriate responsibilities, timelines, and milestones for accomplishing project tasks;
2. The qualifications of project personnel to ensure proper management of all project activities;
3. How any existing or anticipated barriers to implementation will be overcome.
If the program manager or other key personnel are already on staff, the applicant should provide this person's resume or curriculum vitae.
Evaluation activities may be included in the timelines provided as part of the work plan.
e.
1. How well the applicant demonstrates that it has an effective governance structure in which partners that are necessary to implement the pilot successfully are represented and have the necessary authority, resources, expertise, and incentives to achieve the pilot's goals and resolve unforeseen issues, including by demonstrating the extent to which, and how, participating partners have successfully collaborated to improve outcomes for disconnected youth in the past;
2. How well the applicant demonstrates that its proposal was designed with substantive input from all relevant stakeholders, including disconnected youth and other community partners.
Where the project design includes job training strategies, the extent of employer input and engagement in the identification of skills and competencies needed by employers, the development of the curriculum, and the offering of work-based learning opportunities, including pre-apprenticeship and registered apprenticeship, will be considered.
f.
1. The applicant's capacity to collect, analyze, and use data for decision-making, learning, continuous improvement, and accountability, and the strength of the applicant's plan to bridge any gaps in its ability to do so. This capacity includes the extent to which the applicant and partner organizations have tracked and shared data about program participants, services, and outcomes, including the execution of data-sharing agreements that comport with Federal, State, and other privacy laws and requirements, and will continue to do so;
2. How well the proposed outcome measures, interim indicators, and measurement methodologies specified in the application appropriately and sufficiently gauge results achieved for the target population under the pilot; and
3. How well the data sources specified in the application can be appropriately accessed and used to reliably measure the proposed outcome measures and interim indicators.
g.
We will announce the final priorities, requirements, definitions, and selection criteria in a notice in the
This notice does
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the
This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these proposed priorities requirements, definitions, and selection criteria only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities. The potential benefits of the proposed priorities requirements, definitions, and selection criteria are that they would promote the efficient and effective use of the P3 authority. Implementation of these priorities, requirements, definitions, and selection criteria will help the Agencies identify pilots that will: (1) Serve disconnected youth with significant needs; (2) carry out effective reforms and interventions; and (3) be managed by strong partnerships with the capacity to collect, analyze, and use data for decision-making, learning, continuous improvement, and accountability.
As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.
We estimate that each applicant would spend approximately 80 hours of staff time to address the proposed priorities, requirements, definitions, and selection criteria, prepare the application, and obtain necessary clearances. The total number of hours for all applicants will vary based on the number of applications. Based on the number of applications the Department received in response to the November 2014 notice inviting applications, we expect to receive approximately 55 applications. The total number of hours for all expected applicants is an estimated 4,400 hours. We estimate the total cost per hour of the staff who carry out this work to be $44.25 per hour, the mean hourly compensation cost for State and local government workers in March 2015.
We have prepared an Information Collection Request (ICR) for this collection (1830-0575). If you want to review and comment on the ICR, please follow the instructions listed under the
The Office of Information and Regulatory Affairs in OMB and the Department of Education review all comments posted at
In preparing your comments you may want to review the ICR, including the supporting materials, in
We consider your comments on this proposed collection of information in—
• Deciding whether the proposed collection is necessary for the proper performance of our functions, including whether the information will have practical use;
• Evaluating the accuracy of our estimate of the burden of the proposed collection, including the validity of our methodology and assumptions;
• Enhancing the quality, usefulness, and clarity of the information we collect; and
• Minimizing the burden on those who must respond. This includes exploring the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Between 30 and 60 days after publication of this document in the
If your comments relate to the ICR for these proposed priorities, requirements, definitions, and selection criteria, please specify the Docket ID number and indicate “Information Collection Comments” on the top of your comments.
Written requests for information or comments submitted by postal mail or delivery related to the information collection requirements should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., Mailstop L-OM-2E319LBJ, Room 2E115, Washington, DC 20202-4537.
This document provides early notification of our specific plans and actions for this program.
An authorized executive of the lead applicant and all other partners, including State, local, tribal, and non-governmental organizations that would be involved in the pilot's implementation, must sign this form and submit it as an attachment to the grant application. The form is not considered in the recommended application page limit.
As the lead applicant or a partner proposing to implement a Performance Partnership Pilot through a Federal grant, I/we agree to carry out the following activities, which are considered evaluation requirements applicable to all pilots:
The type of data that will be collected includes, but is not limited to, the following:
• Demographic information, including participants' gender, race, age, school status, and employment status;
• Information on the services that participants receive; and
• Outcome measures and interim outcome indicators, linked at the individual level, which will be used to measure the effects of the pilots.
The lead Federal agency will provide more details to grantees on the data items required for performance and evaluation after grants have been awarded.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before November 23, 2015.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Rachel Couch, (202) 502-7655.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Paducah. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, November 19, 2015, 6:00 p.m.
Barkley Centre, 111 Memorial Drive, Paducah, Kentucky 42001.
Jennifer Woodard, Deputy Designated Federal Officer, Department of Energy Paducah Site Office, Post Office Box 1410, MS-103, Paducah, Kentucky 42001, (270) 441-6825.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Tuesday, November 10, 2015, 5:00 p.m.
National Atomic Testing Museum, 755 East Flamingo, Las Vegas, Nevada 89159.
Barbara Ulmer, Board Administrator, 232 Energy Way, M/S 505, North Las Vegas, Nevada 89030. Phone: (702) 630-0522; Fax (702) 295-5300 or Email:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Savannah River Site. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
New Ellenton Community Center, 212 Pine Hill Avenue, New Ellenton, SC 29809.
de'Lisa Carrico, Office of External Affairs, Department of Energy, Savannah River Operations Office, P.O. Box A, Aiken, SC 29802; Phone: (803) 952-8607.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge Reservation. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Tuesday, November 10, 2015, 6:00 p.m.
Chuy's Meeting Room, 9235 Kingston Pike, Knoxville, Tennessee 37902.
Melyssa P. Noe, Federal Coordinator, Department of Energy Oak Ridge Operations Office, P.O. Box 2001, EM-90, Oak Ridge, TN 37831. Phone (865) 241-3315; Fax (865) 576-0956 or email:
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 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by
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 following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, protests, and recommendations is October 30, 2015. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, or recommendations using the Commission's eFiling system at
k. Description of Request: The licensee requests a temporary variance of the minimum flow requirement in the Rock Creek and Cresta reaches of the North Fork Feather River. The licensee states that it is planning to conduct inspections of the low-level outlet conduit and gates of the Rock Creek and Cresta dams. In addition, the licensee plans to conduct dive inspections of the plunge pools of both dams. In order to facilitate the inspections and allow the field crew to work safely in the channel and plunge pools, the licensee requests a temporary reduction in the minimum flows below both dams. Specifically, the licensee requests Commission approval to reduce flows from the required 110 cubic feet per second (cfs) and 100 below Rock Creek and Crests Dams, respectively, to between 60 and 80 cfs at both dams. The licensee requests that the flow variance occur between November 1 and December 31, 2015.
l. Locations of the Application: A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street NE., Room 2A, Washington, DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's Web site at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o. Filing and Service of Responsive Documents: Any filing must (1) bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE” as applicable; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, motions to intervene, or protests must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). All comments, motions to intervene, or protests should relate to project works which are the subject of the license surrender. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. If an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of proposed settlement agreement; request for public comment.
In accordance with section 113(g) of the Clean Air Act (the “Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement to resolve two cases filed by the WildEarth Guardians (“Guardians”) and Sierra Club involving EPA actions under the CAA Title V operating permit program. On January 7, 2015, Guardians and Sierra Club filed petitions with the Environmental Appeal Board (“EAB”) challenging a Part 71 Operating Permit issued by EPA Region 8 on December 5, 2014, to Deseret Power Cooperative (“Deseret”) to operate the Bonanza Power Plant (“Bonanza Plant”) (
Written comments on the proposed settlement agreement must be received by
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2015-0678 online at
Sara L. Laumann, Office of Regional Counsel, EPA Region 8, 1595 Wynkoop Street, Denver CO 80202-2466;
The proposed settlement agreement would resolve two cases filed by the WildEarth Guardians (“Guardians”) and Sierra Club involving EPA actions under the CAA Title V operating permit program. On January 7, 2015, Guardians and Sierra Club filed petitions with the Environmental Appeal Board (“EAB”) challenging a Part 71 Operating Permit issued by EPA Region 8 on December 5, 2014, to Deseret Power Cooperative (“Deseret”) to operate the Bonanza Power Plant (“Bonanza Plant”), a 500-megawatt coal-fired power plant located within the exterior boundaries of the Uintah and Ouray Indian Reservation in Utah. Under the proposed settlement agreement, Deseret would submit an application for a minor New Source Review (NSR) permit which would provide for installation of low NO
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed settlement agreement from persons who
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2015-0678) contains a copy of the proposed settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD-ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Environmental Protection Agency (EPA).
Notice of public teleconference meeting.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the U.S. Environmental Protection Agency, Office of Research and Development (ORD), gives notice of a public teleconference meeting of the Board of Scientific Counselors (BOSC) Chemical Safety for Sustainability Subcommittee.
The teleconference meeting will be held on Tuesday, November 10, 2015, from 12:00 p.m. to 2:00 p.m., Eastern Time. The teleconference may adjourn early if all business is finished or may adjourn late if additional time is needed. Any member of the public interested in receiving a draft agenda, attending the teleconference, or making a presentation during the teleconference may contact Megan Fleming, the Designated Federal Officer, via any of the contact methods listed in the
Participation in the meeting will be by teleconference only; meeting rooms will not be used. Members of the public may obtain the call-in number and access code for the call from Megan Fleming, the Designated Federal Officer, via any of the contact methods listed in the
Submitting Comments: Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2015-0635, by one of the following methods:
•
•
•
•
•
The Designated Federal Officer via mail at: Megan Fleming, Mail Code 8104R, Office of Science Policy, Office of Research and Development, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; via phone/voice mail at: (202) 564-6604; or via email at:
Environmental Protection Agency (EPA).
Notice of proposed agreement; request for public comment.
In accordance with the requirements of sections 104, 106(a), 107, and 122 of the Comprehensive Environmental Response Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9604, 9606(a), 9607 and 9622, notice is hereby given of the proposed administrative settlement under section 107 and 122 of CERCLA, between the U.S. Environmental Protection Agency (“EPA”) and bona fide prospective purchaser Columbine Strategies LLC (“Settling Party”). The proposed Settlement Agreement requires the Settling Party to conduct work under EPA oversight in exchange for a covenant not to sue pursuant to sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a) for existing contamination at the Site. The Settling Party consents to and will not contest the authority of the United States to enter into this Agreement or to implement or enforce its terms.
The Settling Parties recognize that this Agreement has been negotiated in good faith and that this Agreement is entered into without the admission or adjudication of any issue of fact or law.
Comments must be submitted on or before November 23, 2015. For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the agreement. The Agency will consider all comments received and may modify or withdraw its consent to the agreement if comments received disclose facts or considerations that indicate that the agreement is inappropriate, improper, or inadequate.
The Agency's response to any comments, the proposed agreement and additional background information relating to the agreement are available
Steven Moores, Enforcement Attorney, Legal Enforcement Program, Environmental Protection Agency-Region 8, Mail Code 8ENF-L, 1595 Wynkoop Street, Denver, Colorado 80202, (303) 312-6857. Comments and requests for a copy of the proposed agreement should be addressed to Sharon Abendschan, Enforcement Specialist, Environmental Protection Agency—Region 8, Mail Code 8ENF-RC, 1595 Wynkoop Street, Denver, Colorado 80202 and should reference the Rocky Flats Industrial Park Superfund Site, Jefferson County, Colorado.
Federal Election Commission.
Tuesday, October 27, 2015, at 10:00 a.m. and Thursday, October 29, 2015, at the conclusion of the open meeting.
999 E Street NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109. Matters concerning participation in civil actions or proceeding, or arbitration.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Federal Housing Finance Agency.
Final notice.
On May 27, 2015, the Federal Housing Finance Agency (FHFA) published a Notice and Request for Input (Notice) describing a method for assessing the national average single-family house price for use in adjusting the maximum conforming loan limits of Fannie Mae and Freddie Mac (the “Enterprises”). The Notice responded to section 1322 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501
In line with the proposal in the original Notice, after reviewing the public feedback, FHFA has decided to use the expanded-data HPI for annual loan-limit adjustment. Specifically, FHFA will use the seasonally adjusted, expanded-data HPI for the United States.
Questions about the expanded-data HPI and the implementation of the conforming loan limit rules can be addressed to Andrew Leventis, Principal Economist, 202-649-3199,
The “Notice of the Establishment of Housing Price Index” that FHFA issued in May
FHFA received a total of 20 submissions in response to the Notice. Submissions were received from private citizens, trade associations, a think tank, and one private company. Twelve of the submissions did not address the issue on which input had been requested: the appropriateness of the chosen home price measure. In most cases, these submissions opined on the desirability of having higher conforming loan limits, rather than FHFA's choice of index.
In general, the eight responsive submissions were favorable to FHFA's proposed use of its expanded-data index for loan limit adjustment. Most submissions supported the basic underlying methodology used in the index construction and appreciated the breadth of the data sample used in forming the index. More generally, submitters agreed that reliance on an agency-produced measure (as opposed to a privately produced index) would be beneficial in that it would ensure continued publication of the reference index. They also concurred with FHFA's belief that its control over the reference index would ensure that undesirable modifications to methodology would not be made (as might happen if the agency relied on an external measure of home prices).
Five of the eight responsive submissions were generally supportive of the use of the expanded-data index as-is. The remaining three did not object to the use of the expanded-data index, but suggested modifications to the process or augmentations. In particular, the proposed adjustments recommended the use of multiple price indexes and, in one case, the consideration of other mortgage market factors.
For the purpose of summarizing and addressing the responsive submissions received, this Final Notice divides them into two groups: “Supportive” and “Other.” This classification is for convenience; as will be clear in the discussion, responses in both categories were not uniform. For instance, in some cases, the “Supportive” submissions included questions or expressed modest concerns. Meanwhile, the “Other”
Three of the five “supportive” submissions were wholly in agreement with the proposed use of the expanded-data index for tracking the average U.S. home price. None of the three, which were all submitted by trade associations, provided any material criticism. They expressed strong support for FHFA's choice and, to varying degrees, the principles FHFA used in evaluating measures.
The remaining two “supportive” submissions—one from a trade association and one from a private company—provided supplementary recommendations. The submissions addressed the following issues.
Submissions urged FHFA to incorporate as much transaction data as possible in the formation of the expanded-data index.
Submissions asked that FHFA track the impact of distressed sales
The submitter recommendation was that FHFA publish additional details about the underlying data used for index construction.
One submission asked FHFA to consider constraining the historical index series. That is—the request was that FHFA consider not permitting revisions in prior index estimates. Like all of FHFA indexes, the expanded-data HPI has historical values that are regularly updated to account for new data.
Without veering from its support of the expanded-data index, one submission also noted a theoretical bias in the expanded-data index's measurement of trends in average home prices. In particular, the submitter stated that the underlying methodology used in forming the expanded-data index will create indexes that track the
Although the “arithmetic” average is probably the most common interpretation of the term “average,” it is not the only recognized meaning of the term, and the statutory text does not make explicit which type of “average” the index is supposed to track. Which type of average to use is thus left to the judgment of FHFA, as the agency charged with administering and interpreting the statute.
With respect to the submitter interest in having FHFA increase the amount of data used in calibrating the expanded-data index: FHFA agrees that this is a desirable goal. In the context of tracking overall home values across the country, more data will tend to provide more precise estimates of price changes. While the database currently used is extensive and incorporates a wide array of transaction data, FHFA will continue exploring opportunities for increasing the sample size.
With respect to monitoring of distressed sales and divergences between the FHFA index and other metrics: FHFA concurs that these are reasonable activities. FHFA, in fact, has been doing this type of monitoring for many years and has published a number of papers showing the results of its work.
A longstanding tradition in HPI production has been to communicate relevant summary data about the data sample to the public. Accordingly, FHFA appreciates the submitter interest in maximizing the transparency of the data used in index calibration. FHFA regularly publishes information about the share of the overall data sample comprising refinance loans and, for the expanded-data index, identifies index estimates that have been calibrated with limited county recorder data.
Although a great deal of information is already available, FHFA will continue evaluating opportunities for enhancing its release of summary data. In reviewing those opportunities, FHFA will weigh the likely value of the additional detail against the required resource demands. It must also consider whether the release of more data would violate the terms of any applicable data
The suggestion that FHFA should contemplate constraining historical values of the expanded-data HPI is motivated by a concern that historical index revisions might cause confusion among some index users. The submitter recognizes that the entire historical index series is revised with each new index release, but it expresses concern that such revisions will make it difficult for the public to evaluate price changes.
Although FHFA understands the argument, it does not believe that artificial constraints on historical values are warranted. The suggestion, which was not a matter of particular stress in the submitter's letter, would entail a significant departure from the basic repeat-transactions indexing model and would require a significant re-tooling of the programming code. Furthermore, historical index revisions tend to be relatively small, particularly over short periods of time. The index constraints would also necessarily reduce the accuracy of the index estimates. Finally, many—if not most—users of FHFA's suite of public indexes are already accustomed to the fact that historical index values are always subject to revision.
Regarding the theoretical biases associated with FHFA's use of an index that tracks the geometric average home value: FHFA appreciates the feedback and understands the issue. As a geometric index, FHFA's expanded-data measure will tend to correlate somewhat more closely with changes in median home values as opposed to arithmetic-average home values and,
As mentioned above, the three “other” responsive submissions suggested various modifications to the proposal described in the initial Notice. None of them expressed outright disapproval of the use of the expanded-data HPI and, indeed, incorporated it into their proposals. Submitters felt that adjustments were necessary to address perceived shortfalls, however.
The first of the “other” submissions expressed support for the use of the expanded-data index, but worried that the index does not adequately reflect price trends for new homes. It noted that the underlying repeat-transactions approach used in forming the index is calibrated using homes that have had two or more historical sales. The upshot of reliance on homes with multiple transactions is that price trends for brand new homes will not be incorporated into the index.
To mitigate the perceived problem, the submitter suggested that FHFA form a weighted index that incorporates the expanded-data measure as well as the price index for new homes published by the Census Bureau—the Constant Quality House Price Index (CQHPI). The change in the new combined index would be calculated as the weighted average of the changes in the FHFA expanded-data HPI and the change in the CQHPI, where the weights would be the relative shares of existing-vs-new home sales. So, for instance, if 15 percent of all property sales in a year were sales of new homes, then the growth in the combined index would be 85 percent times the change in the expanded-data index plus 15 percent times the change in the CQHPI.
The second of the “other” submissions expressed no concerns about the absence of new homes in the data sample, but rather was troubled by the potential effects of distressed sales on index estimates. The submitter was concerned that variations in the volumes of distressed sales across geographic areas could inappropriately bias index estimates. To mitigate this problem, the letter recommended that FHFA use both the expanded-data index and its traditional “purchase-only” index, which is calibrated using only Enterprise data. Specifically, it suggests that FHFA use the higher of the two appreciation rates—the rates reflected in expanded-data and purchase-only indexes—when adjusting the conforming loan limit. No indication is provided as to why a “higher-of” rule is better than some other type of rule (
The same submitter asked that FHFA “explain and justify” its use of indexes that reflect changes in the geometric average home price. While endorsing the use of the expanded-data and purchase-only indexes, both of which rely on the geometric approach, the letter broadly worries about the same bias as was addressed earlier.
The third of the “other” submissions did not address the issue of the geometric index bias, but was otherwise similar in that it suggested the same “higher-of” rule for estimating price changes. It contends that a “superior alternative” to the use of the expanded-data index would be for FHFA to adjust the loan limits by the
The same submitter presented the idea that a “more sophisticated” approach to loan limit adjustment might be taken. The alternative approach would take into account market factors beyond home prices when adjusting loan limits. Measures of loan “access,” for instance, might be incorporated. The letter also suggests that in
None of the three “other” submissions expressed particularly strong sentiment against the use expanded-data HPI and, in evaluating the rationale for the
In assessing the criticism that FHFA's index—like other repeat-transactions indexes—does not specifically incorporate information about price trends for brand new homes, FHFA agrees that this may be a theoretical shortfall. However, FHFA does not believe that this will be a particularly significant problem in practice. First, while not capturing price trends for brand new home sales, the repeat-transaction model will reflect price changes for relatively new homes. This is because the underlying calibration dataset includes cases in which new homes were sold and then sold again within a relatively short period of time. The price change for these “young” homes will presumably be quite similar to price trends for brand new homes.
In weighting by the share of
To be sure, price changes in the individual states necessarily must be calculated using recent transaction prices. However, as evidenced by the fact that FHFA uses housing stock estimates when forming the national index, FHFA's goal is to reflect price trends for the overall housing stock.
Given this goal, the relevant statistic for evaluating the importance of new homes is the share of the housing stock that such homes comprise. New homes represent a very small proportion of the overall housing stock and thus the submitter's concern about the exclusion of new homes is not particularly problematic. Although new home sales constitute a reasonable share of
With respect to the argument that distressed sales can distort home price measurements: As detailed in the Notice and noted by another submitter, there are advantages and disadvantages associated with the inclusion of such sales in the data sample. Such transactions can provide valuable information about price trends in cases where non-distressed sales volumes are modest, for instance. Also, even if removing distressed sales was deemed to be desirable after balancing the various considerations, given current available data sources, it is difficult to clearly identify such sales and remove them from the data sample.
The submission that raises concerns about the expanded-data index showing relatively limited price growth during market recoveries provides no evidence that the (anticipated) slow growth would misrepresent actual appreciation in the market. Tracking of home prices is the key statutory requirement and, accordingly, the relevant issue for FHFA is not whether certain market factors may influence lending and home prices during market cycles; rather, the key issue for FHFA is the reliability and accuracy of price measurement. The plain language of the statute does not ask FHFA to evaluate market conditions (as the submitter would have done using a “more sophisticated measure”) or to somehow account for likely market factors when selecting the appropriate index. It also does not ask FHFA to select an index that maximizes measured price appreciation during certain parts of the housing cycle.
Given the basic goal of tracking the average home value over time, the “higher-of ” rule suggested by submitters is not well aligned with the statutory language. By construction, the higher-of rule will clearly inflate estimates of home price appreciation (and minimize measured price declines) and thus would tend to lead to artificial growth in conforming loan limits.
One of the two submitters that advances the “higher-of ” rule does so to mitigate the effect of distressed sales on index estimates. Even assuming that the inclusion of distressed sales is problematic—an issue addressed above—it is not clear why the
While not unanimous, the submissions received in response to the Notice were, on balance, quite positive. All submitters seemed to agree that an FHFA-produced measure was appropriate. The only matter of some (limited) debate seemed to be whether small adjustments were necessary. In some cases, the contemplated adjustments would have a limited influence on index estimates. In other cases, FHFA believes that the adjustments are not supported by the statutory language.
FHFA will begin using the seasonally adjusted, expanded-data HPI for the U.S. for the purpose of adjusting the baseline conforming loan limit.
As detailed at length in the Notice, certain loan-limit provisions in the Enterprise Charters require that, after a period of home price declines, the baseline loan limit cannot rise again until home prices exceed their pre-decline levels.
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 November 16, 2015.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
1.
B. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than November 5, 2015.
A. Federal Reserve Bank of Philadelphia (William Lang, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105-1521:
B. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
1.
C. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
Board of Governors of the Federal Reserve System.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act (PRA), to approve of and assign OMB numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the PRA Submission, supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB number.
Comments must be submitted on or before December 21, 2015.
You may submit comments, identified by
•
•
•
•
•
Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235 725 17th Street, NW., Washington, DC 20503 or by fax to (202) 395-6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at:
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
The following information collections, which are being handled under this delegated authority, have received initial Board approval and are hereby published for comment. At the end of the comment period, the proposed information collections, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed 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 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 information.
1.
2.
3.
4.
October 29, 2015, 1:00 p.m., 10th Floor Board Meeting Room, 77 K Street NE., Washington, DC 20002.
Kimberly Weaver, Director, Office of External Affairs, (202) 942-1640.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
Under the National Childhood Vaccine Injury Act (NCVIA) (42 U.S.C. 300aa-26), the Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services (HHS) develops vaccine information materials that all health care providers are required to give to patients/parents prior to administration of specific vaccines. HHS/CDC seeks written comment on the proposed vaccine information statement for HPV (human papillomavirus) Gardasil®-9 vaccine.
Written comments must be received on or before December 21, 2015.
You may submit comments, identified by Docket No. CDC-2015-0089, by any of the following methods:
•
•
Skip Wolfe (
The National Childhood Vaccine Injury Act of 1986 (Pub. L. 99-660), as amended by section 708 of Public Law 103-183, added section 2126 to the Public Health Service Act. Section 2126, codified at 42 U.S.C. 300aa-26, requires the Secretary of Health and Human Services to develop and disseminate vaccine information materials for distribution by all health care providers in the United States to any patient (or to the parent or legal representative in the case of a child) receiving vaccines covered under the National Vaccine Injury Compensation Program (VICP).
Development and revision of the vaccine information materials, also known as Vaccine Information Statements (VIS), have been delegated by the Secretary to the Centers for Disease Control and Prevention (CDC). Section 2126 requires that the materials be developed, or revised, after notice to the public, with a 60-day comment period, and in consultation with the Advisory Commission on Childhood Vaccines, appropriate health care provider and parent organizations, and the Food and Drug Administration. The law also requires that the information contained in the materials be based on available data and information, be presented in understandable terms, and include:
(1) A concise description of the benefits of the vaccine,
(2) A concise description of the risks associated with the vaccine,
(3) A statement of the availability of the National Vaccine Injury Compensation Program, and
(4) Such other relevant information as may be determined by the Secretary.
The vaccines initially covered under the National Vaccine Injury Compensation Program were diphtheria, tetanus, pertussis, measles, mumps, rubella and poliomyelitis vaccines. Since April 15, 1992, any health care provider in the United States who intends to administer one of these covered vaccines is required to provide copies of the relevant vaccine information materials prior to administration of any of these vaccines. Since then, the following vaccines have been added to the National Vaccine Injury Compensation Program, requiring use of vaccine information materials for them as well: Hepatitis B,
HHS/CDC is proposing to finalize the HPV (Human Papillomavirus) Gardasil®-9 vaccine information statement.
The vaccine information materials referenced in this notice are being developed in consultation with the Advisory Commission on Childhood Vaccines, the Food and Drug Administration, and parent and health care provider groups.
We invite written comment on the proposed vaccine information materials entitled “Proposed Vaccine Information Materials for HPV (Human Papillomavirus) Gardasil®-9 Vaccine.” Copies of the proposed vaccine information materials are available at
The Passport Denial program reports noncustodial parents who owe child and spousal support above a threshold to the Department of State, which will then deny passports.
On an ongoing basis, State child support agencies submit names, Social Security numbers, and the amount(s) of past-due child and spousal support of noncustodial parents who are delinquent in making payments to OCSE.
Federal laws authorize information collection activities pertaining to the Federal Offset and Passport Denial programs and require State child support agencies to submit information pertaining to past-due support that meets specific criteria and to comply with Annual Certification Letter requirements:
(1) 42 U.S.C. 652(b), 42 U.S.C. 664, and 26 U.S.C. 6402(c), for the offset of the Federal tax refund of the noncustodial parent;
(2) 31 U.S.C. 3701
(3) 42 U.S.C. 654(31) and 42 U.S.C. 652(k), to Department of State for the denial, revocation, restriction, or limitation of the passport of the noncustodial parent.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
The information collection activities pertaining to the NDNH are authorized by:
(1) 42 U.S.C. 653A(b)(1)(A) and (B), requiring employers to report all newly-hired employees to the State Directory of New Hires (SDNH);
(2) 42 U.S.C. 653A(g)(2)(A), requiring every SDNH to transmit the new hire information to the NDNH within three business days of the data being entered in the SDNH;
(3) 26 U.S.C. 3304(a)(16)(B), requiring the reporting of wage and unemployment compensation information contained in the records of agencies administering the State program under part A of Title IV of the Social Security Act; and
(4) Requiring the quarterly reporting of wages and other compensation under—
• 42 U.S.C. 653A(g)(2)(B), by every SDNH; and
• 42 U.S.C. 503(h)(1)(A), by State agencies administering the State's unemployment laws.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Selection of the Appropriate Package Type Terms and Recommendations for Labeling Injectable Medical Products Packaged in Multiple-Dose, Single-Dose, and Single-Patient-Use Containers for Human Use.” This guidance has been developed to provide industry with FDA's recommendations on the selection of appropriate package type terms and selection of appropriate discard statements for injectable medical products for human use, packaged in multiple-dose, single-dose, and single-patient-use containers. This guidance provides FDA's revised definitions for single-dose and multiple-dose containers, and introduces the definition of a new package type term, “single-patient-use” container. Marketing applications for such products include: New Drug Applications (NDAs), Abbreviated New Drug Applications (ANDAs), Biologics License Applications (BLAs), Premarket Approval Applications (PMAs), and Premarket Notifications under section 510(k) of the Federal Food, Drug, and Cosmetic Act (FD&C Act).
Although you can comment on any guidance at any time (see 21 CFR
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Samia Nasr, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 301-796-3409; or Stephen Ripley, Center for Biologics Evaluation and Research, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993, 240-402-8154.
FDA is announcing the availability of a draft guidance for industry entitled “Selection of the Appropriate Package Type Terms and Recommendations for Labeling Injectable Medical Products Packaged in Multiple-Dose, Single-Dose, and Single-Patient-Use Containers for Human Use.” Unsafe injection practices, including the improper use of needles, syringes, and medication vials for more than one patient, threaten patient safety and have resulted in multiple blood borne bacterial and viral infection outbreaks. Bacterial infections have been transmitted to patients when single-dose containers were used improperly, the contents became contaminated and these contents were then administered to multiple patients. Failure to follow standard precautions and aseptic techniques has also been associated with several outbreaks of infections involving multiple-dose vials.
As part of its review of medical products, FDA clears or approves package type terms and discard statements as part of the labeling of injectable medical products. FDA believes that consistent use of correct package type terms and discard statements for injectable medical products for human use will promote their proper use and provide a foundation for educational efforts to reduce the transmission of blood borne pathogens.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Selection of the Appropriate Package Type Terms and Recommendations for Labeling Injectable Medical Products Packaged in Multiple-Dose, Single-Dose, and Single-Patient-Use Containers for Human Use.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons with access to the Internet may obtain the draft guidance at either
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information discussed in this draft guidance have been approved under OMB under the following control numbers: OMB control number 0910-0001 for NDAs, ANDAs, supplements to NDAs and ANDAs, and annual reports; OMB control number 0910-0572 for prescription drug product labeling; OMB control number 0910-0338 for BLA, BLA supplements and annual reports; OMB control number 0910-0120 for premarket notifications (510(k)s); OMB control number 0910-0231 for premarket approval applications (PMAs); OMB control number 0910-0485 for medical device labeling; and OMB control number 0910-0577 for prominent and conspicuous mark of manufacturers on single-use devices. Relevant to this collection of information, FDA published its proposed rule on the electronic distribution of prescribing information for human prescription drugs, including biological products in the
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.
Federal Emergency Management Agency, DHS.
Notice.
This notice serves to inform the public that the Department of the Interior held a meeting of the interagency Water Resources Council on Thursday, October 8, 2015, in the John Muir Conference Room, 1849 C St. NW., Washington, DC 20240 at 10 a.m. EDT to consider the recommendations of the Mitigation Framework Leadership Group and vote on the issuance of revised “Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input.”
The Water Resources Council voted unanimously to accept the recommendations of the Mitigation Framework Leadership Group and issued Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input, effective October 8, 2015.
Roy Wright, Deputy Associate Administrator, Federal Insurance and Mitigation Administration, Department of Homeland Security, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2781.
On January 30, 2015, the President signed Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input, which amended Executive Order 11988, Floodplain Management, issued in 1977. Consistent with the President's direction, the Federal Emergency Management Agency, as Chair of the Mitigation Framework Leadership Group, published for public comment in the
This notice serves to inform the public that the Department of the Interior held a meeting of the interagency Water Resources Council on Thursday, October 8, 2015, in the John Muir Conference Room, 1849 C St. NW., Washington, DC 20240 at 10 a.m. EDT to consider the recommendations of the Mitigation Framework Leadership Group and vote on the issuance of revised “Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input.”
The Water Resources Council voted unanimously to accept the recommendations of the Mitigation Framework Leadership Group and issued Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input, effective October 8, 2015.
The Implementing Guidelines are in the docket for this Notice on
Executive Order 11988, Floodplain Management, as amended.
Fish and Wildlife Service, Interior.
Notice of availability; request for public comments.
We, the U.S. Fish and Wildlife Service, make available the draft environmental assessment under the National Environmental Policy Act regarding a permit application submitted by Dallas Zoo Management, on behalf of the Dallas Zoo, Sedgwick County Zoo, and Omaha's Henry Doorly Zoo. The three zoos are requesting authorization under the Convention on International Trade in Endangered Species of Wild Fauna and Flora to import 18 live African elephants from Swaziland.
To ensure consideration, written comments must be received or postmarked on or before November 23, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES) must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered.
Timothy Van Norman, Chief, Branch of Permits, Division of Management Authority, 5275 Leesburg Pike, MS-IA, Falls Church, VA 22041; or by phone at (703) 358-2350.
We make available the draft environmental assessment (EA) under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
The African elephant is also classified as threatened under the U.S. Endangered Species Act (ESA) (16 U.S.C. 1531
Issuance of a CITES import permit is categorically excluded under Department of the Interior internal agency policy and procedures from requiring completion of an EA under NEPA (Departmental Manual Part 516, Chapter 8.5(C)(1)). However, we have decided to prepare a draft EA in this case to help ensure that we have conducted a thorough review of all relevant factors and potential impacts on the quality of the human environment as envisioned under NEPA.
The draft EA considers the direct, indirect, and cumulative effects of the importation of 18 live elephants from Swaziland, including the measures that would be implemented to minimize and mitigate the impacts of the importation and housing of these animals.
The proposed action is the issuance of a CITES permit by the Service for the importation of 18 African elephants from Swaziland. The elephants are currently housed in an enclosure at the Mkhaya Game Reserve, Swaziland. The elephants were removed from Mkhaya Game Reserve and Hlane National Park, Swaziland, due to overpopulation of elephants within the two protected areas and the negative impact the elephants were having on the vegetation and other wildlife species. Big Game Parks (BPG), the delegated authority responsible for implementation of Swaziland's Game Act of 1953, has determined that the number of elephants in the two protected areas must be reduced. Further, the reduction in the number of elephants within each of the protected areas will facilitate BGP's efforts to increase the population of black rhinoceros (
We are also considering two alternatives to the proposed action:
1. No Action—No CITES import permit would be issued. According to the applicant and BGP, the 18 elephants will not be returned to the two protected areas. Instead, if importation is not authorized, BGP has stated that they have no option but to cull the animals.
2. Issue a CITES import permit for a reduced number of elephants—This alternative is similar to the Proposed Action, in that the Service would issue an import permit, but the number of elephants authorized for import would be reduced. This could result in some elephants being imported into the United States and housed at one or more of the three zoos. However, according to the applicant and BGP, the elephants that are not imported into the United States would be culled.
Written comments that we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. We will not consider anonymous comments. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
We provide this notice under NEPA and its implementing regulations (40 CFR 1506.6).
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey; Maryland.
The Bureau of Land Management (BLM) will officially file the plats of survey of the lands described below in the BLM-Eastern States Office, Washington DC at least 30 calendar days from the date of publication in the
Bureau of Land Management, Eastern States Office, 20 M Street SE., Washington DC, 20003. Attn: Cadastral
This survey was requested by the Bureau of Land Management.
The lands surveyed are:
The plat of survey represents the dependent resurvey of the northerly boundary of the Douglas Point Property, described as parcel “A” in the Special Warranty Deed recorded in Liber 3414, Folio 315 of the land records of Charles County, in the State of Maryland.
We will place a copy of the plats we described in the open files. They will be available to the public as a matter of information.
If BLM receives a protest against these surveys, as shown on the plats, prior to the date of the official filing, we will stay the filing pending our consideration of the protest.
We will not officially file the plats until the day after we have accepted or dismissed all protests and they have become final, including decisions on appeals.
Bureau of Land Management, Interior.
Notice.
The plats of survey of the following described lands are scheduled to be officially filed in the Bureau of Land Management, Oregon State Office, Portland, Oregon, 30 days from the date of this publication.
A copy of the plats may be obtained from the Public Room at the Bureau of Land Management, Oregon State Office, 1220 SW. 3rd Avenue, Portland, Oregon 97204, upon required payment.
Kyle Hensley, (503) 808-6132, Branch of Geographic Sciences, Bureau of Land Management, 1220 SW. 3rd Avenue, Portland, Oregon 97204. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
A person or party who wishes to protest against this survey must file a written notice with the Oregon State Director, Bureau of Land Management, stating that they wish to protest. A statement of reasons for a protest may be filed with the notice of protest and must be filed with the Oregon State Director within thirty days after the protest is filed. If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed or otherwise resolved. Before including your address, phone number, email address, or other personally identifying information in your comment, you should be aware that your entire comment—including your personally identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifying information from public review, we cannot guarantee that we will be able to do so.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Select Comfort Corporation and Select Comfort SC Corporation on October 16, 2015. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3091”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Diebold, Incorporated and Diebold Self-Service Systems on October 19, 2015. The complaint alleges violations of section 337 of the Tariff Act of 1930 (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 automated teller machines, ATM modules, components thereof, and products containing the same. The complaint names as respondents Nautilus Hyosung Inc. of South Korea; Nautilus Hyosung America Inc. of Irving, TX; and HS Global, Inc. of Brea, CA. The complainant requests that the Commission issue a limited exclusion order, and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3092”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Petitions have been filed with the Secretary of Labor under Section 221 (a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221 (a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than November 2, 2015.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than November 2, 2015.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) a significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) the increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) there has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) the shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) a significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(e) of the Act must be met.
(1) the workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) a summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) notice of an affirmative determination described in subparagraph (1) is published in the
(3) the workers have become totally or partially separated from the workers' firm within—
(A) the 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
I hereby certify that the aforementioned determinations were issued during the period of
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Prohibited Transaction Class Exemption for Cross-Trades of Securities by Index and Model-Driven Funds,” 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 November 23, 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-EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Prohibited Transaction Class Exemption for Cross-Trades of Securities by Index and Model-Driven Funds information collection. Prohibited Transaction Class Exemption 2002-12 permits cross-trades of securities between index and model-driven funds managed by investment managers and among such funds and certain large accounts to which such investment managers act as a trading adviser in connection with a specific portfolio-restructuring program. To ensure managers have complied with exemption requirements, the DOL has included in the exemption certain recordkeeping and disclosure obligations designed to safeguard plan assets by periodically providing information to plan fiduciaries, which generally must be independent about the cross-trading program. Employee Retirement Income Security Act section 408(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.
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 October 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 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,
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Safety Standards for Roof Bolts in Metal and Nonmetal Mines and Underground Coal 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 November 23, 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
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Safety Standards for Roof Bolts in Metal and Nonmetal Mines and Underground Coal Mines information collection requirements codified in various regulations. More specifically, this ICR addresses recordkeeping requirements associated with regulations 30 CFR 56.3203, 57.3203, and 75.204(a) and (f)(6). Federal Mine Safety & Health Act of 1977 sections 103(a) and 103(h) authorize 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 October 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 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,
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Health Standards for Diesel Particulate Matter Exposure in Underground Metal and Nonmetal 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 November 23, 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 by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Health Standards for Diesel Particulate Matter (DPM) Exposure in Underground Metal and Nonmetal Mines information collection requirements codified in various sections of regulations 30 CFR part 57. DPM is a probable carcinogen consisting of tiny particles present in diesel engine exhaust that can readily penetrate into the deepest recesses of the lungs. Despite ventilation, the confined underground mine work environment may contribute to significant concentrations of particles produced by equipment used in the mine. Underground miners are exposed to higher concentrations of DPM than any other occupational group. As a result, these workers face a significantly greater risk than other workers do of developing such diseases as lung cancer, heart failure, serious allergic responses, and other cardiopulmonary problems.
The DPM regulations establish a permissible exposure limit to total carbon, which is a surrogate for measuring a miner's exposure to DPM, and include a number of other requirements for the protection of miners' health. DPM regulations sections 57.5060, 57.5065, 57.5066, 57.5070, 57.5071, and 57.5075(a) and (b)(3) contain the information collection requirements associated with this ICR. Federal Mine Safety and Health Act of 1977 sections 101(a) and 103(h) authorize 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 October 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 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,
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Ground Control Plans for Surface Coal Mines and Surface Work Areas of Underground Coal 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 November 23, 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
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Ground Control Plans for Surface Coal Mines and Surface Work Areas of Underground Coal Mines information collection. Regulations 30 CFR 77.1000 makes it mandatory for each operator of a surface coal mine to establish and follow a ground control plan that is consistent with prudent engineering design and that will ensure safe working conditions. The mine operator is required by § 77.1000-1 to file the ground control plan under § 77.1000 for highwalls, pits, and spoil banks with the appropriate MSHA District Manager. Mining methods employed by the operator are selected to ensure highwall, pit, and spoil bank stability. In the event of a highwall failure or material dislodgment, there may be very little time to escape possible injury; therefore, preventive measures must be taken. Each plan is based on the type of strata expected to be encountered, the height and angle of highwalls and spoil banks, and the equipment to be used at the mine. The plan is used to show how the mine operator will maintain safe conditions around the highwalls, pits, and spoil banks. The MSHA reviews each plan to ensure highwalls, pits, and spoil banks are maintained in a safe condition through the use of sound engineering design. Federal Mine Safety & Health Act of 1977 sections 103(a) and 103(h) authorize 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 October 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 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,
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) titled, “Migrant and Seasonal Farmworker Monitoring Report and One-Stop Career Center Complaint/Referral Record,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, 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 November 23, 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-ETA, 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 sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Migrant and Seasonal Farmworker (MSFW) Monitoring Report and One-Stop Career Center Complaint/Referral Record information collection that includes forms developed pursuant to regulations 20 CFR parts 651, 653, and 658. Form ETA-5148, Services to Migrant and Seasonal Farmworkers Report, collects data that monitors and measures how a State Workforce Agency delivers services to MSFWs. Form ETA-8429, One-Stop Career Center Compliance Referral Record, collects and documents complaints. Wagner Peyser Act section 10(c)(1) 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 October 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 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,
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) titled, “Unemployment Compensation for Federal Employees,” to the Office of Management and Budget (OMB) for review and approval for
The OMB will consider all written comments that agency receives on or before November 23, 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-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Unemployment Compensation for Federal Employees information collection. The Federal Unemployment Compensation Act, 5 U.S.C. 8501,
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 October 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 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,
Veterans' Employment and Training Service (VETS), Department of Labor.
Notice of open meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the ACVETEO. The ACVETEO will discuss the DOL core programs and services that assist veterans seeking employment and raise employer awareness as to the advantages of hiring veterans. There will be an opportunity for individuals or organizations to address the committee. Any individual or organization that wishes to do so should contact Mr. Gregory Green at 202-693-4734.
Individuals who will need accommodations for a disability in order to attend the meeting (
Tuesday November 17, 2015 beginning at 9:00 a.m. and ending at approximately 4:00 p.m. (EST).
The meeting will take place at the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue NW., Washington, DC 20210, C-5515 Conference Room C. Members of the public are encouraged to arrive early to allow for security clearance into the Frances Perkins Building.
1. Present a valid photo ID to receive a visitor badge.
2. Know the name of the event being attended: the meeting event is the Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO).
3. Visitor badges are issued by the security officer at the Visitor Entrance located at 3rd and C Streets NW. When receiving a visitor badge, the security officer will retain the visitor's photo ID until the visitor badge is returned to the security desk.
4. Laptops and other electronic devices may be inspected and logged for identification purposes.
5. Due to limited parking options, Metro's Judiciary Square station is the easiest way to access the Frances Perkins Building.
Mr. Gregory Green, Assistant Designated Federal Official for the ACVETEO, (202) 693-4734.
The ACVETEO is a Congressionally mandated advisory committee authorized under Title 38, U.S. Code, Section 4110 and subject to the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended. The ACVETEO is responsible for: Assessing employment and training needs of veterans; determining the extent to which the programs and activities of the U.S. Department of Labor meet these needs; assisting to conduct outreach to employers seeking to hire veterans; making recommendations to the Secretary, through the Assistant Secretary for VETS, with respect to outreach activities and employment and training needs of Veterans; and carrying out such other activities necessary to make required reports and recommendations. The ACVETEO meets at least quarterly.
Office of Management and Budget.
Notice.
The Office of Management and Budget is seeking public comment on draft revisions to Circular No. A-130, Managing Information as a Strategic Resource.
Interested parties may submit comments and feedback by the deadline listed on
Interested parties should provide comments at the following link:
Ms. Carol Bales, OMB at
The Office of Management and Budget (OMB) is proposing to revise Circular No. A-130,
National Aeronautics and Space Administration (NASA).
Notice of renewal and amendment of the charter of the Aerospace Safety Advisory Panel.
Pursuant to sections 14(b)(1) and 9(c) of the Federal Advisory Committee Act (Pub. L. 92-463), and after consultation with the Committee Management Secretariat, General Services Administration, the NASA Administrator has determined that renewal and amendment of the charter of the Aerospace Safety Advisory Panel (ASAP) is in the public interest in connection with the performance of duties imposed on NASA by law. The renewed charter is for a two-year period ending August 26, 2017. It is identical to the previous charter in all respects except that it updates the reference to legal authority.
Ms. Marian Norris, ASAP Administrative Officer, Advisory Committee Management Division, Office of International and Interagency Relations, NASA Headquarters, Washington, DC 20546; phone: (202) 358-4452; email:
National Aeronautics and Space Administration (NASA).
Notice of renewal of the charter of the International Space Station National Laboratory Advisory Committee.
Pursuant to sections 14(b)(1) an 9(c) of the Federal Advisory Committee Act (Pub. L. 92-463), and after consultation with the Committee Management Secretariat, General Services Administration, the NASA Administrator has determined that renewal of the charter of the International Space Station National Laboratory Advisory Committee is in the public interest in connection with the performance of duties imposed on NASA by law. The renewed charter is for a two-year period ending October 8, 2017. It is identical to the previous charter in all respects.
Ms. Marybeth A. Edeen, Executive Director, International Space Station National Laboratory Advisory Committee, NASA Johnson Space Center, Houston, TX; phone: (281) 483-9122; email:
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463), the National Aeronautics and Space Administration announces a meeting of the Institutional Committee of the NASA Advisory Council (NAC). This committee reports to the NAC.
Tuesday, November 17, 2015, 9:00 a.m.-5:00 p.m., Local Time; and Wednesday, November 18, 2015, 9:00 a.m.-4:00 p.m.; Local Time.
On Tuesday, November 17, 2015, the Institutional Committee meeting will be held at NASA Headquarters, Room 1Q39 [Glennan Conference Room], 300 E Street SW., Washington, DC 20546. On Wednesday, November 18, 2015, the Institutional Committee meeting will be held at NASA Goddard Space Flight Center, Building 1, Room E100, 8800 Greenbelt Road, Greenbelt, MD 20771.
Mr. Todd Mullins, NAC Institutional Committee Executive Secretary, NASA Headquarters, Washington, DC 20546; phone: (202) 358-3831; email:
The meeting will be open to the public up to the seating capacity of the room. This meeting is also available telephonically and by WebEx. You must use a touch-tone phone to participate in this meeting. Any interested person may dial the toll free access number (844) 467-6272 or toll access number (720) 259-6462, and then the numeric participant passcode: 180093 followed by the # sign. To join via WebEx on November 17, the Web link is
• Business Systems Assessment (BSA) Status
• NASA Facilities
• NASA IT Security
• NASA Goddard Space Flight Center Overview
• NASA Pathways Program
Attendees will be requested to sign a register and to comply with NASA Headquarters and NASA Goddard Space Flight Center (GSFC) security requirements, including the presentation of a valid picture ID before receiving access to NASA Headquarters and GSFC. Due to the Real ID Act, Public Law 109-13, any attendees with drivers licenses issued from non-compliant states/territories must present a second form of ID. [Federal employee badge; passport; active military identification card; enhanced driver's license; U.S. Coast Guard Merchant Mariner card; Native American tribal document; school identification accompanied by an item from LIST C (documents that establish employment authorization) from the “List of the Acceptable Documents” on Form I-9]. Non-compliant states/territories are: American Samoa, Arizona, Idaho, Louisiana, Maine, Minnesota, New Hampshire, and New York. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; passport information (number, country, telephone); visa information (number, type, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee. To expedite admittance, attendees with U.S. citizenship and Permanent Residents (green card holders) can provide full name and citizenship status no less than 3 working days prior to the meeting by contacting Ms. Mary Dunn, via email at
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act (Public Law 92-463), the National Aeronautics and Space Administration announces a meeting of the Aeronautics Committee of the NASA Advisory Council (NAC). This committee reports to the NAC.
Thursday, November 12, 2015, 9:30 a.m.-5:00 p.m., Local Time.
NASA Headquarters, Room 6E40, 300 E Street, SW., Washington, DC 20546.
Ms. Brenda L. Mulac, NAC Aeronautics Committee Executive Secretary, NASA Headquarters, Washington, DC 20546; phone: (202) 358-1578; email:
The meeting will be open to the public up to the capacity of the room. This meeting is also available telephonically and by WebEx. You must use a touch-tone phone to participate in this meeting. Any person interested in participating in the meeting by telephone and WebEx should contact Ms. Brenda L. Mulac at (202) 358-1578 for the web link, toll-free number and password. (Password is case-sensitive.) NOTE: If dialing in, please “mute” your telephone. The agenda for the meeting includes the following topics:
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving access to NASA Headquarters. Due to the Real ID Act, Public Law 109-13, any attendees with drivers licenses issued from non-compliant states/territories must present a second form of ID. [Federal employee badge; passport; active military identification card; enhanced driver's license; U.S. Coast Guard Merchant Mariner card; Native American tribal document; school identification accompanied by an item from LIST C (documents that establish employment authorization) from the “List of the Acceptable Documents” on Form I-9]. Non-compliant states/territories are: American Samoa, Arizona, Idaho, Louisiana, Maine, Minnesota, New Hampshire, and New York. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Ms. Brenda L. Mulac, via fax at (202) 358-3602. U.S. citizens and Permanent Residents (green card holders) are requested to submit their name and affiliation no less than 3 working days prior to the meeting to Ms. Brenda L. Mulac. For questions, please call Ms. Brenda L. Mulac at (202) 358-1578. It is imperative that these meetings be held on this date to accommodate the scheduling priorities of the key participants.
National Science Foundation.
Notice.
The National Science Foundation (NSF) is announcing plans to renew clearance of this collection. In accordance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we are providing opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting OMB clearance of this collection for no longer than 3 years.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information shall have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information on respondents, including through the use of automated collection techniques or other forms of information technology; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Written comments should be received by December 21, 2015 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments regarding the information collection and requests for copies of the proposed information collection request should be addressed to Suzanne Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Blvd., Rm. 1265, Arlington, VA 22230, or by email to
Suzanne Plimpton on (703) 292-7556 or send email to
The second use of the information is program evaluation. The Directorate is committed to investing in a range of substantive areas. With data from this collection, the Directorate can calculate submission rates and funding rates in specific areas of research. Similarly, the information can be used to identify emerging areas of research, evaluate changing infrastructure needs in the research community, and track the amount of international research. As the National Science Foundation is committed to funding cutting-edge science, these factors all have implications for program management.
The Directorate of Biological Sciences has a continuing commitment to monitor its information collection in order to preserve its applicability and necessity. Through periodic updates and revisions, the Directorate ensures that only useful, non-redundant information is collected. These efforts will reduce excessive reporting burdens
Nuclear Regulatory Commission.
Environmental impact statement; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a final Environmental Impact Statement (EIS) for the Construction Permit Application submitted by SHINE Medical Technologies, Inc. (SHINE) for the SHINE Medical Radioisotope Production Facility, NUREG-2183 (SHINE facility).
The final EIS for the SHINE Construction Permit is available as of October 16, 2015.
Please refer to Docket ID NRC-2013-0053 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Michelle Moser, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6509; email:
In accordance with § 51.118 of title 10 of the
As discussed in Chapter 6 of the final EIS, after weighing the environmental, economic, technical, and other benefits against environmental and other costs, and considering reasonable alternatives, the NRC staff recommends the issuance of the Construction Permit to SHINE, unless safety issues mandate otherwise. This recommendation is based on: (1) SHINE's Environmental Report; (2) the NRC staff's consultation with Federal, State, and local agencies; (3) the NRC staff's independent environmental review; and (4) the NRC staff's consideration of public comments.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Metallurgy and Reactor Fuels will hold a meeting on November 3, 2015, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss the Draft Final Rule for 10 CFR 50.46c. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christopher Brown (Telephone 301-415-7111 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
Pension Benefit Guaranty Corporation.
Notice of request for extension of OMB approval.
Pension Benefit Guaranty Corporation (“PBGC”) is requesting that the Office of Management and Budget (“OMB”) extend approval, under the Paperwork Reduction Act, of the collection of information in PBGC's booklet
Comments should be submitted by November 23, 2015.
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at
A copy of PBGC's request may be obtained without charge by writing to the Disclosure Division of the Office of the General Counsel of PBGC at the above address or by visiting that office or calling (202) 326-4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll free at 1-(800) 877-8339 and ask to be connected to (202) 326-4040.) The request is also available at
Jo Amato Burns, Attorney, Office of General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005-4026, 202-326-4400. (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4400.)
PBGC is requesting that OMB extend its approval of the guidance and model language and forms contained in the PBGC booklet,
A defined benefit pension plan that does not have enough money to pay benefits may be terminated if the employer responsible for the plan faces severe financial difficulty, such as bankruptcy, and is unable to maintain the plan. In such an event, PBGC becomes trustee of the plan and pays benefits, subject to legal limits, to plan participants and beneficiaries.
The benefits of a pension plan participant generally may not be assigned or alienated. However, Title I of ERISA provides an exception for domestic relations orders that relate to child support, alimony payments, or the marital property rights of an alternate payee (a spouse, former spouse, child, or other dependent of a plan participant). The exception applies only if the domestic relations order meets specific legal requirements that make it a qualified domestic relations order, or “QDRO.”
ERISA provides that pension plans are required to comply with only those domestic relations orders which are QDROs, and that the decision as to whether a domestic relations order is a QDRO is made by the plan administrator. When PBGC is trustee of a plan, it reviews submitted domestic relations orders to determine whether the order is qualified before paying benefits to an alternate payee. The requirements for submitting a QDRO are established by statute.
To simplify the process, PBGC has included model QDROs and accompanying guidance in a booklet,
PGBC is not making any substantive revisions to the current QDRO booklet. PGBC is adding text to clarify how separate interest orders are administered by PBGC and to explain how PBGC apportions adjustments required by ERISA's Title IV limitations on benefits between an alternate payee and a participant, as well as the consequences of such adjustments on each party. PBGC is also making other simplifying and clarifying changes to the QDRO booklet.
The collection of information has been approved through October 31, 2015, by OMB under control number 1212-0054. PBGC is requesting that OMB extend approval of the collection of information for three years. 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.
PBGC estimates that it will receive 1,170 domestic relations orders annually and that the average annual burden of this collection of information is 2,117 hours and $704,500.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an additional Global Expedited Package Services 3 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On October 15, 2015, the Postal Service filed notice that it has entered into an additional Global Expedited Package Services 3 (GEPS 3) negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2016-8 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 23, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Curtis E. Kidd to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2016-8 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Curtis E. Kidd is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than October 23, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
On August 27, 2015, NYSE Arca, Inc. filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
This advance notice is filed by OCC in connection with a proposed change to its operations to replace an existing credit facility OCC maintains for the purposes of meeting obligations arising out of the default or suspension of a clearing member, in anticipation of a potential default by a clearing member, or the failure of a bank or securities or commodities clearing organization to perform its obligations due to its bankruptcy, insolvency, receivership or suspension of operations.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the advance notice and discussed any comments it received on the advance notice. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections A and B below, of the most significant aspects of these statements.
Written comments were not and are not intended to be solicited with respect to the advance notice and none have been received.
This advance notice is being filed in connection with a proposed change in the form of the replacement of a revolving credit facility that OCC maintains for a 364-day term for the purpose of meeting obligations arising out of the default or suspension of a clearing member, in anticipation of a potential default by a clearing member, or the failure of a bank or securities or commodities clearing organization to perform its obligations due to its bankruptcy, insolvency, receivership or suspension of operations. OCC's existing credit facility (the “Existing Facility”) was implemented on October 7, 2014 through the execution of a Credit Agreement among OCC, JPMorgan Chase Bank, N.A. (“JP Morgan”), as administrative agent, and the lenders that are parties to the agreement from time to time. The Existing Facility provides short-term secured borrowings in an aggregate principal amount of $2 billion but may be increased to $3 billion if OCC so requests and sufficient commitments from lenders are received and accepted. To obtain a loan under the Existing Facility, OCC must pledge as collateral U.S. dollars or certain securities issued or guaranteed by the U.S. Government or the Government of Canada. Certain mandatory prepayments or deposits of additional collateral are required depending on changes in the collateral's market value. In connection with OCC's past implementation of the Existing Facility, OCC filed an advance notice with the Commission on September 11, 2014, and the Commission published a notice of no objection on September 30, 2014.
The Existing Facility is set to expire on October 6, 2015, and OCC is therefore currently negotiating the terms of a new credit facility (the “New Facility”) on substantially similar terms as the Existing Facility, except that a new administrative agent, Bank of America, N.A. (“Bank of America”), has been selected and OCC anticipates that U.S. Bank National Association (“U.S. Bank”) will act as collateral agent, joint lead arranger and joint book runner. Under the Existing Facility, both of these roles are performed by JP Morgan. OCC also anticipates that The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“Bank of Tokyo Mitsubishi”) will act as a back-up administrative agent and collateral agent as well as joint lead arranger and joint book runner. On September 9, 2015, OCC, Bank of America, Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLPF&S”), a joint lead arranger and book runner, U.S. Bank and Bank of Tokyo Mitsubishi executed a Commitment Letter with regard to the New Facility.
The terms and conditions applicable to the New Facility are set forth in the Summary of Terms and Conditions, which is not a public document.
The New Facility involves a variety of customary fees payable by OCC, including: (1) An arrangement fee payable to the joint lead arrangers; (2) administrative and collateral agent fees payable to the administrative agent and collateral agent if the New Facility closes; (3) upfront commitment fees payable to the lenders based on the amount of their commitments; and (4) an ongoing quarterly commitment fee based on the unused amount of the New Facility.
Completing timely settlement is a key aspect of OCC's role as a clearing agency performing central counterparty services. Overall, the New Facility would continue to promote the reduction of risks to OCC, its clearing members and the options market in general because it would allow OCC to obtain short-term funds to address liquidity demands arising out of the default or suspension of a clearing member, in anticipation of a potential default or suspension of clearing members or the insolvency of a bank or another securities or commodities clearing organization. The existence of the New Facility would therefore help OCC minimize losses in the event of such a default, suspension or insolvency, by allowing it to obtain funds on extremely short notice to ensure clearance and settlement of transactions in options and other contracts without interruption. OCC believes that the reduced settlement risk presented by OCC resulting from the New Facility would correspondingly reduce systemic risk and promote the safety and soundness of the clearing system. By drawing on the New Facility, OCC would also be able to avoid liquidating margin or clearing fund assets in what would likely be volatile market conditions, which would preserve funds available to cover any losses resulting from the failure of a clearing member, bank or other clearing organization. Because the New Facility preserves substantially the same terms and conditions as the Existing Facility, OCC believes that the change would not otherwise affect or alter the management of risk at OCC.
OCC believes that the New Facility is consistent with Section 805(b) of the Clearing Supervision Act
Pursuant to Section 806(e)(1)(I) of the Clearing Supervision Act,
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. OCC shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the OCC with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies OCC in writing that it does not object to the proposed change and authorizes OCC to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
OCC shall post notice on its Web site of proposed changes that are implemented.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the advance notice is consistent with the Clearing Supervision Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-OCC-2015-803 and should be submitted on or before November 12, 2015.
Although the Clearing Supervision Act does not specify a standard of review for an advance notice, its stated purpose is instructive.
• promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission has adopted risk management standards under Section 805(a)(2) of the Clearing Supervision Act
The Commission believes that the proposal in the advance notice is consistent with the Clearing Agency Standards, in particular, Exchange Act Rule 17Ad-22(d)(11) and Exchange Act Rule 17Ad-22(b)(3). Exchange Act Rule 17Ad-22(d)(11) requires that registered clearing agencies “establish, implement, maintain and enforce written policies and procedures reasonably designed to, as applicable . . . establish default procedures that ensure that the clearing agency can take timely action to contain losses and liquidity pressures and to continue meeting its obligations in the event of a participant default.” The Commission believes that the proposal is consistent with Exchange Act Rule 17Ad-22(d)(11) because the New Facility will allow OCC to obtain short-term funds to address liquidity demands arising out of the default or suspension of a clearing member, in anticipation of a potential default or suspension of clearing members or the insolvency of a bank or another securities or commodities clearing organization. Therefore, the New Facility should help OCC minimize losses in the event of such a default, suspension or insolvency, by allowing it to obtain funds on extremely short notice to ensure clearance and settlement of transactions in options and other contracts without interruption.
Exchange Act Rule 17Ad-22(b)(3) requires a central counterparty (“CCP”), to “establish, implement, maintain and enforce written policies and procedures reasonably designed to . . . [m]aintain sufficient financial resources to withstand, at a minimum, a default by the participant family to which it has the largest exposure in extreme but plausible market conditions. . . .” The Commission believes that the proposal is consistent with Exchange Act Rule 17Ad-22(b)(3) because OCC's proposal to enter into the New Facility, thereby ensuring continued access to a committed bank syndicated credit facility, will help OCC maintain sufficient financial resources to withstand, at a minimum, a default by an clearing member family to which it has the largest exposure.
For these reasons, the Commission believes the proposal contained in the advance notice is consistent with the objectives and principles described in Section 805(b) of the Clearing Supervision Act, including that it reduces systemic risks and promote the safety and soundness of the broader financial system. As discussed above, the New Facility will continue to promote the reduction of risks to OCC, its clearing members, and the options market in general because it will allow OCC to obtain short-term funds to address liquidity demands, which should ensure clearance and settlement of transactions in options and other contracts without interruption. Given that OCC has been designated as a systemically important FMU, its ability to access financial resources to address short-term liquidity demands contributes to reducing systemic risks and supporting the stability of the broader financial system.
For these reasons, stated above, the Commission does not object to the advance notice.
By the Commission.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission Equity Market Structure Advisory Committee will hold a public meeting on Tuesday, October 27, 2015, in the Multipurpose Room, LL-006 at the Commission's headquarters, 100 F Street NE., Washington, DC.
The meeting will begin at 9:30 a.m. (EDT) and will be open to the public. Seating will be on a first-come, first-served basis. Doors will be open at 9:00 a.m. Visitors will be subject to security checks. The meeting will be webcast on the Commission's Web site at
On October 6, 2015, the Commission published notice of the Committee meeting (Release No. 34-76081), indicating that the meeting is open to the public and inviting the public to submit written comments to the Committee. This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The agenda for the meeting will focus on Rule 610 of SEC Regulation NMS and the regulatory structure of trading venues.
For further information, please contact the Office of the Secretary at (202) 551-5400.
On May 19, 2010, the Securities and Exchange Commission (“Commission”) conditionally exempted, with respect to certain credit ratings and until December 2, 2010, nationally recognized statistical rating organizations (“NRSROs”) from certain requirements in Rule 17g-5(a)(3)
Extension Order”).
Rule 17g-5 identifies, in paragraphs (b) and (c) of the rule, a series of conflicts of interest arising from the business of determining credit ratings.
In November 2009, the Commission adopted paragraph (a)(3) of Rule 17g-5. This provision requires an NRSRO that is hired by an arranger to determine an initial credit rating for a structured finance product to take certain steps designed to allow an NRSRO that is not hired by the arranger to nonetheless determine an initial credit rating—and subsequently monitor that credit rating—for the structured finance product.
• Maintain on a password-protected Internet Web site a list of each structured finance product for which it currently is in the process of determining an initial credit rating in chronological order and identifying the type of structured finance product, the name of the issuer, the date the rating process was initiated, and the Internet Web site address where the arranger represents the information provided to the hired NRSRO can be accessed by other NRSROs;
• Provide free and unlimited access to such password-protected Internet Web site during the applicable calendar year to any NRSRO that provides it with a copy of the certification described in paragraph (e) of Rule 17g-5 that covers that calendar year;
The undersigned hereby certifies that it will access the Internet Web sites described in 17 CFR 240.17g-5(a)(3) solely for the purpose of determining or monitoring credit ratings. Further, the undersigned certifies that it will keep the information it accesses pursuant to 17 CFR 240.17g-5(a)(3) confidential and treat it as material nonpublic information subject to its written policies and procedures established, maintained, and enforced pursuant to section 15E(g)(1) of the Act (15 U.S.C. 78o-7(g)(1)) and 17 CFR 240.17g-4. Further, the undersigned certifies that it will determine and maintain credit ratings for at least 10% of the issued securities and money market instruments for which it accesses information pursuant to 17 CFR 240.17g-5(a)(3)(iii), if it accesses such information for 10 or more issued securities or money market instruments in the calendar year covered by the certification. Further, the undersigned certifies one of the following as applicable: (1) In the most recent calendar year during which it accessed information pursuant to 17 CFR 240.17g-5(a)(3), the undersigned accessed information for [Insert
• Obtain from the arranger a written representation that can reasonably be relied upon that the arranger will, among other things, disclose on a password-protected Internet Web site the information it provides to the hired NRSRO to determine the initial credit rating (and monitor that credit rating) and provide access to the Web site to an NRSRO that provides it with a copy of the certification described in paragraph (e) of Rule 17g-5.
(1) Maintain the information described in paragraphs (a)(3)(iii)(C), (a)(3)(iii)(D), and (a)(3)(iii)(E) of Rule 17g-5 available at an identified password-protected Internet Web site that presents the information in a manner indicating which information currently should be relied on to determine or monitor the credit rating; (2) provide access to such password-protected Internet Web site during the applicable calendar year to any NRSRO that provides it with a copy of the certification described in paragraph (e) of Rule 17g-5 that covers that calendar year, provided that such certification indicates that the nationally recognized statistical rating organization providing the certification either: (i) Determined and maintained credit ratings for at least 10% of the issued securities and money market instruments for which it accessed information pursuant to paragraph (a)(3)(iii) of Rule 17g-5 in the calendar year prior to the year covered by the certification, if it accessed such information for 10 or more issued securities or money market instruments; or (ii) has not accessed information pursuant to paragraph (a)(3) of Rule 17g-5 10 or more times during the most recently ended calendar year; (3) post on such password-protected Internet Web site all information the arranger provides to the NRSRO, or contracts with a third party to provide to the NRSRO, for the purpose of determining the initial credit rating for the security or money market instrument, including information about the characteristics of the assets underlying or referenced by the security or money market instrument, and the legal structure of the security or money market instrument, at the same time such information is provided to the NRSRO; (4) post on such password-protected Internet Web site all information the arranger provides to the NRSRO, or contracts with a third party to provide to the NRSRO, for the purpose of undertaking credit rating surveillance on the security or money market instrument, including information about the characteristics and performance of the assets underlying or referenced by the security or money market instrument at the same time such information is provided to the NRSRO; and (5) post on such password-protected Internet Web site, promptly after receipt, any executed Form ABS Due Diligence-15E containing information about the security or money market instrument delivered by a person employed to provide third-party due diligence services with respect to the security or money market instrument.
The Commission stated in the Adopting Release that Rule 17g-5(a)(3) is designed to address conflicts of interest and improve the quality of credit ratings for structured finance products by making it possible for more NRSROs to rate structured finance products.
Rule 17g-5(a)(3) became effective on February 2, 2010, and the compliance date for Rule 17g-5(a)(3) was June 2, 2010.
In the Order, the Commission requested comment generally, but also on a number of specific issues.
Managing Director, Association for Financial Markets in Europe, dated Nov. 10, 2014.
Given the continued concerns about potential disruptions of local securitization markets, and because the Commission's consideration of the issues raised will benefit from additional time to engage in further dialogue with interested parties and to monitor market and regulatory developments, the Commission believes extending the conditional temporary exemption until December 2, 2017 is necessary or appropriate in the public interest, and is consistent with the protection of investors.
The Commission believes that it would be useful to continue to provide interested parties opportunity to comment. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F St. NE., Washington, DC 20549-1090.
For the foregoing reasons, the Commission believes it would be necessary or appropriate in the public interest and consistent with the protection of investors to extend the conditional temporary exemption exempting NRSROs from complying with Rule 17g-5(a)(3) with respect to rating covered transactions until December 2, 2017.
(1) The issuer of the security or money market instrument is not a U.S. person (as defined under Securities Act Rule 902(k)); and
(2) The nationally recognized statistical rating organization has a reasonable basis to conclude that the structured finance product will be offered and sold upon issuance, and that any arranger linked to the structured finance product will effect transactions of the structured finance product after issuance, only in transactions that occur outside the U.S.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
ISE Gemini proposes to amend the Schedule of Fees as described in more detail below. The text of the proposed rule change is available on the Exchange's Internet 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 self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Schedule of Fees to increase the fees charged to subscribers of the ISE Gemini Order Feed. The Order Feed provides real-time updates to subscribers every time a new limit order that is not immediately executable at the BBO is placed on the ISE Gemini order book. The Order Feed also announces the commencement of auctions including Flash, Facilitation, Solicitation, Block Order and Price Improvement Mechanisms, as well as Directed Orders, but does not include Immediate or Cancel (“IOC”) or Fill or Kill (“FOK”) orders, quotes, or any non-displayed interest. The information included on the Order Feed includes auction type, order side (
Currently, the Exchange charges distributors $500 per month for subscriptions to the Order Feed and will not charge distributors a monthly fee
The Exchange now propose to increase the fee charged to distributors to $750 per month. The Exchange will not charge distributors a monthly fee per controlled device as long the feed is for internal use only. For subscribers that redistribute the Order Feed externally, or redistribute the Order Feed internally and externally, the Exchange is not changing distributor fee per controlled device,
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is also consistent with Section 6(b)(8) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data.
The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
By removing “unnecessary regulatory restrictions” on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history. If the free market should determine whether proprietary data is sold to broker-dealers at all, it follows that the price at which such data is sold should be set by the market as well.
On July 21, 2010, President Barak Obama signed into law H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), which amended Section 19 of the Act. Among other things, Section 916 of the Dodd-Frank Act amended paragraph (A) of Section 19(b)(3) of the Act by inserting the phrase “on any person, whether or not the person is a member of the self-regulatory organization” after “due, fee or other charge imposed by the self-regulatory organization.” As a result, all SRO rule proposals establishing or changing dues, fees, or other charges are immediately effective upon filing regardless of whether such dues, fees, or other charges are imposed on members of the SRO, non-members, or both. Section 916 further amended paragraph (C) of Section 19(b)(3) of the Act to read, in pertinent part, “At any time within the 60-day period beginning on the date of filing of such a proposed rule change in accordance with the provisions of paragraph (1) [of Section 19(b)], the Commission summarily may temporarily suspend the change in the rules of the self-regulatory organization made thereby, if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this title. If the Commission takes such action, the Commission shall institute proceedings under paragraph (2)(B) [of Section 19(b)] to determine whether the proposed rule should be approved or disapproved.”
The decision of the United States Court of Appeals for the District of Columbia Circuit in
The court's conclusions about Congressional intent are therefore reinforced by the Dodd-Frank Act amendments, which create a presumption that exchange fees, including market data fees, may take effect immediately, without prior Commission approval, and that the Commission should take action to suspend a fee change and institute a proceeding to determine whether the fee change should be approved or disapproved only where the Commission has concerns that the change may not be consistent with the Act.
The Exchange believes that the proposed fees for the ISE Gemini market data offering is consistent with the requirements of the Act because competition provides an effective constraint on the market data fees that the Exchange has the ability and the incentive to charge. ISE Gemini has a compelling need to attract order flow from market participants in order to
The Exchange is constrained in pricing its market data offerings by the availability to market participants of alternatives to purchasing these products. The Exchange must consider the extent to which market participants would choose one or more alternatives instead of purchasing the Exchange's data.
For the reasons cited above, the Exchange believes that the proposed fees for the ISE Gemini data feed are equitable, fair, reasonable and not unreasonably discriminatory. The Exchange further believes that the continued availability of each of the ISE Gemini data feeds enhances transparency, fosters competition among orders and markets, and enables buyers and sellers to obtain better prices. In addition, the Exchange believes that no substantial countervailing basis exists to support a finding that the proposed terms and fees for these products fail to meet the requirements of the Act.
In accordance with Section 6(b)(8) of the Act,
For the reasons discussed above, the Exchange believes that the Dodd-Frank Act amendments to Section 19 materially alter the scope of the Commission's review of future market data filings, by creating a presumption that all fees may take effect immediately, without prior analysis by the Commission of the competitive environment. Even in the absence of this important statutory change, however, the Exchange believes that a record may readily be established to demonstrate the competitive nature of the market in question.
There is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price and distribution of its data products. Without the prospect of a taking order seeing and reacting to a posted order on a particular platform, the posting of the order would accomplish little. Without trade executions, exchange data products cannot exist. Data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the broker-dealer chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the broker-dealer will choose not to buy it.
Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to that broker-dealer decrease, for two reasons. First, the product will contain less information, because executions of the broker-dealer's orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that broker-dealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the broker-dealer is directing orders will become correspondingly more valuable. Thus, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platform may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge) and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering.
The market for market data products is competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
Broker-dealers currently have numerous alternative venues for their order flow, including numerous self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities (“TRFs”) compete to attract internalized transaction reports. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products. The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple broker-dealers' production of proprietary data products. The potential sources of proprietary products are virtually limitless.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing proprietary book data on the Internet. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. Market data vendors provide another form of price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail broker-dealers, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. The Exchange and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings 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”),
ISE proposes to amend the Schedule of Fees as described in more detail below. The text of the proposed rule change is available on the Exchange's Internet 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 self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the Schedule of Fees to modify the route-out fee applicable to Priority Customer
The Exchange now proposes to charge Priority Customers a route-out fee of $0.70 per contract for orders in Non-Select Symbols. The route-out fee applicable to Priority Customer orders in Select Symbols (including SPY) is not being changed.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
In particular, the Exchange believes the proposed route-out fee is reasonable and equitable because it offsets costs incurred by the Exchange in connection with using unaffiliated broker-dealers to route Priority Customer orders to other exchanges for linkage executions. Furthermore, the Exchange believes that the proposed fee is not unfairly discriminatory because the route-out fee for Priority Customer orders in Non-Select Symbols, as has historically been the case, remains lower than fees for orders from other market participants, including Professional Customer and Non-Customer orders.
The Exchange believes that it is equitable and not unfairly discriminatory to charge a lower route-out fee applicable to Priority Customer orders than Professional Customer and Non-Customer orders because a Priority Customer is by definition not a broker or dealer in securities, and does not place more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s). Further, the Exchange believes that the proposed fees are not unfairly discriminatory because these fees would be uniformly applied to all Priority Customer orders. As fees to access liquidity for Priority Customer orders have risen at other exchanges, it has become necessary for the Exchange to raise routing fees in order to recoup the higher costs.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that members can and do route these orders to other markets or specify that ISE not route orders away on their behalf. As such, the Exchange operates in a highly competitive market in which market participants can readily direct their
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings 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.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Monday, October 26, 2015, at 1:00 p.m., in the Auditorium (L-002) at the Commission's headquarters building, to hear oral argument in an appeal from an initial decision of an administrative law judge by Respondents ZPR Investment Management, Inc. (“ZPRIM”), and Max E. Zavanelli (“Zavanelli”).
On May 27, 2014, the law judge found that ZPRIM violated Sections 206(1), (2), and (4) of the Investment Advisers Act of 1940 and Advisers Act Rule 206(4)-1(a)(5), by misrepresenting compliance with the Global Investment Performance Standards (“GIPS”) in magazine advertisements and investment report newsletters. The initial decision also found that Zavanelli aided, abetted, and caused, and was primarily liable under Sections 206(1) and (2) for, each of ZPRIM's violations based on these misrepresentations.
In addition, the law judge found that ZPRIM violated Sections 206(2) and (4) and Rule 206(4)-1(a)(5) by negligently claiming in a Morningstar report for the period ended September 30, 2010 that (a) an independent third party had verified ZPRIM's compliance with GIPS “to the present,” and (b) ZPRIM was not under Commission investigation, although neither of these things was true. The law judge also found that ZPRIM violated Sections 206(1), (2), and (4) and Rule 206(4)-1(a)(5) by repeating its false claim that it was not under Commission investigation in a Morningstar report for the period ended March 31, 2011. The initial decision found that Zavanelli caused each of ZPRIM's Morningstar violations but did not aid and abet them.
For these violations, the law judge barred Zavanelli from association with any investment adviser, broker, dealer, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization; ordered ZPRIM to cease and desist from committing, and Zavanelli to cease and desist from committing, aiding, abetting, or causing the commission of, any violations or future violations of Advisers Act Sections 206(1), (2), and (4) and Rule 206(4)-1(a)(5); and imposed civil money penalties of $250,000 on ZPRIM and $660,000 on Zavanelli.
Respondents appealed the initial decision's findings of violation and the sanctions imposed. The issues likely to be considered at oral argument include, among other things, whether Respondents violated the antifraud provisions as alleged and, if so, what sanction, if any, is appropriate in the public interest.
For further information, please contact the Office of the Secretary at (202) 551-5400.
On July 20, 2015, Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA Rule 6730 (Transaction Reporting) sets forth the requirements applicable to members reporting transactions in TRACE-Eligible Securities,
FINRA believes that the pricing information currently being disseminated might be incomplete and in some cases misleading, given that disseminated prices on transactions that do not include remuneration are not distinguished from transactions that do include a commission or mark-up/mark-down. This proposal is designed to provide more meaningful pricing transparency through TRACE by identifying any transaction where a commission or mark-up/mark-down was not charged or known at the time of TRACE reporting.
The proposal amends Rule 6730 to require a member firm to identify any transactions for which a commission or mark-up/mark-down is not reflected in the TRACE trade report because the firm does not charge, or does not know the amount of, the commission or mark-up/mark-down at the time of TRACE reporting. For example, a firm might assess a charge that is not transaction-based, as in the case of a “fee-based account” where remuneration is based upon assets under management (and individual commissions or mark-ups/mark-downs are not charged).
FINRA believes that, in addition to improving transparency for disseminated prices, this proposal will enhance its regulatory audit trail and surveillance patterns. With this additional level of detail, surveillance patterns should yield fewer false positives regarding mark-up and best execution surveillance, reduce regulatory inquiries, and provide greater focus for FINRA's regulatory efforts. FINRA has represented, for example, that without the “no remuneration” designation FINRA's surveillance patterns for best execution might generate alerts for transactions whose prices reflect a commission or a mark-up as being outliers compared to transactions whose prices do not reflect a charge.
FINRA plans to implement the proposal on May 23, 2016.
As noted above, the Commission received two comment letters on the
In response to commenters' concerns, FINRA proposed in Amendment No. 1 to provide an exception to the proposed “no remuneration” requirement for inter-dealer transactions. FINRA notes that this change would further align the proposal with the comparable MSRB rule, as requested by the commenters.
Also in Amendment No. 1, FINRA proposed to add exceptions from the “no remuneration” indicator requirement for List or Fixed Offering Price Transactions, as defined in FINRA Rule 6710(q), and Takedown Transactions, as defined in FINRA Rule 6710(r). These transactions are not currently subject to dissemination; FINRA believes, therefore, that applying the “no remuneration” indicator to these transactions would not provide additional transparency to the market.
After careful review of the proposal and comments submitted, the Commission finds that the proposal, as modified by Amendment No. 1, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
The Commission believes that the proposed rule change is reasonably designed to improve transparency of disseminated TRACE trade reports by requiring firms to indicate when the trade report does not include a commission or mark-up/mark-down. Use of a “no remuneration” indicator will make investors better able to assess disseminated transaction prices. Finally, the Commission believes that it is reasonable and consistent with the Act for FINRA to provide exceptions to this requirement for inter-dealer transactions, which do not typically have remuneration, and for List or Fixed Offering Price and Takedown Transactions, for which there currently is no TRACE dissemination of the transaction information.
Therefore, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the Act.
The Commission finds good cause, pursuant to Section 19(b)(2) of the Exchange Act
Amendment No. 1 revised the proposal to include limited exceptions to the proposed “no remuneration” indicator requirement. The Commission believes that Amendment No. 1 does not raise any novel regulatory issues because these exceptions are measured and do not appear to impose any undue burdens on affected persons.
Accordingly, the Commission finds that good cause exists to approve the proposal, as modified by Amendment No. 1, on an accelerated basis.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 to the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE proposes to amend language in the Schedule of Fees related to excluding days from its average daily volume calculations when the market is not open for the entire trading day. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
Currently, for purposes of determining a member's average daily volume (“ADV”), any day that the regular or complex order books are not open for the entire trading day may be excluded from such calculation. The Exchange proposes to amend language in the Schedule of Fees related to excluding days from the ADV calculations used to determine applicable fee and rebate tiers. Specifically, the Exchange proposes to permit days to be excluded from its ADV calculations where the Exchange is technically open for the entire trading day, but has instructed members to route away due to a systems or other error that ultimately does not impact trading on the Exchange. Currently, the Exchange's ability to remove days from its ADV calculations is limited to days where the market is not open for the entire trading day. This allows the Exchange to exclude days, for example, where the Exchange declares a trading halt in all securities, honors a market-wide trading halt declared by another market, or closes early for holiday observance. Because these days generally have artificially lower trading volume, the Exchange believes that it is reasonable and equitable to not include such days in determining fee and rebate tiers. The Exchange notes, however, that if it has a systems issue in the morning before the market opens, it may instruct members to route away to other markets. If the systems issue continues into trading hours, the Exchange is permitted to exclude the day for all members that would have a lower ADV with the day included. If, however, the systems issue is resolved prior to the opening of trading, the Exchange is not permitted to exclude the day from its ADV calculations. This is the case regardless of the fact that many members would have already made arrangements to route away in accordance with the Exchange's instructions. To prevent this undesirable result, and preserve the Exchange's intent behind adopting volume-based pricing, the Exchange proposes to allow days to be excluded from its ADV calculation whenever all members are instructed, in writing, to route their orders to other markets.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
In accordance with Section 6(b)(8) of the Act,
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings 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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
ISE proposes to amend the Schedule of Fees as described in more detail below. The text of the proposed rule change is available on the Exchange's Internet 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 self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Schedule of Fees to increase the fees charged to subscribers of the ISE Order Feed and to standardize the managed data fees charged for the ISE Order Feed, ISE Top Quote Feed, and ISE Spread Feed
The Order Feed provides real-time updates to subscribers every time a new limit order that is not immediately executable at the BBO is placed on the ISE order book. The Order Feed also announces the commencement of
Currently, the Exchange charges distributors $2,000 per month for subscriptions to the Order Feed and will not charge distributors a monthly fee per controlled device as long the feed is for internal use only.
We now propose to increase the fee charged to distributors to $3,000 per month. The Exchange will not charge distributors a monthly fee per controlled device as long the feed is for internal use only. For subscribers that redistribute the Order Feed externally, or redistribute the Order Feed internally and externally, the Exchange proposes to charge each distributor an additional fee of $20 per month per controlled device with a combined maximum fee capped at $5,000 per month. For example, a firm that subscribes to the Order Feed and then redistributes it via a controlled device to 50 clients pays $4,000 per month ($3,000 for the feed and $1,000 for the controlled devices ($20 × 50)). If that same firm redistributes the data via a controlled device to 150 clients, the fee for that firm is capped at $5,000 per month, resulting in a savings of $1,000.
On June 6, 2013 ISE implemented a temporary Managed Data Access Service program that established a new pricing and distribution model for the sale of a number of real-time market data products.
Managed Data Access Service is a pricing and administrative option whereby the ISE assesses fees to Managed Data Access Distributors,
Currently, the Exchange charges a fee to each Managed Data Access Distributor of $1,500 for each of the Top Quote Feed and the Spread Feed, and $1,000 per month for the Order Feed. The Exchange also charges a fee for each IP address at Managed Data Access Recipients that receive market data redistributed by a Managed Data Access Distributor, which is $500 per month for each of the Top Quote Feed and the Spread Feed, and $350 per month for the Order Feed.
The Exchange now proposes to charge each Managed Data Access Distributor a monthly fee of $2,000 for the Order Feed, Top Quote Feed, and Spread Feed. The Exchange also proposes to charge each IP address at Managed Data Access Recipients that received market data redistributed by a Managed Data Access Distributor a monthly fee of $500 for the Order Feed.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is also consistent with Section 6(b)(8) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data.
The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
By removing “unnecessary regulatory restrictions” on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history. If the free market should determine whether proprietary data is sold to broker-dealers at all, it follows that the price at which such data is sold should be set by the market as well.
On July 21, 2010, President Barak [sic] Obama signed into law H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), which amended Section 19 of the Act. Among other things, Section 916 of the Dodd-Frank Act amended paragraph (A) of Section 19(b)(3) of the Act by inserting the phrase “on any person, whether or not the person is a member of the self-regulatory organization” after “due, fee or other charge imposed by the self-regulatory organization.” As a result, all SRO rule proposals establishing or changing dues, fees, or other charges are immediately effective upon filing regardless of whether such dues, fees, or other charges are imposed on members of the SRO, non-members, or both. Section 916 further amended paragraph (C) of Section 19(b)(3) of the Act to read, in pertinent part, “At any time within the 60-day period beginning on the date of filing of such a proposed rule change in accordance with the provisions of paragraph (1) [of Section 19(b)], the Commission summarily may temporarily suspend the change in the rules of the self-regulatory organization made thereby, if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this title. If the Commission takes such action, the Commission shall institute proceedings under paragraph (2)(B) [of Section 19(b)] to determine whether the proposed rule should be approved or disapproved.”
The decision of the United States Court of Appeals for the District of Columbia Circuit in
The court's conclusions about Congressional intent are therefore reinforced by the Dodd-Frank Act amendments, which create a presumption that exchange fees, including market data fees, may take effect immediately, without prior Commission approval, and that the Commission should take action to suspend a fee change and institute a proceeding to determine whether the fee change should be approved or disapproved only where the Commission has concerns that the change may not be consistent with the Act.
The Exchange believes that the proposed fees for the ISE market data offering is consistent with the requirements of the Act because competition provides an effective constraint on the market data fees that the Exchange has the ability and the incentive to charge. ISE has a compelling need to attract order flow from market participants in order to maintain its share of trading volume. This compelling need to attract order flow imposes significant pressure on the Exchange to act reasonably in setting the fees for its market data offerings, particularly given that the market participants that will pay such fees often will be the same market participants from whom the Exchange must attract order flow. These market participants include broker-dealers that control the handling of a large volume of customer and proprietary order flow. Given the portability of order flow from one exchange to another, any exchange that sought to charge unreasonably high market data fees would risk alienating many of the same customers on whose orders it depends for competitive survival. ISE currently competes with 11 [sic] other options exchanges for order flow.
The Exchange is constrained in pricing its market data offerings by the availability to market participants of alternatives to purchasing these products. The Exchange must consider the extent to which market participants would choose one or more alternatives instead of purchasing the Exchange's data.
For the reasons cited above, the Exchange believes that the proposed fees for the ISE data feeds are equitable, fair, reasonable and not unreasonably discriminatory. The Exchange further believes that the continued availability of each of the ISE data feeds enhances transparency, fosters competition among orders and markets, and enables buyers and sellers to obtain better prices. In addition, the Exchange believes that no substantial countervailing basis exists to support a finding that the proposed terms and fees for these products fail to meet the requirements of the Act.
In accordance with Section 6(b)(8) of the Act,
For the reasons discussed above, the Exchange believes that the Dodd-Frank Act amendments to Section 19 materially alter the scope of the Commission's review of future market data filings, by creating a presumption that all fees may take effect immediately, without prior analysis by the Commission of the competitive environment. Even in the absence of this important statutory change, however, the Exchange believes that a record may readily be established to demonstrate the competitive nature of the market in question.
There is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price and distribution of its data products. Without the prospect of a taking order seeing and reacting to a posted order on a particular platform, the posting of the order would accomplish little. Without trade executions, exchange data products cannot exist. Data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the broker-dealer chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the broker-dealer will choose not to buy it.
Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to that broker-dealer decrease, for two reasons. First, the product will contain less information, because executions of the broker-dealer's orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that broker-dealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the broker-dealer is directing orders will become correspondingly more valuable. Thus, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platform may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge) and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering.
The market for market data products is competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
Broker-dealers currently have numerous alternative venues for their order flow, including numerous self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities (“TRFs”) compete to attract internalized transaction reports. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple broker-dealers' production of proprietary data products. The potential sources of proprietary products are virtually limitless.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing proprietary book data on the Internet. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. Market data vendors provide another form of price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail broker-dealers, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. The Exchange and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings 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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
ISE Gemini proposes to amend language in the Schedule of Fees related to excluding days from its average daily volume calculations when the market is not open for the entire trading day. The text of the proposed rule change is available on the Exchange's Internet 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 self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
Currently, for purposes of determining a member's average daily volume (“ADV”), any day that the market is not open for the entire trading day may be excluded from such calculation. The Exchange proposes to amend language in the Schedule of Fees related to excluding days from the ADV calculations used to determine applicable fee and rebate tiers. Specifically, the Exchange proposes to permit days to be excluded from its ADV calculations where the Exchange is technically open for the entire trading day, but has instructed members to route away due to a systems or other error that ultimately does not impact trading on the Exchange. Currently, the Exchange's ability to remove days from its ADV calculations is limited to days where the market is not open for the entire trading day. This allows the Exchange to exclude days, for example, where the Exchange declares a trading halt in all securities, honors a market-wide trading halt declared by another market, or closes early for holiday observance. Because these days generally have artificially lower trading volume, the Exchange believes that it is reasonable and equitable to not include such days in determining fee and rebate tiers. The Exchange notes, however, that if it has a systems issue in the morning before the market opens, it may instruct members to route away to other markets. If the systems issue continues into trading hours, the Exchange is permitted to exclude the day for all members that would have a lower ADV with the day included. If, however, the systems issue is resolved prior to the opening of trading, the Exchange is not permitted to exclude the day from its ADV calculations. This is the case regardless of the fact that many members would have already made arrangements to route away in accordance with the Exchange's instructions. To prevent this undesirable result, and preserve the Exchange's intent behind adopting volume-based pricing, the Exchange proposes to allow days to be excluded from its ADV calculation whenever all members are instructed, in writing, to route their orders to other markets.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
In accordance with Section 6(b)(8) of the Act,
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
60-day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) of 1995, 44 U.S.C Chapter 35 requires federal agencies to publish a notice in the
Submit comments on or before December 21, 2015.
Send all comments to Travis Farris, Counsel to Inspector General, Office of Inspector General, Small Business Administration, 409 3rd Street, 5th Floor, Washington, DC 20416.
Travis Farris, Counsel to Inspector General, Inspector General,
Small Business Administration SBA Form 912 is used to collect information needed to make character determinations with respect to applicants for monetary loan assistance or applicants for participation in SBA programs. The information collected is used as the basis for conducting name checks at national Federal Bureau of Investigations (FBI) and local levels.
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
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 include an extension and a revision 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 collection below is pending at SSA. SSA will submit it 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 December 21, 2015. Individuals can obtain copies of the collection instruments by writing to the above email address.
On September 2, 2011, the agency published interim final regulations and notifications processes for the restrictive access and alternative service process at 76 FR 54700. These regulations explain the process we follow when we restrict individuals from receiving in-person services in our field offices and provide them, instead, with alternative services. We published these rules to create a safer environment for our personnel and members of the public who use our facilities, while ensuring we continue to serve the American people with as little disruption to our operations as possible.
Under our regulations at 20 CFR 422.905, an individual whom we restrict access to our facilities has the opportunity to appeal our decision within 60 days of the date of the restrictive access and alternative service notice. Under 20 CFR 422.906, if the individual does not appeal the decision within the 60 days; if we restrict the individual prior to the effective date of this regulation; or if the appeal results in a denial, the individual has another opportunity to request review of the restriction after a three-year period. We make this periodic review available to all restricted individuals once every three years.
The interim final restrictive access and alternative services rules contain two public reporting burdens:
• 20 CFR 422.905—after SSA issues a restrictive access and alternative service decision against an individual, the individual has 60 days to appeal the determination. Restricted individuals must submit a written appeal stating why they believe SSA should rescind the restriction and allow them to conduct business with us on a face-to-face basis in one of our offices. There is no printed form for this request; restricted individuals create their own written statement of appeal, and submit it to a sole decision-maker in the regional office of the region where the restriction originated. The individuals may also provide additional documentation to support their appeal.
• 20 CFR 422.906—three years after the original restrictive access and alternative service decision, restricted individuals may re-submit a written appeal of the decision. The same criteria apply as for the original appeal: (1) It must be in writing; (2) it must go to a sole decision-maker in the regional office of the region where the restriction originated for review; and (3) it may accompany supporting documentation.
Respondents for this collection are individuals appealing their restrictions from in-person services at SSA field offices.
Type of Request: Extension of an OMB-approved information collection.
II. SSA submitted the information collection below to OMB for clearance. Your comments regarding the information collection 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 November 23, 2015. Individuals can obtain copies of the OMB clearance packages by writing to
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
Type of Request: Revision of an OMB-approved information collection.
The Department of State announces a meeting of the U.S. State Department—Overseas Security Advisory Council on November 17, 2015. Pursuant to Section 10(d) of the Federal Advisory Committee Act (5 U.S.C. Appendix), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(7)(E), it has been determined that the meeting will be closed to the public. The meeting will focus on an examination of corporate security policies and procedures and will involve extensive discussion of trade
For more information, contact Marsha Thurman, Overseas Security Advisory Council, U.S. Department of State, Washington, DC 20522-2008, phone: 571-345-2214.
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Eleventh RTCA Tactical Operations Committee Meeting.
The FAA is issuing this notice to advise the public of the Eleventh RTCA Tactical Operations Committee meeting.
The meeting will be held November 12th from 9:00 a.m.-4:00 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street NW., Suite 910, Washington, DC 20036, Tel: (202) 330-0655.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of RTCA Tactical Operations Committee. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Plenary information will be provided upon request. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Twenty-Fifth RTCA Special Committee 217 Meeting.
The FAA is issuing this notice to advise the public of the Twenty-Fifth RTCA Special Committee 217 meeting.
The meeting will be held February 9th-11th from 9:00 a.m.-5:00 p.m.
The meeting will be held at Jeppesen Office, Frankfurter Str. 233, 63263 Neu-Isenburg, Germany, Tel: (202) 330-0662.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of RTCA Special Committee 217. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. Persons who wish to register may do so at
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Seventh RTCA Special Committee 231 Meeting.
The FAA is issuing this notice to advise the public of the seventh RTCA Special Committee 231 meeting.
The meeting will be held December 8th-10th from 9:00 a.m.-5:00 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street NW., Suite 450, Washington, DC, 20036, Tel: (202) 330-0654.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of RTCA Special Committee 231. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Plenary information will be provided upon request. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Twenty-First RTCA Special Committee 222 Meeting.
The FAA is issuing this notice to advise the public of the Twenty-First RTCA Special Committee 222 meeting.
The meeting will be held November 9th from 9:00 a.m.-4:00 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street NW., Suite 910, Washington, DC 20036, Tel: (202) 330-0662.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of RTCA Special Committee 222. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Plenary information will be provided upon request. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by November 23, 2015.
Interested persons are invited to submit written comments on
Ronda Thompson at (202) 267-1416, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by November 23, 2015.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Ronda Thompson at (202) 267-1416, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice of availability and notice for public hearing.
The FAA is announcing the availability of a Draft EA for public review and comment. The Draft EA examines the potential environmental impacts of proposed actions to initiate commercial service and to develop the Paulding Northwest Atlanta Airport in accordance with the approved Airport Layout Plan. The EA has been undertaken in accordance with National Environmental Policy Act (NEPA) of 1969 and its implementing regulations. Consultants, acting on behalf of the Paulding County Airport Authority, have prepared a Draft EA that describes the potential environmental impacts associated with the proposed initiation of commercial service and other airport improvement projects on environmental resources in the area.
A Public Hearing for the Draft EA will be held on December 1, 2015 from 6 p.m. to 9 p.m. at the Paulding County Northwest Atlanta Airport, 730 Airport Parkway, Dallas, Georgia 30157.
The document will be available for public review beginning on October 20, 2015. Comments on the document will be accepted until December 11, 2015.
Any person desiring to review the Draft EA and to comment on the document may do so at the following locations: Paulding Northwest Atlanta Airport, 730 Airport Parkway, Dallas, Georgia 30157 or Paulding County Library, 1010 Memorial Drive East, Dallas, Georgia 30132.
Lisa Favors, Environmental Program Manager, Atlanta Airports District Office, 1701 Columbia Ave., Suite 220, Atlanta, GA 30337-2747, (404) 305-6744,
The Draft EA will also be made available online for review and comment via the following Web sites:
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Fifth RTCA Special Committee 232 Meeting.
The FAA is issuing this notice to advise the public of the Fifth RTCA Special Committee 232 meeting.
The meeting will be held November 10th-11th from 9:00 a.m.- 5:00 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street NW., Suite 910, Washington, DC 20036, Tel: (202) 330-0654.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of RTCA Special Committee 232. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Plenary information will be provided upon request. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA is announcing approval of Finding of No Significant Impact/Record of Decision for the proposed replacement airport (XWA) serving D-III aircraft in Williston, North Dakota. The FAA approved the FONSI/ROD on September 22, 2015.
The FONSI approved the Sponsor's proposed action to develop aviation facilities that meet FAA airport design standards and accommodate current and projected levels of aviation activity for the Williston area. The need for the proposed action is to provide aviation facilities necessary to meet the expected demand for the forecasted growth of air traffic in Williston area consistent with FAA airport design standards for ARC D-III aircraft, as well as provide the capability for anticipated future operation of larger aircraft.
The City of Williston proposes to decommission the existing Sloulin Field International Airport (ISN) and construct, operate and maintain a new airport located in Williston, North Dakota. The Airport will be relocated approximately 6 miles north and 5 miles west of Williston. The proposed new terminal building would be located approximately 2.5 miles from US Highway 2. The proposed new airport would be called the Williston Basin
The City of Williston proposes to relocate the Sloulin Field International Airport to develop aviation facilities that meet FAA airport design standards and accommodated current and projected levels of aviation activity. They propose to construct two runways and related aviation facilities that meet FAA airport design standards for Airport Reference Code (ARC) D-III aircraft as well as acquire land for compatible land use and expansion of facilities to future aviation demands. Development of a replacement airport requires FAA approval of an airport layout plan (ALP), the final EA and FONSI/ROD and approval of funding from local agencies, North Dakota Aeronautics Commission (NDAC), and the FAA. The proposed action would require the acquisition of land for the construction of access roads, construction of runways, taxiways, aprons and various airport structures, and the installation of navigational aids to meet FAA design standards for ARC D-III aircraft. The proposed action includes acquisition of land for compatible land use, construction of facilities, and the closure and sale of the existing Sloulin Field International Airport. The relocated airport is anticipated to be constructed from 2015-2018, pending funding availability.
The FONSI/ROD indicates the project is consistent with existing environmental policies and objectives as set forth in the National Environmental Policy Act (NEPA) of 1969, as amended and will not significantly affect the quality of the environment.
In reaching this decision, the FAA has given careful consideration to: (a) The role of Williston Airport plays in the national air transportation system, (b) aviation safety, and (c) preferences of the airport owner/operator, and (d) anticipated environmental impact.
This notice is effective October 22, 2015.
Ms. Lindsay Butler, Federal Aviation Administration, Great Lakes Regional Office, 2300 East Devon Avenue, Des Plaines, IL 60018. Telephone number: 847-294-7723.
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Ninth RTCA Special Committee 228 Meeting.
The FAA is issuing this notice to advise the public of the Ninth RTCA Special Committee 228 meeting.
The meeting will be held November 20th from 9:00 a.m.-1:00 p.m.
The meeting will be held at NASA Ames Center, Building 152, 200 Dailey Road, Moffett Field, CA 94035, Tel: (202) 330-0654.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of RTCA Special Committee 228. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Plenary information will be provided upon request. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collected on the FAA Form 8120-11 is reported voluntarily by manufacturers, repair stations, aircraft owner/operators, air carriers, and the general public who wish to report suspected unapproved parts to the FAA for review. The report information is collected and correlated by the FAA, Aviation Safety Hotline Program Office, and used to determine if an unapproved part investigation is warranted.
Written comments should be submitted by December 21, 2015.
Send comments to the FAA at the following address: Ronda Thompson, Room 300, Federal Aviation Administration, ASP-110, 950 L'Enfant Plaza SW., Washington, DC 20024.
Ronda Thompson at (202) 267-1416, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by November 23, 2015.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Ronda Thompson at (202) 267-1416, or by email at:
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
Mack Trucks, Inc. (Mack), has determined that certain model year (MY) 2014-2016 Mack LEU model incomplete vehicles do not fully comply with paragraphs S5.3.3 and S5.3.4 of Federal Motor Vehicle Safety Standard (FMVSS) No. 121,
For further information on this decision contact James Jones, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-5294, facsimile (202) 366-3081.
I.
Notice of receipt of the petition was published, with a 30-day public comment period, on August 18, 2015 in the
II.
III.
IV.
Paragraph S5.3.4 of FMVSS No. 121 requires in pertinent part:
V.
(A) Mack conducted pneumatic brake timings tests on a test vehicle representative of the affected population to show the results compared to the requirement. The test vehicle was configured similar to a dual-drive (or twin steer) residential garbage truck equipped with left-hand and right-hand steering and brake controls. Tests were conducted on each axle, separately, using the left-hand brake control and then, the right hand brake control.
Mack's data indicate that, on average, steer axle pneumatic brake actuation times exceed the requirement by 0.04 seconds, steer axle pneumatic brake release times, on average, exceed the requirement by 0.09 seconds, and drive axle brake timing results indicate compliance with the safety standard's requirement.
Mack stated that a change in brake chamber size from type 24 to type 30, which occurred in 2013 production, may have caused the noncompliance.
(B) Mack conducted additional brake timing and dynamic performance tests to evaluate how this noncompliance affects overall brake performance. The tests were performed by an independent testing and evaluation company, Link Commercial Vehicle Testing (Link) located in East Liberty, Ohio. According to Mack, the results of these tests clearly show that the trucks that are affected by the subject noncompliance are compliant with the brake stopping distance requirements. Mack provided a chart to illustrate the stopping distance test results. (Detailed results from the tests provided by Mack are available from the docket for this petition).
(C) Mack stated that LEU's are used almost exclusively in residential garbage collection service. Because of that, Mack says there are no concerned vehicles that tow air-braked trailers and that compatibility with other air brake vehicles is also not cause for concern.
(D) Mack also stated that brake release timing has been the subject of previous petitions that it believes are similar to its petition and were granted by NHTSA.
Mack has additionally informed NHTSA that it is correcting the noncompliance so that all future production of the subject trucks will fully comply with FMVSS No. 121.
In summation, Mack believes that the described noncompliance of the subject trucks is inconsequential to motor vehicle safety, and that its petition, to exempt Mack from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
Link performed a series of FMVSS No. 121 stopping distance and stability and control tests on a Mack LEU dual-drive test vehicle, initially, fitted with type 24 steer axle brake chambers to represent the “compliant configuration” and then fitted with type 30 steer axle brake chambers to represent the “noncompliant configuration
With the test vehicle loaded to gross vehicle weight
The data results indicate that the test vehicle in the “noncompliant” configuration met the safety standard's stopping distance requirements. Furthermore, the data results show that there is no significant difference in stopping distance performance between the two configurations. Additionally, Link performed stability and control (
Again, data results indicate that the test vehicle in the “noncompliant” configuration met the safety standard's stability and control braking requirements and there is no significant difference in braking performance between the two configurations.
Mack also stated that brake release timing has been the subject of previous petitions that it believes are similar to its petition and were granted by NHTSA.
In previous petitions concerning brake release timing, NHTSA emphasized that only the failure of the subject vehicles was at issue. NHTSA concluded that, “
Likewise, for this petition, we only consider the failure of the subject vehicles and whether the data and analyses are sufficient to grant the petition.
The petitioner has met its burden of persuasion that the noncompliance described herein is inconsequential to safety. The petition is hereby granted. Accordingly, Mack is exempted from the obligation of providing notification of, and remedy for the subject noncompliance.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the subject incomplete vehicles that Mack no longer controlled at the time it determined that the noncompliance existed. However, the grant of this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant incomplete vehicles under their control after Mack notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Cooper Tire & Rubber Company (Cooper), has determined that certain Cooper tires do not fully comply with paragraph S5.5.1(b) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
The closing date for comments on the petition is November 23, 2015.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and submitted by any of the following methods:
•
•
•
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated above will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will
This notice of receipt of Cooper's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
S5.5.1
(b)
Cooper also indicated that it has taken the following steps to ensure proper registration of the subject tires:
(a) Cooper has informed all internal personnel responsible for manual processing of tire registration cards about the “U8” issue so that cards containing the “U8” designation will be accepted and properly processed when all other information accurately identifies the subject tires. And, Cooper will follow up with the consumer seeking additional information by providing a prepaid response card.
(b) Cooper is in the process of modifying its database to accept “U8” when other information (brand, serial weeks affected etc.) is accurate.
(c) Cooper has contacted Computerized Information and Management Services, Inc. (CIMS) so that tire registration cards will not be rejected solely due to improper plant code information.
Cooper additionally informed NHTSA that on May 29, 2015 the incorrect mold was pulled and the stamping error that caused the subject noncompliance was corrected at that time.
Refer to Coopers' petition for their complete reasoning and any associated illustrations. The petition and all supporting documents are available by logging onto the Federal Docket Management System (FDMS) Web site at:
In summation, Cooper believes that the described noncompliance of the subject tires is inconsequential to motor vehicle safety, and that its petition, to exempt Cooper from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject tires that Cooper no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after Cooper notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
Ford Motor Company, (Ford) has determined that certain model year (MY) 2014 Ford Focus passenger cars do not fully comply with paragraph S3.1.4.1(a) of Federal Motor Vehicle Safety Standard (FMVSS) No. 102,
For further information on this decision contact Amina Fisher, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-5307, facsimile (202) 366-5930.
I.
Notice of receipt of Ford's petition was published, with a 30-Day public comment period, on June 19, 2014 in
II.
III.
IV.
S3.1.4.1 Except as specified in S3.1.4.3, if the transmission shift position sequence includes a park position, identification of shift positions, including the positions in relation to each other and the position selected, shall be displayed in view of the driver whenever any of the following exist:
(a) The ignition is in a position where the transmission can be shifted; or . . .
Ford explained that this condition can only occur after a non-typical key-on sequence and only when the transmission is in park, and believes that this condition does not present a risk to motor vehicle safety. The following two examples were presented:
After the cluster enters sleep mode, if an operator, without first opening the door, inserts a key and turns on the ignition from outside the vehicle (
After shutting down a vehicle with the transmission in Park, the driver remains in the vehicle for approximately 10 minutes with the key out of the ignition, and does not contact the brake pedal or open a door, the cluster will go into sleep mode. If the driver then starts the engine in 0.7 seconds or less of performing an action that causes the cluster to wake-up (
Ford said that as soon as the transmission shift lever release button is depressed (required for shifting to any non-park position) the PRNDx will illuminate, allowing the customer to select the desired gear.
Ford also mentioned that under normal usage the PRNDx illuminates as intended. As an example, Ford explained that when the driver or passenger opens a door and enters the car, the cluster will wake-up from sleep mode and the subject condition will not occur.
Furthermore, Ford explained that if the vehicle is left in any gear other than park, the cluster will not go into sleep mode, this subject noncompliant condition will not occur, and the PRNDx will illuminate as intended.
Lastly, Ford stated that no other Ford vehicles are affected by this condition and Ford is not aware of any owner complaints, accidents or injuries related to this condition.
Ford has additionally informed NHTSA that it has corrected the noncompliance so that all future production vehicles will comply with FMVSS No. 102.
In summation, Ford believes that the described noncompliance of the subject vehicles is inconsequential to motor vehicle safety, and that its petition, to exempt Ford from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
Ford stated that the subject condition can only occur after certain non-typical key-on sequences and only when the transmission is in park, thus not presenting a risk to motor vehicle safety. Ford provided two example scenarios that can lead to the subject noncompliance. In both scenarios the instrument cluster electronics defaults to a sleep mode after a short period of inactivity (requires approximately 10 minutes of inactivity). Under the first scenario, while in the sleep mode, if the vehicle operator inserts the ignition key and activates the ignition through an open window, without first opening the door, and later enters the vehicle through the door, the PRNDx will not be illuminated until the shift lever button is depressed. In the second scenario, after driving, stopping, shifting the vehicle to park, shutting the engine off and removing the ignition key, if the driver remains in the vehicle for approximately 10 minutes without contacting the brake pedal or opening a door, the instrument cluster will go into sleep mode. If the driver then starts the engine in 0.7 seconds or less of performing an action that causes the cluster to wake-up (
Upon consideration of these two scenarios, the Agency believes either could occur, although very infrequently. If either situation did happen to occur, the transmission would be in the park position and any further action by the operator to leave the vehicle or shift the vehicle out of the park position, in preparation to drive away, would resolve the PRNDx illumination condition. The noncompliant situations could only exist for short periods of time while the transmission is in the park position and only until the driver takes further action (
Ford explained that as soon as the transmission shift lever release button is depressed, which is required prior to shifting to any non-park position, the PRNDx will illuminate allowing the driver to see and select the desired gear. NHTSA recognizes that if the driver did find themselves in the subject noncompliant condition and attempted a gear change they would have to depress both the brake pedal and the shift lever release button located on the shift lever. Current vehicle designs are required to have a brake transmission shift interlock that forces the driver to depress the brake pedal before the transmission can be shifted from the park position. Either application of the brake pedal or activation of the shift lever release, whichever occurs first, will wake the vehicle dashboard cluster electronics causing the PRNDx to illuminate. The driver is then able to clearly see and select the desired transmission gear position.
Ford stated that the PRNDx illuminates as intended under normal vehicle use and explained that when a driver or passenger door is opened the instrument cluster electronics will wake-up from the sleep mode subsequently meeting the illumination requirements of the safety standard. NHTSA agrees that it is normal behavior for a driver (or passenger) to first open a door to enter the vehicle before starting the engine. It is also normal behavior after entering a vehicle for the
Ford lastly stated that if the vehicle is left in any transmission gear other than park, the cluster will not go into sleep mode, the subject condition will not occur, and the PRNDx will illuminate as intended. The Agency understand that if a driver does turn the vehicle off when the transmission is in a gear other than park the instrument cluster electronics will not be allowed to go into a sleep mode and the PRNDx illumination will perform as required by the Standard.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that Ford no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve Ford distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Ford notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
Office of the Secretary (OST), Department of Transportation (Department).
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), the Department of Transportation's Office of the Secretary is forwarding the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for approval. The ICR describes the nature of the information and the expected burden. OST published a
Comments on this notice must be received by November 23, 2015.
Your comments should be identified by Docket No. DOT-OST-2015-0083 and should be submitted through one of the following methods:
•
•
•
Maegan Johnson, Office of the General Counsel, Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, 202-366-9342 (Voice), 202-366-7152 (Fax), or
The Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On April 16, 2015, OST published a 60-day notice in the
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d);
Department of Veterans Affairs.
Notice.
This
Written comments on the Preliminary Draft Final Master Plan must be received on or before December 7, 2015.
Written comments may be submitted through
The mission of the VA's Veterans Health Administration (VHA) is to honor America's veterans by providing exceptional health care that improves their health and wellbeing. VHA implements VA's medical care, research, and education programs. The WLA campus is part of the larger VA Greater Los Angeles (GLA) Healthcare System, serving Veterans in Los Angeles, Ventura, Santa Barbara, San Luis Obispo and Kern Counties, California. The WLA campus provides a variety of medical services including inpatient and outpatient care, rehabilitation, residential care, and long-term care services. In addition, it serves as a center for medical research and education.
In keeping with VA's goals to reach as many veterans as possible and to ensure that those veterans have a voice regarding the services that they need the most, we have decided to make the Preliminary Draft Final Master Plan available at
For those members of the public in the GLA region that reside outside the County of Los Angeles, we note that the central library branches listed below provide free internet access to the public:
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on October 19, for publication.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is publishing this final regulation that requires the electronic reporting and sharing of Clean Water Act National Pollutant Discharge Elimination System (NPDES) program information instead of the current paper-based reporting of this information. This action will save time and resources for permittees, states, tribes, territories, and the U.S. Government while increasing data accuracy, improving compliance, and supporting EPA's goal of providing better protection of the nation's waters. By modernizing this Clean Water Act reporting program, permittees and regulators will use existing, available information technology to electronically report information and data related to the NPDES permit program. This regulation will help provide greater clarity on who is and who is not in compliance and enhances transparency by providing a timelier, complete, more accurate, and nationally-consistent set of data about the NPDES program. By providing improved data in a more accessible form, this final rulemaking will improve the ability of EPA and authorized NPDES programs to target the most serious water quality and compliance problems. Furthermore, by reducing the time and resources devoted to outdated data management activities, the rule could allow authorized NPDES programs to shift limited resources to important water quality and public health protection activities. The transition from paper to electronic reporting will require close coordination and cooperation between EPA and authorized NPDES programs. This regulation provides important flexibility while still implementing electronic reporting in a timely and effective fashion.
The final rule is effective on December 21, 2015. The incorporation by reference of certain publications listed in this rule was approved by the Director of the Federal Register as of February 7, 2000. In accordance with 40 CFR part 23, this regulation shall be considered issued for purposes of judicial review at 1 p.m. Eastern time on November 5, 2015. The start dates for electronic reporting are provided in 40 CFR 127.16.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OECA-2009-0274. All documents in the docket are listed on the
For additional information, please contact Messrs. John Dombrowski (202-566-0742) or Carey A. Johnston (202-566-1014), Office of Compliance (mail code 2222A), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; email addresses:
The outline of this document follows the following format:
The final rule substitutes electronic reporting for paper-based reports and, over the long term, saves time and resources for permittees, states, tribes, territories, and EPA, while improving compliance and better protecting the Nation's waters. The final rule requires permittees and regulators to use existing, available information technology to electronically report information and data related to the NPDES permit program in lieu of filing paper-based reports. Authorized NPDES programs may adopt EPA data systems or elect to use their own data systems to collect NPDES program information as the initial recipient. All authorized programs are required to electronically transmit the federally-required data (identified in appendix A to 40 CFR part 127) to EPA.
The purpose and need for this rule was highlighted in the development of the Clean Water Act Enforcement Action Plan (Plan). Announced by EPA Administrator Lisa Jackson in October 2009, the Plan was a collaborative effort by EPA and state environmental agencies to explore opportunities to improve water quality by emphasizing and adopting new approaches that will improve how the NPDES permitting and enforcement program is administered. The goals of the Plan include improving transparency of the information on compliance and enforcement activities in each state, connecting this information to local water quality, and providing the public with real-time, easy access to this information. The final NPDES Electronic Reporting Rule will make achievement of these goals possible by requiring electronic reporting of facility and operational data, as well as discharge monitoring, compliance, and enforcement data.
In addition to substituting electronic reporting for paper-based reports, the final rule requires authorized NPDES programs to share the minimum set of NPDES program data (appendix A to 40 CFR part 127) with EPA for all facilities including nonmajor facilities. Historically, EPA and authorized NPDES programs have focused on major facilities as a way of prioritizing resources for permitting, enforcement and data sharing. Over time, there has been a growing recognition that these nonmajor sources significantly impact water quality as well. Storm water discharges, concentrated animal feeding operations, mines, and raw sanitary sewage overflows could all be significant contributors to water quality impairment; however, they have not been treated as NPDES major facilities. The final rule is intended to improve data quality collected from major and nonmajor facilities, thereby providing the states, tribes, territories, and EPA with more complete and comparable data on all NPDES permittees. These
This final rule requires NPDES regulated entities to electronically submit NPDES compliance monitoring reports and notices [
States, tribes, and territories that are authorized to implement the NPDES program are the sources of certain key information regarding the regulated facilities. For example, states have information from NPDES permit applications, which includes information concerning facility location, outfalls, effluent limits, and permit conditions, as well as information from their compliance monitoring activities, violation determinations, and enforcement actions. Under this final regulation, NPDES permitting authorities are required to share important components of this information electronically with EPA. The list of data elements that must be electronically collected, managed, and shared is provided in this final rule (appendix A to 40 CFR part 127). By “NPDES program,” this rule refers not only to the discharge permit program, but also the pretreatment program and the biosolids program, both of which are implemented in some ways without NPDES permits.
Separate from this rulemaking, EPA intends to make this more complete set of data available electronically to the public, to promote transparency and accountability by providing communities and citizens with easily accessible information on facility and government performance. This can serve to elevate the importance of compliance information and environmental performance within regulated entities, providing opportunity for them to quickly address any noncompliance. The ease of reviewing and assessing electronically submitted data will help provide greater clarity on who is and who is not in compliance. Currently, some noncompliance information is not easily reviewable by the authorized NPDES programs or accessible to EPA and these noncompliance events are sometimes not resolved in a timely manner. The result of this uneven response to noncompliance by regulators means that some facilities in noncompliance will not take immediate action, which gives them a financial edge over other facilities in states where there is a timelier response to noncompliance. This rule opens the opportunity for two-way communication between authorized NPDES programs or EPA and regulated facilities to immediately address data quality issues and to provide compliance assistance or take other action when potential problems are identified. Complete and accurate data also will allow comparison of performance across authorized NPDES programs as well as EPA's performance.
Key provisions of this final rule are identified in the implementation schedule in Section VII of the preamble. This includes the schedule of milestones for NPDES program data submission from states, tribes, and territories regarding their implementation activities, programs and permits as well as electronic NPDES program data submissions from regulated entities.
To fully implement this final regulation, there will be initial investment costs associated with needed changes to information technology and infrastructure. For example, EPA has developed a data system called the [Integrated Compliance Information System for the National Pollutant Discharge Elimination System (ICIS-NPDES) and two NPDES electronic reporting systems to collect NPDES program data (NetDMR and NPDES eReporting Tool (NeT)]. While all authorized NPDES programs are welcome to use EPA's data systems, authorized NPDES programs also have the flexibility to develop their own data systems that meet the regulatory requirements of 40 CFR part 3 (including, in all cases, subpart D), 40 CFR 122.22, and 40 CFR part 127. EPA will continue to closely work with authorized NPDES programs to make EPA's systems available and assist the development of their data systems in a cost-effective manner.
The initial cost of implementing the final rule is $77.9 million in undiscounted dollars (see Table 4-11: Total Initial Implementation Costs of the Rule, DCN 0197). While most of these costs are incurred within the first year after the effective date of the rule, this estimate includes certain recurring activities that should cease once full implementation is achieved. Five years after rule promulgation, assuming all regulated facilities have converted to electronic reporting (other than 1 percent that are assumed to receive waivers from electronic reporting), the cost is estimated to be $20.3 million per year in undiscounted dollars (see Table 4-10: Annual Cost of Data Entry and Operations for the Updated System after Implementation, DCN 0197). However, one year after rule promulgation, annual savings greatly outweigh annual costs, by approximately $23.9 million per year [calculated by subtracting the projected costs in year one from the projected savings; see Table 4-16: Schedule of Savings and Costs (3% Discount Rate), DCN 0197]. Cumulative savings over a ten-year period (using a 3 percent discount rate) are $406 million while cumulative costs are $250 million. As a result the overall economic effect of this rule is a net cumulative savings of $156 million over the ten years of the projection.
The final rule will save money for states, tribes, and territories authorized to administer the NPDES program as well as EPA and most NPDES permittees, while resulting in a more complete, more accurate, and nationally-consistent set of data about the NPDES program. With full implementation (expected to be five years after the effective date of the final rule), the anticipated annual net savings are expected to be $22.6 million for NPDES programs, $0.5 million for regulated entities, and $1.2 million for EPA, assuming a 3% discount rate [calculated by subtracting the projected costs in year five from the projected savings in year five; see Table 4-16: Schedule of Savings and Costs (3% Discount Rate), DCN 0197]. The economic analysis supporting this rule provides a more detailed description of the costs and savings (see DCN 0197).
The electronic submittal of data will help support EPA's goal of protecting and restoring water quality and will result in significant cost savings for the authorized NPDES programs, as well as savings for the permittees and EPA, when the rule is fully implemented. The final rule will also reduce the reporting burden currently borne by the authorized NPDES programs, improve overall facility compliance, allow better
The final rule will also lighten the reporting burden currently placed on the authorized NPDES programs. Upon successful implementation, the final rule would provide authorized NPDES programs with regulatory relief from reporting associated with the non-compliance reporting [see 40 CFR 123.45—(a) Quarterly Non-Compliance Report (QNCR), (b) Semi-Annual Statistical Summary Report, and (c) Annual Non-Compliance Report (ANCR)] and the biosolids report submitted to EPA annually by authorized NPDES programs with the Federal biosolids program (40 CFR 501.21).
The implementation schedule for the final rule is divided in two phases. Prior to the deadline for each phase, EPA will work with authorized NPDES programs to collect the necessary facility, permit, inspection, and enforcement action information that supports electronic reporting. For example, EPA will work with authorized NPDES programs which opt to use EPA's national NPDES data system (
The key compliance dates are set out below and set out in further details in Section VII and in the final rule (see 40 CFR 127.16).
•
•
•
As with any new regulation, some authorized NPDES programs may need to update their regulations or statutes to make clear that electronic reporting is required for the reports listed in Table 1 of appendix A and that these electronic submissions must be compliant with 40 CFR part 127 (including appendix A) and 40 CFR part 3 (including, in all cases, subpart D) [Cross-Media Electronic Reporting Regulation (CROMERR)—authentication and encryption standards]. Existing EPA regulations at 40 CFR 123.62(e) require that any updates to the authorized NPDES program take place within one year of the effective date of the final rule (if no state statute change is required) and within two years of the effective date of the final rule (if a state statute change is required). Accordingly, all authorized NPDES programs should complete any necessary updates to their state regulations within one year and statutes within two years of the effective date of the final rule.
Entities potentially affected by this action include all NPDES-permitted facilities, whether covered by an individual permit or general permit, industrial users located in cities without approved local pretreatment programs, and governmental entities that have received NPDES program authorization or are implementing portions of the NPDES program in a cooperative agreement with EPA. These entities include:
This table is not intended to be an exhaustive list, but rather provides some examples of the types of entities regulated by this action. Other types of entities not listed in this table may also be regulated.
Pursuant to the Clean Water Act (CWA), 33 U.S.C. 1251
Harnessing information technology that is now a common part of daily life is an important step toward reaching the goals of the CWA. EPA is promulgating this rule under the authority of CWA section 304(i) that authorizes EPA to establish minimum procedural and other elements of state programs under section 402, including reporting requirements and procedures to make information available to the public. In addition, EPA is promulgating this rule under section 308 of the CWA. Section 308 of the CWA authorizes EPA to require access to information necessary to carry out the objectives of the Act, including sections 301, 305, 306, 307, 311, 402, 404, 405, and 504. Section 402 of the CWA establishes the NPDES permit program for the control of the discharge of pollutants into the nation's waters. EPA is promulgating this rule under CWA sections 402(b) and (c), which require each authorized state, tribe, or territory to ensure that permits meet certain substantive requirements, and provide EPA information from point sources, industrial users, and authorized programs in order to ensure proper oversight. Finally, EPA is promulgating this rule under the authority of section 501, which authorizes EPA to prescribe such regulations as are necessary to carry out provisions of the Act.
Under section 509(b)(1) of the CWA, judicial review of this regulation can be had only by filing a petition for review in the U.S. Court of Appeals within 120 days after the regulation is considered issued for purposes of judicial review. Under section 509(b)(2), the requirements in this regulation may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements.
The 1948 Federal Water Pollution Control Act and subsequent amendments are now commonly referred to as the Clean Water Act (CWA). The CWA establishes a comprehensive program for protecting and restoring our nation's waters. The CWA established the NPDES permit program to authorize and control the discharges of pollutants to waters of the United States [CWA section 402]. This final rule, which is intended to reduce resource burdens associated with the paper-based system and increase the timeliness, accuracy, completeness, and usefulness of the information received by EPA, the states, tribes, territories, and the public, echoes the goals of CWA section 101(f).
Implementation of information technology that is now a common part of daily life is an important step toward reaching the goals of the CWA. EPA is promulgating this rule under the authority of CWA section 304(i) that authorizes EPA to establish minimum procedural and other elements of state programs under section 402, including reporting requirements and procedures to make information available to the public. In addition, EPA is promulgating this rule under the authority of section 308 of the CWA. Section 308 of the CWA authorizes EPA to require information to carry out the objectives of the Act, including sections 301, 305, 306, 307, 311, 402, 404, 405, and 504. Section 402 of the CWA establishes the NPDES permit program for the control of the discharge of pollutants into the nation's waters. EPA is promulgating this rule under CWA sections 402(b) and (c), which require each authorized state, tribe, or territory to ensure that permits meet certain substantive requirements, and provide EPA information from point sources, industrial users, and the authorized program in order to ensure proper oversight. Finally, EPA is promulgating this rule under the authority of section 501 of the Act, authorizing EPA to prescribe such regulations as are necessary to carry out provisions of the Act.
As authorized by the CWA, the NPDES permit program protects the nation's waters by controlling the discharge of pollutants into waters of the United States. Such discharges are illegal unless authorized by an NPDES permit. The NPDES permit program requires all point source discharges of pollutants (other than dredged or fill material regulated under Section 404 of the CWA) to waters of the United States to have a permit, the term of which may not exceed five years. The term “NPDES-regulated facilities,” as used in this rule, refers broadly to entities regulated under the Clean Water Act, including permittees under CWA section 402 along with the biosolids program, indirect dischargers, and non-discharging entities with permits. NPDES permits may be issued by EPA or by a state, tribe, or territory authorized by EPA to implement the NPDES program. As of May 1, 2015, EPA has authorized 46 states and the Virgin Islands to implement the base NPDES program as well as the general permits program; as of that same date, no tribe was currently authorized to implement the NPDES program. There are several subprograms of the NPDES program that states, tribes, and territories may also receive authorization from EPA to administer, including the pretreatment and the biosolids programs. As of May 1, 2015, 36 states are authorized to implement the pretreatment program and eight states are authorized to implement the biosolids program as part of the NPDES program.
Authorization to discharge may be provided under an individual NPDES permit, which is developed after a process initiated by the facility's submission of a permit application (40 CFR 122.21), or under a general NPDES permit (for example, most oil and gas extraction facilities and most construction sites operate under NPDES general permits). See 40 CFR 122.28(a)(2). Authorization to discharge under a general NPDES permit typically occurs following the submission of an NOI by the facility seeking authorization to discharge under the permit [40 CFR 122.28(b)(2)] and approval of that NOI by the permitting authority. Submission of an NOI is not required for specified types of discharges under certain circumstances [40 CFR 122.28(b)(2)(v)]. Most NPDES-permitted sources are regulated under general permits.
EPA has developed criteria to determine which sources should be considered “major” facilities (see DCN 0195). The distinction was made initially to assist EPA, states, tribes, and territories in setting priorities for permitting, compliance, and enforcement activities. Historically, EPA has placed greater priority on major facilities and has required NPDES-authorized states, tribes, and territories to provide more information about these dischargers. EPA's previous regulations establish annual, semi-annual, and quarterly reporting requirements, which mostly focused on major facilities. These previous reporting requirements provided violation information and facilitated EPA's assessment of the effectiveness of authorized programs and EPA regional program activities (
In order to support development of appropriate permit limits and conditions, issuance of effective permits, compliance monitoring, and appropriate enforcement actions, EPA has developed requirements along with policies, guidance, and expectations to track, measure, evaluate, and report on these efforts on a nationwide basis. Over the past 30 years, these efforts to establish significant pollutant controls focused primarily on major facilities and resulted in important pollutant discharge reductions from traditional major sources.
Although major municipal and industrial point sources continue to be significant sources of pollution, permitting experience with more diffuse sources shows that these point sources also contribute significant amounts of pollutants to our nation's waters. About 40,000 nonmajor facilities have individual permits which have requirements similar to the permits for major facilities (
The most recent state water quality assessment reports submitted under CWA section 305(b) and compiled by EPA in the National Water Quality Inventory Reports indicate the growing significance and link between nonmajor sources and impairments in water quality of U.S. waters, particularly from precipitation-induced or “wet weather” point sources of pollutants.
In the past, states, tribes, and territories generally did not consistently share information with EPA on most wet-weather sources. Therefore, EPA and the public do not have complete information on these pollution sources. Electronic reporting from all NPDES permittees will efficiently provide these data and will assist EPA and authorized NPDES programs in focusing their limited resources on the most significant water pollution sources and violations, whether from major or nonmajor facilities.
Transitioning to electronic reporting and data sharing will bring the NPDES program into the 21st century. Tracking data electronically is less expensive, more efficient, more accurate, and better able to support program management decisions than paper tracking (see July 30, 2013; 78 FR 46015-17, DCN 0015). In particular, Congress and the public expect environmental program managers at every level of government—local, state, tribal, territorial, and federal—to design and implement programs that deliver environmental and public health results. To target the most important pollution problems, better ensure environmental protection and public health, and enable more integrated program assessment and planning at the national level, the data that are electronically collected, managed, and shared between authorized NPDES programs and EPA should have the following characteristics:
I.
II.
III.
Similarly, incomplete data may result in inaccurate conclusions as to noncompliance rates for nonmajor permittees. EPA found through the Annual Noncompliance Report (ANCR) (see DCN 0016)
IV.
These factors demonstrate the need for a shared definition and central management of the information necessary to manage the NPDES program, ready access to that information by states, tribes, territories, and EPA, and assurance that the data across the authorized NPDES programs are complete, more accurate, and timely reported. The final rule provides parameters for the shared data, ensures the accessibility of that information, and provides the basis for ensuring that the data are nationally consistent, complete, more accurate, and timely.
EPA's Next Generation Compliance is an integrated strategy to improve regulations and permits with new monitoring and information technology and expanded transparency.
In addition to converting reporting from a paper to electronic format, the electronic system guides the user through the reporting process with integrated compliance assistance and data quality checks. From a compliance perspective, electronic reporting will allow regulated entities, governmental agencies, and the public to more quickly identify violations, and then more quickly address them.
Electronic reporting is a key component of the Next Generation Compliance Strategy (see DCN 0192). This strategy and rulemaking record shows that the shift from paper reporting toward electronic reporting is easier, more efficient, and costs less for the facility and for regulatory agencies. Electronic systems are used in the modern era for almost every kind of transaction. For the user, these systems offer speed, convenience, expanded
Since 2002, EPA and the authorized NPDES programs have worked together to update the information and data that states, tribes, territories, and EPA need to successfully implement, manage, and oversee the NPDES program. Various iterations of critical data elements were discussed by the state and EPA members of the Permit Compliance System (PCS) Steering Committee, the PCS Modernization Executive Council, and the Expanded PCS Steering Committee, which added representatives from the Environmental Council of the States (ECOS) and the Association of Clean Water Administrators (ACWA).
After receiving numerous comments on the draft ICIS-NPDES Policy Statement from the states, EPA began to develop a federal regulation that would require electronic reporting of specific NPDES information from the regulated permittees, states, tribes, and territories (see DCN 0215 and 0216). In 2010, EPA initiated an effort to carefully review the data needs and uses, identify the types of information and specific data elements that would allow EPA to meet those needs and uses, and evaluate whether some information should be sought directly from NPDES-regulated facilities or from states, tribes, and territories. This was done with full acknowledgement that for certain activities (such as permit issuance, inspections, compliance determinations, and issuance of enforcement actions), the states, tribes, and territories are the unique source of the identified NPDES information. During the summer of 2010, EPA conducted a series of concurrent technical analyses of various data types and facility types, which examined the feasibility of electronic reporting, various regulatory options, the existing regulatory data and reporting requirements, key considerations, and preliminary information regarding costs and benefits (see DCN 0018, 0019, 0020, 0021, 0022). After significant deliberations and consultations with states, EPA published the proposed rule on 30 July 2013 (78 FR 46006) and opened a 135 day public comment period.
EPA received 170 public comments on the proposed rule from a variety of stakeholder groups. The comments were generally supportive of electronic reporting as modern and efficient, but raised issues regarding aspects of the proposed implementation and operation of the rule. Table 1 provides an overview of the public comments EPA received during the proposed rule comment period. The largest number of public comments (by pages) came from state government agencies with industrial stakeholders contributing most of the remaining comments. Many of the industrial comments came from the agricultural sector.
EPA considered all of these comment submissions and identified the key issues raised by commenters. EPA has responded to these comments in the comment response document supporting this rulemaking (see DCN 0218).
On 1 December 2014, EPA published a supplemental notice to the 2013 proposed NPDES Electronic Reporting Rule and opened a 60-day public comment period (79 FR 71066). EPA used this document to identify many of the issues raised by commenters during the public comment period for the proposed rule, clarify misunderstandings about the proposal, and discuss possibilities for how EPA might modify the rule to address issues raised by stakeholders.
EPA received 58 public comments on the supplemental notice to the proposed rule from a variety of stakeholder groups. The comments were again generally supportive of electronic reporting as modern and efficient and provided meaningful comments on alternative means for implementing the final rule. Table 2 provides an overview of the public comments EPA received during the SNPR comment period. As with the proposed rule, the largest number of public comments (by pages) came from state government agencies.
EPA considered all of these comment submissions and has responded to these comments in the comment response document supporting this rulemaking (see DCN 0218).
Section VI of the proposed rule details EPA's extensive outreach efforts prior to the proposed rule. EPA continued this outreach during the public comment period on the proposed rule (DCN 0111). In particular, EPA held over 30 webinars and meetings with over 1,200 people to discuss the proposed rule. In addition to two public comment periods, EPA has conducted additional stakeholder meetings to further discuss and refine particular aspects of the rule prior to promulgation.
Many states expressed concerns with the proposed rule. EPA held teleconferences with authorized NPDES programs to obtain their individual views on various aspects of the proposed rule. EPA met with over twenty five states, ECOS, ACWA, and New England Interstate Water Pollution Control Commission to take into account their individual comments and concerns about the rule (see DCN 0128 to 0142, 0181, 0219 to 0229). Additionally, EPA separately contacted each authorized NPDES program to individually assess its readiness for these new electronic reporting requirements. This extensive outreach helped inform the implementation process of the final rule and the additional flexibilities that authorized states, tribes, and territories need for a measured and orderly conversion from paper to electronic reporting. As noted elsewhere in this preamble, EPA has extended the time for full implementation of this final rule from two years to five years. EPA has also provided authorized NPDES programs with more flexibility in how they administer electronic reporting waivers. EPA will continue its outreach to NPDES regulated entities and authorized NPDES programs during the implementation of this final rule.
This section identifies the regulatory changes made by this final rule and the significant decisions made by EPA in response to public comments. EPA has responded to all public comments in the comment response document supporting this rulemaking (see DCN 0218).
EPA is amending the following NPDES regulations to require electronic reporting by NPDES-regulated facilities, to require electronic reporting of NPDES information by the states, tribes, and territories to EPA, and to eliminate some existing reporting requirements, particularly those for states, tribes, and territories. In addition to the creation of a new 40 CFR part 127, the final rule adds or modifies the following existing regulations:
• 40 CFR 122.22. Signatories to permit applications and reports;
• 40 CFR 122.26(b)(15), (c)(1)(ii), and (g)(1)(iii). Stormwater discharges (applicable to State NPDES programs, see 40 CFR 123.25);
• 40 CFR 122.28(b)(2). General Permits (applicable to State NPDES programs, see 40 CFR 123.25);
• 40 CFR 122.34(g)(3). Reporting [as related to small Municipal Separate Storm Sewer Systems (MS4s)];
• 40 CFR 122.41(l)(4)(i). Monitoring reports [Discharge Monitoring Reports];
• 40 CFR 122.41(l)(6). Twenty-four hour reporting [Noncompliance which may endanger health or the environment];
• 40 CFR 122.41(l)(7). Other noncompliance;
• 40 CFR 122.41(l)(9). Identification of the Initial Recipient for the Electronic Reporting of NPDES Program Data [a new standard condition added by this final rule];
• 40 CFR 122.41(m)(3). Notice [as related to Bypass sewer overflows];
• 40 CFR 122.42(c). Municipal separate storm sewer systems [as related to medium or large MS4s];
• 40 CFR 122.42(e)(4). Annual reporting requirements for CAFOs;
• 40 CFR 122.43. Establishing permit conditions (applicable to State NPDES programs, see 40 CFR 123.25);
• 40 CFR 122.44(i). Monitoring requirements;
• 40 CFR 122.48(c). Requirements for recording and reporting of monitoring results (applicable to State NPDES programs, see 40 CFR 123.25);
• 40 CFR 122.63(f). Minor modifications of permits [a new option that explicitly states that NPDES programs may use the minor modification process to incorporate electronic reporting into NPDES permits];
• 40 CFR 122.64(c). Termination of permits (applicable to State NPDES programs, see 40 CFR 123.25);
• 40 CFR 123.22. Program description;
• 40 CFR 123.24(b)(3). Memorandum of Agreement with the Regional Administrator;
• 40 CFR 123.25(a). Requirements for permitting;
• 40 CFR 123.26. Requirements for compliance evaluation programs;
• 40 CFR 123.41(a). Sharing of information;
• 40 CFR 123.43(d). State data transmission of information from states to EPA;
• 40 CFR 123.45. Noncompliance and program reporting by the Director; [this replaces several state reports of noncompliance with the NNCR];
• 40 CFR 403.10(f). State Pretreatment Program requirements;
• 40 CFR 403.12(e). Periodic reports on continued compliance [Pretreatment program reports for Categorical Industrial Users];
• 40 CFR 403.12(h). Reporting requirements for Industrial Users not subject to categorical Pretreatment Standards [Pretreatment program reports for Significant Industrial Users not subject to EPA categorical pretreatment standards];
• 40 CFR 403.12(i). Annual POTW reports [Pretreatment program report];
• 40 CFR 501.21. Program Reporting to EPA (State Sludge Management Program) [the final rule eliminates the state annual biosolids report to EPA];
• 40 CFR 503.18. Reporting [Sewage Sludge/Biosolids Annual Program Report for land application];
• 40 CFR 503.28. Reporting [Sewage Sludge/Biosolids Annual Program Report for surface disposal]; and
• 40 CFR 503.48. Reporting [Sewage Sludge/Biosolids Annual Program Report for incineration].
EPA has grouped the existing NPDES reporting requirements into “NPDES Data Groups,” which are defined and listed in 40 CFR 127.2(c) and in Table 1 to appendix A of 40 CFR part 127. As defined in 40 CFR 127.2(c), the term “NPDES data group” means the group of related data elements identified in Table 1 in appendix A to 40 CFR part 127. These NPDES data groups have similar regulatory reporting requirements and have similar data sources. The final rule uses the NPDES Data Groups to identify the minimum set of data elements for each type of NPDES reporting (
Under the final rule, NPDES-regulated entities are required to submit NPDES program data to the designated initial recipient, as defined in 40 CFR 127.2(b). For this rule, the term “initial recipient” means the governmental entity, either the state or EPA, who first receives the NPDES program data listed in appendix A to 40 CFR part 127. The initial recipient designation is made separately for each state and by each NPDES data group, which is defined in 40 CFR 127.2(c). EPA is using the initial recipient term to help NPDES regulated entities properly identify the recipient for their electronic NPDES program data submissions. The initial recipient provision will also help ensure that authorized NPDES programs and EPA are properly sharing these NPDES program data with each other. EPA is required by the rule to maintain the initial recipient list for each state and by each NPDES data group and publish this list on its Web site and in the
As necessary, the initial recipient designation can switch back and forth between the authorized state, tribe, or territory NPDES programs and EPA. EPA's goal is to help all authorized NPDES programs be the initial recipient for any data group (
• As of the effective date of the final rule, the Initial Recipient determination is an `opt-out' process for authorized state, tribe, or territory NPDES programs. Per § 127.27(a), an authorized NPDES program must notify EPA within 120 days of the effective date of the final rule if it wishes EPA to be the Initial Recipient for a particular NPDES data group. If EPA receives no such notification, EPA will designate the authorized state, tribe, or territorial NPDES program as the Initial Recipient for all NPDES data groups.
• An authorized NPDES program can initially elect for EPA to be the initial recipient and then, at a later date, seek EPA approval to change the initial recipient status for one or all of the NPDES data groups from EPA to the authorized state, tribe, or territory. To make this switch, the authorized state, tribe, or territory must send a request to EPA. This request shall identify the specific NPDES data groups for which the state, tribe, or territory would like to be the initial recipient of electronic NPDES information, include a description of how its data system will be compliant with 40 CFR part 3 (including, in all cases, subpart D) and 40 CFR part 127, and the date or dates when the state, tribe, or territory will be ready to start receiving this information. Section 127.27 outlines the process for requesting the designation of initial recipient. After EPA approval of the request, EPA will update the initial recipient list and will publish the revised initial recipient listing on its Web site and in the
• An authorized NPDES program can initially elect to be the Initial Recipient for one or all of the NPDES data groups and then at a later date request that EPA become the initial recipient for one or all of the NPDES data groups. To make this switch the authorized state, tribe, or territory will send a request to EPA. After coordination with the state, EPA will update the initial recipient list and will publish the revised initial recipient listing on its Web site and in the
• There is also a process in § 127.27(d) for ensuring that authorized NPDES programs share the minimum set of NPDES program data with EPA (see Appendix A to 40 CFR part 127). This process will switch the initial recipient status from the authorized state, tribe, or territory to EPA if the authorized NPDES program is not sharing the minimum set of NPDES program data with EPA. As noted in the proposed § 127.27(d)(4), EPA will work with the Director of the authorized NPDES program to remediate all issues identified by EPA that prevent the authorized NPDES program from being the initial recipient. When all issues identified by EPA are determined by EPA to be satisfactorily resolved, EPA is required to update the initial recipient listing in § 127.27(c) in order to list the authorized state, tribe, or territory as the initial recipient.
An authorized NPDES program will continue to retain its responsibilities to facilitate electronic reporting even if it elects for EPA be the Initial Recipient for a particular NPDES data group. For example, an authorized NPDES program will still be expected to continue to provide support to NPDES regulated entities to facilitate electronic reporting (
It is important to note the interaction between the CROMERR requirements and the Initial Recipient requirements in the final rule.
EPA initially proposed two phases for the implementation of electronic reporting with the first phase starting one year after the effective date of the final rule and a second phase starting two years after the effective date of the final rule. EPA proposed full implementation of electronic reporting within two years after the effective date of the final rule. Many authorized NPDES programs indicated that they would likely not be able to implement electronic reporting for all data within two years of the effective date of the final rule. One commenter suggested that EPA consider working with authorized NPDES programs to develop individual state plans with a schedule for implementation based on state readiness and resources to implement electronic reporting. Other commenters suggested extending the IP beyond two years. After significant consultation with authorized NPDES programs EPA is adopting the implementation schedule described in Section VII.A.
EPA is providing additional time (five years from the effective date of the final rule) for authorized NPDES programs to switch their processing of Phase 2 NPDES program data (
In accordance with the final rule [40 CFR 127.26(h)], authorized NPDES programs will also need to submit an IP to EPA for EPA's review. The content of these plans must provide enough detail (
These plans should be sent to EPA within one year of the effective date of the final rule. EPA will review each IP and work with the corresponding authorized NPDES program to identify potential weaknesses and suggest potential revisions. EPA will finish its review of all IPs and inform the authorized NPDES program if its implementation plan is inadequate no later than six months after receipt. EPA plans to post these IPs on its Web site to provide the public with greater transparency on the milestones and tasks each state will be taking to move towards electronic reporting.
As noted in Section V.B.2, EPA is phasing in the electronic reporting requirements of this final rule over five years. In accordance with the schedule, and as a means to “fill in the gaps” where NPDES-regulated entities are not yet reporting electronically, EPA will use its authority, as appropriate, to issue targeted individual notices requiring NPDES-regulated entities to electronically report their NPDES program data (appendix A to 40 CFR part 127). EPA initially proposed to have these data come directly to EPA. Authorized NPDES programs suggested that instead EPA should require NPDES regulated entities to use state, tribe, or territorial electronic reporting systems that are in compliance with the final rule, as this would be more efficient. In this final rule, EPA is adopting the approach recommended by authorized NPDES programs and will use its existing authority under the CWA along with current technology and an Information Collection Request (ICR) to require NPDES-regulated entities to report electronically. EPA is using its authority under CWA sections 101, 304(i), 308, 402(b), and 501 to require NPDES-regulated entities to electronically report NPDES program data. Section 308 of the CWA authorizes EPA to require access to information necessary to carry out the objectives of the Act, including Section 402, which establishes the NPDES program. EPA provided examples in the SNPR regarding when it would use this authority to send notices to NPDES regulated entities to start electronic reporting (1 December 2014; 79 FR 71070).
EPA also notes that authorized NPDES programs can use their enforcement discretion to refrain from enforcing conditions in the permit or other control mechanisms that explicitly require paper reporting as long as the regulated entity successfully reports its data electronically using the appropriate CROMERR-approved electronic
Under the implementation schedule for this final rule, EPA will assess the electronic reporting participation rate of NPDES regulated entities in each state and by each data group to determine when it would be appropriate to send individual notices. For example, EPA may send individual notices to compel electronic reporting when the authorized state, tribe, or territory has less than 90-percent participation rate for one or more data groups (
EPA anticipates that it may use individual notices to compel electronic reporting will likely be minimal as electronic reporting, over the long term, reduces burden for the reporter. It is also important to note that many facilities have already made the switch to electronic reporting (
EPA solicited comment on this 90-percent participation rate metric. Commenters noted difficulties in outreach and training for the large number of NPDES-regulated entities that will need to switch from paper to electronic reporting. As described above, EPA is providing more time for
Another state commenter also suggested that EPA calculate for each authorized NPDES program one DMR electronic submission participant rate for individually permitted facilities and another DMR electronic submission participant rate for facilities covered under general permits. The commenter suggested that there are important differences between individually permitted facilities, which tend to be the larger facilities with a continuous discharge like POTWs, and facilities covered under general permits, which tend to be more numerous. Some authorized NPDES programs also use different agencies to manage specific industrial sectors (
EPA will also work with states to evaluate how best to assess electronic reporting participation for general permit reports (
Another important consideration is that NPDES-regulated entities with temporary waivers are excluded from the participation calculations. For example, if state X has 1,020 individually permitted facilities that are required to submit DMRs and 20 of these facilities are granted temporary waivers from electronic reporting, then as a group at least 900 of the 1,000 individually-permitted facilities without waivers [= 0.9 × (1,020 − 20)] need to electronically submit DMRs to state X in order to meet the 90-percent participation rate. Examples of how EPA will use individual notices to “fill in the gaps” where NPDES-regulated entities are not yet fully electronically reporting their NPDES program data are provided in the supplemental notice to the proposed rule (1 December 2014; 79 FR 71070) and more examples are in the docket (see DCN 0106).
As an alternative to use of a CROMERR-compliant electronic reporting system, one commenter suggested that EPA allow the initial recipient the option of using data capture technology [
The final rule provides the initial recipient the option of allowing data capture technologies for construction stormwater general permit reports. This is defined in the final rule as the “Hybrid Approach.” For example, under the Hybrid Approach, the initial recipient may allow construction operators to complete an online construction stormwater general permit report, which simultaneously produces a paper copy of the report and electronically transmits a copy of the data from the report to the initial recipient. The construction operator will sign and date the paper copy of the construction stormwater general permit report with a handwritten signature and this paper document will be the “copy of record.” The paper document will be managed in accordance with 40 CFR 122.28. It is important to note that EPA general permit regulations (40 CFR 122.28) do not require all general permit covered facilities to submit NOIs for all general permits as some general permits provide for automatic coverage. The final rule does not change EPA's general permit regulations with respect to the discretion of the authorized NPDES program in deciding when a notice of intent requirement would be inappropriate [see 40 CFR 122.28(b)(2)(v)]. Under the Hybrid Approach, the paper copy of the construction stormwater general permit report with a handwritten signature must be submitted to the authorized NPDES program.
Under the Hybrid Approach, the initial recipient must have the ability to definitively and uniquely link the signed and dated paper document with the electronic submission from the NPDES regulated entity. This could be done through use of a unique code or mark on the signed and dated paper document that is also embedded in the electronic submission. See Figure 1.
Under the Hybrid Approach, the initial recipient can also use automated data capture technology (
EPA notes that using the Hybrid Approach will require the procurement and management of the necessary data capture technology, maintenance of the signed and dated paper submission, and the training of potential users; however, some authorized NPDES programs have suggested the Hybrid Approach may be less burdensome than requiring all construction operators to register and submit using standard CROMERR-compliant identity-proofing and electronic reporting services.
Finally, EPA notes that it is limiting this approach to the construction sector due to the large and transient number of permittees that are reporting each year for new locations (approximately 200,000 new construction sites each year). Use of the Hybrid Approach eliminates the need for construction operators to obtain and maintain a digital signature and the need for authorized NPDES programs to oversee and troubleshoot the process for these construction operators to obtain these digital signatures.
EPA encourages state, local, or municipal government that make the Hybrid Approach available to regulated entities in the construction sector to also make CROMERR-complaint, fully-electronic reporting available as well, reducing to the degree possible any reliance on paper.
In the preamble to the proposed rule, EPA introduced the concept of temporary waivers from electronic reporting of NPDES program data. EPA proposed to limit the availability of these temporary waivers to regulated facilities in areas that lacked sufficient broadband availability. Under the proposal, temporary waivers would be available for one year at a time. Authorized NPDES programs would be required to enter the hard-copy NPDES program data submitted by facilities with waivers into the state or federal NPDES data system and share it with EPA. EPA requested comment on the need for such temporary waivers, possible options for such waivers, and on the possibility of permanent waivers for religious reasons.
During the two public comment periods, EPA received several comments on temporary waivers. The majority of the comments on this topic supported the overall concept of temporary waivers from NPDES electronic reporting. Commenters expressed support for waivers that would have a longer duration than the one-year renewable timeframe identified in the proposed rule. Several commenters suggested that waivers should also be
In the final rule, EPA is providing authorized NPDES programs with more flexibility in how they may grant temporary waivers. Per § 127.15 of the final rule, each authorized NPDES program will describe in its IP how it will implement the NPDES Electronic Reporting Rule waiver provision. Authorized NPDES programs will review and update, as necessary, their implementation of the NPDES Electronic Reporting Rule waiver provision once every five years and submit any changes to EPA for review. EPA will inform the state if its waiver process description is inadequate. The duration of a temporary waiver may not exceed five years, which is the normal period for an NPDES permit term. EPA also notes that these waivers are not transferrable.
Additionally, authorized NPDES programs may issue episodic waivers to address large-scale national disasters (
Commenters suggested that EPA should make permanent waivers for NPDES-regulated entities owned or operated by members of religious communities (
Appendix A to the final rule (40 CFR part 127) is the minimum set of NPDES program data that must be electronically collected, managed, and shared between NPDES-regulated facilities, authorized NPDES programs, and EPA.
When reviewing the list of Appendix A data elements, it is important to note the following concepts:
•
•
•
These concepts highlight the fact that there is a direct relationship between the amount of data that will be reported, collected, and managed and the overall burden of the rulemaking. The amount of data generated by each data element is directly tied to how frequently the data element is reported, the number of regulated entities that are covered by the data element (
• Identify current candidate reports and information from authorized NPDES programs and NPDES regulated entities that are practical to standardize and electronically process and have important value to the permitting and compliance and enforcement programs and the public.
• Identify the required data elements for each candidate data flow and report based on the CWA or existing EPA regulations.
• Minimize the number of data elements to create efficiencies without losing the utility of the data.
During 2014 and 2015, EPA met with state technical experts to discuss all the data elements in appendix A. EPA summarized these discussions for the Docket (see DCN 0128 to 0142, 0181, 0219 to 0229).
In general, EPA simplified appendix A to help make implementation of the final rule easier for authorized NPDES programs and NPDES regulated entities. The data elements in appendix A support the electronic collection, management, and sharing of Phase 1 and Phase 2 data.
EPA also noted that authorized NPDES programs can require NPDES regulated entities to submit more data than what is listed in appendix A. The authorized NPDES program can require NPDES regulated entities to submit these “non-appendix A” data on paper, electronically, or as attachments (
Current EPA regulations and policy set forth expectations for authorized NPDES programs to provide compliance monitoring data on all permitted facilities, both major and nonmajor facilities, and a limited group of unpermitted facilities. See 40 CFR 123.41, DCN 0007, DCN 0037, and DCN 0188. Under the 2014 Clean Water Act National Pollutant Discharge Elimination System Compliance Monitoring Strategy (“2014 CMS”), authorized NPDES programs can propose an alternative Compliance Monitoring Strategy (CMS) plan, which may include the state's plan to conduct “focused inspections” or “off-site desk audits” instead of “comprehensive inspections” for certain facilities (see DCN 0188). An alternative NPDES CMS plan is a plan that includes one or more compliance monitoring commitments that deviate from the national goals and flexibilities (see Part 2 of the 2014 CMS for detailed description of the national goals). As compared to the national goals, an alternative plan could include modified frequency of comprehensive inspections, modified compliance monitoring activities (
This final rule does not change the existing requirements for NPDES programs to report information on certain unpermitted facilities to EPA. See 40 CFR 123.41(a); 123.43(d). In order to provide clarity, the following examples clarify when authorized NPDES programs are required to share NPDES program data on unpermitted facilities with EPA by entering these data in to EPA's national NPDES data system (
In summary, the final rule does not require authorized NPDES programs to share NPDES program data on unpermitted facilities with EPA's national NPDES data system (
a. The approved alternative CMS plan includes compliance monitoring of unpermitted facilities through use of a “focused inspection” or an “off-site desk audit” instead of a “comprehensive inspection.”
b. Unpermitted facilities were subject to compliance monitoring and found to be in violation of the CWA (
c. Unpermitted facilities were subject to a formal enforcement action, an administrative penalty order, or an informal enforcement action (if such informal action addressed significant noncompliance).
d. Authorized NPDES programs must share with EPA NPDES program data on industrial users regulated by the Federal pretreatment program (40 CFR part 403).
e. Authorized NPDES programs must share with EPA NPDES program data on entities regulated by the Federal biosolids program (40 CFR part 503).
Basic facility data on these unpermitted facilities and the related compliance monitoring data must be shared with EPA's national NPDES data system (
Facilities included in the fourth group would be operating under a control mechanism, which may or may not be a permit (see 40 CFR 403.8). In accordance with the final rule, these facilities will electronically submit their bi-annual compliance reports [40 CFR 403.12(e) and (h)] to their Control Authority (when the state or EPA is the Control Authority). Additionally, the Control Authority will summarize the compliance and enforcement action data for industrial users as part of the Pretreatment Program Report [40 CFR 403.12(i)].
Facilities included in the fifth group would be operating under EPA's Standards for the Use or Disposal of Sewage Sludge (40 CFR part 503), which are directly applicable to “any person who prepares sewage sludge, applies sewage sludge to the land or fires sewage sludge in a sewage sludge incinerator and to the owner/operator of a surface disposal site” (see 40 CFR 503.1). This means that the annual reporting requirements in 40 CFR 503.18, 503.28, and 503.48 are applicable even in the absence of an NPDES permit.
Single Event Violations (SEVs) include one-time events as well as violations with longer durations. These are violations that are generally not automatically flagged by the data system (
SEV data are generated from inspection reports and other compliance monitoring activities by authorized NPDES programs. Currently approximately ten percent of facilities designated as majors in ICIS-NPDES have a SEV in any given year. These are important violations that are not automatically identified through self-monitoring data like DMRs, and these data are important for targeting, transparency, and state oversight. The availability of such compliance determination information from states, tribes, territories, and EPA is critical to determining the compliance status of NPDES regulated facilities. This information is needed on a facility-specific basis to better identify potential problems; ensure that appropriate action is taken to address noncompliance; better quantify national or state noncompliance rates; and to provide a more complete and transparent picture to permitting authorities, the public, Congress, and other stakeholders of the overall implementation and effectiveness of the authorized NPDES program. There are two to three data elements associated with SEVs:
• Violation Code (this uniquely identifies the type of violation)
• Date Data which includes: Single Event Violation Date (used when violation occurs on one date) or Single Event Violation Start Date and Single Event Violation End Date (used when violation spans multiple dates)
Prior to this final rule, EPA only required authorized NPDES programs to share with EPA SEV data on facilities designated as majors. In the proposed rule, EPA discussed requiring authorized NPDES programs to also share with EPA SEV data on facilities designated as nonmajors (see 30 July 2013; 78 FR 46041). EPA received comments from authorized NPDES programs suggesting that EPA rely on the Performance Partnership Agreements (PPA) and Performance Partnership Grants (PPG) process to manage SEV data sharing expectations.
PPAs and PPGs are often voluntary and all authorized NPDES programs use these documents to govern data sharing between authorized NPDES programs and EPA. Several states with PPAs have not updated them since the mid to late 1990s, and the degree of specificity of PPA commitments such as data entry, inspections, and enforcement actions varies widely. This highly variable, voluntary process is not sufficient to encourage and evaluate national consistency in meeting national program expectations for NPDES data entry and tracking, compliance evaluations and determinations, and timely and appropriate enforcement response.
Additionally, an authorized NPDES program is only required to share with EPA SEV data from a construction stormwater inspection when the authorized NPDES program also issues a formal enforcement action against the inspected construction site. As noted in the proposal, EPA made this distinction based on the large number of facilities in this segment of the NPDES universe (approximately new 200,000 construction sites each year). This distinction is made in appendix A to 40 CFR part 127.
Finally, EPA notes that data from some SEVs will be self-reported by the permitted facilities. For example, a sewer overflow is an SEV but the permittee will be collecting and electronically sharing these data with the permitting authority (
Executive Order 12866 directs federal agencies to perform an economic analysis (EA) to give decision makers information to determine that there is a need for the rule and that benefits of the rule justify the costs of the rule. Further, Executive Order 12866 requires that the rule maximize the net benefits to society, be cost effective and be based on the best reasonably obtainable information.
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601
EPA estimates initial implementation costs for the regulated facilities to be no more than $314 per facility, with an additional intermittently recurring cost of approximately $6 for some permittees. EPA also estimates that a limited number of small entities might be required to report both electronically and on paper to their permitting authority during the first five years after the effective date of the rule, each incurring as much as $86 in additional annual costs. Only one entity is expected to incur a cost impact of 1% or greater associated with the annualized compliance costs resulting from the final rule. While impacts of greater than 1% are estimated to be incurred by one entity due to the rule, impacts of greater than 1% are incurred by far fewer than 100 small entities and considerably less than 20% of all small entities for all sectors and for each sector individually. Therefore, following EPA guidance on assessment of the rule's direct adverse impact on any small entities, the rule is not expected to significantly impact a substantial number of small entities.
According to the threshold set out in E.O. 12866, this final rule is not economically significant. The threshold for a finding of economic significance is an annual effect, either costs or savings, of $100 million annually. EPA estimates the largest annual economic impacts to be $74.4 million in net costs during the first year after the effective date of the rule [Year 0 in Table 4-16: Schedule of Savings and Costs (3% Discount Rate) and Table 4-17: Schedule of Savings and Costs (7% Discount Rate), see DCN 097]. EPA also estimates $24.3 million in net savings five years after the effective date of the rule [Year 5 in Table 4-16: Schedule of Savings and Costs (3% Discount Rate), see DCN 0197].
Although this rule does not meet the economic significance threshold, this economic analysis includes most of the elements that would be required if the threshold were met—a statement of the need for the rule, an examination of alternatives, and the costs and benefits. The statement of need is located in Section II, and a description of the alternative approaches that were considered is located at Section IV. The non-monetary benefits were discussed in the first portion of Section VI. The balance of this section summarizes the estimated savings and costs of the selected approach.
The final rule would reduce the data entry burden on the states, tribes, and territories while increasing the percentage of the NPDES universe for which data are available electronically. Compared to the current reporting guidance, known as WENDB, the rule would reduce the data entry burden on states, tribes, and territories, increase the number of NPDES-regulated facilities for which NPDES data is available to EPA, and expand the scope of the available data for all NPDES-regulated facilities covered by this rule.
The main elements of this EA are the reporting universe, reporting frequencies, required data, changes in who reports the data, systems and infrastructure changes to make the reporting possible, and the schedule for implementation.
This rule would change the universe of permit types for which EPA will receive data. As described in Section II, the current reporting guidance instructs the states to provide EPA with data on the major dischargers (6,800 permittees) and nonmajor dischargers with individual permits (approximately 40,000 permittees). Some states provide data on a larger section of the permittee universe.
Under the final rule, EPA would receive data on the entire permittee universe (approximately 400,000 permittees including pesticides applicators and vessels), as represented in Table 4.
Table 4 shows the types and estimated numbers of permits in each of the applicable categories. Note, however, that some facilities have reporting requirements under more than one subprogram, in which case they are counted in each applicable group because that is the basis for regulation and reporting. Specifically, CWA section 316(b) filers are a subset of standard industrial dischargers and POTW NPDES report filers are a subset of the group of POTWs and TWTDSs. Also note that SIUs do not have a NPDES permit but are included in the EA.
Changes in the reportable universe affect virtually every aspect of the EA, including data entry costs, training costs, the need for electronic signatures and system registration, savings in paper and postage, and the potential impact of dual reporting. The majority of the savings due to the final rule result from electronic reporting of DMRs. Note, however, that not all of the regulated entities enumerated in Table 4 submit DMRs. To clarify this point, Table 5 shows the number of filers under each subprogram for each type of report, including DMRs.
Section V describes how and why the inventory of reportable data is changed by this rule. For the EA, the biggest impacts of the change in reportable data are the costs of enhancing the database structures to store the additional data and the costs of data entry. Estimating the cost of modifying the databases involves several factors, chiefly the number of additional data elements, the number of NPDES data groups those data elements fall into (
Based on the number of data elements and their planned structure, EPA developed a detailed estimate of its own costs to modify ICIS to accommodate the additional data elements. Because EPA does not have independent estimates of the comparable system costs for each state, tribe, and territory, EPA's estimate of system costs for those NPDES-authorized programs is based on EPA's costs to modify ICIS.
Data entry costs are one of the major aspects of the EA, and involve several additional factors, such as who generates the data, changes in the need for the states, tribes, and territories to enter permittee-created data into an information system, the number of permittees to which each data element applies, the frequency with which each type of data element is reported, the time required to enter each type of data element, and the labor costs associated with data entry.
“Responsibility for creating data” refers to the act of initially determining the value of any particular required data element and writing it on paper or entering it into an electronic storage system. Each data element required by this rule has exactly one creator, although the identity of the creator can be affected by the nature of the permit. For example, DMR data is always created by a permittee, and enforcement data is always created by the permitting authority, but basic facility data might be created by either the permitting authority or the permittee, depending on the type of permit that will be used. The EA uses a detailed understanding of responsibility for data creation to estimate and assign data entry costs and savings for permittees, states, tribes, and territories.
Under the current system of operations, states, tribes, and territories are responsible for collecting data from their permittees and providing the WENDB data to EPA. Paper submissions are the primary means by which permittees submit data to the states, tribes, and territories. This means the states, tribes, and territories are required to enter large amounts of data created by permittees into the permitting authority's information systems, or into ICIS-NPDES. Several types of reports are affected by this rule, but DMRs comprise a substantial majority of the permittee-created data that the states, tribes, and territories enter into data systems. As a result, a significant portion of the data collected is essentially being entered twice. The first is when permittees commit it to a paper form. The second is when the states enter the permittee-created data into an information system.
One of the chief benefits of this rule is that it virtually eliminates the need for such double entry of data in this sense: When DMRs and other reports are submitted electronically by permittees, these reports can be received electronically by the states, tribes, and territories, transmitted directly to the applicable information systems, and shared with EPA through the National Environmental Information Exchange Network.
There is generally no difference between the time required for a permittee to fill out a paper form and the time required for them to enter the same data on an electronic form. Therefore, permittee data creation costs and savings are not affected by the move to electronic reporting. The permittees are required to supply the same data, regardless of the media in which is it reported. However, during the transition period, some permittees might be required to submit data both electronically and on paper. The costs of such dual reporting are estimated to range from zero to $86 per entity.
The impact on the states, tribes, and territories is very different. Every data element a state, tribe, or territory does not have to enter into a data system is a savings compared to the current mode of operation. This does not mean, however, that every state, tribe, and territory will experience the same savings from the rule. Some permitting authorities have already begun shifting to electronic reporting. Forty-eight states have either implemented EPA's NetDMR or their own eDMR system or are in the process of doing so. Some permitting authorities have also begun moving to electronic reporting in other areas, such as NOI. However, participation in most of the state, tribe, or territory electronic reporting systems is voluntary, so participation rates are highly variable. Ohio is one of a few states that has a mandatory eDMR system and has achieved participation of over 99%. Other states have much lower participation rates, which mean they are bearing the costs of operating both paper-based and electronic reporting systems.
As described in Section II, the current reporting guidelines require states, tribes, and territories to provide EPA with data for only a portion of the permittee universe. This rule expands the universe of permittees for which required reporting must be shared with EPA, primarily by requiring data on the so-called NPDES subprograms. Subprogram data elements are specific to the permittees in each of the subprogram universes. For example, the data elements applicable to CAFOs apply only to CAFO permittees, biosolids data elements apply only to biosolids permittees and so on.
Another factor that affects the overall volume of data being submitted, and therefore the data entry costs and savings, is the variation in reporting frequencies. Reporting frequencies are dictated by the types of reports containing the data elements and the compliance monitoring strategy. DMR data elements are submitted on DMR forms, which are generally submitted monthly. Furthermore, many permittees submit multiple DMR forms per month, which explains (1) why DMR data elements comprise the largest portion of total data volume, and (2) why eliminating the need for the states, tribes, and territories to enter DMR data produces most of the savings from the rule.
Facility data are submitted on initial permit applications or on NOIs, and might be reviewed and updated every five years when the permit is reviewed for reissuance. A large part of the facility data is never changed. Portions that are subject to change are generally addressed during the permit's reviews.
Permit data, such as limits and limit sets, are established when the permit is issued, and reviewed and possibly revised on a five-year cycle. Permit conditions are seldom modified except during the regular five-year reviews, or as a result of enforcement actions.
Enforcement and compliance data are created on an as-needed basis. For example, inspection data are created at the time a facility is inspected. It is possible that some permittees will never have any violations or enforcement actions against them, and therefore very little enforcement data associated with them beyond routine compliance monitoring.
Subprogram data elements can be found on any of the major submissions, but are primarily contained in the applicable annual reports. Each of the data types and possible submissions and their frequencies has been evaluated for proper mapping into the EA.
Understanding how long it takes to enter data elements is a critical component of the EA. Nine states were surveyed to develop this information. Each respondent was asked to estimate the time it took them to enter various types of data elements. Respondents were grouped according to whether they were in a direct entry, batch entry or hybrid state, and average data entry times were computed for each data element within each group of states. The EA uses the data entry times from the survey to estimate how much time states, tribes, and territories will spend entering different types of data elements.
Labor rates for the rulemaking are taken from the Bureau of Labor Statistics. Several hourly rates are used, depending on the type of work and whether the worker is a government or private sector worker.
As described in Section II, EPA intends to develop electronic reporting systems for each of the reports covered by this rule—DMRs, NOIs, and program reports. Those EPA-developed systems will be offered to all of the states, tribes, territories, and permittees for their use. The cost of developing those reporting systems by EPA and the infrastructure to accommodate them were calculated and documented in a series of technical reports, and comprise the majority of the EPA HQ implementation costs as reported by the EA. EPA intends to encourage third-party development of electronic reporting systems. Ultimately each authorized state, tribe, and territory will decide whether to use, and allow their permittees to use, the EPA-provided electronic reporting systems or other systems. Each state, tribe, and territory has the option of adopting one or more of the EPA systems and rejecting the others. Although EPA is building, and making available, a comprehensive set of systems, the EA includes certain state, tribe, and territory costs to modify and expand their electronic reporting systems.
The costs of modifying ICIS and the state, tribe, and territory NPDES data systems are somewhat different. Each of the authorized states, tribes, or territories either has its own data system, or uses ICIS-NPDES. All of these data systems are thought to need some degree of modification to accept the additional data elements, and in the case of state, tribe, and territory data systems, to share that data with EPA. EPA developed an estimate of its costs to modify ICIS. The EA includes those EPA costs, and uses those costs to estimate the cost of database changes in the states, tribes, and territories. The EA uses this approach because EPA does not have detailed information about the data structures in the states, tribes, and territories. The EA does take the available information about state, tribe, and territory data systems into consideration.
All of these system development expenditures are included in the implementation costs of the rule, most of which are expended by EPA prior to rule promulgation and by the states, tribes, and territories within the first year after the effective date of the rule under the implementation schedule described in Section VII.
The EA also estimates marginal operation and maintenance (O&M) costs, over and above current annual costs, for EPA to support the systems required by the rule. It assumes there are no incremental O&M costs for states, tribes, and territories specifically to maintain the upgraded electronic systems (although it does include other ongoing costs, such as data entry). EPA estimates that most of the state compliance costs will take place in the first few years after the final rule.
In addition to system development costs, the EA includes the costs to EPA and the states, tribes, and territories of the following activities associated with the implementation of the rule:
• Authorized NPDES programs making decisions regarding their initial recipient status;
• Authorized NPDES programs demonstrating their attorneys general accept electronic signatures in lieu of physical signature, thereby certifying compliance with CROMERR;
• Authorized NPDES programs preparing IPs and EPA review of those plans;
• Authorized NPDES programs updating their Memoranda of Agreement with their Regional Administrator;
• Authorized NPDES program and EPA developing criteria for temporary and permanent waivers from electronic reporting;
• Authorized NPDES program and EPA coordination via training webinars;
• EPA assessing participation rates and, where appropriate, conducting oversight using its CWA authority and ICR to compel NPDES-regulated entities to utilize their NPDES program's electronic reporting system; and,
• Authorized NPDES programs and EPA modifying permits to require electronic submissions.
The EA does not attempt to estimate the costs the states, tribes, and territories will incur to revise their statutes or regulations to implement the changes required by this rule.
When the rule is fully implemented, EPA would essentially have complete data on almost the entire NPDES universe of permittees. As a result, EPA HQ will have all of the data necessary to prepare the Annual Notice of Non-Compliance, the Quarterly Non-Compliance Report, and the Semi-Annual Statistical Summary Report, all currently required from NPDES-authorized states, tribes, and territories by 40 CFR 123.45.
For that reason, the rule replaces all of those reports with a single report generated by EPA HQ using the data in the data systems after implementation of the rule. The EA estimates the reduced burden on the states, tribes, and territories as a result of this reporting change.
As described in Section II, the majority of permittee submittals are being sent to the states, tribes, and territories on paper. Each of those submittals therefore requires paper, an envelope, and postage.
Converting to electronic reporting under this rule will eliminate paper submittals of the covered reports for the vast majority of permittees. The EA estimates the percentage of permittees that will be required to use electronic reporting, the number and mix of reports they submit annually, as well as the number of pages in each report, and the required postage.
Instituting electronic reporting will entail some effort from the permittees. The EA assumes that every permittee will have to take certain steps in order to begin reporting electronically, whether they report directly to EPA or to their respective state, tribe, or territory. The EA incorporates available data about the extent to which regulated entities are using electronic reporting systems to submit DMRs and assumes these entities will not bear additional registration and training costs.
There are some differences in the costs to different permittees, based on the activities they are engaged in, and these differences have been included in the EA. To use the electronic reporting system for NetDMR and NeT, individual regulated entities will need to register for accounts, either on EPA's Central Data Exchange (CDX) or a similar data portal provided by their authorized NPDES program. Most regulated entities (excluding construction operators in states that allow a Hybrid Approach, as discussed in Section V) will also need to mail their authorized NPDES program an electronic signature agreement (ESA) stating that their electronic personal identification number (PIN) is the legal equivalent of their written signature.
NetDMR or authorized NPDES program eDMR systems are sufficiently complex that many regulated entities will need training to effectively use them. The EA assumes this training will be conducted online. Experience with currently operating systems has shown that training is not necessary for submitting NOIs or program reports electronically, as these systems are less complicated. General permit facilities would also use these less complicated systems to submit DMRs and, therefore, not require training.
The EA also assumes that some permittees would bear additional minor implementation costs associated with electronic reporting registration to satisfy EPA's CROMERR requirements. Specifically, some entities would need to acquire a new business email address and entities that report less frequently than every 90 days would need to reset their password when they report. Including registration, ESA, training, and these minor costs, the EA estimates total initial implementation costs for individual permittees of $314 or less, with an additional recurring cost for some permittees of approximately $6 when the permittee must reset their password. The EA also assumes that EPA would take over initial recipient status under 40 CFR 127.27(d) in two states during the ten year period covered by the analysis. Permittees in these states would need to re-register at an additional cost of $277 or less as most electronic signing credentials are not transferrable from one electronic reporting system to another.
As discussed in Section V, during the initial implementation period, certain regulated entities might be required to submit data to their authorized state program both electronically and on paper. This dual reporting during the transition would involve copying information from paper forms into the appropriate state electronic reporting system and would occur only under certain conditions (
The EA for this final rule estimates savings and costs over a ten-year period, beginning on the date that the rule would become final. Applying a 3% discount rate, and using 2014 dollars, the largest annual savings are $44.0 million during the first year of electronic reporting (Year 1 in Table 6 and Table 7). During the ten-year period, the highest annual costs are $74.4 million during the first year after the effective date of the rule (Year 0 in Table 6 and Table 7). Annual costs are significantly less in all other years. Cumulative savings for the ten-year period are $406.4 million while cumulative costs are $250.4 million. As a result the overall economic effect of this rule is a net cumulative savings of $156.0 million over the ten years of the projection.
The following tables summarize the EA cost and savings using the 3% (Table 6) and 7% (Table 7) discount rates as required by EPA's EA guidance in 2014 dollars. Each table shows the annual costs and savings. The “breakeven point” is the date after the final rule when the cumulative savings exceed cumulative costs.
There are both qualitative and quantitative benefits associated with this final rule. EPA has estimated some of the benefits of this rule by performing calculations based on: the reporting universe; reporting frequencies and required data; changes in who reports the data; systems and infrastructure changes to make the reporting possible; and the schedule for implementation. Using a 3% discount rate, and 2014 dollars, the annual total net benefits at full implementation (five years after the effective date of the rule) associated with reduced paperwork and management of information are approximately $26 million, with 93% of those savings going to the states, tribes, and territories.
Additional benefits associated with the rule include the potential for improved compliance and allow for better government and public decision making; however, EPA was unable to monetize these benefits. EPA was able to develop a rough monetary estimate of the benefits associated with reductions in errors in the reported data resulting from the rule that benefit both regulated entities and permitting authorities. Using information on the number of errors typically associated with DMR submissions, EPA developed a rough estimate of the potential time and cost savings that permitted authorities might experience annually from no longer having to correct errors in DMR data. Specifically, EPA estimates total time and cost saving of 130 full-time equivalents (FTEs) and $9.3 million in wages.
The cost of implementing the final rule during the first year after the effective date is approximately $74.4 million. The cost is estimated to drop to a $20.1 million or less per year in subsequent years, once electronic reporting begins (assuming a 3% discount rate). During the first year of electronic reporting (Year 1 in Table 6 and Table 7), annual savings greatly outweigh annual costs, resulting in net savings of approximately $23.9 million per year, with similar net savings in subsequent years.
EPA developed the implementation schedule for this final rule after careful analysis and extensive consultation with authorized NPDES programs and many other stakeholders. This implementation schedule balances the goals and benefits of electronic reporting with the practical challenges facing authorized NPDES programs and regulated entities. For example, some authorized NPDES programs noted that they compete against other agencies for the time and resources of a central shared information technology staff. For these authorized NPDES programs the IP may need to be tailored to account for their unique circumstances. The transition from paper to electronic reporting will require close coordination and cooperation between EPA and authorized NPDES programs. These IPs will provide an effective means for documenting all necessary tasks for a timely and orderly transition to electronic reporting.
As previously noted, the benefits of this final rule include accelerated resource savings that states, tribes, and territories will realize through reduced data entry burden and reduced effort in responding to public requests for data, consistent requirements for electronic reporting across all states, tribes, and territories, increased data quality, and more timely access to NPDES program data in an electronic format for EPA, states, tribes, and territories, regulated entities, and the public. These benefits and savings will be realized sooner the more quickly a state can implement the final rule. Under the final rule, a complete set of information for the regulated universe will be required no later than five years after the effective date of the final rule. In this final rule, EPA is adopting the timeline recommended by authorized NPDES programs and if participation goals are not met, EPA will issue individual notices to require NPDES-regulated entities to use the authorized NPDES program's electronic reporting system. The combination of the deadlines in this
Given the different types of NPDES program data, EPA is phasing in the electronic collection, management, and transfer of NPDES program data (appendix A to 40 CFR part 127) on the following schedule. A chronological listing of implementation activities are provided in Table 8.
•
•
•
This rule does not change the governing responsibilities of authorized NPDES programs or EPA. Authorized NPDES programs will start incorporating the new electronic reporting requirements into new or re-issued NPDES permits upon the effective date of this final rule. For example, changes to 40 CFR 122.41 must be incorporated into any NPDES permit that is issued on or after the effective date of this final rule.
Authorized NPDES programs will decide the NPDES data groups for which they wish to be the initial recipient of electronic NPDES information from NPDES-regulated entities. The final rule uses an `opt-out' approach so these authorized programs will need to provide notice to EPA if they wish for EPA to be the initial recipient for one or more of their NPDES data groups. These notices should be sent to EPA within 120 days of the effective date of the final rule.
Authorized NPDES programs will electronically transmit to EPA basic facility and permit information (see list of data elements in DCN 0007) for all permits as well as other data necessary for implementation of Phase 1 data collection within nine months after the effective date of the final rule. Authorized NPDES programs often collect these data from paper individual NPDES permit applications and forms submitted by NPDES regulated entities; however, some states collect these data from NPDES regulated entities through electronic reporting systems.
One year after the effective date of the final rule, authorized NPDES programs will start sharing with EPA their state performance data, which includes information generated from compliance monitoring (
Authorized NPDES programs will also likely need to provide training materials and resources to NPDES regulated entities (
Similarly, no later than five years after the effective date of the final rule EPA and authorized NPDES programs will start electronically receiving Phase 2 data from all NPDES regulated entities and start sharing these data with the designated EPA and state NPDES data systems. Authorized NPDES programs will submit an IP to EPA for EPA's review to ensure that authorized NPDES programs will meet this Phase 2 deadline. The content of these plans must provide enough detail (
Finally, authorized NPDES programs will also need to document and submit to EPA for approval their process for evaluating and approving temporary and permanent electronic reporting waivers from NPDES regulated entities. This discussion will be contained in the IP. Authorized NPDES programs will also need to re-submit their waiver process descriptions to EPA for review on a five year cycle. EPA will inform the state if its waiver process description is inadequate. This will allow EPA and authorized NPDES programs to assess the effectiveness of the waiver process against advances in information technology. To facilitate an orderly transition to electronic reporting, authorized NPDES programs may issue temporary waivers to DMR filers prior to EPA's review of the program's IP or waiver process description submission to EPA. These waivers may not have a duration longer than five years.
EPA estimates that some authorized NPDES programs may need to update their regulations or statutes to make clear that electronic reporting is required for the reports listed in Table 1 of appendix A and that these electronic submissions must be compliant with 40 CFR part 127 (including appendix A) and 40 CFR part 3 (including, in all cases, subpart D) (CROMERR—authentication and encryption standards). Existing EPA regulations at 40 CFR 123.62(e) require that any updates to the authorized NPDES program take place within one-year of the effective date of the final rule (if only a regulatory change is required) and within two years of the effective date of the final rule (if a state statute change is required). Accordingly, all authorized NPDES programs should complete any necessary updates to their state regulations and statutes within two years of the effective date of the final rule.
Finally, the final rule will also lighten the reporting burden currently placed on the authorized NPDES programs. Upon successful implementation of Phase 1 and 2, the final rule will provide authorized NPDES programs with regulatory relief from reporting associated with the Quarterly Non-Compliance Report (QNCR), the Annual Non-Compliance Report (ANCR), the Semi-Annual Statistical Summary Report, and the biosolids information required to be submitted to EPA annually by authorized NPDES programs. EPA will coordinate the switch over from the existing set of state reporting requirements to the new EPA generated NNCR.
NPDES permitted entities should expect to see new electronic reporting requirements in NPDES permits that are issued on or after the effective date of this final rule. In particular, NPDES permitted entities will be required to identify the initial recipient for their NPDES data submissions (in compliance with 40 CFR 122.41). In particular, NPDES permittees will consult EPA's Web site to identify the initial recipient for their NPDES data submissions. EPA will update and maintain the listing of initial recipients.
NPDES permitted entities should expect to electronically submit their DMRs no later than one year after the effective date of the final rule. NPDES permittees will need to be familiar on how to electronically report their DMRs using the approved electronic reporting system. Their permitting authority will provide training materials and resources to help NPDES regulated entities with the necessary guidance and knowledge to utilize the appropriate electronic reporting system. In particular, NPDES regulated entities will need to learn how to register and maintain an electronic signature as well as how to register and maintain their login information for the appropriate electronic reporting system.
Similarly, five years after the effective date of the final rule, NPDES regulated entities will start electronically submitting their Phase 2 data. NPDES permitted entities will identify the initial recipient for their Phase 2 data submissions (in compliance with 40 CFR 122.41) by consulting with EPA's Web site. EPA's Web site will also provide notice of the deadline for these Phase 2 electronic data submissions and information on the approved electronic reporting systems. NPDES regulated entities should also note that they may be required to use more than one electronic reporting system for their Phase 1 and 2 data submissions. For example, a POTW may be required to use a state e-DMR system to electronically report its DMRs (as the state is the authorized NPDES program for NPDES permits) and EPA's NeT to report their Sewage Sludge/Biosolids Annual Program Report (as EPA is the NPDES program for the Federal biosolids program). For NPDES-regulated entities that will use EPA's electronic reporting systems, EPA will work closely with states, tribes, territories, and NPDES-regulated entities to provide sufficient training and registration support prior to the start of each implementation phase.
Finally, as previously noted, the purpose of appendix A is to ensure that
EPA Regions that issue NPDES permits will continue to incorporate electronic reporting requirements into new or re-issued NPDES permits and will be required to do so upon the effective date of this final rule. EPA will also incorporate the final rule requirements into the few nationwide permits that it issues in accordance with the rule's implementation schedule. This will help communicate and confirm the electronic reporting responsibilities of NPDES regulated entities.
EPA Headquarters will hold regular teleconferences and webinars with authorized NPDES programs during the transition period from paper reporting to electronic reporting to assist with data collection, management, and sharing activities. EPA will use these teleconferences and webinars to address general issues associated with electronic reporting as well as specific state needs and questions.
EPA will also coordinate with authorized NPDES programs and update the data sharing process to include all the required set of NPDES program data (appendix A to 40 CFR part 127) between EPA and the authorized NPDES programs (see DCN 0191 for an overview of the current data sharing process). EPA will also update its data systems (
EPA will maintain the initial recipient list for each state and by each NPDES data group and will publish this list on its Web site and in the
One year after the effective date of the final rule, EPA will receive state performance data, which includes information generated from compliance monitoring (
Under the implementation schedule for this final rule, the Agency will assess the electronic reporting participation rate of NPDES regulated entities in each state and by each data group to determine when it would be appropriate to use its individual notices to compel electronic reporting. For example, EPA would likely use individual notices when the authorized state, tribe, or territory has less than 90-percent participation rate for one or more data groups (
Similar to Phase 1 implementation, no later than five years after the effective date of the final rule EPA and authorized NPDES programs will begin electronically receiving Phase 2 data from all NPDES regulated entities and start sharing these data with each other. EPA will review the Phase 2 data IPs from authorized NPDES programs. This IP will also include a description of the program's waiver approval processes. EPA will finish its review of these IPs and waiver process descriptions no later than six months after receipt. EPA will inform the state if its implementation plan or waiver process description is inadequate. EPA will post these IPs and waiver process description notices on its Web site to provide the public with greater transparency on the milestones and tasks each state will be taking to move towards electronic reporting.
Finally, EPA will work with authorized NPDES programs to develop the NNCR. Upon successful implementation of Phase 1 and 2, EPA will work with authorized NPDES programs to coordinate the switch over from the existing set of state reporting requirements (
EPA is clarifying that the final rule does not change EPA's authentication and encryption standards for electronic reporting. Below is a discussion of the copy of record as it pertains to the implementation of electronic reporting.
An important element of EPA's authentication and encryption standards for electronic reporting is the “copy of record.” See 40 CFR 3.3. A copy of record must:
• Be a true and correct copy of the electronic document that was received, and it must be legally demonstrable that it is in fact a true and correct copy;
• include all the electronic signatures that have been executed to sign the document or components of the document;
• include the date and time of receipt to help establish its relation to submission deadlines; and,
• be viewable in a human-readable format that clearly indicates what the submitter and, where applicable, the
For such CROMERR-compliant submissions, the copy of record is intended to serve as the electronic surrogate for what is commonly referred to as the paper submission with a “wet-ink” signature. The copy of record is meant to provide an authoritative answer to the question of what was actually submitted and, as applicable, what was signed and certified in the particular case.
It is important to note that the use of an electronic reporting system may dictate where the electronic copy of record is retained. EPA retains the copy of record for electronic submission made through its electronic reporting tools (
Under the “Dual Reporting” scenario, as described in Table 3, the authorized NPDES program may elect to designate EPA as the initial recipient and EPA would electronically collect NPDES program data directly from NPDES-regulated entities. Under this scenario these entities would also make a paper submission of the same report with a “wet-ink” signature to the state (as required by their NPDES permit). In these cases, the paper submission to the state with a “wet-ink” signature is the copy of record.
EPA's final rule requires that all electronic reporting systems that are used for implementing NPDES electronic reporting, whether already existing or to be developed by EPA and authorized NPDES programs, be compliant with subpart D of EPA's CROMERR (see 40 CFR part 3). CROMERR sets performance-based, technology-neutral standards for systems that states, tribes, and local governments use to receive electronic reports from facilities they regulate under EPA-authorized programs. CROMERR also addresses electronic reporting directly to EPA.
EPA notes that state or EPA systems that use the Hybrid Approach, which is discussed in Section V, uses the paper document with a “wet-ink” signature as the copy of record. The related electronic data transfer from the Hybrid Approach is not a submission within the meaning of CROMERR. Additionally, the Hybrid Approach option still requires compliance with the regulatory requirements of 40 CFR 122.22 and 40 CFR part 127 and any additional permit requirements.
Under this rule, NPDES-regulated entities (
EPA also notes that CROMERR requires state, tribal or local government agencies that receive, or wish to begin receiving electronic reports under their EPA-authorized programs (
Several commenters had questions regarding the application of the proposed rule to regulated entities subject to EPA's Pesticides General Permit and Vessels General Permit. EPA provides NPDES permit coverage for pesticide applicators in states where EPA is the permitting authority and vessel operators nationwide. EPA is not exempting these two permits from the NPDES Electronic Reporting Rule. Specifically, EPA's General Permit regulations (40 CFR 122.28) apply to all general permits and EPA's proposed revisions to this regulatory language that implement electronic reporting do not exclude pesticide applicators or vessel operators (or any other sector or general permit). However, vessel incidental discharges and discharges from the application of pesticides are atypical from more traditional permitted discharges and as such, some of the data elements in Appendix A may not be appropriate as written. For example, there may not be a fixed address of where pesticide applications occur (
To include all NPDES subprograms (
Additionally, under the final rule, authorized NPDES programs must start
EPA received many comments from the animal agricultural sector in response to the proposed rule. Although this rule only changes the mode of transmission of NPDES information from paper-based reports to electronic reporting and does not address EPA's practices for managing and sharing that information, EPA received comments regarding privacy, security, management of confidential business information, and EPA's current practice of posting inspection information on unpermitted CAFOs and Animal Feeding Operations (AFOs) on its public Web site [Enforcement and Compliance History Online (ECHO)—
This final rule would only require CAFOs with NPDES permits to submit information that the Clean Water Act and existing regulations already requires them to provide to permitting authorities. See 33 U.S.C. 1342. The final rule simply modernizes the format through which permitted CAFOs would submit certain types of information by requiring electronic submission as opposed to paper-based reporting. This modernized format will increase efficiencies for permitted CAFOs as well as regulators. Additionally, under this final rule a permitted CAFO can also request a temporary waiver from electronic reporting consistent with authorized NPDES program's implementation plan.
EPA also solicited comments in the supplemental notice to the proposed rule on whether it should change its current practice and begin masking facility information for unpermitted CAFOs and AFOs that EPA or state inspectors found were not discharging and do not require an NPDES permit. EPA published the following example (See Table 9) in the supplemental notice to the proposed rule showing how EPA could mask these data and solicited comments on this approach.
In this hypothetical example, the unpermitted CAFO shown in the column labeled “Facility #1” would
EPA also solicited input on potential changes to its national NPDES data system (ICIS-NPDES), which are necessary to provide authorized NPDES programs and Regions with the capability to identify these non-permitted CAFO/AFOs that do not require an NPDES permit (1 December 2014; 79 FR 71080).
Comments from the animal agricultural sector were in favor of this proposed approach while other commenters (
EPA will implement this data masking in an iterative, two-step process. EPA is using a two-step process because unpermitted facilities in EPA's national NPDES data system (ICIS-NPDES) cannot currently be identified by CAFO permit component data. As a first step, EPA will use other currently available data in ICIS-NPDES to identify unpermitted CAFOs or AFOs that an authorized NPDES program or EPA have assessed and not found any Clean Water Act violations (see DCN 0207). EPA plans to implement this interim approach by the effective date of this final rule.
EPA plans to supersede the first approach with a second data masking approach outlined in the supplemental notice to the proposed rule (1 December 2014; 79 FR 71080). The second data masking approach will only use CAFO permit component data to identify unpermitted CAFOs and AFOs (see DCN 0207). This second approach will take more time to implement as upgrades to ICIS-NPDES and coordination with authorized NPDES programs are necessary to identify the
This action is a “significant regulatory action” that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB's recommendations are documented in the docket. In addition, EPA prepared a detailed analysis of the
The Office of Management and Budget (OMB) has approved the information collection activities contained in this rule under the PRA and has assigned OMB control number 2020-0035. The ICR may be found in the docket for this rule (see DCN 0237), and it is briefly summarized here.
EPA is promulgating this final regulation to allow better allocation and use of limited program resources and enhance transparency by providing a timelier, complete, more accurate, and nationally-consistent set of data about the NPDES program.
The projected burden and cost of the final regulation are summarized in Table 10. Note that, consistent with the Information Collection Request (ICR), these estimates reflect the net burden and cost to regulated facilities and states, tribes, and territories over the first three years following promulgation of the rule (as ICRs are limited to three years; however, they can be renewed).
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. In addition, the EPA is amending the table in 40 CFR part 9 to list the regulatory citations for the information collection activities contained in this final rule.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are small businesses (
The Agency has determined that 108,035 of 108,036 (99.99%) small entities considered in this analysis will experience an impact of less than 1% percent of revenues. Details of this analysis are presented in Chapter 5 of the following document in the rulemaking docket, “Economic Analysis of the NPDES Electronic Reporting Rule (Final),” (see DCN 0197).
This final rule does not contain an unfunded mandate of $100 million as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. EPA conducted an economic analysis examining various options including the potential burden to state, tribal, and territorial governments. EPA estimates that the rule would not only cost states, tribes, territories, and local governments well below the threshold of $100 million, it will actually result in cost savings over time.
This action may have federalism implications, because it imposes substantial direct compliance costs on state or local governments, and the federal government will not provide the funds necessary to pay those costs. Specifically, EPA estimates costs to state governments of greater than $25 million during the first year of rule implementation.
The EPA provides the following federalism summary impact statement. The EPA consulted with state and local officials early in the process of developing the rule to permit them to have meaningful and timely input into its development. In developing the regulatory options described in this final action, EPA held a series of 49 outreach activities with state and local governments, on various aspects of the rule, including a Federalism consultation process that began in 2010, well before this action was proposed. The Environmental Council of the States, the National League of Cities, the U.S. Conference of Mayors, the National Conference of State Legislators, the Council of State Governments, the National Governors Association, and the National Association of Clean Water Agencies were among the intergovernmental groups participating in this process, along with numerous state and local government principals from across the nation.
After publication of the proposed rule, EPA also held teleconferences with authorized NPDES programs to obtain their individual views on various aspects of the proposed rule. EPA met with over twenty five states, ECOS, ACWA, and New England Interstate Water Pollution Control Commission to take into account their individual comments and concerns about the rule (see DCN 0128 to 0142, 0181, 0219 to 0229). Additionally, EPA separately contacted each authorized NPDES program to individually assess its readiness for these new electronic reporting requirements. This extensive outreach helped inform the implementation process of the final rule and the additional flexibilities that authorized states, tribes, and territories need for a measured and orderly conversion from paper to electronic reporting.
EPA specifically solicited comment on the proposed action from State and local officials. EPA received comments from over one hundred (100) entities representing State and local governments. Of these comments, many
While most commenters were supportive of the proposed rule, there were several concerns that were raised by the responding state and local governments. One of the most frequently commented subjects was the implementation schedule. Many commenters noted that the proposed two phase (one year per phase) implementation schedule was “too aggressive.” EPA addressed this comment by modifying the compliance schedule in the final rule to allow five years for the second phase of implementation.
The other main comment from state and local governments was for EPA to provide authorized NPDES programs with additional flexibility in the implementation of the final rule. As noted in this preamble and in EPA's response to comments document for this rulemaking, EPA has provided authorized NPDES programs with additional flexibility for implementing this final rule. In particular, EPA has given authorized NPDES programs more flexibility in how they administer waivers from electronic reporting. In the proposed rule, EPA solicited comment on limiting waivers from electronic reporting to one year and only to areas with limited access to broadband internet. After consultation with authorized NPDES programs, EPA has eliminated the condition of limited access to broadband internet as an eligibility factor for an electronic reporting waiver. Instead, EPA has provided authorized NPDES programs with the ability to grant waivers to facilities for up to five years and for any factors that they deem appropriate.
Additionally, authorized NPDES programs asked for more flexibility in how they implement electronic reporting for the construction stormwater sector. In particular, states requested an option to allow construction operators to electronically submit data without CROMERR authentication. After consultation with authorized NPDES programs, EPA has included an option, which first suggested by an authorized NPDES program, to allow construction operators to simultaneously submit NPDES program data electronically without CROMERR authentication as long as they also submit these data on paper with a handwritten signature. This “Hybrid Approach” is discussed in the preamble to this final rule. This additional flexibility will allow states to electronically collect and manage data on construction sites and will also allow construction operators to submit their NOIs without having to first obtain CROMERR authentication.
Finally, as a means to “fill in the gaps” where NPDES-regulated entities are not yet reporting electronically, EPA will use its authority, as appropriate, to issue targeted individual notices requiring NPDES-regulated entities to electronically report their NPDES program data (appendix A to 40 CFR part 127). EPA initially proposed to have these data come directly to EPA. Authorized NPDES programs suggested that instead EPA should require NPDES regulated entities to use state, tribe, or territorial electronic reporting systems that are in compliance with the final rule, as this would be more efficient. In this final rule, EPA is adopting the approach recommended by authorized NPDES programs.
A complete list of the comments from State and local governments has been provided to the Office of Management and Budget and has been placed in the docket for this rulemaking. In addition, the detailed response to comments from these entities is contained in EPA's response to comments document for this rulemaking (see DCN 0218).
This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. Although no tribes have yet received approval from EPA to implement an authorized NPDES program, this final rule will impose electronic reporting requirements on tribal facilities and on facilities operating on tribal lands.
EPA consulted with tribal representatives in developing this rule via conference calls and webinars with the National Tribal Caucus and National Tribal Water Counsel in November 2010 (DCN 0232). No concerns were raised during those consultations.
In addition, EPA mailed information to 563 tribes regarding an opportunity to participate in two additional tribal outreach efforts in December 2010.
As required by section 7(a), the EPA's Tribal Consultation Official has certified that the requirements of the executive order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for this action.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern 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” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This rulemaking involves environmental monitoring or measurement. Consistent with the Agency's Performance Based Measurement System (“PBMS”), EPA has decided to allow the use of any method that meets the prescribed performance criteria. The PBMS approach is intended to be more flexible and cost-effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. EPA is not precluding the use of any method, whether it constitutes a voluntary consensus standard or not, as long as it meets the performance criteria specified.
EPA has decided to use the following data standards, which were developed by the Exchange Network Leadership Council (ENLC). This entity governs the National Environmental Information Exchange Network (NEIEN). The ENLC identifies, prioritizes, and pursues the creation of data standards for those areas where information exchange standards will provide the most value in achieving environmental results. The ENLC involves tribes and tribal nations, state, and federal agencies in the development of the standards. More information about ENLC is available at
•
•
•
•
•
•
•
EPA has 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 does not affect the level of protection provided to human health or the environment. This final rule offers substantial environmental justice benefits. As described in the context of non-monetary benefits, discussed in Section VI and described below, the final rule would significantly increase transparency and access to crucial information that is relevant to the protection of the health and environment of minority, low income, and tribal populations.
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, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Incorporation by reference, Reporting and recordkeeping requirements, Water pollution control.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control.
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous waste, Indians-lands, Reporting and recordkeeping requirements, Water pollution control, Water supply.
Environmental protection, Administrative practice and procedure, Automatic data processing, Electronic data processing, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements, Sewage disposal, Waste treatment and disposal, Water pollution control.
Environmental protection, Confidential business information, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.
Environmental protection, Administrative practice and procedure, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Sewage disposal.
Environmental protection, Reporting and recordkeeping requirements, Sewage disposal.
For the reasons cited in the preamble, title 40, chapter I is amended as follows:
7 U.S.C. 135
The Clean Water Act, 33 U.S.C. 1251
(e)
The revisions and addition read as follows:
(b) * * *
(15) * * *
(i) * * *
(A) The value of the rainfall erosivity factor (“R” in the Revised Universal Soil Loss Equation) is less than five during the period of construction activity. The rainfall erosivity factor is determined in accordance with Chapter 2 of Agriculture Handbook Number 703, Predicting Soil Erosion by Water: A Guide to Conservation Planning with the Revised Universal Soil Loss Equation (RUSLE), pages 21-64, dated January 1997. The Director of the
(C) As of December 21, 2020 all certifications submitted in compliance with paragraphs (b)(15)(i)(A) and (B) of this section must be submitted electronically by the owner or operator to the Director or initial recipient, as defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), § 122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of part 127, owners or operators may be required to report electronically if specified by a particular permit or if required to do so by state law.
(g) * * *
(1) * * *
(iii) Submit the signed certification to the NPDES permitting authority once every five years. As of December 21, 2020 all certifications submitted in compliance with this section must be submitted electronically by the owner or operator to the Director or initial recipient, as defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), § 122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of part 127, owners or operators may be required to report electronically if specified by a particular permit or if required to do so by state law.
(b) * * *
(2) * * *
(i) Except as provided in paragraphs (b)(2)(v) and (vi) of this section, dischargers (or treatment works treating domestic sewage) seeking coverage under a general permit shall submit to the Director a notice of intent to be covered by the general permit. A discharger (or treatment works treating domestic sewage) who fails to submit a notice of intent in accordance with the terms of the permit is not authorized to discharge, (or in the case of sludge disposal permit, to engage in a sludge use or disposal practice), under the terms of the general permit unless the general permit, in accordance with paragraph (b)(2)(v), contains a provision that a notice of intent is not required or the Director notifies a discharger (or treatment works treating domestic sewage) that it is covered by a general permit in accordance with paragraph (b)(2)(vi). A complete and timely, notice of intent (NOI), to be covered in accordance with general permit requirements, fulfills the requirements for permit applications for purposes of §§ 122.6, 122.21, and 122.26. As of December 21, 2020 all notices of intent submitted in compliance with this section must be submitted electronically by the discharger (or treatment works treating domestic sewage) to the Director or initial recipient, as defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), § 122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of part 127, discharger (or treatment works treating domestic sewage) may be required to report electronically if
(ii) The contents of the notice of intent shall be specified in the general permit and shall require the submission of information necessary for adequate program implementation, including at a minimum, the legal name and address of the owner or operator, the facility name and address, type of facility or discharges, the receiving stream(s), and other required data elements as identified in appendix A to part 127. General permits for stormwater discharges associated with industrial activity from inactive mining, inactive oil and gas operations, or inactive landfills occurring on Federal lands where an operator cannot be identified may contain alternative notice of intent requirements. All notices of intent shall be signed in accordance with § 122.22. Notices of intent for coverage under a general permit for concentrated animal feeding operations must include the information specified in § 122.21(i)(1), including a topographic map.
(g) * * *
(3)
The revisions and addition read as follows:
(l) * * *
(4) * * *
(i) Monitoring results must be reported on a Discharge Monitoring Report (DMR) or forms provided or specified by the Director for reporting results of monitoring of sludge use or disposal practices. As of December 21, 2016 all reports and forms submitted in compliance with this section must be submitted electronically by the permittee to the Director or initial recipient, as defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), § 122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of part 127, permittees may be required to report electronically if specified by a particular permit or if required to do so by state law.
(6) * * *
(i) The permittee shall report any noncompliance which may endanger health or the environment. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A report shall also be provided within 5 days of the time the permittee becomes aware of the circumstances. The report shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times), and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance. For noncompliance events related to combined sewer overflows, sanitary sewer overflows, or bypass events, these reports must include the data described above (with the exception of time of discovery) as well as the type of event (combined sewer overflows, sanitary sewer overflows, or bypass events), type of sewer overflow structure (
(7)
(9)
(m) * * *
(3)
(ii)
(c)
(e) * * *
(4)
(vi) Summary of all manure, litter and process wastewater discharges from the production area that have occurred in the previous 12 months, including, for each discharge, the date of discovery, duration of discharge, and approximate volume; and
(a) In addition to conditions required in all permits (§§ 122.41 and 122.42), the Director shall establish conditions, as required on a case-by-case basis, to provide for and ensure compliance with all applicable requirements of CWA and regulations. These shall include conditions under §§ 122.46 (duration of permits), 122.47(a) (schedules of compliance), 122.48 (monitoring), electronic reporting requirements of 40 CFR part 3 (Cross-Media Electronic Reporting Regulation) and 40 CFR part 127 (NPDES Electronic Reporting), and, for EPA permits only, §§ 122.47(b) (alternatives schedule of compliance) and 122.49 (considerations under Federal law).
(i) * * *
(2) Except as provided in paragraphs (i)(4) and (5) of this section, requirements to report monitoring results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year. For sewage sludge use or disposal practices, requirements to monitor and report results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the sewage sludge use or disposal practice; minimally this shall be as specified in 40 CFR part 503 (where applicable), but in no case less than once a year. All results must be electronically reported in compliance with 40 CFR part 3 (including, in all cases, subpart D to part 3), § 122.22, and 40 CFR part 127.
(c) Applicable reporting requirements based upon the impact of the regulated activity and as specified in 40 CFR part 3 (Cross-Media Electronic Reporting Regulation), § 122.44, and 40 CFR part 127 (NPDES Electronic Reporting). Reporting shall be no less frequent than specified in § 122.44. EPA will maintain the start dates for the electronic
(f) Require electronic reporting requirements (to replace paper reporting requirements) including those specified in 40 CFR part 3 (Cross-Media Electronic Reporting Regulation) and 40 CFR part 127 (NPDES Electronic Reporting).
(c) Permittees that wish to terminate their permit must submit a Notice of Termination (NOT) to their permitting authority. If requesting expedited permit termination procedures, a permittee must certify in the NOT that it is not subject to any pending State or Federal enforcement actions including citizen suits brought under State or Federal law. As of December 21, 2020 all NOTs submitted in compliance with this section must be submitted electronically by the permittee to the Director or initial recipient, as defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D), § 122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of part 127, the permittee may be required to report electronically if specified by a particular permit or if required to do so by state law.
The Clean Water Act, 33 U.S.C. 1251
(g) A state, tribe, or territory that newly seeks to implement an NPDES program after March 21, 2016 must describe whether the state, tribe, or territory will be the initial recipient of electronic NPDES information from NPDES-regulated facilities for specific NPDES data groups (see 40 CFR 127.2(c) and 127.27). In this program description, the state, tribe, or territory must identify the specific NPDES data groups for which the state, tribe, or territory will be the initial recipient of electronic NPDES information from NPDES-regulated facilities and how the electronic data system of the state, tribe, or territory will be compliant with 40 CFR part 3 (including, in all cases, subpart D to part 3), § 123.26, and 40 CFR part 127.
(b) * * *
(3) Provisions specifying the frequency and content of reports, documents and other information which the State is required to submit to EPA. The State shall allow EPA to routinely review State records, reports, and files relevant to the administration and enforcement of the approved program. State reports may be combined with grant reports where appropriate. These procedures must also implement the requirements of 40 CFR 123.41(a) and 123.43 and 40 CFR part 127 (including the required data elements in appendix A to part 127).
(a) * * *
(46) 40 CFR part 3 (Cross-Media Electronic Reporting Regulation) and 40 CFR part 127 (NPDES Electronic Reporting Requirements).
Note to paragraph (a): Except for paragraph (a)(46) of this section, states need not implement provisions identical to the above listed provisions. Implemented provisions must, however, establish requirements at least as stringent as the corresponding listed provisions. While States may impose more stringent requirements, they may not make one requirement more lenient as a tradeoff for making another requirement more stringent; for example, by requiring that public hearings be held prior to issuing any permit while reducing the amount of advance notice of such a hearing.
State programs may, if they have adequate legal authority, implement any of the provisions of parts 122 and 124. See, for example, §§ 122.5(d) (continuation of permits) and 124.4 (consolidation of permit processing) of this chapter.
For example, a State may impose more stringent requirements in an NPDES program by omitting the upset provision of § 122.41 of this chapter or by requiring more prompt notice of an upset.
The revisions and additions read as follows:
(b) State programs shall have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements. The State shall implement and maintain:
(1) An automated, computerized system which is capable of identifying and tracking all facilities and activities subject to the State Director's authority and any instances of noncompliance with permit or other program requirements (
(2) * * *
(iii) Verify the adequacy of sampling, monitoring, and other methods used by permittees and other regulated persons to develop that information; and
(iv) Protect surface waters and public health.
(e) * * *
(1) Maintaining an automated, computerized system which is capable of managing the comprehensive electronic inventory of all sources covered by NPDES permits and
(f) A state, tribe, or territory that is designated by EPA as an initial recipient of electronic NPDES information, as defined in § 127.2 of this chapter, must maintain the data it collects and electronically transfer the minimum set of NPDES data to EPA through timely data transfers in compliance with all requirements of 40 CFR parts 3 and 127 (including the required data elements in appendix A to part 127). Timely means that the authorized state, tribe, or territory submits these data transfers (see the data elements in appendix A to 40 CFR part 127) to EPA within 40 days of when the state, tribe, or territory completed the activity or received a report submitted by a regulated entity. For example, the data regarding a state inspection of an NPDES-regulated entity that is finalized by the state on October 5th must be electronically transferred to EPA no later than November 14th of that same year (
(a) Any information obtained or used in the administration of a State program shall be available to EPA upon request without restriction. This includes the timely data transfers in compliance with all requirements of 40 CFR parts 3 and 127 (including the required data elements in appendix A to part 127). If the information has been submitted to the State under a claim of confidentiality, the State must submit that claim to EPA when providing information under this section. Any information obtained from a State and subject to a claim of confidentiality will be treated in compliance with the regulations in 40 CFR part 2. If EPA obtains information from an authorized state NPDES program, which is not claimed to be confidential, EPA may make that information available to the public without further notice. Timely means that the authorized state, tribe, or territory submits these data transfers (see the data elements in appendix A to 40 CFR part 127) to EPA within 40 days of when the state, tribe, or territory completed the activity or received a report submitted by a regulated entity. For example, the data regarding a state inspection of an NPDES-regulated entity that is finalized by the state on October 5th must be electronically transferred to EPA no later than November 14th of that same year (
(d) Any State permit program shall keep such records and submit to the Administrator such information as the Administrator may reasonably require to ascertain whether the State program complies with the requirements of the CWA or of this part. This includes the timely data transfers in compliance with all requirements of 40 CFR part 127 (including the required data elements in appendix A to part 127).
As of December 21, 2021 EPA must prepare public (quarterly and annual) reports as set forth here from information that is required to be submitted by NPDES-regulated facilities and the State Director.
(a)
(1)
(i) A facility specific list of NPDES-regulated entities in violation, including non-POTWs, POTWs, Federal permittees, major facilities, and nonmajor facilities, as well as a list of CWA point sources that did not obtain NPDES permits authorizing discharges of pollutants to waters of the United States.
(ii) For each identified NPDES-regulated entity in violation of the Clean Water Act:
(A) The name, location, and permit number or other identification number, if a permit does not exist.
(B) Information describing identified violation(s) that occurred in that quarter, including the date(s) on which violation(s) started and ended (if applicable). Where applicable, the information must indicate the pipe, parameter, and the effluent limit(s) violated. Violations must be classified as Category I and II as described in paragraph (a)(2) of this section.
(C) The date(s) and type of formal enforcement and written informal enforcement action(s) taken by the Director to respond to violation(s), including any penalties assessed.
(D) The status of the violation(s) (
(E) Any optional details that may help explain the instance(s) of noncompliance as provided by the Director or EPA.
(F) All violations must be reported in successive quarterly reports until the violation(s) is documented as being corrected (
(G) If the permittee or discharger is in compliance with an enforcement order (
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii) All other types of noncompliance that do not meet the criteria for Category I Noncompliance must be classified as “Category II Noncompliance.”
(3) EPA must provide an easy-to-use interface to facilitate public access, use, and understanding of the NNCR, including the ability to sort violations by duration, severity, frequency, detection method (
(b)
(1)
(2)
(i) The number of NPDES permittees;
(ii) The number inspected by on-site inspections;
(iii) The number reviewed in which permitted limits were compared to measured data to determine violations;
(iv) The number evaluated by other, off-site compliance monitoring activities;
(v) The number with any violations;
(vi) The number with Category I violations;
(vii) The number receiving paper or electronic written informal enforcement actions;
(viii) The total number receiving formal enforcement actions with a compliance schedule;
(ix) The total number receiving a penalty assessment;
(x) The total amount of penalties assessed; and
(xi) The number of permit modifications extending compliance deadlines more than one year.
(c)
(2) EPA must publish the NNCR in electronic form to be easily accessible and available to the public within two months after the end date of the calendar quarter:
This appendix describes the criteria for reporting Category I violations of NPDES permit effluent limits in the NPDES non-compliance report (NNCR) as specified under paragraph (a)(2)(C) of this section. Any violation of an NPDES permit is a violation of the Clean Water Act (CWA) for which the permittee is liable. As specified in paragraph (a)(2) of this section, there are two categories of noncompliance, and the table below indicates the thresholds for violations in Category I. An agency's decision as to what enforcement action, if any, should be taken in such cases, shall be based on an analysis of facts, legal requirements, policy, and guidance.
The categorization of permit effluent limits depends upon the magnitude and/or frequency of the violation. Effluent violations shall be evaluated on a parameter-by-parameter and outfall-by-outfall basis. The criteria for reporting effluent violations are as follows:
Violations of monthly average effluent limits which exceed or equal the product of the Technical Review Criteria (TRC) times the effluent limit, and occur two months in a six- month period must be reported. TRCs are for two groups of pollutants.
Chronic violations must be reported in the NNCR if the monthly average permit limits are exceeded any four months in a six-month period. These criteria apply to all Group I and Group II pollutants.
Other metals not specifically listed under Group I
Total Residual Chlorine
All organics are Group II except those specifically listed under Group I.
PART 127—NPDES ELECTRONIC REPORTING
33 U.S.C. 1251
(a) This part, in conjunction with the NPDES reporting requirements specified in 40 CFR parts 122, 123, 124, 125, 403, 501, and 503, specifies the requirements for:
(1) Electronic reporting of information by NPDES permittees;
(2) Facilities or entities seeking coverage under NPDES general permits;
(3) Facilities or entities submitting stormwater certifications or waivers from NPDES permit requirements;
(4) Industrial users located in municipalities without approved local pretreatment programs;
(5) Approved pretreatment programs;
(6) Facilities or entities regulated by the Federal sewage sludge/biosolids program; and
(7) EPA and the states, tribes, or territories that have received authorization from EPA to implement the NPDES program. This part, in conjunction with 40 CFR parts 123, 403, and 501, also specifies the requirements for electronic reporting of NPDES information to EPA by the states, tribes, or territories that have received authorization from EPA to implement the NPDES program.
(b) These regulations are not intended to preclude states, tribes, or territories authorization from EPA to implement the NPDES program from developing and using their own NPDES data systems. However, these states, tribes, and territories must ensure that the required minimum set of NPDES data (appendix A of this part) is electronically transferred to EPA in a timely, accurate, complete, and nationally-consistent manner fully compatible with EPA's national NPDES data system.
(c) Under 10 U.S.C. 130e, the Secretary of Defense may exempt Department of Defense “critical infrastructure security information” from disclosure under the Freedom of Information Act (FOIA). NPDES program data designated as critical infrastructure security information in response to a FOIA request will be withheld from the public. In the instance where an NPDES program data element for a particular facility is designated as critical infrastructure security information in response to a FOIA request, a separate filtered set of data without the redacted information will be shared with the public; however, all NPDES program data will continue to be provided to EPA and the authorized state, tribe, or territory NPDES program.
(d) Proper collection, management, and sharing of the data and information listed in appendix A ensures that there is timely, complete, accurate, and nationally-consistent set of data about the NPDES program.
(a) The definitions in 40 CFR parts 122, 123, 124, 125, 403, 501 and 503 apply to all subparts of this part.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a) NPDES-regulated entities must electronically submit the minimum set of NPDES data for these NPDES reports (if such reporting requirements are applicable). The following NPDES reports are the source of the minimum set of NPDES data from NPDES-regulated entities:
(1) Discharge Monitoring Report [40 CFR 122.41(l)(4)];
(2) Sewage Sludge/Biosolids Annual Program Report [40 CFR part 503];
(3) Concentrated Animal Feeding Operation (CAFO) Annual Program Report [40 CFR 122.42(e)(4)];
(4) Municipal Separate Storm Sewer System (MS4) Program Report [40 CFR 122.34(g)(3) and 122.42(c)];
(5) Pretreatment Program Annual Report [40 CFR 403.12(i)];
(6) Sewer Overflow and Bypass Incident Event Report [40 CFR 122.41(l)(6) and (7)]; and
(7) CWA section 316(b) Annual Reports [40 CFR part 125, subpart J].
(b) Facilities or entities seeking coverage under or termination from NPDES general permits and facilities or entities submitting stormwater certifications or waivers from NPDES permit requirements [see Exhibit 1 to 40 CFR 122.26(b)(15) and (g)] must electronically submit the minimum set of NPDES data for the following notices, certifications, and waivers (if such reporting requirements are applicable):
(1) Notice of intent (NOI) to discharge by facilities seeking coverage under a general NPDES permit (rather than an individual NPDES permit), as described in 40 CFR 122.28(b)(2);
(2) Notice of termination (NOT), as described in 40 CFR 122.64;
(3) No exposure certification (NOE), as described in 40 CFR 122.26(g)(1)(iii); and
(4) Low erosivity waiver (LEW) and another waiver as described in Exhibit 1 to 40 CFR 122.26(b)(15).
(c) Industrial users located in municipalities without approved local pretreatment programs must electronically submit the minimum set of NPDES data for the following self-monitoring reports (if such reporting requirements are applicable):
(1) Periodic reports on continued compliance, as described in 40 CFR 403.12(e); and
(2) Reporting requirements for Industrial Users not subject to categorical Pretreatment Standards, as described in 40 CFR 403.12(h).
(d) The minimum set of NPDES data for NPDES-regulated facilities is identified in appendix A to this part.
The signatory and certification requirements identified in 40 CFR part 3 (including, in all cases, subpart D to part 3), § 122.22, and 40 CFR 403.12(l) must also apply to electronic submissions of NPDES information (see § 127.11) by NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)].
(a) Responsibility for the quality of the information provided electronically in compliance with this part by the NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)] rests with the owners and operators of those facilities or entities. NPDES permittees, facilities, and entities subject to this part must use quality assurance and quality control procedures to ensure the quality of the NPDES information submitted in compliance with this part.
(b) NPDES permittees, facilities, and entities subject to this part must electronically submit their NPDES information in compliance with the data quality requirements specified in § 127.14. NPDES permittees, facilities, and entities subject to this part must electronically submit their NPDES information unless a waiver is granted in compliance with this part (see §§ 127.15 and 127.24).
NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)] must comply with all requirements in this part and electronically submit the minimum set of NPDES data in the following nationally-consistent manner:
(a)
(1) Measurement data (including information from discharge monitoring reports, self-monitoring data from industrial users located outside of approved local pretreatment programs, and similar self-monitoring data). The electronic submission of these data is due when that monitoring information is required to be reported in compliance with statutes, regulations, the NPDES permit, another control mechanism, or an enforcement order.
(2)
(b)
(c)
(d)
(a) NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)] must electronically submit the minimum set of NPDES data in compliance with this part, 40 CFR part 3 (including, in all cases, subpart D to part 3), 40 CFR 122.22, and 40 CFR 403.12(l) unless a waiver is granted in compliance with this section and § 127.24.
(b) Temporary waivers from electronic reporting may be granted by the authorized NPDES program (EPA, or states, territories, and tribes that have received authorization to implement the NPDES program), in compliance with this section and § 127.24, to NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)].
(1) Each temporary waiver must not extend beyond five years. However, NPDES-regulated entities may re-apply for a temporary waiver. It is the duty of the owner, operator, or duly authorized representative of the NPDES permittee, facility, and entity subject to this part [see §§ 122.22 of this chapter and 127.1(a)] to re-apply for a new temporary waiver. Authorized NPDES programs cannot grant a temporary waiver to an NPDES-regulated entity without first receiving a temporary waiver request from the NPDES-regulated entity.
(2) To apply for a temporary waiver, the owner, operator, or duly authorized representative of the NPDES permittee, facility, and entity subject to this part [see §§ 122.22 of this chapter and 127.1(a)] must submit the following information to their authorized NPDES program:
(i) Facility name;
(ii) NPDES permit number (if applicable);
(iii) Facility address;
(iv) Name, address and contact information for the owner, operator, or duly authorized facility representative;
(v) Brief written statement regarding the basis for claiming such a temporary waiver; and
(vi) Any other information required by the authorized NPDES program.
(3) The authorized NPDES program will determine whether to grant a temporary waiver. The authorized NPDES program must provide notice to the owner, operator, or duly authorized facility representative submitting a temporary waiver request, in compliance with the requirements of § 127.24.
(4) NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)] that have received a temporary waiver must continue to provide the minimum set of NPDES data (as well as other required information in compliance with statutes, regulations, the NPDES permit, another control mechanism, or an enforcement order) in hard-copy format to the authorized NPDES program. The authorized NPDES program must electronically transfer these data to EPA in accordance with subpart C of this part.
(5) An approved temporary waiver is not transferrable.
(c) Permanent waivers from electronic reporting may be granted by the authorized NPDES program (EPA, or states, territories, and tribes that have received authorization to implement the NPDES program), in compliance accordance with this section and § 127.24, to NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)].
(1) Permanent waivers are only available to facilities and entities owned or operated by members of religious communities that choose not to use certain modern technologies (
(2) To apply for a permanent waiver, the owner, operator, or duly authorized representative of the NPDES permittee, facility, and entity subject to this part [see §§ 122.22 of this chapter and 127.1(a)] must submit the information listed in § 127.15(b)(2) to their authorized NPDES program.
(3) An approved permanent waiver is not transferrable.
(4) NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)] that have received a permanent waiver must continue to provide the minimum set of NPDES data (as well as other required information in compliance with statutes, regulations, the NPDES permit, another control mechanism, or an enforcement order) in hard-copy format to the authorized NPDES program. The authorized NPDES program must electronically transfer these data to EPA in accordance with subpart C of this part.
(d) Episodic waivers from electronic reporting may be granted by the authorized NPDES program (EPA, or states, territories, and tribes that have received authorization to implement the NPDES program) or the initial recipient, as defined in § 127.2(b), in compliance accordance with this section and § 127.24, to NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)]. The following conditions apply to episodic waivers.
(1) No waiver request from the NPDES permittee, facility or entity is required to obtain an episodic waiver from electronic reporting.
(2) Episodic waivers are not transferrable.
(3) Episodic waivers cannot last more than 60 days.
(4) The authorized NPDES program or initial recipient will decide if the episodic waiver provision allows facilities and entities to delay their electronic submissions or to send hardcopy (paper) submissions. Episodic waivers are only available to facilities
(i) Large scale emergencies involving catastrophic circumstances beyond the control of the facilities, such as forces of nature (
(ii) Prolonged electronic reporting system outages (
(a)
(b)
(c)
(d)
(a) States, tribes, and territories that have received authorization from EPA to implement the NPDES program must electronically transfer to EPA all information listed in appendix A to this part. This information includes:
(1) The “Core NPDES Permitting, Compliance, And Enforcement Data [40 CFR parts 122, 123, 403, 503]” as identified as NPDES Data Group 1 in Tables 1 and 2 in appendix A to this part.
(2) NPDES information (NPDES Data Groups 2 through 10 in Tables 1 and 2 in appendix A to this part) from NPDES permittees, facilities, and entities subject to this part [see § 127.1(a)] where the authorized state, tribe, or territory is the initial recipient [as identified in § 127.27, and as defined in § 127.2(b)]. This includes NPDES information from NPDES permittees, facilities, and entities subject to this part that received a waiver from electronic reporting (see § 127.15).
(3) Specific data elements that are required to be submitted electronically to EPA by the states, tribes, or territories that have received authorization from EPA to implement the NPDES program are identified in appendix A to this part.
(b) States, tribes, and territories that have received authorization from EPA to implement the NPDES program must electronically transfer these data, listed in § 127.21(a), to EPA within 40 days of the completed activity or within 40 days of the receipt of a report from an NPDES permittee, facility, or entity subject to this part [see § 127.1(a)].
States, tribes, and territories that have received authorization from EPA to implement the NPDES program have the responsibility for the information that they electronically transfer to EPA. Therefore, authorized states, tribes, and territories that electronically transfer
(a) Authorized state, tribe, and territory NPDES programs must electronically transfer all NPDES program data that supports electronic reporting (
(b) According to the schedule set forth in § 127.16, the authorized NPDES program must electronically transfer to EPA the minimum set of NPDES data (as specified in appendix A to this part). These electronic data transfers to EPA must be timely, accurate, complete, and consistent.
(c) For the purposes of this part timely, accurate, complete, and consistent mean:
(1) Timely, in that the authorized state, tribe, or territory NPDES program electronically transfers the minimum set of NPDES data to EPA within 40 days of the completed activity or within 40 days of receipt of a report from an NPDES permittee, facility, or entity subject to this part [see § 127.1(a)]. For example, the data regarding a state inspection of an NPDES-regulated entity that is finalized by the state on October 5th must be electronically transferred to EPA no later than November 14th of that same year (
(2) Accurate, in that 95% or more of the minimum set of NPDES data in EPA's national NPDES data system are identical to the actual information on the copy of record (
(3) Complete, in that 95% or more of submissions required for each NPDES data group [see § 127.2(c)] are available in EPA's national NPDES data system; and
(4) Consistent, in that data electronically submitted by states, tribes, and territories to EPA, by direct entry of information, data transfers from one data system to another, or some combination thereof, into EPA's designated national NPDES data system is in compliance with EPA's data standards as set forth in this part and in a form and measurement units which are fully compatible with EPA's national NPDES data system.
(d) An authorized program must consistently maintain the requirements identified in paragraph (a) of this section in order to be the initial recipient, as defined in § 127.2(b). If the authorized program does not maintain these requirements, EPA must become the initial recipient (see § 127.27).
(a) Under § 127.15, an NPDES permittee, facility, or entity subject to this part [see § 127.1(a)] may seek a waiver from electronic reporting. States, tribes, and territories that have received authorization from EPA to implement the NPDES program must review the temporary or permanent waiver requests that they receive and either approve or reject these requests within 120 days.
(b) The authorized NPDES state, tribe, or territory program must provide the permittee, facility, or entity with notice of the approval or rejection of their temporary or permanent waiver request from electronic reporting.
(c) The authorized NPDES state, tribal, or territory program must electronically transfer to EPA the minimum set of NPDES data (as specified in appendix A to this part) that they receive from permittees, facilities, or entities with a waiver from electronic reporting in accordance with § 127.23.
(d) Under § 127.15(d), episodic waivers from electronic reporting may be granted by the authorized NPDES program or the initial recipient to NPDES permittees, facilities, and entities. The authorized NPDES program or initial recipient granting an episodic waiver must provide notice, individually or through means of mass communication, regarding when such an episodic waiver is available, the facilities and entities that may use the episodic waiver, the likely duration of the episodic waiver, and any other directions regarding how facilities and entities should provide the minimum set of NPDES data (as well as other required information in compliance with statutes, regulations, the NPDES permit, another control mechanism, or an enforcement order) to the authorized NPDES program or the initial recipient. No waiver request from the NPDES permittee, facility or entity is required to obtain an episodic waiver from electronic reporting. The authorized NPDES program or initial recipient granting the episodic waiver will determine whether to allow facilities and entities to delay their electronic submissions for a short time (
A state, tribe, or territory that has received authorization from EPA to implement the NPDES program must make program revisions in compliance with 40 CFR 123.62(e).
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(1) EPA will separately calculate the electronic reporting participation rate for each authorized NPDES program and for each NPDES data group six months after the deadline for conversion from paper to electronic submissions [see the start dates for electronic reporting in Table 1 in § 127.16(a)]. EPA will assess the electronic reporting participation rate for individually permitted facilities separate from the electronic reporting participation rate for general permit covered facilities for Discharge Monitoring Reports [NPDES Data Group Number 3].
(2) As appropriate, EPA will contact the facilities and entities that are not electronically reporting their reports, notices, waivers, and certifications after the start dates for electronic reporting [see Table 1 in § 127.16(a)]. EPA will not contact facilities and entities with waivers from electronic reporting (see § 127.15). EPA will direct these facilities and entities to use the electronic reporting system of the initial recipient [as identified in § 127.27, and as defined in § 127.2(b)].
(3) EPA will annually repeat its review of the electronic reporting participation rate for each authorized NPDES program and for each NPDES group as appropriate and contact facilities and entities as appropriate to use the electronic reporting system of the initial recipient [as identified in § 127.27, and as defined in § 127.2(b)].
(a) An authorized NPDES program must notify EPA by April 19, 2016 if it wishes EPA to be the initial recipient for a particular NPDES data group.
(b) A state, tribe, or territory that seeks authorization to implement an NPDES program after March 21, 2016 must describe if it is requesting to be the initial recipient of electronic NPDES information from NPDES-regulated facilities for specific NPDES data groups. See 40 CFR 123.22(g) and appendix A to this part.
(c) By July 18, 2016, EPA must publish on its Web site and in the
(d) Failure to maintain all the requirements in this part and 40 CFR part 3 must prohibit the state, territory, or tribe from being the initial recipient of electronic NPDES information from NPDES-regulated entities. The following is the process for these determinations:
(1) EPA must make a preliminary determination identifying if an authorized state, tribe, or territory is not complying with the requirements in this part and 40 CFR part 3 to be an initial recipient of electronic NPDES information from NPDES-regulated facilities. EPA must provide to the Director of the authorized NPDES program the rationale for any such preliminary determination and options for correcting these deficiencies. Within 60 days of EPA's preliminary determination, the authorized state, tribe, or territory must fully correct all deficiencies identified by EPA and notify EPA that such corrections have been completed. No response from the Director of the authorized NPDES program must indicate that the state, territory, or tribe agrees to be removed as the initial recipient for that NPDES data group of electronic NPDES information. Within 90 days of the EPA's preliminary determination, EPA must provide to the Director of the authorized NPDES program a final determination whether the state, tribe, or territory is not complying with the requirements in this part and 40 CFR part 3 to be an initial recipient of electronic NPDES information from NPDES-regulated facilities.
(2) EPA must become the initial recipient of electronic NPDES information from NPDES-regulated facilities if the state, tribe, or territory does not consistently maintain electronic data transfers in compliance with this part and 40 CFR part 3.
(3) EPA must update the initial recipient listing described in paragraph (c) of this section and publish this listing on its Web site and in the
(4) Following any determination of noncompliance made in compliance with paragraph (d)(1) of this section, EPA will work with the Director of the authorized NPDES program to remediate all issues identified by EPA that prevent the authorized NPDES program from being the initial recipient. When the issues identified by EPA are satisfactorily resolved, EPA must update the initial recipient listing in paragraph (c) of this section in order to list the authorized state, tribe, or territory as the initial recipient for the one or more NPDES data groups. EPA will publish this revised initial recipient listing on its Web site and in the
(e) An authorized NPDES program can initially elect for EPA to be the initial recipient for one or all of the NPDES data groups and then at a later date seek EPA approval to change the initial recipient status for one or all of the NPDES data groups from EPA to the authorized state, tribe, or territory. To make this switch, the authorized state, tribe, or territory will send a request to EPA. This request must identify the specific NPDES data groups for which the state, tribe, or territory would like to be the initial recipient of electronic NPDES information, a description of how its data system will be compliant with this part and 40 CFR part 3, and the date or dates when the state, tribe, or territory will be ready to start receiving this information. After EPA approval of the request, EPA will update the initial recipient list and will publish the revised initial recipient listing on its Web site and in the
(f) An authorized NPDES program can initially elect to be the initial recipient for one or all of the NPDES data groups and then at a later date request that EPA become the initial recipient for one or all of the NPDES data groups. To make this switch, the authorized state, tribe, or territory will send a request to EPA. After coordination with the state EPA will update the initial recipient list and will publish the revised initial recipient listing on its Web site and in the
The following two tables identify the minimum set of NPDES data that authorized states, tribes, territories must enter or transfer to EPA's national NPDES data system as well as what NPDES-regulated entities must electronically report to the designated initial recipient (authorized NPDES program or EPA) [see 40 CFR 127.2(b)]. Authorized NPDES programs will be the data provider in the event the regulated entity is covered by a waiver from electronic reporting. Use of these two tables ensures that there is consistent and complete reporting nationwide, and expeditious collection and processing of the data, thereby making it more accurate and timely. Taken together, these data standardizations and the corresponding electronic reporting requirements in 40 CFR parts 3, 122, 123, 124, 125, 127, 403, and 503 are designed to save the NPDES authorized programs considerable resources, make reporting easier for NPDES-regulated entities, streamline permit renewals (as permit writers typically review previous noncompliance events during permit renewal), ensure full exchange of NPDES program data between states and EPA to the public, improve environmental decision-making, and protect human health and the environment.
Authorized NPDES programs may also require NPDES regulated entities to submit more data than what is listed in this appendix. The authorized NPDES program can require NPDES regulated entities to submit these “non-appendix A” data on paper, electronically, or attachments to electronic notices and reports filed in compliance with this part.
Instructions: Table 1 of this appendix provides the list of data sources and minimum submission frequencies for the ten different NPDES Data Groups. Table 2 of this appendix provides the data that must be electronically reported for each of these NPDES Data Groups. The use of each data element is determined by identifying the number(s) in the column labeled “NPDES Data Group Number” in Table 2 and finding the corresponding “NPDES Data Group Number” in Table 1. For example, a value of “1” in Table 2 means that this data element is required in the electronic transmission of data from the NPDES program to EPA (Core NPDES Permitting, Compliance, and Enforcement Data). Likewise, a value of “1 through 10” in Table 2 means that this data element is required in all ten NPDES data groups. NPDES regulated entities that have no historical record (
(1) The NPDES program authority may pre-populate these data elements and other data elements (
(2) The data elements in this table conform to EPA's policy regarding the application requirements for renewal or reissuance of NPDES permits for discharges from municipal separate storm sewer systems (see 61 FR 41698; 6 August 1996).
(3) The data elements in this table are also supported by the Office Management and Budget approved permit applications and forms for the NPDES program.
(4) These data will allow EPA and the NPDES program authority to link facilities, compliance monitoring activities, compliance determinations, and enforcement actions. For example, these data will provide several ways to make the following linkages: linking violations to enforcement actions and final orders; linking single event violations and compliance monitoring activities; linking program reports to DMRs; linking program reports to compliance monitoring activities; and linking enforcement activities and compliance monitoring activities.
33 U.S.C. 1251
(f) * * *
(2) * * *
(viii) Regularly notify all Control Authorities of electronic submission requirements of 40 CFR part 127.
(e) * * *
(1) Any Industrial User subject to a categorical Pretreatment Standard (except a Non-Significant Categorical User as defined in § 403.3(v)(2)), after the compliance date of such Pretreatment Standard, or, in the case of a New Source, after commencement of the discharge into the POTW, shall submit to the Control Authority during the months of June and December, unless required more frequently in the Pretreatment Standard or by the Control Authority or the Approval Authority, a report indicating the nature and concentration of pollutants in the effluent which are limited by such categorical Pretreatment Standards. In addition, this report shall include a record of measured or estimated average and maximum daily flows for the reporting period for the Discharge reported in paragraph (b)(4) of this section except that the Control Authority may require more detailed reporting of flows. In cases where the Pretreatment Standard requires compliance with a Best Management Practice (or pollution prevention alternative), the User shall submit documentation required by the Control Authority or the Pretreatment Standard necessary to determine the compliance status of the User. At the discretion of the Control Authority and in consideration of such factors as local high or low flow rates, holidays, budget cycles, etc., the Control Authority may modify the months during which the above reports are to be submitted. For Industrial Users for which EPA or the authorized state, tribe, or territory is the Control Authority, as of December 21, 2020 all reports submitted in compliance with this section must be submitted electronically by the industrial user to the Control Authority or initial recipient, as defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), 40 CFR 122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of part 127, the Industrial Users for which EPA or the authorized state, tribe, or territory is the Control Authority may be required to report electronically if specified by a particular control mechanism or if required to do so by state law.
(h)
(i)
33 U.S.C. 1251
As of December 21, 2020, state sludge management programs must comply with 40 CFR part 3 and 40 CFR part 127 (including the applicable required data elements in appendix A to part 127).
Sections 405 (d) and (e) of the Clean Water Act, as amended by Pub. L. 95-217, sec. 54(d), 91 Stat. 1591 (33 U.S.C. 1345 (d) and (e)); and Pub. L. 100-4, title IV, sec. 406(a), (b), 101 Stat., 71, 72 (33 U.S.C. 1251
(a) Class I sludge management facilities, POTWs (as defined in § 501.2 of this chapter) with a design flow rate equal to or greater than one million
Class I sludge management facilities, POTWs (as defined in 40 CFR 501.2) with a design flow rate equal to or greater than one million gallons per day, and POTWs that serve 10,000 people or more shall submit a report on February 19 of each year. As of December 21, 2016 all reports submitted in compliance with this section must be submitted electronically by the operator to EPA when the Regional Administrator is the Director in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), 40 CFR 122.22, and 40 CFR part 127. As of December 21, 2020 all reports submitted in compliance with this section must be submitted electronically in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), 40 CFR 122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to the start dates for electronic reporting (see Table 1 in 40 CFR 127.16), the Director may also require operators to electronically submit annual reports under this section if required to do so by state law.
Class I sludge management facilities, POTWs (as defined in § 501.2 of this chapter) with a design flow rate equal to or greater than one million gallons per day, and POTWs that serve a population of 10,000 people or greater shall submit a report on February 19 of each year. As of December 21, 2016 all reports submitted in compliance with this section must be submitted electronically by the operator to EPA when the Regional Administrator is the Director in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), 40 CFR 122.22, and 40 CFR part 127. As of December 21, 2020 all reports submitted in compliance with this section must be submitted electronically in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), 40 CFR 122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to the start dates for electronic reporting (see Table 1 in 40 CFR 127.16), the Director may also require operators to electronically submit annual reports under this section if required to do so by state law.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing revisions to a Federal implementation plan (FIP) addressing the requirement for best available retrofit technology (BART) for taconite plants in Minnesota and Michigan. In response to petitions for reconsideration, we are proposing to revise the nitrogen oxides (NO
Comments must be received on or before November 23, 2015.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0196, by one of the following methods:
1.
2.
3.
4.
5.
Steven Rosenthal, Environmental Engineer, Attainment Planning & Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6052,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This notice is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
On February 6, 2013, EPA promulgated a FIP that included BART limits for certain taconite furnaces in Minnesota and Michigan (2013 Taconite FIP; 78 FR 8706). EPA is proposing to revise the 2013 Taconite FIP with respect to the BART emission limitations and compliance schedules for the following taconite plants: United Taconite, Hibbing Taconite, Tilden Mining, and ArcelorMittal Minorca Mine. Cliffs is the owner and operator of the United Taconite and Tilden Mining facilities and part owner and operator of Hibbing Taconite. ArcelorMittal is the owner and operator of the Minorca Mine facility and a part owner of the Hibbing Taconite facility.
In section 169A of the 1977 Amendments to the Clean Air Act (CAA), Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Section 169A of the CAA directs states, or EPA if developing a FIP, to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires EPA to develop a FIP that contains such measures as may be necessary to make reasonable progress toward the natural visibility goal, including a requirement that certain categories of existing major stationary sources
On July 6, 2005, EPA published the
The process of establishing BART emission limitations follows three steps: First, identify those sources which meet the definition of “BART-eligible source” set forth in 40 CFR 51.301;
States, or EPA if developing a FIP, must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
A state implementation plan (SIP) or FIP addressing regional haze must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state or EPA has made a BART determination, the BART controls must be installed and operated as expeditiously as practicable, but no later than five years after the date of the final SIP or FIP.
On February 6, 2013, EPA promulgated a FIP (78 FR 8706) that included BART limits for taconite furnaces subject to BART in Minnesota and Michigan. EPA took this action because Minnesota and Michigan had failed to meet a statutory deadline to submit their Regional Haze SIPs and subsequently failed to require BART at the taconite facilities. Cliffs, ArcelorMittal, and the State of Michigan petitioned the Eighth Circuit Court of Appeals for review of the FIP, and, on May 17, 2013, Cliffs and ArcelorMittal filed a joint motion for stay of the final rule, which was granted by the Eighth Circuit on June 14, 2013, and is still in effect.
EPA received petitions for reconsideration of the 2013 Taconite FIP from the National Mining Association on March 8, 2013, ArcelorMittal on March 22, 2013, the State of Michigan on April 1, 2013, Cliffs on April 3, 2013, Congressman Richard M. Nolan on April 8, 2013, the State of Minnesota on April 8, 2013, and United States Steel Corporation (U.S. Steel) on November 26, 2013.
In a related action, EPA published a final partial disapproval of the Michigan and Minnesota Regional Haze SIPs on September 30, 2013 (78 FR 59825), for failure to require BART for SO
EPA subsequently reached a settlement agreement with Cliffs, ArcelorMittal, and Michigan regarding issues raised by these parties in their petitions for review and reconsideration. Notice of the settlement was published in the
1.
2.
3.
4.
5.
6.
7.
EPA believes that the new information contained in the petitions for reconsideration, as well as other supporting information provided by Cliffs, represents significant new information that warrants reconsideration of many of the emission limits that EPA promulgated for the taconite facilities in 2013. As a result, on July 2, 2015, EPA sent letters to Cliffs, ArcelorMittal, and Michigan granting portions of their petitions for reconsideration. Specifically, EPA is granting reconsideration, pursuant to section 307(d)(7)(b) of the CAA, of the NO
The U.S. taconite iron ore industry uses two types of pelletizing machines or processes: Straight-grate kilns and grate-kilns. In a straight-grate kiln, a continuous bed of agglomerated green pellets is carried through different temperature zones with upward draft or downward draft blown through the pellets on the metal grate. The grate-kiln system consists of a traveling grate, a rotary kiln, and an annular cooler. A significant difference between these designs is that straight-grate kilns do not burn coal and therefore have a much lower potential for emitting SO
EPA is not reconsidering all elements of its 2013 FIP. The 2013 FIP contains SO
The 2013 Taconite FIP established BART NO
In determining whether to grant reconsideration of certain provisions of the 2013 Taconite FIP, the requirements of section 307(d)(7)(B) of the CAA apply. Section 307(d)(7)(B) provides a two-step test to determine whether reconsideration should be granted. The petitioner must first show that it was impracticable to raise the comment or objection within the time period for public comment of the rule, or, that the grounds for the comment or objection arose after the period for public comment. Secondly, the petitioner must show that the comment or objection is of “central relevance to the outcome of the rule.”
Cliffs and ArcelorMittal provided significant new information in their petitions for reconsideration and supplemental submittals directly relevant to the outcome of the 2013 Taconite FIP. The following discussion details the new information upon which EPA is relying to base reconsideration of the BART emission limits and compliance schedules for these facilities, and how the information meets the criteria of section 307(d)(7)(B) of the CAA.
EPA determined the NO
Cliffs submitted a declaration by Eric Wagner (of Metso) dated November 26, 2013, which describes the differences relevant to NO
Another example in the declaration notes that the ore processed at the facilities is different, resulting in different heat values. U.S. Steel's Minntac facility processes an ore high in magnetite that contributes heat to the kiln when oxidized. Correspondingly, by processing high magnetite ore at Minntac furnaces 6 and 7, U.S. Steel is able to effectively use ported kilns to maximize the benefit of the ore. Ported kilns allow the introduction of additional air directly to the kilns which helps oxidize the high magnetite ore, and changes the heat balance of the furnace. In contrast, United Taconite processes ores with a lower concentration of magnetite than the ore processed at Minntac, and correspondingly, cannot effectively use ported kilns. Because ported kilns change the heat balance of the furnace, U.S Steel's experience with high-stoich LNBs at the Minntac furnaces may not be directly applicable to the United Taconite furnaces.
A final example from the declaration states that the application of high-stoich LNB technology at United Taconite would require additional air to reduce burner flame temperature, which would result in increased airflow through the grate drying section and increased pressure drop across the greenballs, which are the raw feed to the indurating furnace. This higher bed pressure would result in deformed pellets, reduced pellet quality, and lost production. Further, the increased air flow would also likely cause pellet breakage that would reduce production. The declaration notes that to avoid these
Subsequent to the submission of the declaration, Cliffs provided a modeling analysis that supported the information provided in the declaration. A report by Metso dated August 7, 2014, entitled “Technical Analysis for applying LNB technology to (United Taconite) UTAC Line 2 Grate-Kiln,” provides a detailed analysis of expected impacts from using high-stoich LNBs on pellet quality, fuel usage, and emissions. Metso analyzed the effects of LNB technology on the United Taconite Line 2 Grate-Kiln by using simulation modeling in which Metso compared Line 2's normal operating conditions, which result in the production of quality pellets, with simulations performed using high-stoich LNBs (which are the basis of the 2013 Taconite FIP limits). The report indicates that to maintain airflow, temperature, and pressures sufficient to minimize pellet quality issues would require a significant increase in fuel rates and corresponding emissions. Further, the use of high-stoich LNBs would result in decreased oxygen in the preheat zone gases from the kiln. The corresponding reduction in the oxidation heat on the grate would result in lower pellet temperatures at the point where the pellets leave the grate and enter the kiln. This would likely result in pellet breakage and a corresponding reduction in production.
Finally, Cliffs provided additional information to EPA in a July 28, 2014 meeting, which Cliffs summarized in an August 8, 2014 letter to EPA. The information provided included data comparing performance, costs, and fuel usage between high-stoich LNBs and low-stoich LNBs. Much of the information set forth in the August 8 letter is presented in section VI of this notice, pertaining to the NO
The information provided by Cliffs in its petition for reconsideration and subsequent submittals arose from recent, time-consuming research and analysis that could not have been completed and made available during the public comment period. Therefore, Cliffs has met the first requirement of the criteria for reconsideration set forth at section 307(d)(7)(B) of the CAA. Significantly, the information that Cliffs provided is of central relevance to the outcome of the 2013 Taconite FIP. EPA extensively based its NO
The 2013 Taconite FIP set a 0.60% sulfur limit on coal combusted at United Taconite. We promulgated this limit in response to a proposal by Cliffs to use low sulfur fuel at United Taconite to decrease baseline SO
In its petition for reconsideration, Cliffs also presented new information directly pertaining to the criteria for determining BART limits. Cliffs stated that the United Taconite facility had been designed to handle and burn eastern bituminous coal, not the low sulfur, western subbituminous coals from the Powder River Basin (PRB) that Cliffs would be required to use to meet the 0.60% sulfur content limit. For example, PRB coal is more prone to explosion and fire and has a lower heat value than eastern bituminous coal. These differences, among others, would require Cliffs to expend significant costs to change operations, address safety issues, and increase the amount of coal required to be burned to meet furnace and pellet temperature requirements.
The information that Cliffs presented pertains to the feasibility and costs of implementing the sulfur limit, which are criteria to be used in determining BART. Therefore, the information provided by Cliffs after the close of the comment period is of central relevance to the outcome of the 2013 Taconite FIP. On this basis, we granted reconsideration of the 0.60% sulfur limit on coal combusted at United Taconite.
EPA determined the NO
Cliffs submitted a declaration by Eric Wagner (of Metso) dated November 26, 2013, which describes the differences relevant to NO
Another example in the declaration notes that the ore processed at the facilities is different, resulting in different heat values. U.S. Steel's Minntac facility processes an ore high in magnetite that contributes heat to the kiln when oxidized. Correspondingly, by processing high magnetite ore at Minntac furnaces 6 and 7, U.S. Steel is able to effectively use ported kilns to maximize the benefit of the ore. Ported kilns allow the introduction of additional air directly to the kilns, which helps oxidize the high magnetite ore and changes the heat balance of the
A final example from the declaration states that the application of high-stoich LNB technology at Tilden would require additional air to reduce burner flame temperature, which would result in increased airflow through the grate drying section and increased pressure drop across the greenballs. This higher bed pressure would result in deformed pellets and reduced pellet quality. Further, the increased air flow would also likely cause pellet breakage which would reduce production. The declaration notes that to likely avoid these impacts, Tilden would have to limit the dryer section air flow and drying rate by reducing the amount of recovered heat from the cooler. However, any unrecovered heat would have to be replaced with additional heat from the burner, with corresponding increased fuel usage and emissions.
In addition to the submission of the November 26, 2013 declaration, Cliffs provided modeling and technical analyses that supported the comments made in the declaration. In reports prepared by Metso dated September 14, 2012, and January 13, 2015, Cliffs provided technical analyses for applying LNB technology to the Tilden Line 1 grate kiln through modeling simulations that compare current operations to operations using high-stoich LNBs. Current operating conditions at Tilden 1 were simulated using such factors as existing air flow studies, operating parameters, and feed mineralogy. This baseline model was then modified to simulate LNB operating conditions. The current operating parameters and anticipated high-stoich LNB operating conditions were then compared.
High-stoich LNBs reduce NO
The analysis indicated, among other things, that high-stoich LNB technology would alter the flame temperature profile, which may adversely affect pellet quality, and that the fuel usage rate would increase by approximately 25 to 35 percent. Further, higher temperatures and air flow rates through the grate would result in a 10 to 20 percent increase in exhaust gas volumes.
The Metso comparative analysis dated January 2015 applies current operating data to the high-stoich LNB design conditions, required for NO
The engineering simulations and comparisons reveal a number of significant operational and environmental impacts arising from the installation of a COEN high-stoich LNB. These impacts include a significant change to the use of primary and secondary cooling air, which will alter the cooling down cycle of pellets, create an imbalance between primary and secondary cooling, and likely affect pellet quality. The volume of secondary cooling air exiting the cooler vent stack is projected to increase between 415 and 360 percent. This may adversely affect the process and pellet quality and also increase dust loading. Further, the increase in unheated primary combustion air to the burner will require an increase in fuel to replace the heat not used from heated secondary combustion air. It is expected that this will result in an increase in the fuel rate from between 21 to 28 percent. In addition, the high-stoich LNB will alter the flame temperature profile, which may affect pellet quality.
The information provided by Cliffs in its petition for reconsideration and subsequent submittals arose from recent, time-consuming research and analysis that could not have been completed and made available during the public comment period. Therefore, Cliffs has met the first requirement of the criteria for reconsideration set forth in section 307(d)(7)(B) of the CAA. Significantly, the information that Cliffs provided is of central relevance to the outcome of the 2013 Taconite FIP. EPA extensively based its NO
The 2013 Taconite FIP required the Tilden grate-kiln Line 1 to burn 100% natural gas. However, although mentioned in discussions with Cliffs, this requirement had not been proposed before the final rule. Therefore, it was impracticable for Cliffs to comment on the final BART requirement to burn solely natural gas.
Cliffs more recent intent to burn mixed fuels at Tilden is new information that we did not consider in determining BART for Tilden. The burning of mixed fuels will significantly increase SO
The 2013 Taconite FIP established NO
ArcelorMittal's Minorca taconite facility and the Hibbing taconite facility, which is jointly owned by Cliffs, ArcelorMittal, and U.S. Steel, operate straight-grate furnaces that are required to meet the 1.2 lbs NO
The information provided by ArcelorMittal and Cliffs in their petitions for reconsideration and subsequent submittals arose from recent, time-consuming research and analysis that was not and could not have been completed and made available during the public comment period. Therefore, they have met the first requirement of the criteria for reconsideration set forth at section 307(d)(7)(B) of the CAA. The new information provided by the petitioners directly addresses the costs and feasibility of LNB controls, which are criteria to be used in determining BART. The cost and feasibility of the LNB controls are of central relevance to the outcome of the 2013 Taconite FIP. On this basis, we granted reconsideration to the NO
As discussed in the August 15, 2012 proposed FIP, the following control technologies were identified: external flue gas recirculation, low-NO
External flue gas recirculation and induced flue gas recirculation burners were eliminated from consideration since they are technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. Energy efficiency projects were eliminated due to the difficulty of assigning a general potential emission reduction for this category. EPA agrees that SCR controls are infeasible for indurating furnaces based on two SCR vendors declining to bid on NO
A mass emission rate comparison between high-stoich and low-stoich LNB options was presented by Metso, during a July 28, 2014 meeting between EPA and Cliffs and summarized in a subsequent August 8, 2014 letter to EPA. Metso's analysis compared the amount of NO
The declaration by Eric Wagner (of Metso) dated November 26, 2013 consists mainly of a description of differences relevant to NO
EPA agrees with the results of the Metso reports and declaration and have therefore determined that high-stoich LNBs are technically infeasible for the United Taconite and Tilden grate-kilns. Low-stoich grate-kilns remain technically feasible for grate-kilns.
Low-stoich burners, as designed by FCT Combustion (FCT), are expected to avoid the previously described drawbacks from high-stoich burners and can be designed to meet 2.8 lbs/MMBtu when burning natural gas and 1.5 lbs/MMBtu when burning a gas/coal mix. This technology is described in the “FCT Combustion Cliffs UTAC Line 2 Phase 3 Modeling Report” and August 8, 2014 letter from Douglas McWilliams. FCT supplies a LNB, called the FCT COMBUSTION Gyro-Therm MKII burner. This FCT low-stoich Gyro-Therm burner design achieves NO
FCT performed CFD modeling at United Taconite in order to design a new burner that will reduce NO
There will be an estimated total of 3000 tons per year of NO
There is about a 16% overall decrease in the amount of NO
In EPA's view, the CFD modeling that FCT has conducted provides the best currently available evidence as to the NO
As discussed in the August 15, 2012 proposed FIP, the following control technologies were identified: external flue gas recirculation, low-NO
External flue gas recirculation and induced flue gas recirculation burners were eliminated from consideration because they are technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. Energy efficiency projects were eliminated due to the difficulty of assigning a general potential emission reduction for this category. EPA agrees that SCR controls are infeasible for indurating furnaces based on two SCR vendors declining to bid on NO
In addition, LNBs were eliminated from consideration due to the technical challenges associated with their installation and operation on the straight-grate kilns at Minorca Mine and Hibbing, which we explained in detail in section V above—especially the fact that high-stoich burners have never been used on any straight-grate kilns. Low-stoich burners have also been eliminated from consideration because they have never been used on straight-grate kilns and also because they would be expected to result in higher NO
ArcelorMittal has retained engineering firms to assess NO
Test results have raised the prospect of optimizing NO
In conclusion, combined modeling indicates that water injection in the preheat zone, a pre-combustion approach at the main burners and steam injection to the fuel stream technologies can reasonably be expected to achieve a 70% NO
There will be a total estimated 7,400 tons per year of NO
There is about a 16% overall decrease in the amount of NO
Based upon the engineering report prepared for ArcelorMittal in which the use of water and steam injection and pre-combustion technologies is described, EPA is confident that ArcelorMittal Minorca Mine and Hibbing Taconite can meet a limit of 1.2 lbs NO
Flue gas desulfurization (FGD) and use of low sulfur fuels are the most appropriate available technologies.
FGD and use of low sulfur fuels are both technically feasible.
FGD can achieve 90 percent control and the reduction from the use of low sulfur fuels varies depending upon the fuel mix and the sulfur content of the fuel.
Dry FGD can achieve SO
United Taconite subsequently proposed an alternate BART definition based on burning low sulfur fuels, including increased use of natural gas. This alternative will result in about 1,900 tons per year of SO
There is about a 16% overall decrease in the amount of NO
The proposed BART is based on burning low sulfur fuels, including increased use of natural gas, sufficient to meet a Federally enforceable aggregate emission limit of 529 lbs SO
The 529 lbs SO
FGD and use of low sulfur fuels are the most appropriate available technologies.
FGD and use of low sulfur fuels are both technically feasible.
FGD can achieve 90 percent control and the reduction from the use of low sulfur fuels varies depending upon the fuel mix and the sulfur content of the fuel.
Dry FGD can achieve SO
The use of low sulfur fuels, consisting of the use of either natural gas or coal with no more than 0.6 percent sulfur, is expected to result in a reduction in SO
There is about a 16% overall decrease in the amount of NO
BART for SO
In light of the reduction in SO
The staggered NO
The staggered schedule, including additional time at Tilden and ArcelorMittal, is even more necessary for the proposed revisions to the 2013 Taconite FIP because, although the NO
The limits in the 2013 Taconite FIP were expressed in terms of a 30-day average. A 30-day period in many cases would involve both operation with only natural gas and operation with at least some firing of coal. EPA prefers to require the companies to meet the limits with a coal/gas mix and with only natural gas independently, rather than imposing a variable limit computed as a composite of the limits with a gas/coal mix and with only natural gas weighted according to time in each operating mode. Therefore, EPA is proposing to require separate compliance with two limits. One of these limits would govern the emissions averaged over 720 successive hours in which the unit burns only natural gas. The other limit would govern emissions averaged over the 720 successive hours in which the unit burns a gas/coal mix. These 720-hour rolling average would correspond to a 30-day rolling average, as used in the 2013 Taconite FIP, in cases when the fuel use remains either natural gas or a gas/coal mix over 30 days. However, a 720-hour rolling average ensures that the NO
An example helps illustrate the nature of these limits. Suppose that a subject facility burns only natural gas on Days 1-12, burns a coal/gas mix on Days 13-16, burns gas again on Days 17-30, does not operate on Days 31 and 32, burns gas on Days 33-40, then burns a coal/gas mix from Days 41-70. This example assumes 24 hours/day operation for each operating day. In this case, compliance with the natural gas-based limit would be determined by dividing total NO
The regulatory text that follows specifies a process for establishing limits to which the identified facilities shall become subject. While the text identifies limits that are to apply, the
EPA is proposing for the publication of the final rule to trigger a number of subsequent requirements for implementing BART controls on the affected taconite plants. Specific dates, defined as a given number of months following the effective date of the final rule, are given for deadlines for commencing operation of CEMS for NO
Based on the above schedule, EPA anticipates publishing a notice 37 months (addressing 2 units), 55 months (addressing 3 units), and 60 months (addressing 1 unit) after the effective date of the final rule on reconsideration. In each case, the rulemaking will cause a limit to become enforceable. EPA is proposing here that the limit will be either the limit that is promulgated in the final rule on reconsideration or a revised limit. In either case, EPA anticipates that the limit to which each unit will ultimately be subject will be in accordance with the equations being proposed here, within the upper and lower bounds promulgated in the final rule on reconsideration.
EPA is proposing that these subsequent notices will constitute subsequent final actions to this proposal that require no further opportunity for public comment. Accordingly, today's notice of proposed rulemaking provides adequate information about the basis and timing of the final limits such that no further proposals will be necessary. EPA is taking this approach in order to expedite the establishment of final, enforceable limits for these facilities, within the context of a process that provides reasonable time to design and install emission controls, to obtain data for determining control effectiveness, and to minimize the time then needed to establish final, enforceable limits. Therefore, commenters should provide comments during the comment period for today's proposed rulemaking on any issues that might be anticipated to arise at any point in the process described in this notice, up to and including during the publication of final action as described above establishing confirmed or modified limits as fully enforceable.
The following is an example, based on Hibbing Line 1, of the process for setting the final limit. The limits and schedules vary by line but the steps are the same for all:
1. A presumptive limit of 1.2 lbs/MMBtu, based on a 30-day rolling average, is established.
2. The owner or operator must install CEMS within 6 months of the effective date of the rule.
3. After installation of the CEMS, CEMS data must be submitted to EPA no later than 30 days from the end of each calendar quarter until 34 months from the effective date of the rule.
4. Within 24 months of the effective date a final report must be submitted to EPA containing a detailed engineering analysis and modeling of the NO
5. The NO
6. Within the earlier of 6 months of the installation of the NO
7. No later than 34 months after the effective date of the rule, a report may be submitted to EPA either confirming the 1.2 lbs/MMBtu presumptive limit or requesting a modification of the limit up to the upper end of the range (1.8 lbs/MMBtu in this case).
8. The final limit will be based on the CEMS data from the eight month period from the end of month 26 to the end of month 34, excluding any time in which the pellet quality standards are not met. The final limit will be based upon the 95 percent upper predictive limit (UPL). The UPL is a statistical technique that examines an existing set of data points and predicts the chances (
9. EPA will take final agency action by publishing its final confirmation or modification of the NO
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 review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). As discussed in detail in section VI. C below, the proposed FIP applies to only four sources. It is therefore not a rule of general applicability.
This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR part 9.
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 today's proposed 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.
After considering the economic impacts of this proposed action on small entities, I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. EPA's proposal adds additional controls to certain sources. The Regional Haze FIP that EPA is proposing for purposes of the regional haze program consists of imposing Federal control requirements to meet the BART requirement for NO
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Under Title II of UMRA, EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million by State, local, or Tribal governments or the private sector in any one year. In addition, this proposed rule does not contain a significant Federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.
This rule 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, because it merely addresses the State not fully meeting its obligation to prohibit emissions from interfering with other states measures to protect visibility established in the CAA. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments,
Executive Order 13175, entitled
Executive Order 13045:
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 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
VCS are inapplicable to this action because application of those requirements would be inconsistent with the CAA.
Executive Order 12898 (59 FR 7629, February 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 United States.
We have determined that this proposed rule, if finalized, 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.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is proposed to be amended as follows:
42 U.S.C. 7401
(k) Tilden Mining Company, or any subsequent owner/operator of the Tilden Mining Company facility in Ishpeming, Michigan, shall meet the following requirements:
(1)
(i) An emission limit of 2.8 lbs NO
(ii) Compliance with these emission limits shall be demonstrated with data collected by a continuous emissions monitoring system (CEMS) for NO
(iii) No later than 48 months from [EFFECTIVE DATE OF FINAL RULE], the owner or operator must submit to EPA a report, including any final report(s) completed by the selected NO
(iv) The NO
(v) Commencing on the earlier of:
(A) Six months from the installation of the NO
(B) 50 months from [EFFECTIVE DATE OF FINAL RULE], the owner or operator must provide to EPA the results from pellet quality analyses. The owner or operator shall provide the results from pellet quality analyses no later than 30 days from the end of each calendar quarter up until 57 months after [EFFECTIVE DATE OF FINAL RULE]. Any remaining results through the end of the 57th month, that do not fall within a calendar quarter, must be submitted to EPA no later than seven days from the end of the 57th month. The pellet quality analyses shall include results for the following factors: Compression, reducibility, before tumble, after tumble, and low temperature disintegration. For each of the pellet quality analysis factors, the owner or operator must explain the pellet quality analysis factor, as well as the defined acceptable range for each factor using the applicable product quality standards based upon customers' pellet specifications that are contained in Tilden's ISO 9001 quality management system. The owner or operator shall provide pellet quality analysis testing results that state the date and time of the analysis and, in order to define the time period when pellets were produced outside of the defined acceptable range for the pellet quality factors listed, provide copies of the production logs that document the starting and ending times for such periods. The owner or operator shall provide an explanation of causes for pellet samples that fail to meet the acceptable range for any pellet quality analysis factor. Pellet quality information and data may be submitted to EPA as Confidential Business Information.
(vi) No later than 57 months after [EFFECTIVE DATE OF FINAL RULE], the owner or operator may submit to EPA a report to either confirm or modify the NO
(vii) EPA will take final agency action by publishing its final confirmation or modification of the NO
(viii) If the owner or operator submits a report proposing a single NO
(2)
(3) The owner or operator of the Tilden Grate Kiln Line 1 furnace shall meet an emission limit of 500 lbs SO
(4) Starting 26 months from [EFFECTIVE DATE OF FINAL RULE], records shall be kept for any day during which fuel oil is burned as fuel (either alone or blended with other fuels) in Grate Kiln Line 1. These records must include, at a minimum, the gallons of fuel oil burned per hour, the sulfur content of the fuel oil, and the SO
(5) Starting 26 months from [EFFECTIVE DATE OF FINAL RULE], the SO
(l)
(2) The owner or operator shall install, certify, calibrate, maintain and operate a CEMS for SO
(3) The owner or operator shall install, certify, calibrate, maintain and operate one or more continuous diluent monitor(s) (O
(4) For purposes of this section, all CEMS required by this regulation must meet the requirements of paragraphs (l)(4)(i) through (xiv) of this section.
(i) All CEMS must be installed, certified, calibrated, maintained, and operated in accordance with 40 CFR part 60, appendix B, Performance Specification 2 (PS-2) and appendix F, Procedure 1.
(ii) All CEMS associated with monitoring NO
(iii) The owner or operator must conduct a performance evaluation of each CEMS in accordance with 40 CFR part 60, appendix B, PS-2. The performance evaluations must be completed no later than 60 days after the respective CEMS installation.
(iv) The owner or operator of each CEMS must conduct periodic Quality Assurance, Quality Control (QA/QC) checks of each CEMS in accordance with 40 CFR part 60, appendix F, Procedure 1. The first CEMS accuracy test will be a relative accuracy test audit (RATA) and must be completed no later than 60 days after the respective CEMS installation.
(v) The owner or operator of each CEMS must furnish the Regional Administrator two, or upon request, more copies of a written report of the results of each performance evaluation and QA/QC check within 60 days of completion.
(vi) The owner or operator of each CEMS must check, record, and quantify the zero and span calibration drifts at least once daily (every 24 hours) in accordance with 40 CFR part 60, appendix F, Procedure 1, Section 4.
(vii) Except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments, all CEMS required by this section shall be in continuous operation during all periods of process operation of the indurating furnaces, including periods of process unit startup, shutdown, and malfunction.
(viii) All CEMS required by this section must meet the minimum data requirements at paragraphs (l)(4)(viii)(A) through (C) of this section.
(A) Complete a minimum of one cycle of operation (sampling, analyzing, and data recording) for each successive 15-minute quadrant of an hour.
(B) Sample, analyze and record emissions data for all periods of process operation except as described in paragraph (l)(4)(viii)(C) of this section.
(C) When emission data from CEMS are not available due to continuous monitoring system breakdowns, repairs, calibration checks, or zero and span adjustments, emission data must be obtained using other monitoring systems or emission estimation methods approved by the EPA. The other monitoring systems or emission estimation methods to be used must be incorporated into the monitoring plan required by this section and provide information such that emissions data are available for a minimum of 18 hours in each 24-hour period and at least 22 out of 30 successive unit operating days.
(ix) Owners or operators of each CEMS required by this section must reduce all data to 1-hour averages. Hourly averages shall be computed using all valid data obtained within the hour but no less than one data point in each fifteen-minute quadrant of an hour. Notwithstanding this requirement, an hourly average may be computed from at least two data points separated by a minimum of 15 minutes (where the unit operates for more than one quadrant in an hour) if data are unavailable as a result of performance of calibration, quality assurance, preventive maintenance activities, or backups of data from data acquisition and handling systems, and recertification events.
(x) The 30-day rolling average emission rate determined from data derived from the CEMS required by this section (in lbs/MMBtu or lbs/hr depending on the emission standard selected) must be calculated in accordance with paragraphs (l)(4)(x)(A) through (F) of this section.
(A) Sum the total pounds of the pollutant in question emitted from the Unit during an operating day and the previous 29 operating days.
(B) Sum the total heat input to the unit (in MMBtu) or the total actual hours of operation (in hours) during an operating day and the previous 29 operating days.
(C) Divide the total number of pounds of the pollutant in question emitted during the 30 operating days by the total heat input (or actual hours of operation depending on the emission limit selected) during the 30 operating days.
(D) For purposes of this calculation, an operating day is any day during which fuel is combusted in the BART affected Unit regardless of whether
(E) If the owner or operator of the CEMS required by this section uses an alternative method to determine 30-day rolling averages, that method must be described in detail in the monitoring plan required by this section. The alternative method will only be applicable if the final monitoring plan and the alternative method are approved by EPA.
(F) A new 30-day rolling average emission rate must be calculated for the period ending each new operating day.
(xi) The 720-hour rolling average emission rate determined from data derived from the CEMS required by this section (in lbs/MMBtu) must be calculated in accordance with paragraphs (l)(4)(xi)(A) through (C) of this section.
(A) Sum the total pounds of NO
(B) Sum the total heat input to the unit (in MMBtu) every hour and the previous (not necessarily consecutive) 719 hours for which that type of fuel (either natural gas or mixed coal and natural gas) was used.
(C) Divide the total number of pounds of NO
(xii) Data substitution must not be used for purposes of determining compliance under this regulation.
(xiii) All CEMS data shall be reduced and reported in units of the applicable standard.
(xiv) A Quality Control Program must be developed and implemented for all CEMS required by this section in accordance with 40 CFR part 60, appendix F, Procedure 1, Section 3. The program will include, at a minimum, written procedures and operations for calibration checks, calibration drift adjustments, preventative maintenance, data collection, recording and reporting, accuracy audits/procedures, periodic performance evaluations, and a corrective action program for malfunctioning CEMS.
(m)
(ii) Records required by this section must be kept for a minimum of 5 years following the date of creation.
(iii) Records must be kept on site for at least 2 years following the date of creation and may be kept offsite, but readily accessible, for the remaining 3 years.
(2) The owner or operator of the BART affected unit must maintain the records identified in paragraphs (m)(2)(i) through (xi) of this section.
(i) A copy of each notification and report developed for and submitted to comply with this section including all documentation supporting any initial notification or notification of compliance status submitted, according to the requirements of this section.
(ii) Records of the occurrence and duration of each startup, shutdown, and malfunction of the BART affected unit, air pollution control equipment, and CEMS required by this section.
(iii) Records of activities taken during each startup, shutdown, and malfunction of the BART affected unit, air pollution control equipment, and CEMS required by this section.
(iv) Records of the occurrence and duration of all major maintenance conducted on the BART affected unit, air pollution control equipment, and CEMS required by this section.
(v) Records of each excess emission report, including all documentation supporting the reports, dates and times when excess emissions occurred, investigations into the causes of excess emissions, actions taken to minimize or eliminate the excess emissions, and preventative measures to avoid the cause of excess emissions from occurring again.
(vi) Records of all CEMS data including, as a minimum, the date, location, and time of sampling or measurement, parameters sampled or measured, and results.
(vii) All records associated with quality assurance and quality control activities on each CEMS as well as other records required by 40 CFR part 60, appendix F, Procedure 1 including, but not limited to, the quality control program, audit results, and reports submitted as required by this section.
(viii) Records of the NO
(ix) Records of the SO
(x) Records associated with the CEMS unit including type of CEMS, CEMS model number, CEMS serial number, and initial certification of each CEMS conducted in accordance with 40 CFR part 60, appendix B, Performance Specification 2 must be kept for the life of the CEMS unit.
(xi) Records of all periods of fuel oil usage as required in paragraph (k)(4) of this section.
(n)
(1) All requests, reports, submittals, notifications, and other communications to the Regional Administrator required by this section shall be submitted, unless instructed otherwise, to the Air and Radiation Division, U.S. Environmental Protection Agency, Region 5 (A-18J) at 77 West Jackson Boulevard, Chicago, Illinois 60604. References in this section to the Regional Administrator shall mean the EPA Regional Administrator for Region 5.
(2) The owner or operator of each BART affected unit identified in this section and CEMS required by this section must provide to the Regional Administrator the written notifications, reports and plans identified at (n)(2)(i) through (viii) of this section. If acceptable to both the Regional Administrator and the owner or operator of each BART affected unit identified in this section and CEMS required by this section the owner or operator may provide electronic notifications, reports and plans.
(i) A notification of the date construction of control devices and installation of burners required by this section commences postmarked no later than 30 days after the commencement date.
(ii) A notification of the date the installation of each CEMS required by this section commences postmarked no later than 30 days after the commencement date.
(iii) A notification of the date the construction of control devices and
(iv) A notification of the date the installation of each CEMS required by this section is complete postmarked no later than 30 days after the completion date.
(v) A notification of the startup date for control devices and burners installed as a result of this section postmarked no later than 30 days after the startup date.
(vi) A notification of the startup date for CEMS required by this section postmarked no later than 30 days after the startup date.
(vii) A notification of the date upon which the initial CEMS performance evaluations are planned. This notification must be submitted at least 60 days before the performance evaluation is scheduled to begin.
(viii) A notification of initial compliance, signed by the responsible official who shall certify its accuracy, attesting to whether the source has complied with the requirements of this section, including, but not limited to, applicable emission standards, control device and burner installations, CEMS installation and certification. This notification must be submitted before the close of business on the 60th calendar day following the completion of the compliance demonstration and must include, at a minimum, the information in paragraphs (n)(2)(viii) (A) through (F) of this section.
(A) The methods used to determine compliance.
(B) The results of any CEMS performance evaluations, and other monitoring procedures or methods that were conducted.
(C) The methods that will be used for determining continuing compliance, including a description of monitoring and reporting requirements and test methods.
(D) The type and quantity of air pollutants emitted by the source, reported in units of the standard.
(E) A description of the air pollution control equipment and burners installed as required by this section, for each emission point.
(F) A statement by the owner or operator as to whether the source has complied with the relevant standards and other requirements.
(3) The owner or operator must develop and implement a written startup, shutdown, and malfunction plan for NO
(4) The written reports of the results of each performance evaluation and QA/QC check in accordance with and as required in paragraph (l)(4)(v) of this section.
(5)
(i) The first compliance report must cover the period beginning on the compliance date that is specified for the affected source through June 30 or December 31, whichever date comes first after the compliance date that is specified for the affected source.
(ii) The first compliance report must be postmarked no later than 30 calendar days after the reporting period covered by that report (July 30 or January 30), whichever comes first.
(iii) Each subsequent compliance report must cover the semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(iv) Each subsequent compliance report must be postmarked no later than 30 calendar days after the reporting period covered by that report (July 30 or January 30).
(6) Compliance report contents. Each compliance report must include the information in paragraphs (6)(i) through (vi) of this section.
(i) Company name and address.
(ii) Statement by a responsible official, with the official's name, title, and signature, certifying the truth, accuracy, and completeness of the content of the report.
(iii) Date of report and beginning and ending dates of the reporting period.
(iv) Identification of the process unit, control devices, and CEMS covered by the compliance report.
(v) A record of each period of a startup, shutdown, or malfunction during the reporting period and a description of the actions the owner or operator took to minimize or eliminate emissions arising as a result of the startup, shutdown or malfunction and whether those actions were or were not consistent with the source's startup, shutdown, and malfunction plan.
(vi) A statement identifying whether there were or were not any deviations from the requirements of this section during the reporting period. If there were deviations from the requirements of this section during the reporting period, then the compliance report must describe in detail the deviations which occurred, the causes of the deviations, actions taken to address the deviations, and procedures put in place to avoid such deviations in the future. If there were no deviations from the requirements of this section during the reporting period, then the compliance report must include a statement that there were no deviations. For purposes of this section, deviations include, but are not limited to, emissions in excess of applicable emission standards established by this section, failure to continuously operate an air pollution control device in accordance with operating requirements designed to assure compliance with emission standards, failure to continuously operate CEMS required by this section, and failure to maintain records or submit reports required by this section.
(7) Each owner or operator of a CEMS required by this section must submit quarterly excess emissions and monitoring system performance reports to the Regional Administrator for each pollutant monitored for each BART affected unit monitored. All reports must be postmarked by the 30th day following the end of each three-month period of a calendar year (January-March, April-June, July-September, October-December) and must include, at a minimum, the requirements of paragraphs (n)(7)(i)-(xv) of this section.
(i) Company name and address.
(ii) Identification and description of the process unit being monitored.
(iii) The dates covered by the reporting period.
(iv) Total source operating hours for the reporting period.
(v) Monitor manufacturer, monitor model number and monitor serial number.
(vi) Pollutant monitored.
(vii) Emission limitation for the monitored pollutant.
(viii) Date of latest CEMS certification or audit.
(ix) A description of any changes in continuous monitoring systems,
(x) A table summarizing the total duration of excess emissions, as defined in paragraphs (n)(7)(x)(A) through (B) of this section, for the reporting period broken down by the cause of those excess emissions (startup/shutdown, control equipment problems, process problems, other known causes, unknown causes), and the total percent of excess emissions (for all causes) for the reporting period calculated as described in paragraphs (n)(7)(x)(C) of this section.
(A) For purposes of section, an excess emission is defined as any 30-day or 720-hour rolling average period, including periods of startup, shutdown and malfunction, during which the 30-day or 720-hour (as appropriate) rolling average emissions of either regulated pollutant (SO
(B)(
(
(C) For purposes of this section, the total percent of excess emissions will be determined by summing all periods of excess emissions (in days) for the reporting period, dividing that number by the total BART affected unit operating days for the reporting period, and then multiplying by 100 to get the total percent of excess emissions for the reporting period. An operating day, as defined previously, is any day during which fuel is fired in the BART affected unit for any period of time. Because of the possible overlap of 30-day rolling average excess emissions across quarters, there are some situations where the total percent of excess emissions could exceed 100 percent. This extreme situation would only result from serious excess emissions problems where excess emissions occur for nearly every day during a reporting period.
(xi) A table summarizing the total duration of monitor downtime, as defined at (n)(7)(xi)(A) of this section, for the reporting period broken down by the cause of the monitor downtime (monitor equipment malfunctions, non-monitor equipment malfunctions, quality assurance calibration, other known causes, unknown causes), and the total percent of monitor downtime (for all causes) for the reporting period calculated as described in paragraph (n)(7)(xi)(B) of this section.
(A) For purposes of this section, monitor downtime is defined as any period of time (in hours) during which the required monitoring system was not measuring emissions from the BART affected unit. This includes any period of CEMS QA/QC, daily zero and span checks, and similar activities.
(B) For purposes of this section, the total percent of monitor downtime will be determined by summing all periods of monitor downtime (in hours) for the reporting period, dividing that number by the total number of BART affected unit operating hours for the reporting period, and then multiplying by 100 to get the total percent of excess emissions for the reporting period.
(xii) A table which identifies each period of excess emissions for the reporting period and includes, at a minimum, the information in paragraphs (n)(7)(xii)(A) through (F) of this section.
(A) The date of each excess emission.
(B) The beginning and end time of each excess emission.
(C) The pollutant for which an excess emission occurred.
(D) The magnitude of the excess emission.
(E) The cause of the excess emission.
(F) The corrective action taken or preventative measures adopted to minimize or eliminate the excess emissions and prevent such excess emission from occurring again.
(xiii) A table which identifies each period of monitor downtime for the reporting period and includes, at a minimum, the information in paragraph (n)(7)(xiii)(A) through (D) of this section.
(A) The date of each period of monitor downtime.
(B) The beginning and end time of each period of monitor downtime.
(C) The cause of the period of monitor downtime.
(D) The corrective action taken or preventative measures adopted for system repairs or adjustments to minimize or eliminate monitor downtime and prevent such downtime from occurring again.
(xiv) If there were no periods of excess emissions during the reporting period, then the excess emission report must include a statement which says there were no periods of excess emissions during this reporting period.
(xv) If there were no periods of monitor downtime, except for daily zero and span checks, during the reporting period, then the excess emission report must include a statement which says there were no periods of monitor downtime during this reporting period except for the daily zero and span checks.
(8) The owner or operator of each CEMS required by this section must develop and submit for review and approval by the Regional Administrator a site specific monitoring plan. The purpose of this monitoring plan is to establish procedures and practices which will be implemented by the owner or operator in its effort to comply with the monitoring, recordkeeping and reporting requirements of this section. The monitoring plan must include, at a minimum, the information in paragraphs (n)(8)(i)-(x) of this section.
(i) Site specific information including the company name, address, and contact information.
(ii) The objectives of the monitoring program implemented and information describing how those objectives will be met.
(iii) Information on any emission factors used in conjunction with the CEMS required by this section to calculate emission rates and a description of how those emission factors were determined.
(iv) A description of methods to be used to calculate emission rates when CEMS data is not available due to downtime associated with QA/QC events.
(v) A description of the QA/QC program to be implemented by the owner or operator of CEMS required by this section. This can be the QA/QC program developed in accordance with 40 CFR part 60, appendix F, Procedure 1, Section 3.
(vi) A list of spare parts for CEMS maintained on site for system maintenance and repairs.
(vii) A description of the procedures to be used to calculate 30-day rolling averages and 720-hour rolling averages and example calculations which shows the algorithms used by the CEMS to calculate 30-day rolling averages and 720-hour rolling averages.
(viii) A sample of the document to be used for the quarterly excess emission reports required by this section.
(ix) A description of the procedures to be implemented to investigate root causes of excess emissions and monitor downtime and the proposed corrective actions to address potential root causes of excess emissions and monitor downtime.
(x) A description of the sampling and calculation methodology for determining the percent sulfur by weight as a monthly block average for coal used during that month.
(o) Equations for Establishing the Upper Predictive Limit
(1)
(2)(i) To determine if statistically independent, use the Rank von Neumann Test on p. 137 of data Quality Assessment: Statistical Methods for Practitioners EPA QA/G-9S.
(ii) Alternative to Rank von Neumann test to determine if data are dependent, data are dependent if t test value is greater than t critical value, where:
(3) If data are dependent then use the following equation.
(4)
If
If
(a) [Reserved]
(b)(1)
(i) * * *
(ii) Hibbing Taconite Company.
(A) Hibbing Line 1.
(
(
(
(
(
(
(
(
(
(B) Hibbing Line 2.
(
(
(
(
(
(
(
(
(
(C) Hibbing Line 3.
(
(
(
(
(
(
(
(
(
(iv) United Taconite.
(A) United Taconite Line 1.
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(v) ArcelorMittal Minorca Mine
(A) An emission limit of 1.2 lbs NO
(B) Compliance with this emission limit will be demonstrated with data collected by a continuous emissions monitoring system (CEMS) for NO
(C) No later than 42 months after [EFFECTIVE DATE OF FINAL RULE] the owner or operator must submit to EPA a report, including any final report(s) completed by the selected NO
(D) The NO
(E) Commencing on the earlier of:
(
(
(F) No later than 52 months after [EFFECTIVE DATE OF FINAL RULE], the owner or operator may submit to EPA a report to either confirm or modify the NO
(
(2) SO
(iv) United Taconite
An aggregate emission limit of 529.0 lbs SO
(c)
(2) The owner or operator shall install, certify, calibrate, maintain and operate CEMS for SO
(3) The owner or operator shall install, certify, calibrate, maintain and operate one or more continuous diluent monitor(s) (O
(4) For purposes of this section, all CEMS required by this section must meet the requirements of paragraphs (c)(4)(i)-(xiv) of this section.
(i) All CEMS must be installed, certified, calibrated, maintained, and operated in accordance with 40 CFR part 60, appendix B, Performance Specification 2 (PS-2) and appendix F, Procedure 1.
(ii) CEMS must be installed and operational as follows:
(A) All CEMS associated with monitoring NO
(B) All CEMS associated with monitoring NO
(C) All CEMS associated with monitoring SO
(D) All CEMS associated with monitoring SO
(E) The operational status of the CEMS identified in paragraphs (c)(1) and (2) of this section shall be verified by, as a minimum, completion of the manufacturer's written requirements or recommendations for installation, operation, and calibration of the devices.
(iii) The owner or operator must conduct a performance evaluation of each CEMS in accordance with 40 CFR part 60, appendix B, PS-2. The performance evaluations must be completed no later than 60 days after the respective CEMS installation.
(iv) The owner or operator of each CEMS must conduct periodic Quality Assurance, Quality Control (QA/QC) checks of each CEMS in accordance
(v) The owner or operator of each CEMS must furnish the Regional Administrator two, or upon request, more copies of a written report of the results of each performance evaluation and QA/QC check within 60 days of completion,.
(vi) The owner or operator of each CEMS must check, record, and quantify the zero and span calibration drifts at least once daily (every 24 hours) in accordance with 40 CFR part 60, appendix F, Procedure 1, Section 4.
(vii) Except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments, all CEMS required by this section shall be in continuous operation during all periods of BART affected process unit operation, including periods of process unit startup, shutdown, and malfunction.
(viii) All CEMS required by this section must meet the minimum data requirements at paragraphs (c)(4)(viii)(A) through (C) of this section.
(A) Complete a minimum of one cycle of operation (sampling, analyzing, and data recording) for each successive 15-minute quadrant of an hour.
(B) Sample, analyze and record emissions data for all periods of process operation except as described in paragraph (c)(4)(viii)(C) of this section.
(C) When emission data from CEMS are not available due to continuous monitoring system breakdowns, repairs, calibration checks, or zero and span adjustments, emission data must be obtained using other monitoring systems or emission estimation methods approved by the EPA. The other monitoring systems or emission estimation methods to be used must be incorporated into the monitoring plan required by this section and provide information such that emissions data are available for a minimum of 18 hours in each 24 hour period and at least 22 out of 30 successive unit operating days.
(ix) Owners or operators of each CEMS required by this section must reduce all data to 1-hour averages. Hourly averages shall be computed using all valid data obtained within the hour but no less than one data point in each fifteen-minute quadrant of an hour. Notwithstanding this requirement, an hourly average may be computed from at least two data points separated by a minimum of 15 minutes (where the unit operates for more than one quadrant in an hour) if data are unavailable as a result of performance of calibration, quality assurance, preventive maintenance activities, or backups of data from data acquisition and handling systems, and recertification events.
(x) The 30-day rolling average emission rate determined from data derived from the CEMS required by this section (in lbs/MMBtu or lbs/hr depending on the emission standard selected) must be calculated in accordance with paragraphs (c)(4)(x)(A)-(F) of this section.
(A) Sum the total pounds of the pollutant in question emitted from the Unit during an operating day and the previous 29 operating days.
(B) Sum the total heat input to the unit (in MMBtu) or the total actual hours of operation (in hours) during an operating day and the previous 29 operating days.
(C) Divide the total number of pounds of the pollutant in question emitted during the 30 operating days by the total heat input (or actual hours of operation depending on the emission limit selected) during the 30 operating days.
(D) For purposes of this calculation, an operating day is any day during which fuel is combusted in the BART affected Unit regardless of whether pellets are produced. Actual hours of operation are the total hours a unit is firing fuel regardless of whether a complete 24-hour operational cycle occurs (
(E) If the owner or operator of the CEMS required by this section uses an alternative method to determine 30-day rolling averages, that method must be described in detail in the monitoring plan required by this section. The alternative method will only be applicable if the final monitoring plan and the alternative method are approved by EPA.
(F) A new 30-day rolling average emission rate must be calculated for each new operating day.
(xi) The 720-hour rolling average emission rate determined from data derived from the CEMS required by this section (in lbs/MMBtu) must be calculated in accordance with (c)(4)(xi)(A)-(C) of this section.
(A) Sum the total pounds of NO
(B) Sum the total heat input to the unit (in MMBtu) every hour and the previous (not necessarily consecutive) 719 hours for which that type of fuel (either natural gas or mixed coal and natural gas) was used.
(C) Divide the total number of pounds of NO
(xii) Data substitution must not be used for purposes of determining compliance under this section.
(xiii) All CEMS data shall be reduced and reported in units of the applicable standard.
(xiv) A Quality Control Program must be developed and implemented for all CEMS required by this section in accordance with 40 CFR part 60, appendix F, Procedure 1, Section 3. The program will include, at a minimum, written procedures and operations for calibration checks, calibration drift adjustments, preventative maintenance, data collection, recording and reporting, accuracy audits/procedures, periodic performance evaluations, and a corrective action program for malfunctioning CEMS.
(d)
(ii) Records required by this section must be kept for a minimum of 5 years following the date of creation.
(iii) Records must be kept on site for at least 2 years following the date of creation and may be kept offsite, but readily accessible, for the remaining 3 years.
(2) The owner or operator of the BART affected units must maintain the records at paragraphs (d)(2)(i)-(xi) of this section.
(i) A copy of each notification and report developed for and submitted to comply with this section including all documentation supporting any initial notification or notification of compliance status submitted according to the requirements of this section.
(ii) Records of the occurrence and duration of startup, shutdown, and malfunction of the BART affected units, air pollution control equipment, and CEMS required by this section.
(iii) Records of activities taken during each startup, shutdown, and malfunction of the BART affected unit, air pollution control equipment, and CEMS required by this section.
(iv) Records of the occurrence and duration of all major maintenance conducted on the BART affected units,
(v) Records of each excess emission report, including all documentation supporting the reports, dates and times when excess emissions occurred, investigations into the causes of excess emissions, actions taken to minimize or eliminate the excess emissions, and preventative measures to avoid the cause of excess emissions from occurring again.
(vi) Records of all CEMS data including, as a minimum, the date, location, and time of sampling or measurement, parameters sampled or measured, and results.
(vii) All records associated with quality assurance and quality control activities on each CEMS as well as other records required by 40 CFR part 60, appendix F, Procedure 1 including, but not limited to, the quality control program, audit results, and reports submitted as required by this section.
(viii) Records of the NO
(ix) Records of the SO
(x) Records associated with the CEMS unit including type of CEMS, CEMS model number, CEMS serial number, and initial certification of each CEMS conducted in accordance with 40 CFR part 60, appendix B, Performance Specification 2 must be kept for the life of the CEMS unit.
(xi) Records of all periods of fuel oil usage as required at paragraph (b)(2)(vii) of this section.
(e)
(2) The owner or operator of each BART affected unit identified in this section and CEMS required by this section must provide to the Regional Administrator the written notifications, reports and plans identified at paragraphs (e)(2)(i)-(viii) of this section. If acceptable to both the Regional Administrator and the owner or operator of each BART affected unit identified in this section and CEMS required by this section the owner or operator may provide electronic notifications, reports and plans.
(i) A notification of the date construction of control devices and installation of burners required by this section commences postmarked no later than 30 days after the commencement date.
(ii) A notification of the date the installation of each CEMS required by this section commences postmarked no later than 30 days after the commencement date.
(iii) A notification of the date the construction of control devices and installation of burners required by this section is complete postmarked no later than 30 days after the completion date.
(iv) A notification of the date the installation of each CEMS required by this section is complete postmarked no later than 30 days after the completion date.
(v) A notification of the date control devices and burners installed by this section startup postmarked no later than 30 days after the startup date.
(vi) A notification of the date CEMS required by this section startup postmarked no later than 30 days after the startup date.
(vii) A notification of the date upon which the initial CEMS performance evaluations are planned. This notification must be submitted at least 60 days before the performance evaluation is scheduled to begin.
(viii) A notification of initial compliance, signed by the responsible official who shall certify its accuracy, attesting to whether the source has complied with the requirements of this section, including, but not limited to, applicable emission standards, control device and burner installations, CEMS installation and certification. This notification must be submitted before the close of business on the 60th calendar day following the completion of the compliance demonstration and must include, at a minimum, the information at paragraphs (e)(2)(viii)(A)-(F) of this section.
(A) The methods used to determine compliance.
(B) The results of any CEMS performance evaluations, and other monitoring procedures or methods that were conducted.
(C) The methods that will be used for determining continuing compliance, including a description of monitoring and reporting requirements and test methods.
(D) The type and quantity of air pollutants emitted by the source, reported in units of the standard.
(E) A description of the air pollution control equipment and burners installed as required by this section, for each emission point.
(F) A statement by the owner or operator as to whether the source has complied with the relevant standards and other requirements.
(3) The owner or operator must develop and implement a written startup, shutdown, and malfunction plan for NO
(4) The written reports of the results of each performance evaluation and QA/QC check in accordance with and as required by paragraph (c)(4)(v) of this section.
(5)
(i) The first compliance report must cover the period beginning on the compliance date that is specified for the affected source through June 30 or December 31, whichever date comes first after the compliance date that is specified for the affected source.
(ii) The first compliance report must be postmarked no later than 30 calendar days after the reporting period covered by that report (July 30 or January 30), whichever comes first.
(iii) Each subsequent compliance report must cover the semiannual
(iv) Each subsequent compliance report must be postmarked no later than 30 calendar days after the reporting period covered by that report (July 30 or January 30).
(6)
(i) Company name and address.
(ii) Statement by a responsible official, with the official's name, title, and signature, certifying the truth, accuracy, and completeness of the content of the report.
(iii) Date of report and beginning and ending dates of the reporting period.
(iv) Identification of the process unit, control devices, and CEMS covered by the compliance report.
(v) A record of each period of startup, shutdown, or malfunction during the reporting period and a description of the actions the owner or operator took to minimize or eliminate emissions arising as a result of the startup, shutdown or malfunction and whether those actions were or were not consistent with the source's startup, shutdown, and malfunction plan.
(vi) A statement identifying whether there were or were not any deviations from the requirements of this section during the reporting period. If there were deviations from the requirements of this section during the reporting period, then the compliance report must describe in detail the deviations which occurred, the causes of the deviations, actions taken to address the deviations, and procedures put in place to avoid such deviations in the future. If there were no deviations from the requirements of this section during the reporting period, then the compliance report must include a statement that there were no deviations. For purposes of this section, deviations include, but are not limited to, emissions in excess of applicable emission standards established by this section, failure to continuously operate an air pollution control device in accordance with operating requirements designed to assure compliance with emission standards, failure to continuously operate CEMS required by this section, and failure to maintain records or submit reports required by this section.
(7) Each owner or operator of a CEMS required by this section must submit quarterly excess emissions and monitoring system performance reports for each pollutant monitored for each BART affected unit monitored. All reports must be postmarked by the 30th day following the end of each three-month period of a calendar year (January-March, April-June, July-September, October-December) and must include, at a minimum, the requirements at paragraphs (e)(7)(i) through (xv) of this section.
(i) Company name and address.
(ii) Identification and description of the process unit being monitored.
(iii) The dates covered by the reporting period.
(iv) Total source operating hours for the reporting period.
(v) Monitor manufacturer, monitor model number and monitor serial number.
(vi) Pollutant monitored.
(vii) Emission limitation for the monitored pollutant.
(viii) Date of latest CEMS certification or audit.
(ix) A description of any changes in continuous monitoring systems, processes, or controls since the last reporting period.
(x) A table summarizing the total duration of excess emissions, as defined at paragraphs (e)(7)(x)(A) to (B) of this section, for the reporting period broken down by the cause of those excess emissions (startup/shutdown, control equipment problems, process problems, other known causes, unknown causes), and the total percent of excess emissions (for all causes) for the reporting period calculated as described at paragraph (e)(7)(x)(C) of this section.
(A) For purposes of this section, an excess emission is defined as any 30-day or 720-hour rolling average period, including periods of startup, shutdown and malfunction, during which the 30-day or 720-hour (as appropriate) rolling average emissions of either regulated pollutant (SO
(B)(
(
(C) For purposes of this section, the total percent of excess emissions will be determined by summing all periods of excess emissions (in days) for the reporting period, dividing that number by the total BART affected unit operating days for the reporting period, and then multiplying by 100 to get the total percent of excess emissions for the reporting period. An operating day, as defined previously, is any day during which fuel is fired in the BART affected unit for any period of time. Because of the possible overlap of 30-day rolling average excess emissions across quarters, there are some situations where the total percent of excess emissions could exceed 100 percent. This extreme situation would only result from serious excess emissions problems where excess emissions occur for nearly every day during a reporting period.
(xi) A table summarizing the total duration of monitor downtime, as defined at paragraph (e)(7)(xi)(A) of this section, for the reporting period broken down by the cause of the monitor downtime (monitor equipment malfunctions, non-monitor equipment malfunctions, quality assurance calibration, other known causes, unknown causes), and the total percent of monitor downtime (for all causes) for the reporting period calculated as
(A) For purposes of this section, monitor downtime is defined as any period of time (in hours) during which the required monitoring system was not measuring emissions from the BART affected unit. This includes any period of CEMS QA/QC, daily zero and span checks, and similar activities.
(B) For purposes of this section, the total percent of monitor downtime will be determined by summing all periods of monitor downtime (in hours) for the reporting period, dividing that number by the total number of BART affected unit operating hours for the reporting period, and then multiplying by 100 to get the total percent of excess emissions for the reporting period.
(xii) A table which identifies each period of excess emissions for the reporting period and includes, at a minimum, the information in paragraphs (e)(7)(xii)(A) through (F) of this section.
(A) The date of each excess emission.
(B) The beginning and end time of each excess emission.
(C) The pollutant for which an excess emission occurred.
(D) The magnitude of the excess emission.
(E) The cause of the excess emission.
(F) The corrective action taken or preventative measures adopted to minimize or eliminate the excess emissions and prevent such excess emission from occurring again.
(xiii) A table which identifies each period of monitor downtime for the reporting period and includes, at a minimum, the information in paragraphs (e)(7)(xiii)(A) through (D) of this section.
(A) The date of each period of monitor downtime.
(B) The beginning and end time of each period of monitor downtime.
(C) The cause of the period of monitor downtime.
(D) The corrective action taken or preventative measures adopted for system repairs or adjustments to minimize or eliminate monitor downtime and prevent such downtime from occurring again.
(xiv) If there were no periods of excess emissions during the reporting period, then the excess emission report must include a statement which says there were no periods of excess emissions during this reporting period.
(xv) If there were no periods of monitor downtime, except for daily zero and span checks, during the reporting period, then the excess emission report must include a statement which says there were no periods of monitor downtime during this reporting period except for the daily zero and span checks.
(8) The owner or operator of each CEMS required by this section must develop and submit for review and approval by the Regional Administrator a site specific monitoring plan. The purpose of this monitoring plan is to establish procedures and practices which will be implemented by the owner or operator in its effort to comply with the monitoring, recordkeeping and reporting requirements of this section. The monitoring plan must include, at a minimum, the information at paragraphs (e)(8)(i) through (x) of this section.
(i) Site specific information including the company name, address, and contact information.
(ii) The objectives of the monitoring program implemented and information describing how those objectives will be met.
(iii) Information on any emission factors used in conjunction with the CEMS required by this section to calculate emission rates and a description of how those emission factors were determined.
(iv) A description of methods to be used to calculate emission rates when CEMS data is not available due to downtime associated with QA/QC events.
(v) A description of the QA/QC program to be implemented by the owner or operator of CEMS required by this section. This can be the QA/QC program developed in accordance with 40 CFR part 60, Appendix F, Procedure 1, Section 3.
(vi) A list of spare parts for CEMS maintained on site for system maintenance and repairs.
(vii) A description of the procedures to be used to calculate 30-day rolling averages and 720-hour rolling averages and example calculations which shows the algorithms used by the CEMS to calculate 30-day rolling averages and 720-hour rolling averages.
(viii) A sample of the document to be used for the quarterly excess emission reports required by this section.
(ix) A description of the procedures to be implemented to investigate root causes of excess emissions and monitor downtime and the proposed corrective actions to address potential root causes of excess emissions and monitor downtime.
(x) A description of the sampling and calculation methodology for determining the percent sulfur by weight as a monthly block average for coal used during that month.
(f) Equations for Establishing the Upper Predictive Limit
(1)
(2)(i) To determine if statistically independent, use the Rank von Neumann Test on p. 137 of data Quality Assessment: Statistical Methods for Practitioners EPA QA/G-9S.
(ii) Alternative to Rank von Neumann test to determine if data are dependent, data are dependent if t test value is greater than t critical value, where:
(3) If data are dependent then use the following equation.
(4)
If
If
Coast Guard, DHS.
Supplemental notice of proposed rulemaking.
The Coast Guard proposes additional updates and revisions to regulatory tables that were amended by an interim rule published in August 2013. The tables list liquid hazardous materials, liquefied gases, and compressed gases approved for maritime transportation in bulk, and indicate how each cargo is categorized by its pollution risk and safe carriage requirements. These proposals would correct errors in the interim rule and bring the tables current through December 2013. Updated information is of value to shippers and to the owners and operators of U.S.-flag tank and bulk cargo vessels in any waters, and most foreign-flag tank and oceangoing bulk cargo vessels in U.S. waters. The proposed rule promotes the Coast Guard's maritime safety and stewardship (environmental protection) missions.
Comments and related material must be submitted to the online docket via
Submit comments using one of the listed methods, and see the
•
•
•
For information about this document call or email Mr. Patrick Keffler, Coast Guard; telephone 202-372-1424, email
We encourage you to submit comments (or related material) on this rulemaking. We will consider all submissions and may adjust our final action based on your comments. Comments should be marked with docket number USCG-2013-0423 and should provide a reason for each suggestion or recommendation. You should provide personal contact information so that we can contact you if we have questions regarding your comments; but please note that all comments will be posted to the online docket without change and that any personal information you include can be searchable online.
Mailed or hand-delivered comments should be in an unbound 8
Documents mentioned in this notice, and all public comments, are in our online docket at
We are not planning to hold a public meeting but will consider doing so if public comments indicate a meeting would be helpful. We would issue a separate
The purpose of the rulemaking is to update and revise regulatory tables that list liquid hazardous materials, liquefied gases, and compressed gases that have been approved for maritime transportation in bulk, and that indicate how each cargo is categorized by its pollution risk and safe carriage requirements.
Agencies responsible for administering international maritime treaties (for the U.S., this is the Coast Guard) must agree on the new cargo's assessment before the cargo can be approved for transportation. This is done by a “tripartite agreement” entered into by the administrations of the exporting country, the importing country, and the country in which the ship that will carry the cargo is registered. The tripartite agreement categorizes the cargo's pollution-hazard risk and flammability/combustibility in accordance with the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code).
The Coast Guard is unique among IBC Code-signatory administrations because, in addition to the categorizations contained in the tripartite agreement, it also assigns each cargo to a “compatibility group.” This grouping guides IBC signatories and shippers in determining which cargoes, based on chemical analyses and test data submitted by manufacturers, would be chemically incompatible with other cargoes and therefore cannot safely be shipped with those other cargoes in adjacent tanks, without special precautions.
Each December, the MEPC releases a circular listing each new cargo for which it has completed its review of the cargo's tripartite agreement. The circular lists the countries that have approved international maritime transportation of each new cargo, and provides information about the cargo's pollution-hazard risk and flammability/combustibility. Thus, if a tripartite agreement has approved a cargo for international bulk maritime transportation and the MEPC validates or modifies that information, eventually it will be listed in the MEPC circular.
Periodically, the IBC Code is revised, and cargoes listed in MEPC annual circulars since the last edition of the IBC Code are incorporated. The IBC Code was last comprehensively revised in 2007, at which time the previous pollution categorization scheme (categories A, B, C, and D, which indicate a cargo's relative pollution-hazard risk) were replaced by categories X, Y, Z, and OS (for “other cargoes,” which at present are considered to pose no risk).
• X = Major hazard justifying prohibition of the discharge;
• Y = Hazard justifying a limitation on the quality and quantity of the discharge;
• Z = Minor hazard justifying less stringent restrictions on the quality and quantity of the discharge; and
• OS = No harm that justifies special discharge requirements
Until we published our 2013 interim rule, the tables in subchapter D and subchapter O had gone unamended for several years, and still contained the pre-2007 pollution categorizations. The interim rule updated the following tables as of the December 2012 MEPC circular:
• “Table 30.25-1” in subchapter D;
• “Table I to Part 150” in subchapter O;
• “Table II to Part 150” in subchapter O; and
• “Table 2 to Part 153” in subchapter O.
This supplemental notice of proposed rulemaking (SNPRM) proposes updating these tables as of the December 2013 circular. All four tables include cargoes that are listed either in MEPC circulars, or in tripartite agreements to which the U.S. is a party. (Information from other tripartite agreements is excluded pending MEPC review.)
The two tables in part 150 contain the Coast Guard chemical compatibility categorization for each cargo. Table I lists all cargoes alphabetically and provides a category group for each. Table II lists cargoes by group.
Table 2 to Part 153 lists cargoes that, when carried in bulk on non-oceangoing barges, are not subject to subchapter D or O regulations, but that must comply with subchapter O if they are carried on oceangoing ships.
Three commenters asked why we had not discussed draft table updates with the Chemical Transportation Advisory Committee (CTAC), a group that advises the Coast Guard on chemical transportation matters, and suggested that consultation with CTAC could be helpful, along with more time for industry to review the interim rule before it took effect. CTAC operates pursuant to the Federal Advisory Committee Act, which requires advisory committees to operate under a valid charter.
Three commenters said that, in Table I to Part 150, we mistakenly listed several cargoes in compatibility group 4, when in the past they have been listed in group 34 and not group 4. We agree this was a mistake and this SNPRM shows the cargoes in group 34.
One commenter asked if we consider that all cargoes shown in Table 30.25-1 or Table 2 to Part 153 as “n.o.s.” (“not otherwise specified”) should be assigned in Table I to Part 150 in group 0. We do not. Group 0 is the default assignment for a cargo that we have either determined cannot be shipped safely with any other cargo, or for a cargo for which we are unable to make any other assignment because we lack sufficient chemical analysis and test data on which to make that assignment. These criteria do not necessarily apply to an “n.o.s.” cargo, and therefore we assign many “n.o.s.” cargoes to compatibility groups other than group 0.
One commenter said that sodium methylate 21-30%, instead of being listed in compatibility group 20, should be listed in group 0 due to its highly reactive nature, and that diglycidyl ether of bisphenol A and F should be listed in compatibility group 18 rather than in group 41. We agree that the interim rule incorrectly listed these cargoes and this SNPRM shows sodium methylate 21-30% in group 0 and diglycidyl ether of bisphenol A and F in group 18.
One commenter addressed the interim rule's amendment to “Appendix I to Part 150—Exceptions to the Chart.” The “chart” referred to is Figure 1 to Part 150, a matrix showing how cargo compatibility can be determined. Appendix I lists binary combinations of substances that are treated as exceptions to Figure 1 because they have been tested and found not to be dangerously reactive. One commenter said that our revision of Appendix I failed to list between 10 and 15 previously approved exceptions. We agree and this SNPRM restores those exceptions to Appendix I.
One commenter said we should have expanded the interim rule's discussion of tripartite agreements, and we have done so accordingly in the “Background” section of this SNPRM. In addition to the changes we have made in response to comments, we are also restoring liquefied flammable gas listings in subchapter D's Table 30.25-1. We removed those listings in the interim rule, in anticipation of a policy change that would have allowed them to fall exclusively under subchapter O. That policy change has not occurred and we have restored the listings in this SNPRM.
It is our intention, for future years, to keep the tables updated annually.This SNPRM proposes the addition of new entries that would bring them up to date as of the December 2013 MEPC Circular.
We specifically request public comment on whether or not this SNPRM's information is correct, and in particular whether or not we have correctly and fully responded to comments on the interim rule and brought our information up to date as of December 2013.
Executive Orders (E.O.s) 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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 proposed rule has not been designated a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, the proposed rule has not been reviewed by the Office of Management and Budget. A draft regulatory assessment is included herein.
This proposed rule updates tables that list the names, pollution risk categorizations, and safe carriage requirements of liquid chemical cargoes that have already been categorized and approved for maritime transportation in bulk, either permanently or on a provisional basis. This proposed rule makes no new decisions about whether any specific chemical cargo should be approved for bulk maritime transportation, about how any specific cargo should be categorized, or about carriage requirements that should apply to any specific cargo. It simply provides updated information about cargoes that are currently approved for maritime transportation in bulk, and the cargo's pollution categorization and minimum transportation safety requirements. This proposed rule indirectly applies to the carriage of the subject cargoes from the following tank vessel populations as described in 46 CFR 30.01-5, 150.115 (with exceptions described in 46 U.S.C. 3702), 153.1, and 154.5 as described therein. All U.S. tank vessels are included. Foreign tank vessels are, in general, exempt from this regulation when on innocent passage through U.S. waters, except for liquefied gas cargo/cargo residue or vapor carriers. Also included are self-propelled bulk cargo carrying oceangoing/non-oceangoing U.S.-flag and oceangoing foreign-flag vessels when in U.S. waters.
This proposed rule updates tables that list the names, pollution risk categorizations, and safe carriage requirements of liquid chemical cargoes that have already been categorized and approved by the United States and the IMO for maritime transportation in bulk, either permanently or on a provisional basis. Since this proposed rule simply updates tables and a table preface to reflect decisions already made under international law about which liquid chemical cargoes are approved for bulk maritime transportation, and about how those cargoes should be categorized with respect to their pollution potential, it does not change established shipping requirements and there are no private sector costs expected from this supplemental notice of proposed rule.
In addition, the proposals would correct errors and omissions in the interim rule and bring the tables current through December 2013. This proposed rule incorporates Coast Guard compatibility categorizations and chemical cargoes and categorizations listed by the IMO through its December 2013 MEPC Circular.
The primary benefit of this proposed rule is to conform regulatory language to practices currently allowed by the Coast Guard through either individual letters of approval or the IBC Code as discussed above, which we expect will result in the benefit of improved service to the public through improved clarity and transparency.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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. Since this proposed rule does not impose any additional direct costs, it does not impose any additional direct costs on small entities as defined by the RFA. Therefore, the Coast Guard certifies that under 5 U.S.C. 605(b), the proposed rule will not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Patrick Keffler at
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). This proposed rule simply updates and revises tables that list cargoes that have been approved and categorized for bulk maritime transportation, which does not involve information collection.
A rule has implications for federalism under E.O. 13132 (“Federalism”) if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that E.O. and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in the E.O. Our analysis follows.
It is well-settled that States may not regulate in categories reserved for regulation by the Coast Guard, including categories for inspected vessels. It is also well-settled, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within fields foreclosed from regulation by the States (See the decision of the Supreme Court in the consolidated cases of
While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this proposed rule has implications for federalism under Executive Order 13132, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 (“Civil Justice Reform”) to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under E.O. 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This proposed rule is not an economically significant rule and does not create an environmental risk to health or risk to
This proposed rule does not have tribal implications under E.O. 13175 (“Consultation and Coordination with Indian Tribal Governments”) because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under E.O. 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”). We have determined that it is not a “significant energy action” under that E.O. because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Comments” section of this preamble. This proposed rule involves administrative updates of existing chemical transport regulations and updates provisions relating to the chemical properties of liquid chemical cargoes approved for maritime transportation in bulk. The update incorporates changes in how approved cargoes are categorized by their chemical properties. This proposed rule promotes the Coast Guard's maritime safety and stewardship missions. It is therefore included in the Coast Guard's Commandant Instruction (COMDTINST) M16475.1D, Figure 2-1, which includes categorical exclusions (CEs) under categories (34)(a), “regulations which are editorial or procedural, such as those updating addresses or establishing application procedures,” and 34 (d), “regulations concerning manning, documentation, admeasurement, inspection, and equipping of vessels,” as well as in the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (see 67 FR 48243, July 23, 2002) under paragraph 6 (a), “regulations concerning vessel operation safety standards . . . equipment approval, and/or equipment carriage requirements . . . and visual distress signals.” We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Cargo vessels, Foreign relations, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements, Seamen.
Hazardous materials transportation, Marine safety, Occupational safety and health, Reporting and recordkeeping requirements.
Administrative practice and procedure, Cargo vessels, Hazardous materials transportation, Marine safety, Reporting and recordkeeping requirements, Water pollution control.
For the reasons set out in the preamble, the Coast Guard proposes to amend 46 CFR parts 30, 150, and 153, as amended by the interim rule published on August 16, 2013 (78 FR 50148), as follows:
46 U.S.C. 2103, 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; Department of Homeland Security Delegation No. 0170.1, para. II (92.a), (92.b); Section 30.01-2 also issued under the authority of 44 U.S.C. 3507; Section 30.01-05 also issued under the authority of Sec. 4109, Pub. L. 101-380, 104 Stat. 515.
(a) Table 30.25-1 lists flammable or combustible cargoes that, when transported in bulk, must be in vessels certificated under this subchapter D.
(b) A mixture or blend of two or more cargoes appearing in Table 30.25-1 may be transported under this subchapter D.
(c) A mixture or blend of one or more cargoes appearing in Table 30.25-1 and one or more cargoes appearing in Table 2, 46 CFR part 153, may be carried under this subchapter D if the mixture is flammable or combustible.
(d) Any mixture containing one or more cargoes categorized by the International Maritime Organization (IMO) and listed in Table 30.25-1 as a category X, Y, or Z noxious liquid substance (NLS) may be carried in bulk—
(1) Under this subchapter D if the vessel is not regulated under 46 CFR part 153; or
(2) Under part 153 if the vessel is regulated under that part; or alternatively under 33 CFR part 151 if the cargo is listed in 33 CFR 151.49; or
(3) Under 33 CFR part 151 if the cargo is listed in 33 CFR 151.47. Table 30.25-1—List of Flammable and Combustible Bulk Liquid Cargoes
See NOTES at the end of the Table for explanation of symbols and terms used. See Table 2, 46 CFR part 153, for additional cargoes that may be carried by tank barge.
46 U.S.C. 2103, 3306, 3703; Department of Homeland Security Delegation No. 0170.1. Section 150.105 issued under 44 U.S.C. 3507; Department of Homeland Security Delegation No. 0170.1, para. II (92.a), (92.b).
(a) The binary combinations listed below have been tested as prescribed in Appendix III to part 150 and found not to be dangerously reactive. These combinations are exceptions to Figure 1 of part 150 (Compatibility Chart) and may be stowed in adjacent tanks.
(b) The binary combinations listed below have been determined to be dangerously reactive, based on either data obtained in the literature or on laboratory testing which has been carried out in accordance with procedures prescribed in Appendix III. These combinations are exceptions to the Compatibility Chart (Figure 1) and may not be stowed in adjacent tanks.
46 U.S.C. 2103, 3703; Department of Homeland Security Delegation No. 0170.1, para. II (92.a), (92.b). Section 153.40 issued under 49 U.S.C. 5103. Sections 153.470 through 153.491, 153.1100 through 153.1132, and 153.1600 through 153.1608 also issued under 33 U.S.C. 1903 (b).
The cargoes listed in this table are not regulated under subchapter D or O of this title when carried in bulk on non-oceangoing barges. Category X, Y, or Z noxious liquid substance (NLS) cargo, as defined in Annex II of MARPOL 73/78, listed in this table, or any mixture containing one or more of these cargoes, must be carried under this subchapter if carried in bulk on an oceangoing ship.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing revisions and confidentiality determinations for the petroleum and natural gas systems source category of the Greenhouse Gas Reporting Rule. These revisions include the addition of calculation methods and reporting requirements for greenhouse gas (GHG) emissions from gathering and boosting facilities, completions and workovers of oil wells with hydraulic fracturing, and blowdowns of natural gas transmission pipelines between compressor stations. The revisions also include the addition of well identification reporting requirements to improve the EPA's ability to verify reported data and enhance transparency. This action also finalizes confidentiality determinations for new data elements contained in these amendments.
This final rule is effective on January 1, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2014-0831. All documents in the docket are listed on the
Carole Cook, Climate Change Division, Office of Atmospheric Programs (MC-6207A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 343-9263; fax number: (202) 343-2342; email address:
Table 1 of this preamble is not intended to be exhaustive, but rather provides a guide for readers regarding facilities likely to be affected by this action. Types of facilities other than those listed in the table could also be subject to reporting requirements. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98, subpart A and 40 CFR part 98, subpart W. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the preceding
Section I of this preamble provides background information regarding the origin of the final amendments. This section also discusses the EPA's legal authority under the CAA to promulgate and amend 40 CFR part 98 of the Greenhouse Gas Reporting Rule (hereafter referred to as “part 98”) as well as the legal authority for making confidentiality determinations for the data to be reported. Section II of this preamble contains information on the final amendments to part 98, subpart W (Petroleum and Natural Gas Systems) (hereafter referred to as “subpart W”), including a summary of the major comments that the EPA considered in the development of this final rule. Section III of this preamble discusses the final confidentiality determinations for new data reporting elements. Section IV of this preamble discusses the impacts of the final amendments to subpart W. Finally, Section V of this preamble describes the statutory and executive order requirements applicable to this action.
The EPA's Greenhouse Gas Reporting Program (GHGRP) requires annual reporting of GHG data and other relevant information from large sources and suppliers in the United States. On October 30, 2009, the EPA published part 98 for collecting information regarding GHG emissions from a broad range of industry sectors (74 FR 56260). Although reporting requirements for petroleum and natural gas systems were originally proposed to be part of part 98 (75 FR 16448; April 10, 2009), the final October 2009 rule did not include the petroleum and natural gas systems source category as one of the 29 source categories for which reporting requirements were finalized. The EPA re-proposed subpart W in 2010 (79 FR 18608; April 12, 2010), and a subsequent final rule was published on November 30, 2010, with the requirements for the petroleum and natural gas systems source category at 40 CFR part 98, subpart W (75 FR 74458) (hereafter referred to as “the final subpart W rule”). Following promulgation, the EPA finalized actions revising subpart W (76 FR 22825, April 25, 2011; 76 FR 59533, September 27, 2011; 76 FR 80554, December 23, 2011; 77 FR 51477, August 24, 2012; 78 FR 25392, May 1, 2013; 78 FR 71904, November 29, 2013; 79 FR 63750, October 24, 2014; 79 FR 70352, November 25, 2014).
On December 9, 2014, the EPA proposed “2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems” (79 FR 76267) to require the reporting of GHG emissions from several sources that had not previously been included in subpart W. These sources include completions and workovers of oil wells with hydraulic fracturing, petroleum and natural gas gathering and boosting systems, and transmission pipeline blowdowns between compressor stations. The reporting requirements for completions and workovers of oil wells with hydraulic fracturing were proposed to be included as part of the existing Onshore Petroleum and Natural Gas Production industry segment. For the other sources, the EPA proposed two new industry segments: The Onshore Petroleum and Natural Gas Gathering and Boosting segment for petroleum and natural gas gathering and boosting facilities, and the Onshore Natural Gas Transmission Pipeline segment for transmission pipeline blowdowns between compressor stations. The EPA also proposed to require the reporting of a well identification number for oil and gas wells covered in the Onshore Petroleum and Natural Gas Production segment. In addition, the EPA proposed confidentiality determinations for new data elements contained in the proposed amendments. The public comment period for these proposed rule amendments ended on February 24, 2015, following a 2-week extension of the original comment period end date (80 FR 6495; February 5, 2015).
In this action, the EPA is finalizing additions and revisions to the subpart W calculation, monitoring, and reporting requirements for new sources, with some changes made in response to public comments. Responses to comments submitted on the proposed amendments can be found in sections II, III, and IV of this preamble as well as in “Response to Public Comments on Greenhouse Gas Reporting Rule: 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems” in Docket ID No. EPA-HQ-OAR-2014-0831. As noted in the preamble to the proposed amendments (79 FR 73148; December 9, 2014), these additions and revisions further the EPA's goals of improving the completeness, quality, accuracy, and transparency of data from this sector, and improving the ability of agencies and the public to use these GHG data to analyze emissions and understand emission trends.
The
This action also addresses a petition the EPA received from a group of non-government organizations (NGOs) requesting that the EPA collect data from emissions sources not currently included in subpart W, including well completion emissions from oil wells that co-produce natural gas, facilities and pipelines in the gathering and boosting segment, and transmission pipeline blowdown events (“Petition for Rulemaking”).
The EPA is finalizing these rule amendments under its existing CAA authority provided in CAA section 114. As stated in the preamble to the 2009 final GHG reporting rule (74 FR 56260; October 30, 2009), CAA section 114(a)(1) provides the EPA broad authority to require the information to be gathered by this rule because such data would inform and are relevant to the EPA's carrying out a wide variety of CAA provisions. See the preambles to the proposed (74 FR 16448; April 10, 2009) and final GHG reporting rule (74 FR 56260; October 30, 2009) for further information.
In addition, pursuant to sections 114, 301, and 307 of the CAA, the EPA is publishing final confidentiality determinations for the new data elements required by these amendments. Section 114(c) requires that the EPA make information obtained under section 114 available to the public, except for information that qualifies for confidential treatment. The Administrator has determined that this action is subject to the provisions of section 307(d) of the CAA.
These amendments are effective on January 1, 2016. Thus, beginning on January 1, 2016, facilities must follow the revised methods in subpart W, as amended, to calculate emissions occurring during the 2016 calendar year (
For reporting year 2016 only, we are allowing the use of best available monitoring methods (BAMM) on a short-term transitional basis for facilities new to reporting under subpart W as well as reporters of facilities subject to new monitoring requirements associated with these revisions. Reporters have the option of using BAMM for only the new industry segments and emission sources included in this action from January 1, 2016, to December 31, 2016, without seeking prior EPA approval. The EPA will not accept requests for an extension for the use of BAMM beyond the time periods listed above. The EPA is not allowing the use of BAMM for the new well identification number provisions in the Onshore Petroleum and Natural Gas Production segment because the well identification number is not a parameter that requires monitoring equipment to be measured and, therefore, does not meet the requirements for BAMM. In addition, reporters should already have well identification numbers readily available for all wells and associated equipment to which this reporting requirement applies. See section II.E of this preamble for more information.
In this action, the EPA is amending subpart W to require the reporting of GHG emissions from completions and workovers of oil wells with hydraulic fracturing as part of the existing Onshore Petroleum and Natural Gas Production industry segment. The EPA is also adding requirements for two new industry segments: the Onshore Petroleum and Natural Gas Gathering and Boosting segment for petroleum and natural gas gathering and boosting systems, and the Onshore Natural Gas Transmission Pipeline segment for transmission pipeline blowdowns between compressor stations. Finally, the EPA is requiring the reporting of well identification numbers for oil and gas well-specific information (
Sections II.A through II.E of this preamble describe the requirements and other amendments that we are finalizing in this rulemaking. Section II.A describes the final amendments for the
Finally, in the preamble to the proposed rule, the EPA stated that the agency is “assessing the potential opportunities for applying remote sensing technologies and other innovations in measurement or monitoring technology to identifying and calculating emissions from affected sources under subpart W” (79 FR 73148; December 9, 2014). The EPA did not propose, and therefore is not finalizing, any amendments to subpart W to this effect, but the EPA did request comment on the feasibility, possible regulatory approaches, provisions necessary to incorporate or allow the use of advanced measurement or monitoring methods in subpart W, and methods to ensure compliance with those provisions in an efficient manner. The EPA also requested comment on the memorandum “Discussion Paper on Potential Implementation of Alternative Monitoring under the GHGRP” in Docket ID No. EPA-HQ-OAR-2014-0831. All of the comments received are included in “Response to Public Comments on Greenhouse Gas Reporting Rule: 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems” in Docket ID No. EPA-HQ-OAR-2014-0831. The EPA will consider these comments in the context of any future action related to alternative monitoring.
The amendments in this action will advance EPA's goal of maximizing rule effectiveness. For example, these amendments provide clear monitoring, calculation and reporting requirements for new segments and sources in subpart W, thus enabling government, regulated entities, and the public to easily identify and understand rule requirements. In addition, specific changes such as increasing the flexibility and time period for transitional BAMM will make compliance easier than non-compliance.
These amendments will also improve the EPA's ability to assess compliance by adding reporting elements that allow the EPA to more thoroughly verify greenhouse gas data and understand trends in emissions. For example, the requirement for the Onshore Petroleum and Natural Gas Production segment to report well identification numbers will allow the EPA to link GHGRP data with other data sources and assess the completeness and representativeness of the data collected relative to all activity in the U.S. oil and gas production sector. Lastly, these amendments further advance the ability of the GHGRP to provide access to quality data on greenhouse gas emissions by adding key petroleum and natural gas emission sources to this program. One example is the addition of the Onshore Petroleum and Natural Gas Gathering and Boosting segment, a significant greenhouse gas emissions segment that had not been previously covered under the GHGRP.
The EPA is amending subpart W to require the reporting of GHG emissions from completions and workovers with hydraulic fracturing for wells in the Onshore Petroleum and Natural Gas Production segment, regardless of whether their primary product is oil or natural gas. In general, commenters supported inclusion of emissions from completions and workovers of oil wells with hydraulic fracturing in subpart W, and a few commenters provided targeted technical edits and suggestions for this source. Consistent with the requirements for completions and workovers of gas wells with hydraulic fracturing, and consistent with the proposed requirements, the new provisions include the reporting of activity data on the number of completions and workovers of oil wells with hydraulic fracturing and on the use of flaring and reduced emission completions (RECs). In response to public comments, the final monitoring and reporting amendments do not apply to completions and workovers of oil wells with hydraulic fracturing that have a gas to oil ratio (GOR) of less than 300 standard cubic feet per stock tank barrel (scf/STB).
The EPA is also amending the equations and definitions in 40 CFR 98.233(g) to reflect applicability to completions and workovers of all gas and oil wells with hydraulic fracturing. As in the proposal, the final amendments require the use of either Equation W-10A or W-10B for calculating GHG emissions from completions and workovers of oil wells with hydraulic fracturing. Equation W-10A is used to calculate emissions from wells using inputs obtained from a representative sample of wells within a sub-basin and the ratio of the gas flowback rate to the production flow rate, and Equation W-10B is used to calculate emissions using inputs obtained from all wells within a sub-basin and the flow rate and flow volume of the gas vented or flared. As proposed, the EPA is finalizing that emissions be calculated and reported separately for gas wells and oil wells by sub-basin and well type combination.
For oil wells that do not meter gas production, such as some wells with a relatively low GOR, the EPA is adding a new Equation W-12C as proposed to calculate, rather than measure, the value of PR
The primary concern when determining the level for a threshold is volatility; the threshold must be low enough that the oil produced is considered non-volatile. Non-volatile “black oils” (
The EPA is amending subpart W to add a new industry segment, Onshore Petroleum and Natural Gas Gathering and Boosting, that covers emissions from equipment used by gathering pipeline systems that move petroleum and natural gas from the well to either larger gathering pipeline systems, natural gas processing plants, natural gas transmission pipelines, or natural gas distribution pipelines. A gathering and boosting system is a single network of pipelines, compressors and process equipment, including equipment to perform natural gas compression, dehydration, and acid gas removal, that has one or more well-defined connection points to gas and oil production and a well-defined downstream endpoint, typically a gas
The remainder of this section describes the final reporting requirements for this new industry segment, including the segment description, definitions, calculation methods, and information to be reported. The amendments described in each section are followed by a summary of the major comments, if any, on those amendments and the EPA's responses. See “Response to Public Comments on Greenhouse Gas Reporting Rule: 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems” in Docket ID No. EPA-HQ-OAR-2014-0831 for a complete listing of all comments and the EPA's responses.
The EPA is finalizing the definition of the Onshore Petroleum and Natural Gas Gathering and Boosting segment in 40 CFR 98.230 as gathering pipelines and other equipment used to collect petroleum and/or natural gas from onshore production gas or oil wells and used to compress, dehydrate, sweeten, or transport the petroleum and/or natural gas to a natural gas processing facility, a natural gas transmission pipeline, or a natural gas distribution pipeline. Gathering and boosting equipment includes, but is not limited to, gathering pipelines, separators, compressors, acid gas removal (AGR) units, dehydrators, pneumatic devices/pumps, storage vessels, engines, boilers, heaters, and flares. The Onshore Petroleum and Natural Gas Gathering and Boosting segment does not include equipment and pipelines that are reported under any other industry segment defined in subpart W. The segment definition is being finalized as proposed, except that the final amendments provide two clarifications regarding gathering pipelines. First, gathering pipelines operating on a vacuum are not included because they would not be expected to have emissions. Second, to address comments regarding the inclusion of liquid and multiphase streams in the segment, the definition clarifies that gathering pipelines with a GOR less than 300 scf/STB are not a part of the segment.
Commenters also specifically requested that the EPA exclude petroleum gathering pipelines from the gathering and boosting segment because the fugitive gas emissions from these gathering pipelines would be negligible. Both commenters stated that the proposed emission factor for gathering pipeline leaks is only applicable to gas gathering pipelines. Two commenters also requested that multi-phase flow lines from wells to a centralized production facility where initial separation occurs be retained in the Onshore Petroleum and Natural Gas Production segment rather than included in the new gathering and boosting segment.
However, the EPA does agree that gathering pipelines carrying mostly oil have a low potential for GHG emissions. We note that the ratio of CH
Finally, as part of evaluating this comment, the EPA reviewed the proposed definitions related to the Onshore Petroleum and Natural Gas Gathering and Boosting segment and recognizes that two of them referred to “the gas” rather than “the petroleum and/or natural gas.” One was the proposed description of the Onshore Petroleum and Natural Gas Gathering and Boosting segment in 40 CFR 98.230, as identified by the commenters, and the other was the definition of “gathering and boosting system owner or operator” in 40 CFR 98.238. For consistency throughout the final rule with the intent stated in this response, the final description of the Onshore
The EPA does not agree that emissions from the same equipment will be reported under more than one industry segment in a given reporting year; however, we acknowledge that similar equipment may exist in adjacent industry segments as defined in subpart W. The owner or operator of the equipment in question should first determine if that equipment is subject to reporting in another segment of subpart W, such as the Onshore Petroleum and Natural Gas Production or Onshore Natural Gas Processing segments. If the equipment is not subject to reporting in another segment of subpart W, then the owner or operator should evaluate whether or not the equipment is included in the Onshore Petroleum and Natural Gas Gathering and Boosting source category. For example, if a gathering and boosting owner or operator also owns or operates equipment on or associated with a single well pad (40 CFR 98.230(a)(2)), that equipment is part of the Onshore Petroleum and Natural Gas Production segment, not the Onshore Petroleum and Natural Gas Gathering and Boosting segment. Therefore, emissions from that equipment should not be included when determining if the gathering and boosting facility exceeds the reporting threshold.
Regarding the commenter's suggestion to exclude AGR units from the Onshore Petroleum and Natural Gas Gathering and Boosting segment, the EPA believes AGR units should be reported under subpart W and that the current requirements, coupled with the revisions in this rulemaking, allow for a clear demarcation of where they should be included and reported. While most AGR units will be included in the Onshore Natural Gas Processing segment, the EPA does not agree that the Onshore Natural Gas Processing segment includes all AGR vents, particularly those in processes that do not fractionate gas liquids with an annual average throughput of less than 25 million scf per day. Therefore, the final Onshore Petroleum and Natural Gas Gathering and Boosting segment includes AGR vents that do not meet the segment descriptions for the Onshore Petroleum and Natural Gas Production segment in 40 CFR 98.230(a)(2) or the Onshore Natural Gas Processing segment in 40 CFR 98.230(a)(3) but do meet the Onshore Petroleum and Natural Gas Gathering and Boosting segment description in 40 CFR 98.230(a)(10).
The EPA is finalizing the definition of “gathering and boosting system” as proposed and is finalizing the definition of “gathering and boosting system owner or operator” as proposed with a clarification that the fluid being transported may be petroleum or natural gas. Specifically, a gathering and boosting system is a single network of pipelines, compressors and process equipment, including equipment to perform natural gas compression, dehydration, and acid gas removal, that has one or more connection points to gas and oil production and a downstream endpoint, typically a gas processing plant, transmission pipeline, local distribution company (LDC) pipeline, or other gathering and boosting system. A gathering and
The EPA is also finalizing the definition of “facility with respect to onshore petroleum and natural gas gathering and boosting” in 40 CFR 98.238 as proposed. A facility with respect to onshore petroleum and natural gas gathering and boosting is all gathering pipelines and other equipment located along those pipelines that are under common ownership or common control by a gathering and boosting system owner or operator and that are located in a single hydrocarbon basin as defined in 40 CFR 98.238. Where a person owns or operates more than one gathering and boosting system in a basin (for example, separate gathering lines that are not connected), then all gathering and boosting systems and equipment that the person owns or operates in the basin are considered one facility. Any gathering and boosting equipment that is associated with a single gathering and boosting system, including leased, rented, or contracted activities, is considered to be under common control of the owner or operator of the gathering and boosting system. Emissions from an onshore petroleum and natural gas gathering and boosting facility only need to be reported if the collection of emission sources emits 25,000 metric tons CO
Commenters opposing the basin-level facility definition noted that the Onshore Petroleum and Natural Gas Gathering and Boosting segment has very different characteristics from the Onshore Petroleum and Natural Gas Production segment, which also uses the basin-level approach to defining a facility. One commenter specifically noted that production sources are located at well-defined, discrete locations, owners and operators of production sites know where the wells are physically located and how many operate in a single production basin. In contrast, the commenter stated, the gathering and boosting operations of one owner or operator in a single hydrocarbon basin may include hundreds or thousands of miles of pipelines with multiple sites, including interconnects, meter stations, scrubber stations, pigging stations, compressor stations, and gas treating plants. Another commenter stated that gathering and boosting sites have the ability to boost and move gas from multiple basins within the same site, whereas production typically maintains operations and moves gas within one basin.
Another commenter also disagreed with the basin-level approach, noting that the term “basin” is not common terminology that is used in the gathering and boosting industry segment. The commenter suggested that the EPA use a county- or parish-level approach with an equipment threshold (to determine which equipment should be counted when determining if the 25,000 metric tons CO
In “Greenhouse Gas Reporting Rule: Technical Support for 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems; Proposed Rule” (Docket Item No. EPA-HQ-OAR-2014-0831-0018), we evaluated the option of using the definition of “facility” found in 40 CFR 98.6 for gathering and boosting facilities, and we found that this definition would provide limited data on the proposed Onshore Petroleum and Natural Gas Gathering and Boosting segment compared to the basin-level approach, due to the fact that fewer facilities would exceed the 25,000 metric tons CO
To address the commenters' question about reporting a system in two basins, we are confirming in this response that reporters should submit one report per basin (
Regarding the commenter's question regarding the reasonableness of collecting data at the basin-level under the CAA, the EPA established its basis for collecting basin-level data in the final subpart W rule, when the EPA finalized the requirements for the Onshore Petroleum and Natural Gas Production segment. Additionally, as noted earlier in this section, more granular collection of data for this segment would result in higher burden for owners or operators with multiple operations in a basin that exceed the 25,000 metric tons CO
The EPA is finalizing the requirements for blowdowns of equipment in the Onshore Petroleum and Natural Gas Gathering and Boosting segment with some clarifications from proposal. Emissions should be calculated using the same methods that are used for the Onshore Natural Gas Processing segment. The same exemptions, including those for volumes less than 50 cubic feet (ft
To respond to the commenter's request regarding whether only gathering pipeline blowdowns or all equipment blowdowns should be included, the EPA is clarifying that the intent is to include emissions from the “blowdown vent stacks” source type as defined in subpart A of part 98. The focus on blowdown vent stacks located on gathering pipelines in the supporting documentation was not intended to imply that only gathering pipeline blowdowns should be reported. On the
The EPA is finalizing the same methods for calculating emissions for atmospheric storage tanks located in the Onshore Petroleum and Natural Gas Gathering and Boosting segment as in the Onshore Petroleum and Natural Gas Production segment, as proposed but with a few clarifications. Specifically, the EPA is clarifying some of the language within 40 CFR 98.233(j) and 40 CFR 98.236(j) that was originally written to apply to Onshore Petroleum and Natural Gas Production facilities and not proposed to be amended to also apply to storage tanks in the Onshore Petroleum and Natural Gas Gathering and Boosting segment. In particular, references to a “wellhead separator” have been clarified to refer simply to a “separator,” which is a defined term in 40 CFR 98.238. To accommodate Onshore Petroleum and Natural Gas Gathering and Boosting storage tanks that do not receive hydrocarbon liquids from a separator or well, Calculation Methods 1 and 2 have been amended to specify how to estimate emissions if liquids are received from non-separator equipment. In addition, certain instances of “sub-basin” have been amended to refer to “county” to clarify the requirements for Onshore Petroleum and Natural Gas Gathering and Boosting reporters. All other provisions in 40 CFR 98.233(j) apply to the Onshore Petroleum and Natural Gas Gathering and Boosting segment, including the 10 barrels per day threshold for determining which calculation method may be used for estimating emissions.
The commenter also noted inconsistency between use of the terms “oil,” “sales oil,” and “stabilized oil” in 40 CFR 98.233(j) and 40 CFR 98.236(j). The commenter stated that Onshore Petroleum and Natural Gas Gathering and Boosting facilities may process condensate but not oil, and the commenter asked the EPA to clarify how those terms should be applied to the Onshore Petroleum and Natural Gas Gathering and Boosting segment.
Finally, the commenter noted that Calculation Method 1 for storage tanks requires use of the latest available analysis that is representative of produced crude oil or condensate from the sub-basin category. The commenter stated that the term “sub-basin” has no relevance to the Onshore Petroleum and Natural Gas Gathering and Boosting segment because the composition of condensate processed at a compressor station may have little relationship to the oil or gas formation below the compressor station.
Regarding the particular material being stored in storage tanks, the EPA agrees that there is inconsistency in some of the terms that could cause some confusion. The EPA is clarifying in this response that for the Onshore Petroleum and Natural Gas Gathering and Boosting segment, the intent is for “oil” to refer more generally to hydrocarbon liquids, which is consistent with the statement in 40 CFR 98.233(j) that reporters are required to calculate emissions “from atmospheric pressure fixed roof storage tanks receiving hydrocarbon produced liquids.” The proposed separate reporting requirements for quantity of produced oil throughput and produced condensate throughput in 40 CFR 98.236(aa)(10) have been revised, and the final rule requires reporting of the hydrocarbon liquids received by the facility and the hydrocarbon liquids leaving the facility. Finally, the EPA notes that the term “sales oil” is already defined in Subpart A to include “produced crude oil or condensate,” so there is no further clarification needed.
Regarding the term “sub-basin,” the EPA agrees with the commenter that the definition of “sub-basin category, for onshore natural gas production” in 40 CFR 98.238 is not relevant for Onshore Petroleum and Natural Gas Gathering and Boosting facilities. The EPA also agrees that the operations within a section of a gathering and boosting system may not be related to the formation type below the surface of the ground at that location, especially as the material travels further from the wells supplying gas and hydrocarbon liquids to the system. As a result of this comment, the EPA reviewed the use of the term “sub-basin” as it was proposed to apply to Onshore Petroleum and Natural Gas Gathering and Boosting facilities. In 40 CFR 98.233(j), the calculation methods provide options to
The EPA is finalizing the requirements for calculating emissions from gathering pipelines defined to be included in the Onshore Petroleum and Natural Gas Gathering and Boosting segment as proposed. The methodology is similar to the approach used for equipment leaks in the Onshore Petroleum and Natural Gas Production segment. For gathering lines, reporters use the population count and emission factor approach in 40 CFR 98.233(r). The emission factors in Table W-1A for gathering pipelines are whole gas emission factors based on the U.S. GHG Inventory. The population count is the miles of gathering pipeline, similar to the approach used for calculating emissions from natural gas distribution pipelines in the Natural Gas Distribution segment. As noted in section II.B.1.a of this preamble, gathering pipelines with a GOR less than 300 scf/STB are not included in this segment.
We agree with the commenter that the emission factors should better represent currently operating gathering pipelines; however, there is significant variability in gathering pipelines and gathering system configurations. Owners and operators currently report the mileage of pipeline by gathering pipeline type to PHMSA.
The EPA also notes that reporters will not need to calculate emissions from gathering pipelines that carry hydrocarbon liquids if they are below the minimum GOR threshold for the Onshore Petroleum and Natural Gas Gathering and Boosting segment.
The EPA is finalizing the requirements for natural gas pneumatic devices and pneumatic pumps located in the Onshore Petroleum and Natural Gas Gathering and Boosting segment as proposed. Gathering and boosting reporters will use the same methods for calculating emissions as in the Onshore Petroleum and Natural Gas Production segment. The EPA is also finalizing the requirements for acid gas removal units, dehydrators, and flare stacks as proposed. The methods are the same as the methods for these sources in both the Onshore Petroleum and Natural Gas Production segment and the Onshore Natural Gas Processing segment. The EPA is also finalizing the requirements for compressors and equipment leaks as proposed, with one clarification regarding how to count “meters/piping” for equipment leaks. Gathering and boosting reporters use the same method as in the Onshore Petroleum and Natural Gas Production segment. Specifically, a reporter will need to establish an inventory of the components or equipment subject to the population counts, apply the emission factors, and then update the inventory each year to account for new or retired components or equipment.
Most of the major equipment categories are described by function in the rule. For the example of a separator, 40 CFR 98.238 defines a separator as “a vessel in which streams of multiple phases are gravity separated into individual streams of single phase.” Any device meeting this functional definition will fall into this major equipment category. Other major categories are described in the rule by their functional role, including dehydrators and compressors. For the in-line heater example for which the commenter requested clarification, the equipment described is not located in line with the fluid flow and therefore would not be considered in this equipment category.
The EPA agrees with both commenters that the measurement of meters/piping in the Onshore Petroleum and Natural Gas Gathering and Boosting segment was not clear as proposed. The final rule specifies that reporters in the Onshore Petroleum and Natural Gas Gathering and Boosting segment should count the number of meters in the facility and use that as the count for “meters/piping.”
The EPA is finalizing the proposal to add reporting requirements for emissions from natural gas transmission pipeline blowdowns between compressor stations in a new Onshore Natural Gas Transmission Pipeline segment. Commenters generally had no objections to the merit of including this segment in subpart W but did suggest technical edits and clarifications for targeted provisions. As noted in the preamble to the proposed amendments, a blowdown is the release of gas from transmission pipelines that causes a reduction in system pressure or a complete depressurization. The EPA is clarifying that for the purposes of the Onshore Natural Gas Transmission Pipeline segment, the blowdowns that must be reported are blowdowns of a pipeline or section of pipeline.
The EPA is finalizing clarifications to the proposed definition of onshore natural gas transmission pipeline owner or operator. For interstate pipelines, the onshore natural gas transmission pipeline owner or operator is the person identified as the transmission pipeline owner or operator on the Certificate of Public Convenience and Necessity issued under 15 U.S.C. 717f, as proposed. For intrastate pipelines, the onshore natural gas transmission pipeline owner or operator is the person identified as the owner or operator on the transmission pipeline's Statement of Operating Conditions under section 311 of the Natural Gas Policy Act (NGPA). If the intrastate pipeline is not subject to section 311 of the NGPA, the onshore natural gas transmission pipeline owner or operator is the person identified as the owner or operator on reports to the state regulatory body regulating rates and charges for the sale of natural gas to consumers. Finally, the owner or operator of a pipeline that falls under the “Hinshaw Exemption” is the person identified as the owner or operator on blanket certificates issued under 18 CFR 284.224.
The EPA is finalizing the definition of facility for the new Onshore Natural Gas Transmission Pipeline segment as proposed; the facility is the total U.S. mileage of natural gas transmission pipelines owned or operated by an onshore natural gas transmission pipeline owner or operator. If an owner or operator has multiple pipelines in the United States, the facility is considered the aggregate of those pipelines, even if they are not interconnected.
The EPA is finalizing the requirement that reporters use the methods in 40 CFR 98.233(i) to calculate or measure emissions from pipeline blowdown events as proposed. One method allows a reporter to calculate emissions based on the volume of the pipeline segment between isolation valves that is blown down and the pressure and temperature of the gas within the pipeline. The second method allows the reporter to measure the emissions from the blowdown using a flow meter on the blowdown vent stack. In both methods, the reporter calculates both CH
The EPA is not finalizing the proposed requirement to report the emissions and location (latitude and longitude) of each blowdown event. Instead, the EPA is requiring that Onshore Natural Gas Transmission Pipeline reporters report the total CH
The EPA agrees that the emphasis for the Onshore Natural Gas Transmission Pipeline segment is on calculating and reporting blowdown emissions from pipeline segments, not ancillary equipment. However, any list of ancillary equipment that would be excluded from blowdown reporting could be incomplete, resulting in reporting of emissions from other equipment that is ancillary but not on the list in the rule. In addition, some of the equipment identified as “ancillary” in this segment is not considered ancillary in other industry segments, which could lead to confusion among reporters. Instead, the final rule clarifies that facilities in the Onshore Natural Gas Transmission Pipeline segment report pipeline blowdown emissions from blowdown vent stacks. If the blowdown does not include a pipeline segment or has a physical volume of less than 50 ft
The EPA agrees with the first commenter that for purposes of reporting the data elements in 40 CFR 98.236(aa)(11), reporters may consider 1 dekatherm equal to 1,000 scf.
The EPA is finalizing some of the proposed amendments to 40 CFR 98.236 to add reporting requirements for well identification numbers to improve data quality by enabling identification of wells. These well identification numbers will be reported for the first time in the report covering 2016 emissions; reporters will not be required to report well identification numbers for previous years. For the majority of wells, the well identification number reported will be the US Well Number (formerly referred to as the API Well Number, or API Number).
The EPA is requiring the reporting of well identification numbers for the Onshore Petroleum and Natural Gas Production segment only for information related specifically to wells. For reporters in the Onshore Petroleum and Natural Gas Production segment that report emissions using input data that are calculated from measurements at individual wells or equipment associated with individual wells (
The EPA is finalizing the proposed change to update references to the “API well number” in subpart W to “well identification number.” The EPA is not otherwise changing the well identification reporting requirements finalized in 2014 (79 FR 70352; November 25, 2014). Reporters will still need to report well identification numbers for liquids unloading and for any exploratory wells for which reporting has been delayed for 2 years.
Therefore, the EPA is finalizing the requirements to report the well identification number for well-specific data as proposed. Specifically, for reporters in the Onshore Petroleum and Natural Gas Production segment that report emissions using input data that are calculated from measurements at individual wells or equipment or operations associated with individual wells (
To respond to the comment that well identification numbers may not be available for or assigned to equipment other than wells, the EPA reviewed the permits and requirements in seven different states. Although most of the states assign unique identifiers to each emission source, the EPA found that only two of the seven states have a tracking system that links individual emission sources to specific wells and well identification numbers, and these two states are not consistent in their approach. (See “Greenhouse Gas Reporting Rule: Technical Support for 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems; Final Rule” in Docket ID No. EPA-HQ-OAR-2014-0831 for more information on this analysis.) While it may be straightforward to assign some emission sources directly to one well, particularly if there is only one well on the single well pad and the reporter does not operate any other wells nearby, the EPA's review of state requirements shows that there may be multiple scenarios in which a reporter does not know which well or wells are associated with a particular emission source. For
As proposed, reporters will be allowed to use BAMM for the 2016 reporting year for the new industry segments and emission sources included in this action. These include calculating and reporting emissions from oil well completions and workovers with hydraulic fracturing, from onshore petroleum and natural gas gathering and boosting systems, and for transmission pipeline blowdown emissions. Reporters are allowed to use BAMM to estimate inputs to emission equations for the newly finalized emission sources for cases where the monitoring of these inputs would not be possible beginning on January 1, 2016. The use of BAMM is not allowed for the reporting of well identification numbers because reporters should already have well identification numbers readily available for all wells and associated equipment to which this reporting requirement applies and because the well identification number is not a parameter that requires monitoring equipment to be measured and, therefore, does not meet the requirements for BAMM.
For these sources, the EPA is finalizing a longer timeline for BAMM than was proposed. Reporters have the option of using BAMM for the new industry segments and emission sources included in this action from January 1, 2016, to December 31, 2016, without seeking prior EPA approval. The provision providing a set amount of automatic transitional BAMM will allow reporters to prepare for data collection while automatically being able to use BAMM, which is consistent with the approach of prior part 98 rulemakings. This additional time for reporters to comply with the revised monitoring methods in subpart W will allow facilities to install the necessary monitoring equipment during other planned (or unplanned) process unit downtime, thus avoiding process interruptions, and is responsive to comments received on the proposed rule provisions.
The EPA is not finalizing the proposed provision to allow reporters the opportunity to request an extension for the use of BAMM. The EPA will not accept requests for an extension for the use of BAMM beyond the time periods listed above. As proposed, the EPA also is not providing transitional BAMM for these new requirements beyond December 31, 2016.
The EPA is not allowing the use of BAMM beyond 2016 and does not anticipate that BAMM will be needed beyond 2016 for the new segments and emissions sources being finalized in this rule.
The commenters had a variety of suggestions for how long the EPA should provide BAMM for these new emission sources. Several commenters suggested 1 year (through the end of 2016) for automatic BAMM. Another commenter suggested March 31, 2017 (
We note that 40 CFR 98.235(e) and(f) provides 6 months of reporting flexibility for facilities that become subject to subpart W or acquire new sources after reporting year 2016. Reporters may also refer to the provisions of 40 CFR 98.235 after reporting year 2016 for guidance on reporting emissions if certain required data are not collected.
In the proposed rule, we assigned new data elements to the appropriate direct emitter data categories created in the 2011 Final CBI Rule based on the type and characteristics of each data element.
With consideration of the data provided by commenters, the EPA is finalizing the confidentiality determinations as proposed. Specifically, the EPA is finalizing the proposed decision to require each of the new data elements to be designated as “not CBI.”
The EPA proposed to provide reporters with the option to delay reporting of five data elements for 2 reporting years in situations where exploratory wells are the only wells in a sub-basin. We received comment requesting that the EPA provide the same 2-year delay for additional data elements associated with exploratory wells. The comment and the EPA's response are included in section III.B of this preamble. Based on consideration of the comment and consistent with the EPA's previous decisions related to exploratory wells under part 98 (79 FR 63750, October 24, 2014; 79 FR 70352, November 25, 2014), the EPA is finalizing provisions to provide reporters with the option to delay reporting of five data elements as proposed and, based on comments received, an additional two data elements for 2 reporting years in situations where exploratory wells are the only wells in a sub-basin. For a given sub-basin, in situations where wildcat wells and/or delineation wells are the only wells in a sub-basin that can be used for the required measurement, the following seven data elements associated with the delineation or wildcat well may be delayed for 2 reporting years: (1) The cumulative gas flowback time, in hours, for each sub-basin, from when gas is first detected until sufficient quantities are present to enable separation (40 CFR 98.236(g)(5)(i)); (2) the cumulative flowback time, in hours, for each sub-basin, after sufficient quantities of gas are present to enable separation (40 CFR 98.236(g)(5)(i)); (3) the measured flowback rate, in standard cubic feet per hour, for each sub-basin (40 CFR 98.236(g)(5)(ii)); (4) the gas to oil ratio for the well (40 CFR 98.236(g)(5)(iii)(A)); (5) the volume of oil produced during the first 30 days of production after completions of each newly drilled well or well workover using hydraulic fracturing (40 CFR 98.236(g)(5)(iii)(B)); (6) the total annual gas-liquid separator oil volume that is sent to applicable onshore storage tanks, in barrels (40 CFR 98.236(j)(1)(iii)); and (7) the total annual oil throughput that is sent to all atmospheric tanks, in barrels (40 CFR 98.236(j)(2)(i)(A).
Four of the seven data elements for which reporting may be delayed by 2 years are inputs to emission equations and the EPA provided the same option in the EPA's previous decisions related to exploratory wells under part 98 (79 FR 63750, October 24, 2014). Two of the seven data elements are inputs only when the applicable data are related to a single well (the two data elements in 40 CFR 98.236(g)(5)(i)), and one data element is never an input (40 CFR 98.236(j)(2)(i)(A)). Where the EPA agrees that there are early disclosure concerns related to exploratory wells, the EPA decided to treat those early disclosure concerns consistently throughout subpart W by providing the option to delay reporting by 2 years to all seven data elements listed above.
At proposal, in cases where the two data elements in 40 CFR 98.236(g)(5)(i)) are not inputs to equations, they were assigned to the “Unit/Process Operating Characteristics that are Not Inputs to Emission Equations” category and were proposed to be “not CBI.” The EPA is finalizing this determination as proposed. Specifically, the “not CBI” determination applies to all situations except for when the data elements are inputs to equations.
For the situations when the data elements are used as inputs to equations, the EPA is assigning them to the “Inputs to Emission Equations” data category and is not making confidentiality determinations for these data. The EPA evaluated and summarized any potential disclosure concerns with the reporting of the data elements assigned to the “Inputs to Emission Equations” data category in the memo titled “Review for Potential Disclosure Concerns for Inputs to Emission Equations Affected by the 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems” available in Docket ID No. EPA-HQ-OAR-2014-0831. Other than the exception of the early disclosure concerns for certain data elements related to exploratory wells discussed earlier in this section, the EPA has concluded that there are no disclosure concerns with the reporting of these data elements.
The data element collected under 40 CFR 98.236(j)(2)(i)(A) was proposed as “not CBI” and was not assigned to a data category. The EPA is finalizing this determination as proposed as well. For the data elements reported under 40 CFR 98.236(g)(5)(i)) (in cases where they are not inputs to equations) and 40 CFR 98.236(j)(2)(i)(A), the “not CBI” determinations will apply once the data are reported to the EPA following the 2-year delay.
This section summarizes the major comments and responses related to the proposed categorical assignments and confidentiality determinations. See “Response to Public Comments on Greenhouse Gas Reporting Rule: 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems” in Docket ID No. EPA-HQ-OAR-2014-0831 for a complete listing of all comments and responses. See the memorandum “Final Data Category Assignments and Confidentiality Determinations for Data Elements (excluding inputs to emission equations) in the `Greenhouse Gas Reporting Rule: 2015 Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems; Final Rule' ” in Docket ID No. EPA-HQ-OAR-2014-0831 for a complete listing of final data category assignments and confidentiality determinations, and a discussion of changes since proposal.
The commenter also requested that the EPA clarify a number of the reporting elements in 40 CFR
The final reporting requirements do not include the terms “produced gas,” “produced condensate,” “produced oil,” “throughput,” or “consumed,” so no clarification regarding the use of those terms is needed. In particular, the final rule does not include a requirement to report the quantity of produced gas consumed by the facility. The difference between the quantities received by a gathering and boosting facility and the quantities exiting the gathering and boosting facility is expected to include the quantity of gas consumed by the facility as well as the quantity of gas flared or vented in one lump sum. Therefore, the reporting requirements do not directly indicate the fuel efficiency of the stations in a gathering and boosting facility.
• 40 CFR 98.236(g)(5)(iii)(A)—If you used Equation W-12C to calculate the average gas production rate for an oil well, the gas to oil ratio for the well in standard cubic feet of gas per barrel of oil.
• 40 CFR 98.236(g)(5)(iii)(B)—If you used Equation W-12C to calculate the average gas production rate for an oil well, the volume of oil produced during the first 30 days of production after completions of each newly drilled well or well workover using hydraulic fracturing, in barrels.
• 40 CFR 98.236(g)(6)(i)—If you used Equation W-10B to calculate annual volumetric total gas emissions for completions that vent gas to the atmosphere, the vented natural gas volume, in standard cubic feet, for each well in the sub-basin.
• 40 CFR 98.236(g)(6)(ii)—If you used Equation W-10B to calculate annual volumetric total gas emissions for completions that vent gas to the atmosphere, the flow rate at the beginning of the period of time when sufficient quantities of gas are present to enable separation, in standard cubic feet per hour, for each well in the sub-basin.
• 40 CFR 98.236(g)(7)—For each oil well completion or workover and well type combination, annual gas emissions.
• 40 CFR 98.236(g)(8)—For each oil well completion or workover and well type combination, annual CO
• 40 CFR 98.236(g)(9)—For each oil well completion or workover and well type combination, annual CH
• 40 CFR 98.236(g)(10)—For each oil well completion or workover and well type combination, the total N
The additional data elements that could reveal well productivity for wildcat and/or delineation wells are as follows:
• The gas to oil ratio for the well (40 CFR 98.236(g)(5)(iii)(A))
• The volume of oil produced during the first 30 days of production after completions of each newly drilled well or well workover using hydraulic fracturing (40 CFR 98.236(g)(5)(iii)(B))
As the EPA has previously noted (79 FR 70352, November 25, 2014), in the interim period before these data are reported to the EPA, the EPA will be able to verify the majority of the emissions using data elements that will be reported to the EPA. For the seven total data elements that may be delayed for 2 years, the EPA will verify emissions using other data reported to the EPA, and will conclude verification upon receipt of the data. The EPA agrees with the commenter that a 2-year delay of reporting is sufficient to prevent early public disclosure of these data and will provide sufficient time for the reporter to thoroughly conduct an assessment of the well. Given the results of this evaluation, the EPA determined that, for these data elements, in those cases where delineation wells or wildcat wells are the only wells in a sub-basin, reporters should be provided an option to delay reporting of the given data element for 2 reporting years starting in 2015. In such cases, if the 2-year delay in reporting is used, the reporter must indicate for each delayed reporting element that wildcat wells and/or delineation wells are the only wells in a sub-basin that can be used for the measurement in the current reporting year. In addition, when reporters report the delayed data elements after the 2-year delay, they must also report the well identification numbers for the applicable wildcat and/or delineation wells in the sub-basin for which the reporting element was delayed. For example, if a delineation or wildcat well is completed in 2015 in a sub-basin that
The following inputs meet the definition of emission data in 40 CFR 2.301(a)(2)(i) because they indicate the amount or frequency of gas emitted by the facility: Volume of natural gas vented (reported under 40 CFR 98.236(g)(6)(i)) and flow rate at the beginning of the period of time when sufficient quantities of gas are present to enable separation (reported under 40 CFR 98.236(g)(6)(ii)). Without corresponding activity data, such as a count of the exploratory wells in a sub-basin or production or flow rate data for a sub-basin containing only exploratory wells, there is no potential to disclose business sensitive information based on these data elements. Therefore, the EPA is not providing an option to delay reporting of these data elements for 2 reporting years.
Similarly, the data element annual gas emissions (reported under 40 CFR 98.236(g)(7)) meets the definition of emission data in 40 CFR 2.301(a)(2)(i) and is assigned to the “Emissions” data category because it indicates the amount of gas emitted by the facility. In addition, the following data elements meet the definition of emission data in 40 CFR 2.301(a)(2)(i) and are assigned to the “Emissions” data category because they are emissions of pollutants emitted by the source: annual CO
The final amendments to subpart W add monitoring and reporting requirements for reporters in three industry segments: Onshore Petroleum and Natural Gas Production, Onshore Petroleum and Natural Gas Gathering and Boosting, and Onshore Natural Gas Transmission Pipeline. The EPA is adding 213 new data elements to the reporting requirements. The new data elements impose additional burden and costs because, for each of the new data elements that are required to be reported, reporters are required to calculate the data element using readily available data and report the value to the EPA via e-GGRT as part of the annual report currently required under part 98.
The EPA calculated the increase in reporting and recordkeeping burden associated with the new data elements by adjusting labor hours upwards per reporter for all affected industry segments. For all three segments, an estimate of 10 hours per year per reporter was allotted for reporting via e-GGRT and 10 hours per year per reporter was allotted for recordkeeping.
Costs to reporters associated with this rulemaking are expressed as labor costs (
Reporters in the Onshore Petroleum and Natural Gas Production segment have to monitor and report emissions and data elements associated with oil well completions and workovers with hydraulic fracturing. Reporters in this segment also have to report the well identification numbers associated with individual oil and gas wells. The addition of the requirement to report emissions associated with oil well completions and workovers with hydraulic fracturing is expected to cause an increase in the amount of emissions that count towards determining applicability under subpart W. The addition of reporting requirements for oil wells with hydraulic fracturing is expected to affect 246 existing reporters and to cause approximately 50 new reporters to exceed the reporting threshold for the onshore petroleum and natural gas production facility. These numbers have not changed from proposal.
The 50 new reporters will be required to estimate and report emissions data and related data elements associated with several different emission sources within this new industry segment, including acid gas removal units, associated natural gas venting and flaring, storage tanks, dehydrators, equipment leaks, liquids unloading, and pneumatic devices.
Reporters in the Onshore Petroleum and Natural Gas Gathering and Boosting segment must estimate and report emissions data and related data elements associated with several different emission sources within this new industry segment, including acid gas removal units, storage tanks, blowdown vents, dehydrators, equipment leaks, flare stacks, and pneumatic devices. Approximately 200 new reporters are expected to be subject to subpart W due to the amendments for the Onshore Petroleum and Natural Gas Gathering and Boosting segment in this rulemaking. This number has not changed from proposal.
Reporters in the Onshore Natural Gas Transmission Pipeline segment will need to estimate and report emissions data and related data elements associated with transmission pipeline blowdown activities. Approximately 183 new reporters in this segment are expected to be subject to subpart W. This number increased from 150 to 183 since proposal due to public comment.
The EPA received multiple comments regarding the impacts of the proposed amendments. After evaluating these comments and reviewing other changes from proposal, the EPA revised the impacts assessment slightly from proposal. The final amendments to subpart W are not expected to significantly change the burden calculated at proposal.
The EPA has determined that the cost associated with this final action will be $7,190,235 each year and has worked to minimize burden to reporters where practicable. See the memorandum, “Assessment of Impacts of the 2015 Final Revisions to Subpart W” in Docket ID No. EPA-HQ-OAR-2014-0831 for additional information.
This section summarizes the major comments and responses related to the impacts of the proposed amendments to subpart W of part 98. We note that numerous commenters asserted that the burden was underestimated, and some provided suggestions for improvement, but most of those comments did not include the detailed information the EPA needed to assess the comment
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
In addition, the EPA prepared an analysis of the potential costs associated with the final amendments to subpart W. This analysis is contained in the memorandum “Assessment of Impacts of the 2015 Final Revisions to Subpart W.” A copy of the analysis is available in the docket for this action (see Docket ID No. EPA-HQ-OAR-2014-0831) and the analysis is briefly summarized in section IV of this preamble.
The information collection activities in this rule have been submitted for approval to the OMB under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2300.16. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
This action adds monitoring and reporting requirements for reporters in three industry segments: Onshore Petroleum and Natural Gas Production, Onshore Petroleum and Natural Gas Gathering and Boosting, and Onshore Natural Gas Transmission Pipeline. Data collection complements the
Data collected must be made available to the public unless the data qualify for CBI treatment under the CAA and EPA regulations. All data determined by the EPA to be CBI are safeguarded in accordance with regulations in 40 CFR chapter 1, part 2, subpart B.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities
The Agency has determined that a few small businesses may experience an insignificant impact. Details of this analysis are presented in section IV.B of the preamble to the proposed amendments (79 FR 76267; December 9, 2014).
Although this final rule will not have a significant economic impact on a substantial number of small entities, the EPA nonetheless has tried to reduce the impact of this rule on small entities. As part of the process of finalizing the subpart W 2010 final rule, the EPA took several steps to evaluate the effect of the rule on small entities. For example, the EPA determined appropriate thresholds that reduced the number of small businesses reporting. In addition, the EPA supports a “help desk” for the rule, which is available to answer questions on the provisions in the rule. Finally, the EPA continues to conduct significant outreach on the GHG reporting rule and maintains an “open door” policy for stakeholders to help inform the EPA's understanding of key issues for the industries.
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. This action imposes no enforceable duty on any state, local, or tribal governments or 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 has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This regulation will apply directly to petroleum and natural gas facilities that emit GHGs. Although few facilities that will be subject to the rule are likely to be owned by tribal governments, the EPA has sought opportunities to provide information to tribal governments and representatives during the development of the proposed and final subpart W that was promulgated on November 30, 2010 (75 FR 74458).
The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development. A summary of that consultation is provided in section IV.F of the preamble to the re-proposal of subpart W published on April 12, 2010 (75 FR 18608), and section IV.F of the preamble to the subpart W 2010 final rule published on November 30, 2010 (75 FR 74458).
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 risks.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will
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 procedure, Greenhouse gases, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401,
(a) * * *
(9)
(10)
(a) You must report GHG emissions under this subpart if your facility contains petroleum and natural gas systems and the facility meets the requirements of § 98.2(a)(2), except for the industry segments in paragraphs (a)(1) through (4) of this section.
(1) Facilities must report emissions from the onshore petroleum and natural gas production industry segment only if emission sources specified in § 98.232(c) emit 25,000 metric tons of CO
(2) Facilities must report emissions from the natural gas distribution industry segment only if emission sources specified in § 98.232(i) emit 25,000 metric tons of CO
(3) Facilities must report emissions from the onshore petroleum and natural gas gathering and boosting industry segment only if emission sources specified in § 98.232(j) emit 25,000 metric tons of CO
(4) Facilities must report emissions from the onshore natural gas transmission pipeline industry segment only if emission sources specified in § 98.232(m) emit 25,000 metric tons of CO
The revisions and additions read as follows:
(a) You must report CO
(c) * * *
(6) Well venting during well completions with hydraulic fracturing that have a GOR of 300 scf/STB or greater (oil here refers to hydrocarbon liquids produced of all API gravities).
(8) Well venting during well workovers with hydraulic fracturing that have a GOR of 300 scf/STB or greater (oil here refers to hydrocarbon liquids produced of all API gravities).
(j) For an onshore petroleum and natural gas gathering and boosting facility, report CO
(1) Natural gas pneumatic device venting.
(2) Natural gas driven pneumatic pump venting.
(3) Acid gas removal vents.
(4) Dehydrator vents.
(5) Blowdown vent stacks.
(6) Storage tank vented emissions.
(7) Flare stack emissions.
(8) Centrifugal compressor venting.
(9) Reciprocating compressor venting.
(10) Equipment leaks from valves, connectors, open ended lines, pressure relief valves, pumps, flanges, and other equipment leak sources (such as instruments, loading arms, stuffing boxes, compressor seals, dump lever arms, and breather caps).
(11) Gathering pipeline equipment leaks.
(12) You must use the methods in § 98.233(z) and report under this subpart the emissions of CO
(k) Report under subpart C of this part (General Stationary Fuel Combustion Sources) the emissions of CO
(m) For onshore natural gas transmission pipeline, report pipeline blowdown CO
The revisions and additions read as follows:
(a) * * *
(2) For the onshore petroleum and natural gas production industry segment, you have the option in the first two consecutive calendar years to determine “Count
(c) * * *
(d) * * *
(8) * * *
(iii) If a continuous gas analyzer is not available or installed, you may use the outlet pipeline quality specification for CO
(g)
(1) If you elect to use Equation W-10A of this section on gas wells, you must use Calculation Method 1 as specified in paragraph (g)(1)(i) of this section, or Calculation Method 2 as specified in paragraph (g)(1)(ii) of this section, to determine the value of FRM
(i)
(ii)
(iii) * * *
(iv) * * *
(v) For Equation W-10A of this section, the ratio of gas flowback rate during well completions and workovers from hydraulic fracturing to 30-day gas production rate are applied to all well completions and well workovers, respectively, in the sub-basin and well type combination for the total number of hours of flowback and for the first 30 day average gas production rate for each of these wells.
(vi) For Equations W-12A and W-12B of this section, calculate new flowback rates for well completions and well workovers in each sub-basin and well type combination once every two years starting in the first calendar year of data collection.
(vii) For oil wells where the gas production rate is not metered and you elect to use Equation W-10A of this section, calculate the average gas production rate (PR
(A) You may use an appropriate standard method published by a consensus-based standards organization if such a method exists.
(B) You may use an industry standard practice as described in § 98.234(b).
(2) For paragraphs (g) introductory text and (g)(1) of this section, measurements and calculations are completed separately for workovers and completions per sub-basin and well type combination. A well type combination is a unique combination of the parameters listed in paragraphs (g)(2)(i) through (iv) of this section.
(iv) Oil well or gas well.
(4) Calculate annual emissions from well venting during well completions and workovers from hydraulic fracturing where all or a portion of the gas is flared as specified in paragraphs (g)(4)(i) and (ii) of this section.
(i) * * *
(2)
(i) * * *
(j)
(1)
(i) Separator or non-separator equipment temperature.
(ii) Separator or non-separator equipment pressure.
(iii) Sales oil or stabilized oil API gravity.
(iv) Sales oil or stabilized oil production rate.
(v) Ambient air temperature.
(vi) Ambient air pressure.
(vii) Separator or non-separator equipment oil composition and Reid vapor pressure. If this data is not available, determine these parameters by using one of the methods described in paragraphs (j)(1)(vii)(A) through (C) of this section.
(A) If separator or non-separator equipment oil composition and Reid vapor pressure default data are provided with the software program, select the default values that most closely match your separator or non-separator equipment pressure first, and API gravity secondarily.
(B) If separator or non-separator equipment oil composition and Reid vapor pressure data are available through your previous analysis, select the latest available analysis that is representative of produced crude oil or condensate from the sub-basin category for onshore petroleum and natural gas production or from the county for onshore petroleum and natural gas gathering and boosting.
(C) Analyze a representative sample of separator or non-separator equipment oil in each sub-basin category for onshore petroleum and natural gas production or each county for onshore petroleum and natural gas gathering and boosting for oil composition and Reid vapor pressure using an appropriate standard method published by a consensus-based standards organization.
(2)
(i)
(ii)
(A) If well production oil and gas compositions are available through a previous analysis, select the latest available analysis that is representative of produced oil and gas from the sub-basin category and assume all of the CH
(B) If well production oil and gas compositions are not available, use default oil and gas compositions in software programs, such as API 4697 E&P Tank, that most closely match the well production gas/oil ratio and API gravity and assume all of the CH
(iii)
(A) If other non-separator equipment liquid and gas compositions are available through a previous analysis, select the latest available analysis that is representative of liquid and gas from non-separator equipment in the same county and assume all of the CH
(B) If non-separator equipment liquid and gas compositions are not available, use default liquid and gas compositions in software programs, such as API 4697 E&P Tank, that most closely match the non-separator equipment gas/liquid ratio and API gravity and assume all of the CH
(3)
(6) If you use Calculation Method 1 or Calculation Method 2 in paragraph (j)(1) or (2) of this section, calculate emissions from occurrences of gas-liquid separator liquid dump valves not closing during the calendar year by using Equation W-16 of this section.
(n) * * *
(2) * * *
(i) For onshore natural gas production and onshore petroleum and natural gas gathering and boosting, determine the GHG mole fraction using paragraph (u)(2)(i) of this section.
(o)
(10)
(p)
(10)
(r)
(2) Onshore petroleum and natural gas production facilities and onshore petroleum and natural gas gathering and boosting facilities must use the appropriate default whole gas population emission factors listed in Table W-1A of this subpart. Major equipment and components associated with gas wells and onshore petroleum and natural gas gathering and boosting systems are considered gas service components in reference to Table W-1A of this subpart and major natural gas equipment in reference to Table W-1B of this subpart. Major equipment and components associated with crude oil wells are considered crude service components in reference to Table W-1A of this subpart and major crude oil equipment in reference to Table W-1C of this subpart. Where facilities conduct EOR operations the emissions factor listed in Table W-1A of this subpart shall be used to estimate all streams of gases, including recycle CO
(i)
(A) Count all major equipment listed in Table W-1B and Table W-1C of this subpart. For meters/piping, use one meters/piping per well-pad for onshore petroleum and natural gas production operations and the number of meters in the facility for onshore petroleum and natural gas gathering and boosting operations.
(B) Multiply major equipment counts by the average component counts listed in Table W-1B of this subpart for onshore natural gas production and onshore petroleum and natural gas gathering and boosting; and Table W-1C of this subpart for onshore oil production. Use the appropriate factor
(u) * * *
(2) * * *
(i)
(iii)
(z)
(1) * * *
(ii) Emissions from fuel combusted in stationary or portable equipment at onshore petroleum and natural gas production facilities, at onshore petroleum and natural gas gathering and boosting facilities, and at natural gas distribution facilities will be reported according to the requirements specified in § 98.236(z) and not according to the reporting requirements specified in subpart C of this part.
(g)
(2) Best available monitoring methods means any of the following methods:
(i) Monitoring methods currently used by the facility that do not meet the specifications of this subpart.
(ii) Supplier data.
(iii) Engineering calculations.
(iv) Other company records.
(3)
(4)
(5)
(6)
(i) Cumulative hours of venting, days, or times of operation in § 98.233(e), (g), (o), (p), and (r).
(ii) Number of blowdowns, completions, workovers, or other events in § 98.233(g) and (i).
(iii) Cumulative volume produced, volume input or output, or volume of fuel used in paragraphs § 98.233(d), (e), (j), (n), and (z).
The revisions and additions read as follows:
(a) The annual report must include the information specified in paragraphs (a)(1) through (10) of this section for each applicable industry segment. The annual report must also include annual emissions totals, in metric tons of each GHG, for each applicable industry segment listed in paragraphs (a)(1) through (10), and each applicable emission source listed in paragraphs (b) through (z) of this section.
(9)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(10)
(d) * * *
(1) * * *
(i) A unique name or ID number for the acid gas removal unit. For the onshore petroleum and natural gas production and the onshore petroleum and natural gas gathering and boosting industry segments, a different name or ID may be used for a single acid gas removal unit for each location it operates at in a given year.
(vi) Sub-basin ID that best represents the wells supplying gas to the unit (for the onshore petroleum and natural gas production industry segment only) or name of the county that best represents the equipment supplying gas to the unit (for the onshore petroleum and natural gas gathering and boosting industry segment only).
(e) * * *
(1) * * *
(i) A unique name or ID number for the dehydrator. For the onshore petroleum and natural gas production and the onshore petroleum and natural gas gathering and boosting industry segments, a different name or ID may be used for a single dehydrator for each location it operates at in a given year.
(xviii) Sub-basin ID that best represents the wells supplying gas to the dehydrator (for the onshore petroleum and natural gas production industry segment only) or name of the county that best represents the equipment supplying gas to the dehydrator (for the onshore petroleum and natural gas gathering and boosting industry segment only).
(f) * * *
(1) * * *
(ii) Well tubing diameter and pressure group ID and a list of the well ID numbers associated with each sub-basin and well tubing diameter and pressure group ID.
(xi) * * *
(A) Well ID number of tested well.
(xii) * * *
(A) Well ID number.
(2) * * *
(i) Sub-basin ID and a list of the well ID numbers associated with each sub-basin.
(g)
(1) Sub-basin ID and a list of the well ID numbers associated with each sub-basin that had completions or workovers with hydraulic fracturing during the calendar year.
(2) Well type combination (horizontal or vertical, gas well or oil well).
(5) If you used Equation W-10A of § 98.233 to calculate annual volumetric total gas emissions, then you must report the information specified in paragraphs (g)(5)(i) through (iii) of this section.
(i) Cumulative gas flowback time, in hours, from when gas is first detected until sufficient quantities are present to enable separation, and the cumulative flowback time, in hours, after sufficient quantities of gas are present to enable separation (sum of “T
(ii) For the measured well(s), the flowback rate, in standard cubic feet per
(iii) If you used Equation W-12C of § 98.233 to calculate the average gas production rate for an oil well, then you must report the information specified in paragraphs (g)(5)(iii)(A) and (B) of this section.
(A) Gas to oil ratio for the well in standard cubic feet of gas per barrel of oil (“GOR
(B) Volume of oil produced during the first 30 days of production after completions of each newly drilled well or well workover using hydraulic fracturing, in barrels (“V
(6) If you used Equation W-10B of § 98.233 to calculate annual volumetric total gas emissions, then you must report the information specified in paragraphs (g)(6)(i) through (iii) of this section.
(i) Vented natural gas volume, in standard cubic feet, for each well in the sub-basin (“FV
(ii) Flow rate at the beginning of the period of time when sufficient quantities of gas are present to enable separation, in standard cubic feet per hour, for each well in the sub-basin (“FR
(iii) The well ID number for which vented natural gas volume was measured.
(h) * * *
(1) * * *
(i) Sub-basin ID and a list of the well ID numbers associated with each sub-basin for gas well completions without hydraulic fracturing and without flaring.
(iv) Average daily gas production rate for all completions without hydraulic fracturing in the sub-basin without flaring, in standard cubic feet per hour (average of all “V
(2) * * *
(i) Sub-basin ID and a list of the well ID numbers associated with each sub-basin for gas well completions without hydraulic fracturing and with flaring.
(iv) Average daily gas production rate for all completions without hydraulic fracturing in the sub-basin with flaring, in standard cubic feet per hour (the average of all “V
(3) * * *
(i) Sub-basin ID and a list of the well ID numbers associated with each sub-basin for gas well workovers without hydraulic fracturing and without flaring.
(4) * * *
(i) Sub-basin ID and a list of well ID numbers associated with each sub-basin for gas well workovers without hydraulic fracturing and with flaring.
(i)
(1)
(3)
(i) Annual CO
(ii) Annual CH
(iii) Annual number of blowdown events.
(j)
(1) If you used Calculation Method 1 or Calculation Method 2 of § 98.233(j) to calculate GHG emissions, then you must report the information specified in paragraphs (j)(1)(i) through (xvi) of this section for each sub-basin (for onshore production) or county (for onshore petroleum and natural gas gathering and boosting) and by calculation method. Onshore petroleum and natural gas gathering and boosting facilities do not report the information specified in paragraphs (j)(1)(ix) and (xi) of this section.
(i) Sub-basin ID (for onshore production) or county name (for onshore petroleum and natural gas gathering and boosting).
(iii) The total annual oil volume from gas-liquid separators and direct from wells or non-separator equipment that is sent to applicable onshore production and onshore petroleum and natural gas gathering and boosting storage tanks, in barrels. You may delay reporting of this data element for onshore production if you indicate in the annual report that wildcat wells and delineation wells are the only wells in the sub-basin with oil production greater than or equal to 10 barrels per day and flowing to gas-liquid separators or direct to storage tanks. If you elect to delay reporting of this data element, you must report by the date specified in § 98.236(cc) the total volume of oil from all wells and the well ID number(s) for the well(s) included in this volume.
(iv) The average gas-liquid separator or non-separator equipment temperature, in degrees Fahrenheit.
(v) The average gas-liquid separator or non-separator equipment pressure, in pounds per square inch gauge.
(vii) The minimum and maximum concentration (mole fraction) of CO
(viii) The minimum and maximum concentration (mole fraction) of CH
(2) * * *
(i) Report the information specified in paragraphs (j)(2)(i)(A) through (F) of this section, at the basin level, for atmospheric tanks where emissions were calculated using Calculation Method 3 of § 98.233(j). Onshore gathering and boosting facilities do not report the information specified in paragraphs (j)(2)(i)(E) and (F) of this section.
(A) The total annual oil/condensate throughput that is sent to all atmospheric tanks in the basin, in barrels. You may delay reporting of this data element for onshore production if you indicate in the annual report that wildcat wells and delineation wells are the only wells in the sub-basin with oil/condensate production less than 10 barrels per day and that send oil/condensate to atmospheric tanks. If you elect to delay reporting of this data element, you must report by the date specified in § 98.236(cc) the total annual oil/condensate throughput from all wells and the well ID number(s) for the well(s) included in this volume.
(B) An estimate of the fraction of oil/condensate throughput reported in paragraph (j)(2)(i)(A) of this section sent to atmospheric tanks in the basin that controlled emissions with flares.
(C) An estimate of the fraction of oil/condensate throughput reported in paragraph (j)(2)(i)(A) of this section sent to atmospheric tanks in the basin that controlled emissions with vapor recovery systems.
(ii) Report the information specified in paragraphs (j)(2)(ii)(A) through (D) of this section for each sub-basin (for onshore production) or county (for onshore petroleum and natural gas gathering and boosting) with atmospheric tanks whose emissions were calculated using Calculation Method 3 of § 98.233(j) and that did not control emissions with flares.
(A) Sub-basin ID (for onshore production) or county name (for onshore petroleum and natural gas gathering and boosting).
(B) The number of atmospheric tanks in the sub-basin (for onshore production) or county (for onshore petroleum and natural gas gathering and boosting) that did not control emissions with flares.
(C) Annual CO
(D) Annual CH
(iii) Report the information specified in paragraphs (j)(2)(iii)(A) through (E) of this section for each sub-basin (for onshore production) or county (for onshore petroleum and natural gas gathering and boosting) with atmospheric tanks whose emissions were calculated using Calculation Method 3 of § 98.233(j) and that controlled emissions with flares.
(A) Sub-basin ID (for onshore production) or county name (for onshore petroleum and natural gas gathering and boosting).
(B) The number of atmospheric tanks in the sub-basin (for onshore production) or county (for onshore petroleum and natural gas gathering and boosting) that controlled emissions with flares.
(3) If you used Calculation Method 1 or Calculation Method 2 of § 98.233(j), and any gas-liquid separator liquid dump values did not close properly during the calendar year, then you must report the information specified in paragraphs (j)(3)(i) through (iv) of this section for each sub-basin (for onshore production) or county (for onshore petroleum and natural gas gathering and boosting).
(l) * * *
(1) If you used Equation W-17A of § 98.233 to calculate annual volumetric natural gas emissions at actual
(ii) Well ID numbers for the wells tested in the calendar year.
(v) Average flow rate for well(s) tested, in barrels of oil per day. You may delay reporting of this data element if you indicate in the annual report that wildcat wells and/or delineation wells are the only wells that are tested. If you elect to delay reporting of this data element, you must report by the date specified in § 98.236(cc) the measured average flow rate for well(s) tested and the well ID number(s) for the well(s) included in the measurement.
(2) If you used Equation W-17A of § 98.233 to calculate annual volumetric natural gas emissions at actual conditions from oil wells and the emissions are vented to a flare, then you must report the information specified in paragraphs (l)(2)(i) through (viii) of this section.
(ii) Well ID numbers for the wells tested in the calendar year.
(v) Average flow rate for well(s) tested, in barrels of oil per day. You may delay reporting of this data element if you indicate in the annual report that wildcat wells and/or delineation wells are the only wells that are tested. If you elect to delay reporting of this data element, you must report by the date specified in § 98.236(cc) the measured average flow rate for well(s) tested and the well ID number(s) for the well(s) included in the measurement.
(3) If you used Equation W-17B of § 98.233 to calculate annual volumetric natural gas emissions at actual conditions from gas wells and the emissions were not vented to a flare, then you must report the information specified in paragraphs (l)(3)(i) through (vi) of this section.
(ii) Well ID numbers for the wells tested in the calendar year.
(iv) Average annual production rate for well(s) tested, in actual cubic feet per day. You may delay reporting of this data element if you indicate in the annual report that wildcat wells and/or delineation wells are the only wells that are tested. If you elect to delay reporting of this data element, you must report by the date specified in § 98.236(cc) the measured average annual production rate for well(s) tested and the well ID number(s) for the well(s) included in the measurement.
(4) If you used Equation W-17B of § 98.233 to calculate annual volumetric natural gas emissions at actual conditions from gas wells and the emissions were vented to a flare, then you must report the information specified in paragraphs (l)(4)(i) through (vii) of this section.
(ii) Well ID numbers for the wells tested in the calendar year.
(iv) Average annual production rate for well(s) tested, in actual cubic feet per day. You may delay reporting of this data element if you indicate in the annual report that wildcat wells and/or delineation wells are the only wells that are tested. If you elect to delay reporting of this data element, you must report by the date specified in § 98.236(cc) the measured average annual production rate for well(s) tested and the well ID number(s) for the well(s) included in the measurement.
(m) * * *
(1) Sub-basin ID and a list of well ID numbers for wells for which associated gas was vented or flared.
(5) Volume of oil produced, in barrels, in the calendar year during the time periods in which associated gas was vented or flared (the sum of “V
(6) Total volume of associated gas sent to sales, in standard cubic feet, in the calendar year during time periods in which associated gas was vented or flared (the sum of “SG” values used in Equation W-18 of § 98.233(m)). You may delay reporting of this data element if you indicate in the annual report that wildcat wells and/or delineation wells from which associated gas was vented or flared. If you elect to delay reporting of this data element, you must report by the date specified in § 98.236(cc) the measured total volume of associated gas sent to sales for well(s) with associated gas venting and flaring and the well ID number(s) for the well(s) included in the measurement.
(7) * * *
(i) Total number of wells for which associated gas was vented directly to the atmosphere without flaring and a list of their well ID numbers.
(8) * * *
(i) Total number of wells for which associated gas was flared and a list of their well ID numbers.
(n) * * *
(1) Unique name or ID for the flare stack. For the onshore petroleum and natural gas production and onshore petroleum and natural gas gathering and boosting industry segments, a different name or ID may be used for a single flare stack for each location where it operates at in a given calendar year.
(o)
(5)
(p)
(5)
(r) * * *
(1) You must indicate whether your facility contains any of the emission source types required to use Equation W-32A of § 98.233. You must report the information specified in paragraphs (r)(1)(i) through (v) of this section separately for each emission source type required to use Equation W-32A that is located at your facility. Onshore petroleum and natural gas production facilities and onshore petroleum and natural gas gathering and boosting facilities must report the information specified in paragraphs (r)(1)(i) through (v) separately by component type, service type, and geographic location (
(i) Emission source type. Onshore petroleum and natural gas production facilities and onshore petroleum and natural gas gathering and boosting facilities must report the component type, service type and geographic location.
(3) Onshore petroleum and natural gas production facilities and onshore petroleum and natural gas gathering and boosting facilities must also report the information specified in paragraphs (r)(3)(i) and (ii) of this section.
(ii) Onshore petroleum and natural gas production facilities and onshore petroleum and natural gas gathering and boosting facilities must report the information specified in paragraphs (r)(3)(ii)(A) and (B) of this section, for each major equipment type, production type (
(z)
(aa) Each facility must report the information specified in paragraphs (aa)(1) through (11) of this section, for each applicable industry segment, by using best available data. If a quantity required to be reported is zero, you must report zero as the value.
(1) * * *
(ii) * * *
(D) The number of producing wells at the end of the calendar year and a list of the well ID numbers (exclude only those wells permanently taken out of production,
(E) The number of producing wells acquired during the calendar year and a list of the well ID numbers.
(F) The number of producing wells divested during the calendar year and a list of the well ID numbers.
(G) The number of wells completed during the calendar year and a list of the well ID numbers.
(H) The number of wells permanently taken out of production (
(10) For onshore petroleum and natural gas gathering and boosting facilities, report the quantities specified in paragraphs (aa)(10)(i) through (iv) of this section.
(i) The quantity of gas received by the gathering and boosting facility in the calendar year, in thousand standard cubic feet.
(ii) The quantity of gas transported to a natural gas processing facility, a natural gas transmission pipeline, a natural gas distribution pipeline, or another gathering and boosting facility in the calendar year, in thousand standard cubic feet.
(iii) The quantity of all hydrocarbon liquids received by the gathering and boosting facility in the calendar year, in barrels.
(iv) The quantity of all hydrocarbon liquids transported to a natural gas processing facility, a natural gas transmission pipeline, a natural gas distribution pipeline, or another gathering and boosting facility in the calendar year, in barrels.
(11) For onshore natural gas transmission pipeline facilities, report the quantities specified in paragraphs (aa)(11)(i) through (vi) of this section.
(i) The quantity of natural gas received at all custody transfer stations in the calendar year, in thousand standard cubic feet. This value may include meter corrections, but only for the calendar year covered by the annual report.
(ii) The quantity of natural gas withdrawn from in-system storage in the calendar year, in thousand standard cubic feet.
(iii) The quantity of natural gas added to in-system storage in the calendar year, in thousand standard cubic feet.
(iv) The quantity of natural gas transferred to third parties such as LDCs or other transmission pipelines, in thousand standard cubic feet.
(v) The quantity of natural gas consumed by the transmission pipeline facility for operational purposes, in thousand standard cubic feet.
(vi) The miles of transmission pipeline for each state in the facility.
(cc) If you elect to delay reporting the information in paragraph (g)(5)(i), (g)(5)(ii), (g)(5)(iii)(A), (g)(5)(iii)(B), (h)(1)(iv), (h)(2)(iv), (j)(1)(iii), (j)(2)(i)(A), (l)(1)(iv), (l)(2)(iv), (l)(3)(iii), (l)(4)(iii), (m)(5), or (m)(6) of this section, you must report the information required in that paragraph no later than the date 2 years following the date specified in § 98.3(b) introductory text.
| 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 |